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Hey, The Supreme Court Might Decide On ‘Assault Weapons’ After All

Editor's Note: This post has been updated.

Yes, I know that there’s no such thing as assault weapons, but let’s just entertain this awful piece of liberal jargon for the sake of argument. Over at Hot Air, Jazz Shaw noted that it might be time for the high court to definitively rule on whether it was a constitutional right for Americans to own AR-15 rifles.


Second Amendment enthusiasts were again hit with disappointment last December when the Court decided to take a pass on whether to hear oral arguments on an assault weapons ban implemented in the Chicago-area city of Highland Park. Now, on the east coast, deep-blue Maryland’s 2013 assault weapons ban is back in the legal crosshairs, with the Fourth Circuit Court of Appeals ruling that a stricter legal standard should have been applied to ascertain its constitutionality. It’s a tremendous decision, though the current ban remains in effect while the legal camps begin arming themselves for the fight ahead.

For starters, as we rehash the legal fight over Maryland’s ban, we’ll have to take another look at the caveats placed by the Supreme Court during the landmark DC v. Heller case, which guaranteed an individual right to own firearms in the defense of one’s life or property that are not associated with a well-regulated militia. This was applied to federal enclaves; it was expanded to the states in the McDonald v. Chicago decision.

Yet, the Court noted that this right was not unlimited, and that certain limitations on weapons considered “dangerous and unusual” could pass constitutional muster. Grenade launchers, rocket-propelled grenades, and atomic weapons fit this category, not AR-15 semiautomatic rifles. Yet, as Dahlia Lithwick wrote in Slate, it’s dubious whether the Supremes will get involved in Kolbe v. Hogan. It’s certainly a possibility, and it offers another legal avenue for Second Amendment supporters to make their case for a broader ruling over the entire country concerning the legality of assault weapons bans. On a side note, Ms. Lithwick, like most left-of-center publications, need to brush up on their firearms nomenclature (of which I sometimes screw up) right:


Turning to Heller’s caveat that “dangerous and unusual” weapons might not be protected under the Second Amendment, the majority notes that the district court erroneously believed that semi-automatic rifles are too dangerous “based on evidence that they unleash greater destructive force than other firearms and appear to be disproportionately connected to mass shootings.” The 4th Circuit then argued that since handguns kill far more people than semi-automatic weapons, and that since Heller made handgun ownership constitutional, the less overall deadly semi-automatic assault weapons must not be dangerous and unusual either.

Writing alone in dissent Judge Robert B. King is unequivocal: “Let’s be real: The assault weapons banned by Maryland’s FSA are exceptionally lethal weapons of war. In fact, the most popular of the prohibited semiautomatic rifles, the AR-15, functions almost identically to the military’s fully automatic M16.” He also notes that the Supreme Court specifically called out M16 rifles in Heller when defining “dangerous and unusual.”

Judge King concluded his opinion on a regretful note of warning: “To put it mildly, it troubles me that, by imprudently and unnecessarily breaking from our sister courts of appeals and ordering strict scrutiny here, we are impeding Maryland’s and others’ reasonable efforts to prevent the next Newtown—or Virginia Tech, or Binghamton, or Fort Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino.”


As Linda Greenhouse mused when the court declined to take the Illinois case back in December, the fact that the court couldn’t muster four votes to review the Highland Park assault ban implies “that one or more of the justices who signed on to Justice Scalia’s strained reading of history seven years ago in District of Columbia v. Heller are reacting to the country’s bullet-ridden landscape by showing symptoms of buyer’s remorse.”

Greenhouse also argued that the split between Thomas and Scalia—who desperately wanted to hear the case—and the silent conservatives who had also voted to strike down the handgun ban in Heller, reflected “the chasm on the conservative flank between, on the one hand, two justices who embrace all-out judicial activism and, on the other, those who are willing to wait and see.”

We will all have to wait and see what happens next in the Kolbe appeal, and whether it becomes the vehicle for the high court to bless the constitutional principle that the only thing better than a nation teeming with assault weapons is the logic that holds that lethal assault weapons are so common and so very useful that they must also be safe and ordinary.


First, there are no weapons that are “less deadly semiautomatic” weapons, unless you’re referring to bolt-action rifles, commonly associated with hunting, or muzzle-loaders, of which no one has really used en masse since the 18th and 19th centuries.

Second, most handguns in circulation are semiautomatic (self-reloading). An AR-15 rifle is also a semiautomatic weapon, which is why this argument that the AR-15 and the M16 are pretty much the same is so silly. An M16 rifle, the ones used by our military, can fire multiple rounds per trigger pull. There are other firearms that will continue to fire as long as the trigger is pulled (aka automatic) as well. That makes these weapon systems wholly different from the AR-15, not identical. And, yes, automatic firearms for civilians are legal if you are willing to undergo the long process overseen by the ATF, wherein you pay a tax and have your weapons catalogued in a database. The background check can take up to a year or more.

Given that that handguns and the civilian AR-15 rifle are both self-reloading weapons systems, will liberals honestly make the "it looks scary" argument? That would be hilarious. Additionally, as Jazz noted, there is no public safety issue here. Rifles and shotguns are rarely used in criminal acts, and gun homicides have been almost cut in half since the early 1990s. The gun homicide rate has dropped by 3.9 percent from last year, according to the FBI.

Yet, in the case that this comes before the Court, Lithwick aptly noted that if our side couldn’t muster four votes for the Highland Park case–it shows that we might have trouble regarding keeping the pro-Second Amendment wing of the Court in line.


While many of us abhor these bans, it’s very easy to see a judge make the argument for them, stating that because handguns and shotguns are still readily available for civilian use in areas with such assault weapons bans–the law might be fine given the principles of federalism. Yes, residents of Highland Park might not be able to own AR-15s, but if they can still own handguns and shotguns for personal protection, the former of which is more widely used by civilians (and more practical regarding carrying), why should we interfere with a state or local ordinance? Moreover, is the Second Amendment is truly being infringed if handguns and shotguns can still be owned in areas where these so-called assault weapons are banned? All 50 states, including Washington D.C. have carry rights*, albeit more restrictive in some areas than others, so is there really a legal question that nine lifetime appointed legal minds need to make a judgement on right now? It's perfectly legal for a handful of deep-blue states to be stupid and ban these weapon. They already have.

Of course, I’m against this argument. Law-abiding Americans should have the right to own any firearm they choose, and carry those firearms in all 50 states. I want national reciprocity, but our successes in the courts have provided a sort-of double-edged sword. A federal judge in Cook County struck down Chicago’s ordinance banning gun sales within the city limits due to infringements on Second Amendment rights, Heller, McDonald, and the Ninth Circuit ruled that current gun owners and permit holders being subjected to California’s 10-day waiting period was a violation of their right to bear arms; there is a consensus. There is little question regarding what the Second Amendment means in our court system (though that doesn’t mean we should let our guard down), so it’s quite possible that nothing may come of the Kolbe case as there is nothing to be settled. There is an opening for oral arguments; we just might be surprised. But given how SCOTUS reacted initially to Highland Park and the few petitions concerning concealed carry–we shouldn’t hold be shocked if nothing changes. If they do decide to take up Kolbe in the future, it’s tremendous news; if not, well, its just business as usual regarding gun rights on the Court. 


Yes, this is sort of a wet blanket post, but let's not try to get overly excited. The door can once again be shut in our faces.

*Oh, and that’s another Second Amendment battle the Supremes have refused to hear–which is whether “justifiable need” clauses in may issue carry states are unconstitutional.

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