{"id":88600,"date":"2022-12-12T18:54:51","date_gmt":"2022-12-13T00:54:51","guid":{"rendered":"https:\/\/milesfortis.com\/?p=88600"},"modified":"2022-12-12T18:54:51","modified_gmt":"2022-12-13T00:54:51","slug":"88600","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=88600","title":{"rendered":""},"content":{"rendered":"

I called it ‘America’s Rifle’ years ago.<\/p>\n

America’s Rifle<\/a>
\nThe AR-15 is protected by the Second Amendment.<\/p>\n

Stephen Halbrok<\/p>\n

Thanks to Eugene for inviting me to post about some of the developments in the wake of the Supreme Court’s decision in\u00a0New York State Rifle & Pistol Association v. Bruen<\/em>.\u00a0Bruen\u00a0<\/em>held that New York’s limitation of the issuance of permits to carry a handgun to those who officials decide have a special need violates the Second Amendment, which protects from infringement “the right of\u00a0the people<\/em>\u00a0to \u2026\u00a0bear arms<\/em>.” The government may not limit that right to a privileged class.<\/p>\n

One of the hot-button issues that is being relitigated after\u00a0Bruen<\/em>\u00a0is whether banning semiautomatic rifles such as the AR-15 violates the Second Amendment. I argue that it does in my new book\u00a0America’s Rifle: The Case for the AR-15<\/em><\/a>. It covers text and precedent, English and colonial history, the Founding, and how the constitutional right to arms kept pace with the development of firearms. The expired federal ban of 1994 was a true aberration from a Congress that has almost never actually banned a type of firearm.<\/p>\n

\n
When Bruen<\/em>\u00a0was decided, six states restricted permits to carry handguns\u2014California, Hawaii, Maryland, Massachusetts, New Jersey, and New York. Five of those states (excluding Hawaii) plus Connecticut also prohibited possession of rifles they derogatorily call “assault weapons.” A week after\u00a0Bruen<\/em>\u00a0was handed down, the governor of Delaware signed a law adding that state to the list.<\/div>\n
<\/div>\n<\/div>\n

In most of the 20th century, the antigun movement focused on banning handguns. Rifles and shotguns were said to be good, pistols and revolvers bad. The Colt AR-15 Sporter rifle hit the civilian market in 1964, the same year that Colt made its first deliveries of the M-16 to the Air Force. The AR-15 is semiautomatic, requiring a separate function of the trigger for each shot, while the M-16 is automatic, meaning it fires continuously as long as the trigger is pulled back. Despite that basic difference, they looked similar on the outside, causing the Violence Policy Center see the potential for confusion in the public. The idea of labeling the AR-15 and like rifles “assault weapons” and banning them was born.<\/p>\n

In 1989, California became the first state to ban “assault weapons,” which it defined to include a list of makes and models such as the AR-15. We challenged that law in\u00a0Fresno Rifle & Pistol Club v. Van de Kamp<\/em>\u00a0(1992), but the Ninth Circuit held that the Second Amendment doesn’t apply to the states. The Supreme Court has since ruled that it does, in\u00a0McDonald v. Chicago<\/em>\u00a0(2010).<\/p>\n

In\u00a0District of Columbia v. Heller<\/em>\u00a0(2008), the Supreme Court held that, as a textual matter, “the Second Amendment extends,\u00a0prima facie<\/em>, to all instruments that constitute bearable arms.” Turning to history, the Supreme Court determined that historical limitations on carrying “dangerous and unusual weapons” provided a bound on the scope of the right. Thus, while dangerous and unusual weapons can be banned, “arms in common use at the time for lawful purposes like self-defense” cannot.<\/p>\n

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The common-use test was plain, so when the District banned “assault weapons” (aka semiauto rifles), we mounted a challenge . The D.C. Circuit, in Heller v. D.C<\/em>. (2011) (“Heller II<\/em>“), conceded that the banned rifles “are indeed in ‘common use,'” but balanced the right away under intermediate scrutiny. Then-Judge Brett Kavanaugh dissented on the basis that semiautomatic rifles have been in lawful use for over a century and pass\u00a0Heller<\/em>‘s common-use test.<\/div>\n<\/div>\n

With intermediate scrutiny to the rescue, other circuits copied\u00a0Heller II<\/em>\u00a0and upheld the bans in several states. Those decisions create a distorted image, since most states don’t have bans, and so other circuits have not opined on the issue.<\/p>\n

And now comes\u00a0Bruen<\/em>, collapsing the house of cards. Conduct within the “plain text” of the Second Amendment is presumptively protected, and a restriction may be valid only if the government shows it to be “consistent with this Nation’s historical tradition.” Text-history is in, means-ends scrutiny is out. And the history (or analogues thereof) that matters is 1791 and the initial decades that followed, as long as consistent with the text and early history.<\/p>\n

Under the\u00a0Heller\u00a0<\/em>test, as elaborated upon by\u00a0Bruen<\/em>, AR-15s and similar semiautomatic firearms may not be prohibited. Indeed,\u00a0Heller\u00a0<\/em>and\u00a0Bruen\u00a0<\/em>together establish the test for\u00a0any\u00a0<\/em>ban on firearms, and that test makes clear that all firearms in common use for lawful purposes are protected and cannot be banned.<\/p>\n

AR-15s and other similar firearms come within the “plain text,” because they are bearable arms.\u00a0Heller\u00a0<\/em>and\u00a0Bruen\u00a0<\/em>both establish that the Second Amendment extends presumptively to all bearable arms. Second, banning such firearms is not consistent with this Nation’s history. Indeed, the Supreme Court established that such a ban is\u00a0inconsistent\u00a0<\/em>with this Nation’s history nearly thirty years ago by holding that AR-15 rifles “traditionally have been widely accepted as lawful possessions,”\u00a0Staples v. U.S.<\/em>\u00a0(1994).<\/p>\n

What is more, the historical boundaries of protected arms have already been established in\u00a0Heller\u00a0<\/em>and\u00a0Bruen<\/em>. Those cases make clear that the only arms that are not protected are “dangerous and unusual weapons,” which necessarily entails that citizens have a right to possess and use arms that are “in common use today.” For this reason, historical analogues have no place here; the Supreme Court has done the historical analysis and set forth the “common use” test.<\/p>\n

Can the government possibly show that AR-15 rifles are dangerous and unusual? Not at all, as they are among the most popular firearms in the Nation.\u00a0Recent<\/a>\u00a0data<\/a>\u00a0indicates<\/a>\u00a0that Americans own at least 24 million AR-15s and similar rifles, that they constitute 20% of all firearms sold in recent years, and that they are used for lawful purposes such as self-defense, training, and hunting. It follows that Americans have a Second Amendment right to own and use them.<\/p>\n

And readers do not simply need to take my word for it. This is supported by the analyses of three Supreme Court justices\u2014Justice Thomas (the author of\u00a0Bruen<\/em>) in his dissent from denial of cert in\u00a0Friedman v. Highland Park<\/em>\u00a0(2015), Justice Kavanaugh in his dissent in\u00a0Heller II<\/em>, and Justice Alito in his concurrence in\u00a0Caetano v. Massachusetts<\/em>\u00a0(2016).<\/p>\n

When the Supreme Court decided\u00a0Bruen<\/em>, it issued a GVR (grant cert., vacate, and remand) to the Fourth Circuit’s decision in\u00a0Bianchi v. Frosh<\/em>, for further consideration in light of\u00a0Bruen<\/em>. That’s a polite way of saying get it right next time. That case summarily affirmed that circuit’s prior decision in\u00a0Kolbe v. Hogan<\/em>\u00a0(4th Cir. 2017) (en banc), which upheld Maryland’s “assault weapon” ban. As the first post-Bruen<\/em>\u00a0circuit to reconsider such a ban, the\u00a0oral argument on December 6<\/a>\u00a0is worth listening to. Some takeaways from the argument:<\/p>\n

Kolbe<\/em>\u00a0rejected the common-use test and held that AR-15s are not protected because they are “most useful in military service.” (Never mind that no military in the world issues mere semiautomatics.) That was the wrong test.<\/p>\n

Maryland also rewrites the “common use” test to say instead that the only arms protected are those in “common use for self-defense.” That is not the test. Heller tells us that arms commonly used for lawful purposes\u2014not just self-defense\u2014are protected under the Second Amendment. Maryland does not concede that the AR-15 is in common use and seeks a remand for further “discovery.” Seriously?\u00a0Bruen<\/em>\u00a0was decided as a matter of law based on the pleadings and rejected any need for a remand for further factual development.<\/p>\n

Maryland argues that AR-15s are not in common\u00a0use<\/em>\u00a0for self-defense because shots are rarely fired. But\u00a0Heller\u00a0<\/em>required no showing of how often handguns are actually fired in self-defense to prove common use, which means possession for that purpose.<\/p>\n

As a fallback, Maryland wants to show that at least some of the rifles in the list are not in common use and that the law is severable. Plaintiffs respond that they are all of the same general type and that no further facts need to be developed.<\/p>\n

Heller<\/em>\u00a0was fiercely resisted by the lower courts. Keep your fingers crossed for what the Fourth Circuit ultimately rules.<\/p>\n

Tomorrow, I will address how\u00a0Bruen<\/em>‘s “plain text” concept is being treated by the lower courts.<\/p>\n","protected":false},"excerpt":{"rendered":"

I called it ‘America’s Rifle’ years ago. America’s Rifle The AR-15 is protected by the Second Amendment. Stephen Halbrok Thanks to Eugene for inviting me to post about some of the developments in the wake of the Supreme Court’s decision in\u00a0New York State Rifle & Pistol Association v. Bruen.\u00a0Bruen\u00a0held that New York’s limitation of the … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[32,8],"tags":[],"class_list":["post-88600","post","type-post","status-publish","format-standard","hentry","category-books","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88600","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=88600"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88600\/revisions"}],"predecessor-version":[{"id":88601,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/88600\/revisions\/88601"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=88600"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=88600"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=88600"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}