New Assault Weapons Ban Probably Wouldn’t Be Constitutional


The most common suggestion from gun control advocates demanding knee-jerk action after the school shooting in Connecticut is bringing back the Clinton-era Assault Weapons Ban. But, as Jacob Sullum points out, the Supreme Court has issued some landmark decisions since the last time we had such policy in place, and such a law probably isn’t constitutional any more.

As Liptak notes, the Court did suggest in Heller that the Second Amendment permits laws “prohibiting the carrying of ‘dangerous and unusual weapons.'” But since the features that legally define an “assault weapon” have little functional significance in the context of violent crime, it is hard to argue that such firearms are any more “dangerous” than models that do not fall into this arbitrary category. When it comes to mass shootings or more common forms of gun crime, does it matter whether a gun has, say, a bayonet mount or a flash suppressor? Furthermore, the guns that Sen. Dianne Feinstein (D-Calif.) and President Obama want to ban are not exactly “unusual.” As I note in my column today, AR-15-style rifles like the one used by Adam Lanza—which does not qualify as an “assault weapon” under Connecticut law or under the federal ban that expired in 2004 but could under Feinstein’s bill if she broadens the definition—are among the most popular rifles in America, with something like 3.5 million sold since 1986. Very few of those guns are used to commit crimes, let alone mass shootings. And according to Heller, the Second Amendment clearly applies to guns “in common use for lawful purposes.”

That’s going to be tough for gun control advocates to get around.

Meanwhile, the Obama administration is apparently set to implement gun control policy unilaterally, without Congress, according to Attorney General (and rabid gun control activist) Eric Holder.

Rob Port is the editor of In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters.

Related posts

  • HG
    • Bat One

      That and a dollar bill will get Ms. Sheila Jackson Lee a cup of coffee at just about any Waffle House.

    • $8194357

      Social justice entiltment mentality must come with
      the right to tell us all what to do on everything huh.
      They sure have usurpt the Constitution with it..
      Saw Whoopie blasting America and its backwards
      laws as well…
      SHE determined “no one” needs semi auto anything…
      She didn’t even have to amend the Constitution, ask Congress or
      put it before the stacked left SCOTUS…

      She’s social justice liberal so she
      whats right for the collective…

  • Proof

    Di-Fi is no stranger to writing unConstitutional laws. Her total handgun ban in San Francisco was overturned back in the day.

    • two_amber_lamps

      Life would be a lot more interesting if said authors of unconstitutional laws should be found criminally or civilly liable for abrogating the rights of subjects citizens.

      Example… If a law enforcement officer unjustly arrests or violates a citizen’s rights, they can be found PERSONALLY liable for such. Why shouldn’t the same standard be held for politicians?

      • Proof

        I’d be happy if we could just get the turkeys out of office! Out here in Sillyfornia, it’s like a banana republic: Senatorissima for Life Di-Fi.

        • two_amber_lamps

          Hail Di-Fi! (Or the praetorian guard shall want a word with you…)

          • Proof

            And I hate to say it, but she’s one of the better ones! Don’t get me started on dim bulbs like Barbara Bouncer.

        • Hannitized, Proofs obsession

          Say, you live in the most poverty stricken city in California, don’t you?

          • Onslaught1066

            And over run with liberals like rats.

            Say, you live in the closest state to North Korean nukes, don’t you?

          • $16179444

            yeah, mommy didn’t pay for a place in Hawaii.

          • guest

            Does his mommy look like should can afford anything? Sh*t, look at the rag she’s wearing. Her little, tiny son, hanni is so selfish, he won’t even buy her a decent dress. No wonder no one likes him.

          • Hannitized, Proofs obsession

            So his mommy paid for a place in the most poverty stricken city in California?

          • $16179444

            weak, get some new material son.

          • LenYol

            So does your butt buddy elinas.

          • Proof

            Yes. Those of us who are more fortunate try to help those poorer than we: Mother Teresa in Calcutta, Proof in Stockton, and Hanni with his shower mold…

    • WOOF

      Di-Fi will become chair of the Senate Judiciary Committee.
      No one knows more about gun violence and gun control.
      Diane has been up to her elbows in blood..

      • Proof

        “No one knows more about gun violence and gun control”? She knows something about it. She knows enough about gun control to want to exempt herself from it. More than anyone? Nah. Thanks for playing!

        • WOOF

          She’s been in the blood a double assassination.
          You ?.

          • Proof

            I hate to have to be the one to point out just what a dunce you are, Woof, but do you have any idea what the words “no one” mean? Literally no one? You don’t think that perhaps somewhere on God’s green earth there might be an ER doc, or medical examiner, or a homicide detective or soldier that might somehow know more than Di-Fi about gun violence? Really??

            Please, now, toddle off and let the adults talk.

          • Proof

            Woofie, I see you showing up on other threads, but like the witless Hanni, you seem to have run like a scalded dog from this argument. Exactly which aspect of gun control would have prevented the Milk /Moscone assassinations, which stained Di-Fi with their blood “up to her elbows” and apparently, according to you, accorded her special knowledge of gun control?

        • $8194357

          Laws for thee and not for me..
          How leftist shiek…

          • Proof

            “Some animals are more equal than others…”

          • $8194357

            Iluminist enlightened elitist olagarchs
            and their water carriers..

      • Proof

        Woofie, I haven’t had a good laugh since this AM, when Obama told Jake Tapper the reason he hadn’t passed gun control during his first term:

        “I don’t think I’ve been on vacation”

        So, since you claim that Di-Fi’s experience in gun control comes from being “up to her elbows in blood”, please tell us exactly which aspect of gun control would have prevented the Milk /Moscone assassinations, whose blood you believe magically imparts knowledge?

        I was living in Northern California at the time, if you need me to refresh your memory on anything. If you don’t want to admit you have no idea what you’re talking about, maybe you can put together a Twinkie Withdrawal defense?

  • matthew_bosch

    Uh oh…the Constitution doesn’t correspond with the Central Planner’s crusade for
    “social justice.” I suppose it’s prudent to get rid of that pesky document. Silly wig wearing old white men, they just didn’t understand.

    • two_amber_lamps

      They were racists, misogynists, and homophobes to boot….

      • $8194357

        Evil conservitives and Christians.

    • $8194357

      2 tru 4 indoctrinational skool..

  • Hannitized, Proofs obsession

    The Heller case left it open for more regulations to be applied.

    • $16179444

      Constitution be damned….just following the liberal trail

      • two_amber_lamps

        The cowardly yellow liberal trail of urine will lead you back to Tranny and his p!$$-reeking golden stained boardies…

  • banjo kid

    Reagan had it right , they just know so much that is not so.

    • $8194357

      10X Banjo
      By design…

  • two_amber_lamps

    Buwhahahahahahahahaaaa! Constitution? What is this “Constitution” you speak of?

    • $8194357

      We don’t need no stinking Constitution..
      We are CPUSA team Barry…

  • Stuart

    As a Combat Veteran I am a bit leaved that this site and the Liberal News Media portrays this weapon as and assault weapon. We are now claiming that any semi-automatic that has a certain look or appearance is an assault weapon.

    An assault weapon is automatic not semi-automatic! Looks or appearance don’t make a automobile a tank when it doesn’t have the same capabilities.

    So, if you want the anti-gun enthusiasts to get rid of our deer,bear,Elk guns because the public is convinced these Semi-automatic guns are assault weapons keep calling them assault weapons.

    Second, I can load a 5 round clip,10 round clip or a 15 round clip on a semi-automatic very quickly so the size of the clip would not be a factor.

    Response time is always a factor in incidents such as what happened at Sandy Hook.

    Bullet proof glass would have slowed this killer at he door. And he noise itself would have alerted the first responders quicker with less casualties !

    • $8194357

      “An assault weapon is automatic not semi-automatic!
      Looks or appearance don’t make a automobile a tank when
      it doesn’t have the same capabilities.”

      What tangled webs they weave when first they practice to decieve…
      And the MSM propaganda scares the sheople half to death with half truths,
      lies and little known ommissions of the facts..

  • $8194357

    It may not be Constituional but…
    We know how the Democrats feel about that
    old out dated racist document huh.

    History is what whoever in control of writing it wants it to be, no.
    UNESCO boys and girls….UNESCO
    Rewriting history since the early 50’s…

    (Those options will have to include a “strong and robust”
    Bureau of Alcohol, Tobacco, Firearms and Explosives,
    the chronically under-funded agency that enforces
    federal gun laws, he said.)

    Fast and Furious anyone?
    These CPUSA dhimmis to the global agendas
    get more funding and Barry will have his brownshirt army with
    1.2 billion rounds of ammo waiting for them, huh..

    Wolves in sheeps clothing in control of the sheepdogs.
    Add Barry and Holder to the list supplied on the link…

    Education is a weapon whose
    effects depend on who holds it in his hands
    and at whom it is aimed.
    Joseph Stalin

    “Our task of creating a Socialist America can only succeed
    when those who would resist us have been totally disarmed.”

    Sarah Brady, Chairman,
    Handgun Control Inc.
    The National Educator,
    January 1994, Pg.3

    Ideas are more powerful than guns.
    We would not let our enemies have guns,
    why should we let them have ideas.
    Joseph Stalin

    “History shows that all conquerors who have allowed their subjected peoples to carry arms have prepared their own fall.” Adolf Hitler, Edict of 18 March 1939

    “And we should — then every community in the country could then start doing major weapon sweeps and then destroying the weapons, not selling them.”
    Bill Clinton, President,
    sworn defender of the U.S. Constitution

    “I’m convinced that we have to have federal legislation to build on. We’re going to have to take one step at a time, and the first step is necessarily — given the political realities — going to be very modest. Of course, it’s true that politicians will then go home and say, ‘This is a great law. The problem is solved.’ And it’s also true that such statements will tend to defuse the gun-control issue for a time. So then we’ll have to strengthen that law, and then again to strengthen that law, and maybe again and again. Right now, though, we’d be satisfied not with half a loaf but with a slice. Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is from seven to ten years. The problem is to slow down the increasing number of handguns sold in this country. The second problem is to get them all registered. And the final problem is to make the possession of *all* handguns and *all* handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.”
    Pete Shields, Chairman, Handgun Control Inc.
    “A Reporter At Large: Handguns”,
    The New Yorker_, July 26, 1976, 57-58]
    (Note: Pete Shields was the founder of HCI and its first Chairman.)

    “When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans …
    And so a lot of people say there’s too much personal freedom.
    When personal freedom’s being abused, you have to move to limit it. That’s what we did in the announcement I made last weekend on the public housing projects, about how we’re going to have weapon sweeps and more things like that to try to make people safer in their communities.”
    President Bill Clinton,
    MTV’s “Enough is Enough”

  • mickey_moussaoui

    Like obama gives a crap about the constitution.

  • VocalYokel

    For Barry-O and his minions the Constitution is just a “speed bump”…you know…like the bodies of dead Americans in Benghazi.

    • $8194357

      With socialism in power during that time,
      it isn’t hard to figure out.

      By Jews for the Preservation of Firearms Ownership

      Adolph Hitler was the National SOCIALIST Leader and Reich Chancellor of Nazi
      Germany. During his horrific 12 year rule he was responsible for unleashing the
      bloodiest war to ever scourge mankind. Like all good socialists, Hitler
      consolidated and sustained his power by killing anyone who opposed him. In
      addition he commanded his minions to carry out the most widespread racial
      genocide ever perpetrated. By applying the practices of the industrial assembly
      line, some 6 million Jews and 8 million other “subhumans” were gassed and
      cremated in extermination camps which were constructed for no other purpose. In
      addition, uncounted millions of Jews, Gypsies, Russian POW’s, Jehovah’s
      witnesses, “terrorists”, “criminals”, “partisans”, Christians, slavs, and others
      were shot, hanged, beaten to death, starved to death, worked to death, marched
      to death and perished in disease epidemics. The death toll attributed to his
      regime can never be truly known but most experts guess about 20 million killed
      for their racial identity or personal beliefs. This is in addition to the 50
      million who perished as a direct result of military operations in the European

      Communist Party Chairman and founder of the People’s Republic of China. Mao
      Tse-Tung has the distinction of being listed in the Guinness Book of World
      Records as the greatest mass murderer in human history. Because Red China was,
      and is, such a closed society, estimates of the numbers of those put death in
      order to bring the benefits of socialism to the masses vary considerably. Most
      figures are consistently between 40 million and 80 million. While mass killings
      of “enemies of the state” were apparently not as widespread as they were during
      the earlier years of his despotic rule, they do include the great slaughter of
      the “Cultural Revolution” which may have numbered a half million

      This extremely rare photograph of Khmer Rouge leader Pol Pot was taken at a
      jungle camp in Cambodia in 1993. After America deserted its allies in the
      Vietnam war, the domino effect swept socialism to power in Cambodia. Pol Pot
      quickly distinguished himself among his socialist brethren by wiping from the
      face of the earth fully one-third of Cambodia’s population. Proclaimed the
      “Absolute Leader”, he set the calendar to “Year Zero”, outlawed mail, money and
      marriage, depopulated all cities and towns to the countryside and slaughtered
      over 2 million people in just 3 years. Had his socialist rule not been ended by
      a Vietnamese land grab in 1976, he might have ended up killing all the Cambodian
      people; an outcome which would doubtlessly please United Nations population
      control experts.

      Joseph Stalin has well earned his place in history as one of the most
      bloodthirsty socialist tyrants who ever lived. Stalin simply picked up were
      Lenin left off, exterminating not only those who opposed his plans, but also
      those THOUGHT capable of opposition. Mass executions, artificially created
      famines, slave labor and death camps, forced migrations of whole racial and
      ethnic groups are among the expedients devised to slaughter between 40 million
      and 100 million human beings. Such totals do not include the 20 million who were
      killed during WWII. Victor Suvorov, a Red Army officer, wrote a book called
      “Inside the Soviet Army”. In it, he cites demographic studies which show that
      the then extant USSR should have had 100 million more people than it did. Where
      did they all go? With socialism in power during that time, it isn’t hard to
      figure out.

  • Ron Paul

    Rob NOW you are concerned about the Constitution? you sold out long ago – koolaid drinker

  • fredlave

    My guess is that Obama and the congressional Dems will pass whatever they want regardless of constitutionality banking that any challenge to SCOTUS will take long enough so Obama will have appointed one or two new very liberal justices by then.

  • Ron Paul

    You Idiots on this blog think you are Conservatives but without the Blessings of the Republican party the Democrats would not be able to take away our rights & freedoms

  • Ron Paul

    The enemy of freedom & our constitutional rights are the political war machines – both the Republican & Democrat party as behind the curtain they are hand in hand plotting against us.

    • LastBestHope

      I like and respect (the real) Ron Paul. But this idea of a Fortress America isolationism is a relic. It goes back to a time when a declaration of war from Europe took 2 months to reach US.

      • teddyscare

        Who’s talking isolationism?

  • sbark

    Remember why the 2nd amendment was put in place—-so our govt would remain fearfull of its citizens.

    The Left always throws out that the Founding fathers never envisioned the advance and technology level of present day weapons……………..

    well remembering my 1st sentence, our founding fathers never envisioned the govt having the advance weaponry either……….

    • $8194357


  • Guest

    LOL. Rob’s a lawyer now? The Supreme Court said the 2nd amendment at the very least allowed me to have a handgun in my home, so naturally that narrow precedent means I can have a gun that is several orders more powerful and dangerous. Derp.

  • Barack Obama

    more children are killed @ the immoral actions of abortion than by guns.

  • ‘Tom Crawford

    This would leave Obama to do the same as he has previously done – If Congress can’t do what the President wants, he will bypass them and do it by Executive Order.

  • Goon

    The Democrats have never cared if a law violated the constitution. I see any law the dems try to ram through over turned in the Supreme Court.

  • Flamejob5

    What’s an “assault” weapon?

    Am i “assaulting” an intruder who illegaly breaks into my home if i defend it with an AR-15?

    What if i shoot a deer with it? Have i “assaulted” the deer?

    • RCND

      It is whatever weapon they want it to be that day

  • nimrod

    Socialists always talk about hunting when referring to the second amendment, but the second says nothing about hunting. The right to bear arms infers protecting ourselves from each other and from tyranny. This is best accomplished in some situations with assault rifles, and huge magazines.

  • Stuart

    I noticed Rob stated that this idea of Gun bans PROBABLY WAS NOT CONSTUTIONAL…PROBABLY? Could Executive Order by Fiat be constitutional if the President deems its necessary ?

    Like to see some comments!

  • Stuart

    Directive orders and Executive orders are very interchangeable. A president can issue these orders if he or they think the issue warrants the order. Homeland security and protection of the country is in the mix.

    Take some time to research this issue and be informed. Some Executive orders have been challenge at the Supreme Court level. Now remember,the more liberal the Supreme Court the easier it is to be accepted as law. Regardless!

    Correct me if I am wrong.

  • Neiman

    New York Gov: Gun Confiscation and Forced Buy-back an Option

    “New York governor Andrew Cuomo says the state of New York is serious about gun confiscation. The Democrat and former Secretary of Housing and Urban Development told an Albany radio station he plans to propose a package of draconian legislation during his Sate of the State address next month.

    Cuomo indicated the state will likely force some kind of permit process on owners of semi-automatic “assault weapons.” In addition to generating revenue and expanding the size and reach of government, the effort will allow the state to confiscate the weapons of citizens who donot comply.

    “Confiscation could be an option. Mandatory sale to the state could be an option. Permitting could be an option — keep your gun but permit it,” the governor said.

    Cuomo’s confiscation scheme follows remarks by liberal members of the establishment media who demand the government seize firearms from law-abiding citizens. Earlier this week, MSNBC’s Ed Schultz tweeted in favor of gun confiscation.

    “We need to get guns and bullets and automatic weapons off the streets,” said CNN’s Don Lemon following the Sandy Hook massacre. “They should only be available to police officers and to hunt al-Qaeda and the Taliban and not hunt elementary school children.”

    Anti-Second Amendment advocates have attacked gun ownership from a number of angles. On Thursday, anti-gun zealot and filmmaker Michael Moore said the desire to own firearms and support the Second Amendment is tied to racism.

    “I think we’re a very frightened people,” Moore said. “I think we’ve been frightened ever since we landed on these shores. We were frightened of the native people… we were frightened of the slaves we brought over, as we should have been.”

    Moore said gun ownership “cuts down to the heart of our race problem that we still haven’t resolved.”

    Liberals hate our Constitution, they are willing to defy it, to overturn it, to violate it all at will to further their socialist utopian ends. They know that in the name of child safety, remember to say this with tears folks, “it is all for the children,” they know that many, perhaps now a majority of Americans are willing to sell their liberty to Obama and the Left.

    “While people are saying, “Peace and safety,” destruction will come on them suddenly, as labor pains on a pregnant woman, and they will not escape.” I Thessalonians 5:3

  • dog

    I beleive this article is very unreliable. I mark it LAME!