Dianne Feinstein's Assault Weapon Ban Would Be Unconstitutional

Sen. Dianne Feinstein (D-Calif.) introduced a bill Thursday to ban so-called “assault weapons” and high capacity magazines. Feinstein stated on CNN's Pier's Morgan Tonight that, “There's no Second Amendment right to bear every type of weapon that you know of. These [assault weapons] are a certain class of weapons ... I don't believe the Second Amendment covers them.”

Sen. Feinstein is wrong.

She says she believes the Second Amendment wouldn't protect the right of American's to keep so-called “assault weapons," however, Feinstein's bill would face serious constitutional challenge.

The government is empowered to ban "dangerous and unusual weapons," like machine guns and surface-to-air missiles, but not weapons “in common use at the time.” This would include so-called “assault rifles.

What the Second Amendment Says:

The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Supreme Court Justice Scalia, writing the majority opinion in the landmark case, D.C. vs. Heller, goes into great detail about the historical precedent, legal history leading up to the writing of the Second Amendment (as well as providing legal comparison's in the early state's constitution's, early American law and law pre- & post-Civil War), and the historical context for the words used in the Second Amendment. Let's examine his review:

Individual Right

The Second Amendment is a personal right. Justice Scalia notes, “Nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p.6) . He further says that it is a natural right to self-defense that is “clearly an individual right,having nothing whatever to do with service in a militia" (p.20). 

Dangerous and Unusual Weapons can be limited

The Court states that the Second Amendment is not unlimited: "Like most rights, the right secured by the Second Amendment is not unlimited ... the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" (p.54).

Notably, the Court states that "dangerous and unusual weapons" may be lawfully limited, “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (p.55). The key word is “unusual;" all weapons are inherently dangerous. Weapons that are unusually dangerous are lawful to limit under the Second Amendment. This is why we can't all own rocket launchers. However, there is more to it than just being unusual.

Common use at the time is protected

Weapons that are in “common use at the time” are protected under the Second Amendment: “The sorts of weapons protected were those “in common use at the time” (p.55). Scalia also states that “modern developments ... cannot change our interpretation of the right” (p.56). This also precludes the sometimes proposed argument that only muskets and single-shot pistols are protected by the Second Amendment; Scalia addresses this directly, calling the suggestion “frivolous,” noting other rights are not interpreted in this manner and stating “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (p.8).

Popularity and prevalence of use is relevant

The Supreme Court also cites prevalence and popularity as relevant factors, specifically as they relate to handguns, "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid" (p.57-58). Also noting that an entire class of arms may not be banned, “The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose" (p.56).

They preempted argument that as long as other classes of arms are not banned, the ban of one class is permissible, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed" (p.57). It is clear from the Court's remarks, that it is not permissible to ban an entire class of weapons that are popular and in common in use at the time.

Why is this relevant? Because semi-automatic rifles have been on the U.S. commercial market since 1903 (from Winchester and Remington) and are in broad use among law-abiding citizens for self-defense, target shooting, and sport. They accounted for about 40% of rifle sales in 2010. The AR-15 is the most popular model in America – accounting for 5.5% of all U.S. guns manufactured in 2007 alone. There are millions in circulation. It has been popular since it was created in 1958. The semi-automatic civilian versions of AK-47's have been popular for decades (Kalashnikov invented the rifle in 1947). FN FAL's have been around since the 1950's. Semi-automatic, so-called “assault rifles” are a very popular class of rifle. There are literally millions of them in the various proposed ban of more than 150 named models (AR-15, AK-47, Mini-14, FN FAL, HK-91, AR-10, etc.)

Therefore the Feinstein ban would be unconstitutional. The Second Amendment protects popular classes of arms that are in common use at the time. So-called “assault rifles” fit that description. The fact that gun violence is a problem doesn't justify violating the Constitution. The Court ruled “we are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many ... who believe that prohibition of handgun ownership is a solution ... But the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64). Feinstein doesn't think that her proposed ban would be unconstitutional. As Justice Scalia has explained in great detail, the Supreme Court rationale in the D.C. vs Heller case shows that she's wrong.