{"id":91499,"date":"2023-04-02T19:12:57","date_gmt":"2023-04-03T00:12:57","guid":{"rendered":"https:\/\/milesfortis.com\/?p=91499"},"modified":"2023-04-02T19:17:06","modified_gmt":"2023-04-03T00:17:06","slug":"91499","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=91499","title":{"rendered":""},"content":{"rendered":"

Analysis: A Legal Template for Upholding AR-15 Bans is Emerging<\/a><\/p>\n

A federal judge upheld Delaware\u2019s \u201cassault weapons\u201d ban this week using reasoning likely to resonate with other courts inclined to reach the same outcome.<\/p>\n

On Monday, Federal District Judge Richard G. Andrews, an Obama appointee, found the state\u2019s ban on AR-15s, AK-47s, and similar firearms\u2013along with its ban on magazines that hold more than 17 rounds\u2013is constitutional. He did so despite finding the guns were \u201cin common\u201d use for lawful purposes.<\/p>\n

\u201c[I] conclude that the prohibited LCMs, like the prohibited assault long guns, are in common use for self-defense and therefore \u2018presumptively protect[ed]\u2019 by the Second Amendment,\u201d Judge Andrews ruled in Delaware State Sportsmen\u2019s Association v. Delaware Department of Safety and Homeland Security.<\/p>\n

That probably left a lot of people doing a double-take. But Judge Andrews came to his conclusion after arguing AR-15s and the like weren\u2019t common during the founding era and represented a technological advancement that is responsible for a uniquely modern problem: mass shootings. Because of this, he argued Bruen allowed him to look for historical analogues that show a history of regulation instituted for the same purpose and using the same means.
\nHe ruled there was such a tradition.<\/p>\n

\u201cI find that the LCM and assault long gun prohibitions of HB 450 and SS 1 for SB 6 are consistent with the Nation\u2019s historical tradition of firearm regulation,\u201d he wrote. \u201cPlaintiffs have therefore failed to demonstrate a likelihood of success on the merits of their Second Amendment claim.\u201d
\nHe pointed to the proliferation of late 19th Century Bowie knife and Billy club bans, plus later machinegun bans, as evidence governments have previously banned the sale of weapons they believe are associated with especially dangerous criminal behavior. He further argued banning a subset of weapons was a relatively minor burden and one that was similar to his historical examples.<\/p>\n

\u201c[B]oth sets of regulations impose a \u2018comparable burden,\u201d he wrote. \u201cIndeed, the burden that the challenged regulations impose is slight.\u201d
\nJudge Andrews isn\u2019t the only, or even the first, one to use this concept to save a ban. District Judge Karin Immergut, a Trump appointee, denied an attempt to block Oregon\u2019s magazine limit under the same basic framework. While she went further and said she didn\u2019t need to do a\u00a0Bruen\u00a0analysis at all because ammunition magazines aren\u2019t protected by the plain text of the Second Amendment, she did the analysis anyway, and it came out along the same lines as Judge Andrews\u2019 argument.<\/p>\n

It\u2019s likely other courts will adopt this framework as well.
\nOther courts, namely the Ninth and Fourth Circuits, have previously shown they don\u2019t believe AR-15s or similar guns should be sold to civilians. The old two-step balancing test of the pre-Bruen\u00a0era was explicitly about whether the argued public safety impact of banning the guns was enough to overcome the infringement on the right of Americans to have them. Any court that upheld an \u201cassault weapons\u201d ban before 2022 essentially said \u201cyes.\u201d<\/p>\n

So, given the opportunity to review the law again, it\u2019s fair to think they may want to find a way to reach the same conclusion. That\u2019s especially true if the path to that answer appears to at least plausibly fit within the Supreme Court\u2019s new test.<\/p>\n

Of course, Judge Andrews\u2019 reasoning has some serious flaws. For one, it seems to be making the same mistake in the eyes of the Court that the two-step test did: going one step too far.<\/p>\n

Reading Heller, McDonald, <\/em>and Bruen<\/em> provides the impression that any class of firearms considered to be in \u201ccommon use\u201d for lawful purposes, such as self-defense, is inherently protected by the Second Amendment and can\u2019t be banned by the government.<\/p>\n

\u201cThe traditional militia was formed from a pool of men bringing arms \u2018in common use at the time\u2019 for lawful purposes like self-defense,\u201d The Court\u00a0 wrote in\u00a0Heller<\/em><\/a>.<\/p>\n

\u201cIndeed, that is precisely the way in which the Second Amendment\u2019s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right[\u2026].\u201d<\/p>\n

That Judge Andrews finds AR-15s and the other banned guns in common use for the purpose of self-defense and then proceeds on to further analysis is unlikely to be what The Court had in mind. It seems relatively clear SCOTUS doesn\u2019t believe it is possible to ban any gun that is in common use for lawful purposes. So, the detour into comparing modern \u201cassault weapons\u201d bans to 19th Century Bowie knife or Billy club bans will likely be unpersuasive should it ever make its way up to The High Court.<\/p>\n

It also suffers from the lack of a limiting principle. Judge Andrews argues that the self-loading, semi-automatic technology found in AR-15s and the other banned guns didn\u2019t become popular until after the Civil War. And their adoption led to the rise of mass shootings (never mind that semi-automatics were becoming common about 100 years before the onset of modern mass shootings).<\/p>\n

But there\u2019s nothing in Judge Andrews\u2019 line of reasoning that wouldn\u2019t prevent the same argument from being applied to all semi-automatic firearms or an ammunition magazine of essentially any size. That includes semi-automatic handguns, which the Supreme Court has already ruled can\u2019t be banned.<\/p>\n

Still, even if the prospects for success on appeal to the Supreme Court are dim for this argument upholding AR bans, it will likely proliferate in some of the most important circuits because it at least attempts to follow the Bruen steps while still maintaining the bans. And, even if the weaknesses are as serious as they appear, pointing them out will only matter if the Supreme Court actually takes up a case involving them. After all, the two-step test The Court excoriated in Bruen was the defacto review standard on gun cases for a decade because of SCOTUS inaction.<\/p>\n

Whatever ends up happening, expect to see Judge Andrews\u2019 legal reasoning pop up anytime a gun or magazine ban is upheld.<\/p>\n

\n

Yes, that's one of the main problems I see with it as well.<\/p>\n

— Stephen Gutowski (@StephenGutowski) April 2, 2023<\/a><\/p><\/blockquote>\n