Anti-Gunners Grasping at Straw Men Ahead of ‘Assault Weapon’ Oral Arguments

We’re going to be seeing a lot of arguments in defense of “assault weapon” bans in Cook County, Illinois and the state of Connecticut in the coming days. The reply briefs in Viramontes from those jurisdictions is due before the Supreme Court on October 21, and amicus briefs in support of the bans must be filed by October 28. 

Ahead of the amicus briefs, defenders of the bans are trotting out some of the arguments that are likely to be used, like Northwestern University law professor Steven Lubet’s new column at The Hill, where he suggests that Justice Brett Kavanaugh has actually made the case for upholding the bans, albeit in a case that has nothing to do with the Second Amendment. 

In Trump v. Barbara, the birthright citizenship case, Kavanaugh authored a concurrence, opining that exceptions to constitutional rights can be expanded under “new circumstances” shaped by subsequent developments “largely unknown or unanticipated” at ratification.

Although he was thinking of “significant illegal immigration” and the advent of air travel, Kavanaugh’s “unanticipated” developments analysis also maps neatly onto gun regulations. The proliferation of semiautomatic weapons has had far greater consequences for public safety than air travel has had for 14th Amendment citizenship.  

In Bruen, the majority reasoned that “The constitutional right to bear arms in public for self-defense is not ‘a second-class right.’” But neither should it be a super-right, to be interpreted under an entirely different body of rules from those applicable to the rest of the Bill of Rights. 

If “new circumstances” may be sufficient to limit birthright citizenship under the 14th Amendment, the same principle should allow restrictions on firearms under the Second Amendment.

Lubet’s assertions are almost certainly going to be echoed by other gun control supporters, who’ll also point to the Supreme Court’s language in Bruen, where the majority asserted that “unprecedented societal concerns or dramatic technological changes” may require a “more nuanced approach” to the text, history, and tradition test the justices laid out. 

That argument rests on the idea that active shooters were a phenomenon unknown to lawmakers at the time of the Founding, and are instead a societal concern that’s only been around since the late 20th century. According to this argument, the “dramatic technological changes” of modern semi-automatic firearms has helped create the problem of those shootings, so bans on those firearms (and large capacity magazines) don’t necessarily run afoul of the Second Amendment. 

The main problem with that argument is that the development of semi-automatic firearms is nothing new, and it’s certainly not the only “dramatic technological change” that we’ve seen with guns since the Founding. The development of multi-shot revolvers was arguably even more dramatic than the shift to semi-automatic firearms that came decades later, and there were no corresponding widespread bans on revolvers or repeating rifles that gun control advocates can point to in support of modern semi-auto bans. 

What about the “unprecedented” concern of mass shootings? Mass violence isn’t a new phenomenon, and though it might be committed more often by individuals than it was in the past, we still don’t have a history of responding to the threats of mass violence with broad prohibitions on possessing arms of any kind. 

I know that Lubet is hoping to get around that inconvenient truth by asserting that the “proliferation of semiautomatic weapons” is something new and unprecedented, but semi-automatic pistols and centerfire semi-automatic rifles (with detachable magazines) have both been widely available on the commercial market since the early 1900s. 

This suggests that if the problem of mass shootings is a relatively recent development, it’s not because of firearms technology, but is driven by other societal factors. 

Lubet might be hoping that the Supreme Court will take us back to the days of breech-loading rifles and wheel guns, but don’t think Kavanaugh or any of the other conservative justices are willing to take the dramatic step of rendering the most common arms in the country unprotected by the Second Amendment. Lubet also fails to reckon with the fact that Kavanaugh has already argued that semi-automatic rifles are protected by the Second Amendment because they’re commonly owned by law-abiding Americans and have not historically been prohibited.

That language comes from Kavanaugh’s dissent in the 2011 D.C. Circuit Court of Appeals decision in Heller II, where Kavanaugh argued that D.C.’s “assault weapon” ban was unconstitutional. 

“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles,” Kavanaugh wrote, and though Lubet appears willing to scrap constitutional protections for semi-automatic handguns as well as semi-automatic rifles, the justice noted that semi-automatic firearms have been commonplace since the early 20th century without any evidence of longstanding or widespread prohibitions on their ownership. 

Kavanaugh acknowledged the government’s legitimate interest in preventing violence, but he argued that the Supreme Court had already established constitutional limits on the government’s ability to prohibit commonly possessed firearms. In Heller, the majority recognized that handguns are the weapons of choice for criminals, but they’re also the self-defense arm of choice for peaceable citizens. Their common use for lawful purposes for self-defense is what matters, not their criminal misuse. 

Semi-automatic long guns are far less common in violent crimes than handguns are, and if SCOTUS has already opined that handguns remain protected, it stands to reason that semi-automatic rifles don’t lose their Second Amendment protections because they are used in a small number of very high-profile crimes each year. 

Lubet’s presumably laid out the best argument he has for upholding bans on so-called assault weapons, but I don’t think it’s enough to persuade a majority of the Court to side with him. The guns banned by Cook County and the state of Connecticut are rarely used in crime, but commonly owned for lawful purposes. That alone should render bans unconstitutional, unless SCOTUS is willing to scrap almost every one of its previous verdicts on the right to keep and bear arms. 

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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