LIBERTY LEGAL JOURNAL Spring/Summer 2016 | Page 14

THE ASSAULT WEAPONS BAN:
AN ERA OF PEPPER SPRAY AND WHISTLES
by Mia R. Yugo

What country can preserve its liberties if their rulers are not warned from time to time that their people
preserve the spirit of resistance? Let them take arms.1
- THOMAS JEFFERSON

On December 16, 2015, Representative David N. Cicilline of
Rhode Island introduced bill H.R. 4269 (the “Assault Weapons Ban
of 2015”) to Congress.2 If passed, the ban would limit the right to
bear arms by regulating assault weapons (“AWs”)—a varying term
that normally encompasses semiautomatic firearms, such as the
AR-15. The bill was drafted to “ensure that the right to keep and
bear arms is not unlimited, and for other purposes.”3 Specifically,
the bill would prohibit the manufacture of most detachable-magazine semiautomatic rifles, various semiautomatic shotguns, semiautomatic pistols with a fixed magazine over 10 rounds, and among
other things, revolving cylinder shotguns.4 The bill’s passage would
undermine the very purpose of the Second Amendment: the right
of self-defense against all enemies, individual assailant and tyrannical government alike.
The federal government is the “single largest purchaser of firearms
in the country.”5 To protect against the potential abuse of power
by that purchaser, the Founders, fresh from a revolutionary war,
passed the Second Amendment—a law explained by the majority
in District of Columbia v. Heller as “widely understood to codify a
pre-existing right.”6 But what is this pre-existing right? Is it merely
a right to defend against a home intruder, for example, or does it
extend to a revolutionary right to overthrow an oppressive regime?
Thomas Jefferson suggests the latter, noting that the “spirit of resistance,” maintained through an armed populace, is key to the preservation of liberty.7 The constitutionality of the Assault Weapons Ban
of 2015 depends upon the purpose of the Second Amendment. If
the purpose was to secure only the right to defend against private
citizens, then a ban on semiautomatic firearms is well within constitutional limits, seeing as a handgun is more than sufficient to deter
a purse-snatcher, for example. If, however, the purpose was to hold
tyranny at bay, then a ban on assault weapons is unconstitutional,
since it would impede the right of the people to defend against a
well-armed government with far superior weaponry.
In Heller, the Supreme Court held that the Second Amendment
“conferred an individual right to keep and bear arms.”8 Though this
recognition was touted as a legal victory for gun advocates, the next
sentence cast a cloud over the future, and particularly the AW ban.

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Writing for the majority, Justice Antonin Scalia—himself an avid
hunter—stated that “the right was not unlimited, just as the First
Amendment’s right of free speech was not[.]”9 The justice reasoned:
[W]e do not read the Second Amendment to protect the right of
citizens to carry arms for any sort of confrontation, just as we do not
read the First Amendment to protect the right of citizens to speak
for any purpose.10
The comparison, evidently, is between limitations imposed on the
First (i.e. speech that incites and is likely to produce imminent lawless action11) and limitations imposed on the Second (i.e. keeping
fully automatic machine guns or semiautomatic rifles). The analogy however, or more specifically, the wording of the comparison, is
ill-conceived; it compares apples and oranges, purposes and means,
and in doing so, leads to a fruit-basket of confusion. Before analyzing the folly of the analogy’s phrasing, let us consider the justice’s
own statements—albeit informal—on semiautomatic rifles. (Remember, also, that the late Justice Scalia, who undoubtedly left behind him a legacy of Second Amendment support, was renowned
not only for wit and brilliance but for welcoming lively debate, especially among friends: “I attack ideas, I don’t attack people—and
some very good people have some very bad ideas.”12 It is in that
spirit that we revisit Heller in assessing the proposed AW ban.)
In a rare 2012 interview with Fox News’ Chris Wallace, Justice Scalia explained that the Court had not yet demarcated the line between
permissible and impermissible arms. When asked if a legislature can
ban semiautomatic weapons or magazines that carry 100 rounds,
the Justice answered that such questions must be decided in future
cases, but noted that there were indeed some limitations in place at
the time the Second Amendment was passed, referencing for example, an old law that made it a misdemeanor to carry around a weapon such as an axe just to scare people.13 When pressed by Wallace to
apply those limitations to semiautomatic rifles today, Justice Scalia
said an obvious limitation to the Second Amendment is anything
that cannot be handheld, such as a canon, but that weapons like
handheld rocket-launchers and semiautomatic rifles must be left to
the Court.14