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AR-15 Bans Are (Still) Unconstitutional


AR-15 Bans Are (Still) Unconstitutional

MAY 17, 2023

The struggle to come up with a sound legal argument to ban a civilian rifle continues.

Gun control advocates have become so dependent on emotional arguments they often seem incapable of offering rational ones. So, I was eager to read a new Bloomberg column (via The Washington Post) headlined, “The Second Amendment Allows a Ban on the AR-15.”

The piece doesn’t get off to a promising start, as author Noah Feldman props up a familiar straw man:

--- Quote ---If we each have the right to bear arms, is there a constitutional right to a military-style semiautomatic rifle like an AR-15? What about a rocket-propelled grenade launcher? A small tank?

--- End quote ---

Notice how he jumps from the oxymoronic “military-style semiautomatic rifle” — not a real thing — to a small tank. Anyway, the proposition is that we should not have access to military-grade armaments. (Feldman is unaware that owning a small tank is legal.) But we’ll get back to that in a second.

Throughout the piece, Feldman treats the Second Amendment as some kind of courtesy “extend[ed]” by the state, rather than an inalienable right that can only be limited in extraordinary circumstances. The best way to avoid this confusion is to plug the words “First Amendment” whenever you see “Second Amendment” and the words “newspapers” every time you see “guns.” Though perhaps these days that won’t help either.

The main problem in the piece, however, is that Feldman misunderstands the Supreme Court’s 1939 United States v. Miller decision, which he contends is “background to the current doctrine” that makes it permissible to ban a semiautomatic rifle.

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The Supreme Court issued a muddled opinion affirming the constitutionality of the NFA, finding that the Second Amendment didn’t guarantee an individual the right to keep and bear a sawed-off double-barreled shotgun shorter than 18 inches, which was a weapon commonly used by criminals rather than law-abiding citizens. “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,” the court found, “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” (The justices were wrong, by the way. The military did use 14-inch barrel shotguns at the time, though there was no lawyer there to inform them of this fact.)

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Miller quite literally undercuts Feldman’s set-up. An unregistered sawed-off shotgun brought across state lines was illegal because such guns weren’t used by the military for the common defense. If it had been, it would have been legal. Meaning, not only an AR-15, but an M16 — a true military-grade weapon — would be legal.

Feldman dismisses this finding in the case as a “practical disadvantage.” Just ignore it, then, I guess. Instead, like many others before him, he pivots to claim that the Miller decision bolsters the revisionist case for a collective theory of gun rights. The left would have you believe they support gun rights, but only if you join a militia. Sure.

The problem is the court didn’t offer any broad ruling regarding the meaning of the Second Amendment. “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons,” Antonin Scalia wrote nearly 70 years later in D.C. v. Heller. “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”

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