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Can federal or state law ban assault-style rifles?

The recent Supreme Court decision in New York State Rifle & Pistol Ass’n was aimed at a citizen’s right to carry a concealed handgun, or more aptly, the ability of a state to require a showing of cause or real apprehended danger before issuing a license to carry in public.  In essence, the court held a citizen must be permitted to carry a gun for defense outside the home—concealed or open carry must be allowed.  One or the other must be permitted; both modes of carry cannot be prohibited.

Since 2013, Maryland has banned the sale or transfer of many types of assault-style rifles, and there is talk in Congress of a ban, similar to the one in place under federal law between 1994 and 2004.  The question is, can the NYS holding be applied to federal or state bans on possession or sale of assault-style rifles, those civilian models that are not machine guns, but are instead semi-automatic rifles, (one squeeze of the trigger, one round fired) with detachable magazines, pistol grips and sometimes muzzle compensators?  The short answer is a very likely yes.

Applying Heller’s 2008 guidance, courts in many federal circuits tested bans of these rifles by first looking at whether they were protected under the Second Amendment as being in common use.  If they were determined not to be, the analysis ended.  If they were found to be in common use the court would apply intermediate or strict scrutiny to the challenged law.  Under intermediate scrutiny, if the law was related to the purpose for which it was enacted – a ban and safety – it passed constitutional muster.

NYS rejected this two-part test.  The first part of the test, asking whether the rifle in common use, remains, but the second half, does the law pass constitutional scrutiny, was rejected.  This is because the court held, there can be no means end scrutiny of a second amendment right.  There can be no interest balancing of the right to bear arms such as intermediate scrutiny allows.  While originalist interpretations are supposed to be consistent with the Constitution’s text and understanding at the time the text was created, that meaning is also intended to apply to modern circumstances, and arms.  Heller, for example, held the right to bear arms applied not only to those arms in existence in the 18th Century but to modern arms, in the same way the First Amendment would apply to television or the internet.

To pass constitutional muster, the ban on assault-style rifles must be analogous to historical regulations; those in existence at the time of the founding, or soon after.  That is the question, then, that will control laws banning those rifles.  Can historians find historic regulations that ban weapons in common use to support a ban?  Likely not, and the burden will belong to the legislative body, not the citizen.  From my memory, the only possible historical support of a ban might be those pre-Constitution English laws that banned weapons that spread “fear” or “terror” among the population, including “dangerous and unusual” weapons.  They, however, were English, and not historical American laws.

All firearms are dangerous, and assault-style rifles are hardly uncommon given their broad ownership and the eight million in civilian houses.  If there were no colonial laws to rely on to impose the ban it would appear that the second amendment, as interpreted by NYS, will not support a ban of these “in common use” arms.  While much of the discussion in NYS is related to handguns, it is logical that the arguments and holdings of NYS will also apply to either a federal or state ban on assault-style rifles.  It is just a matter of time before we find out, and no doubt Maryland’s 2013 Gun Safety Act will be an early test vehicle.

Still, there is a component of the Maryland law that likely complies with the requirements imposed by NYS, but if it exists, someone else will need discover, and use, it.  Likely, Congress won’t see, or employ, it and it is likely that a complete ban will fail to pass muster under NYS.

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and has written about and taught Trademark Law and Unfair Competition for over two decades.

One comment

  1. where is my comment?

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