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

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.

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