Democrat AGs Declare 'Assault Weapons' Aren't Protected by the Second Amendment

A coalition of twenty Democratic attorneys general, including several from states without a prohibition on so-called assault weapons, are sounding off in support of California’s gun ban. In an amicus brief filed with the Ninth Circuit Court of Appeals in Miller v. Bonta, New Jersey Attorney General Matthew Platkin and Massachusetts AG Andrea Campbell and the attorneys general of Arizona, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington contend that California’s ban doesn’t violate the Second Amendment because the arms that are prohibited aren’t protected by the Constitution in the first place.

U.S. District Judge Roger Benitez disagreed with that assertion in his decision in Miller, noting that AR-15s and other so-called assault weapons are in common use for lawful purposes across the United States. That was enough for Benitez to determine that the guns in question are protected by the language of the Second Amendment, but the Democratic attorneys general argue that Benitez got it wrong.

The District Court wrongly concluded that Plaintiffs-appellees’ conduct—to possess and carry “firearms like the AR-15 rifle that are commonly-owned for lawful purposes”—is covered by the Second Amendment’s plain text. Assault weapons are not “arms” that are in “‘common use’ for self-defense today”—a prerequisite for Second Amendment protection. For instance, weapons like M-16s that are “most useful in military service” do not fall within the protection of the Second Amendment.

Despite their contention that only arms that are in common use for self-defense are protected by the Second Amendment, what the Supreme Court said in Heller is that the “definition of ‘bearable Arms’ extends only to weapons in common use for a lawful purpose. … [which] is at its core the right to individual self-defense.” While the central reason for the right to keep and bear arms might be self-defense, the Court itself has explicitly stated that weapons in common use for a lawful purpose are prima facie protected by the Second Amendment’s language. That was made explicitly clear not only in Heller but in the Caetano case a few years later where a unanimous Court determined that electronic weapons were covered by the Second Amendment despite the fact that they weren’t around in 1791.

Are AR-15s most useful in military service? Considering that no branch of the military equips service members with semi-automatic AR-15s, I’m gonna go out on a sturdy limb and say “no.” The semi-automatic rifles banned by California have great utility for hunting, self-protection, and sport, but they’re not the weapon of choice for our armed services. The Democratic AGs rely on language from the Seventh Circuit, which denied an injunction against an Illinois ban on “assault weapons” by asserting that the AR-15 is not materially different from the M[-]16,” but if that were really the case we’d be able to walk into our local gun store and pick up an M-16 if we wanted. The federal government clearly believes there’s a significant difference between a select-fire rifle and a semi-automatic rifle, even if Democratic politicians would prefer to consider them one and the same.

The attorneys general also take issue with pointing to the tens of millions of modern sporting rifles that are lawfully owned by citizens as a measure of whether these arms are in common use, declaring that “[t]he number of weapons in circulation depends in significant part on when the government enacted legislation prohibiting it; had governments banned AR-15s the moment they became commercially available, the number of such firearms in circulation would be negligible.” That might be true, but the fact remains that the government did not enact such a ban in the 1960s. It wasn’t until thirty years later that the federal government imposed a ban on the manufacture and sale of arms it considered “assault weapons,” and that prohibition expired in 2004. Since then, the ownership of modern sporting rifles has become even more common, while the number of states that prohibit their purchase or manufacture still make up a small minority of the country at large.

There’s simply no getting around the fact that AR-15s and other modern sporting rifles designated by California as “assault weapons” are in common use for lawful purposes, including (but not limited to) self-defense, and are therefore prima facie protected by the Second Amendment.

The AGs do offer the Ninth Circuit a couple of other arguments as fallback positions; first that states impose a “range of restrictions… on dangerous weapons and accessories not commonly used for self-defense”, and secondly, California’s “assault weapons” ban is relevantly similar to “historical restrictions on firepower and on new, and distinctly dangerous” weapons. Those arguments are even more flimsy than the notion that AR-15s aren’t protected by the Constitution, however. The restrictions that the attorneys general document are all modern creations that have nothing to do with the text, history, and tradition test laid out by the Supreme Court in Bruen, and are utterly meaningless as far as determining the constitutionality of California’s ban.

As for the supposed historical analogues found by Platkin and Campbell, the pair once again try to rewrite both Heller and Bruen to their liking by claiming that the cases “compel the conclusion that courts must consider the broad sweep of our country’s history—including nineteenth- and twentieth-century history—when reviewing the constitutionality of a state law.” But as the Supreme Court stated in Bruen, “when it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right.”

The AGs need to be able to point to 20th century gun bans to buttress their case because there are no such sweeping prohibitions in the 18th or 19th century. As they write:

The absence of eighteenth- and nineteenth-century legislative enactments addressing such weapons cannot mean there exists no historical tradition of comparable regulation, because there would have been scant reason for States to regulate the weapons during those eras. This case is a prime example: “[t]he true semi-automatic weapon did not become feasible and available until the beginning of the twentieth century, and the primary market was the military.”

For the sake of argument let’s assume that’s correct. Even if semi-automatic firearms didn’t become available until the turn of the 20th century, where are the similar prohibitions on multi-shot revolvers and repeating rifles in the 19th century? Both of those developments were akin to the technological advance of semi-automatic firearms, yet the historical record doesn’t show any moms demanding lever-action rifles be banned or cities like Washington, D.C. or Chicago banning the possession and sale of revolvers around the time that the Fourteenth Amendment was ratified.

Bans on commonly owned firearms, be it the handgun bans imposed by D.C. and Chicago or the “assault weapon” bans created by a handful of states, are thoroughly modern creations without any historical analogues. The arguments raised by the Democratic AGs will probably be warmly received by the Ninth Circuit, but I don’t think they’re going to fare nearly as well when the Supreme Court does decide the time is ripe to weigh in on the constitutionality of prohibiting so-called assault weapons.

2 posted on 12/13/2023 9:50:55 AM PST by Red Badger (Homeless veterans camp in the streets while l aliens are put up in hotels.....................)

When are they going to go after the news media for free speech? You know we get the information way to fast. It needs to be distributed be people on horses! Ban the internet! lol

They can “declare” whatever they want. They are wrong and in violation of our Constitutionally protected Rights under the 2nd, 10th, and 14th Amendments.

Of course... but their propaganda machine can now parrot this lie incessantly to their idiot followers and uncaring masses.

“Are AR-15s most useful in military service? Considering that no branch of the military equips service members with semi-automatic AR-15s, I’m gonna go out on a sturdy limb and say “no.” The semi-automatic rifles banned by California have great utility for hunting, self-protection, and sport, but they’re not the weapon of choice for our armed services.”

So by his argument M16s ARE protected by the 2nd Amendment.

It wasn’t until thirty years later that the federal government imposed a ban on the manufacture and sale of arms it considered “assault weapons,” and that prohibition expired in 2004.

Nothing in that ban addressed the semi-automatic capability of the weapons. Features such as bayonet lugs, pistol grips, and muzzle brakes were banned.

Once upon a time the British banned assault weapons.

We shot them.

When the Bill of Rights was written, the Founders were perfectly fine with private ownership of cannon and Naval warships.

muskets were the standard field issue of the day... the equivalent of todays M4

are they ok with the average citizen owning an M4 ?

of course, it doesn’t matter whether or not they’re ok with it... as it’s not up to them how a person defends themselves against whatever threat they encounter.

It’ll have to go to SCOTUS, at least in the case of IL. SCOIL already gave the green light to ban basically all semi-auto rifles, and any already owned by the public have to be registered with the state by January 1, 2024. I think the refusal rate will be rather high.

Just like leftists always do, they lie about the verbiage or change definitions to words they do t like. The Supreme Court decisions refer to weapons “in common use for all legal purposes” The lying left conveniently made up their own definition that appears nowhere in any Supreme Court ruling. If changes “in common use for all legal purposes” to “common use for self defense”.
Evil liars.

They're deliberately twisting the "in common use" phrase from Heller to mean arms actually used in self-defense vs. merely possessed for self-defense.

It's a legal sophistry, but it's being used by them and some circuits (like the 7th in Chicago) to gut Heller and Bruen by creating a classification of "military arms" civilians are not allowed to have.

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“...the Founders were perfectly fine with private ownership of cannon...”

You must be mistaken. President Biden has repeatedly told us, “You couldn’t buy a cannon when the Second Amendment was passed...” He was a full Professor at the University of Pennsylvania and is a lot smarter and more knowledgeable than you or I.
/s

>. They're deliberately twisting the "in common use" phrase from Heller to mean arms actually used in self-defense vs. merely possessed for self-defense.We know from Federalist 46 the primary purpose of the Second Amendment is as a backstop against Federal tyranny via a militia of common citizens :

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

In other words it is clearly unconstitutional to prevent civilians from owning military arms.

18 posted on 12/13/2023 10:20:20 AM PST by SecondAmendment (The history of the present Federal Government is a history of repeated injuries and usurpations ...)

NFA is unconstitutional on its face. As are the follow-up unconstitutional laws. It’s past time to flush these maggots out of any government position whatsoever.

In an amicus brief filed with the Ninth Circuit Court of Appeals in Miller v. Bonta, New Jersey Attorney General Matthew Platkin and Massachusetts AG Andrea Campbell and the attorneys general of Arizona, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington contend that California’s ban doesn’t violate the Second Amendment because the arms that are prohibited aren’t protected by the Constitution in the first place.

Too cute by half.

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