Dianne Feinstein's Assault Weapon Ban Would Be Unconstitutional

Sen. Dianne Feinstein (D-Calif.) introduced a bill Thursday to ban so-called “assault weapons” and high capacity magazines. 

Feinstein stated on CNN's Pier's Morgan Tonight that, “There's no Second Amendment right to bear every type of weapon that you know of. These [assault weapons] are a certain class of weapons ... I don't believe the Second Amendment covers them.”

Sen. Feinstein is wrong.

She says she believes the Second Amendment wouldn't protect the right of American's to keep so-called “assault weapons," however, Feinstein's bill would face serious constitutional challenge.

The government is empowered to restrict and regulate "dangerous and unusual weapons," like fully automatic machine guns and bazooka's (which it has since the 1934 National Firearms Act), but not weapons “in common use at the time.” This would include so-called “assault rifles.

What the Second Amendment Says:
The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Supreme Court Justice Scalia, writing the majority opinion in the landmark case, D.C. vs. Heller, goes into great detail about the historical precedent, legal history leading up to the writing of the Second Amendment (as well as providing legal comparison's in the early state's constitution's, early American law and law pre- & post-Civil War), and the historical context for the words used in the Second Amendment. Let's examine his review:

Individual Right
The Second Amendment is a personal right. Justice Scalia notes, “Nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p.6) . He further says that it is a natural right to self-defense that is “clearly an individual right,having nothing whatever to do with service in a militia" (p.20).

Dangerous and Unusual Weapons can be Limited
The Court states that the Second Amendment is not unlimited: "Like most rights, the right secured by the Second Amendment is not unlimited ... the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" (p.54).

Notably, the Court states that "dangerous and unusual weapons" may be lawfully limited, “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (p.55). The key word is “unusual;" all weapons are inherently dangerous. Weapons that are unusually dangerous are lawful to limit under the Second Amendment. This is why we can't all own rocket launchers. However, there is more to it than just being unusual.

Common use at the time is protected
Weapons that are in “common use at the time” are protected under the Second Amendment: “The sorts of weapons protected were those “in common use at the time” (p.55). Scalia also states that “modern developments ... cannot change our interpretation of the right” (p.56). This also precludes the sometimes proposed argument that only muskets and single-shot pistols are protected by the Second Amendment; Scalia addresses this directly, calling the suggestion “frivolous,” noting other rights are not interpreted in this manner and stating “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (p.8).

Popularity and prevalence of use is relevant
The Supreme Court also cites prevalence and popularity as relevant factors, specifically as they relate to handguns, "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid" (p.57-58). Also noting that an entire class of arms may not be banned, “The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose" (p.56).

They preempted argument that as long as other classes of arms are not banned, the ban of one class is permissible, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed" (p.57). It is clear from the Court's remarks, that it is not permissible to ban an entire class of weapons that are popular and in common in use at the time.

Why is this relevant? Because semi-automatic rifles have been on the U.S. commercial market since 1903 (from Winchester and Remington) and are in broad use among law-abiding citizens for self-defense, target shooting, and sport. They accounted for about 40% of rifle sales in 2010. The AR-15 is the most popular model in America – accounting for 5.5% of all U.S. guns manufactured in 2007 alone. There are millions in circulation. It has been popular since it was created in 1958. The semi-automatic civilian versions of AK-47's have been popular for decades (Kalashnikov invented the rifle in 1947). FN FAL's have been around since the 1950's. Semi-automatic, so-called “assault rifles” are a very popular class of rifle. There are literally millions of them in the various proposed ban of more than 150 named models (AR-15, AK-47, Mini-14, FN FAL, HK-91, AR-10, etc.)

Therefore the Feinstein ban would be unconstitutional. The Second Amendment protects popular classes of arms that are in common use at the time. So-called “assault rifles” fit that description. The fact that gun violence is a problem doesn't justify violating the Constitution. The Court ruled “we are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many ... who believe that prohibition of handgun ownership is a solution ... But the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64, emphasis added). Feinstein doesn't think that her proposed ban would be unconstitutional. As Justice Scalia has explained in great detail, the Supreme Court rationale in the D.C. vs Heller case shows that she's wrong.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on PolicyMic. (Original publication February, 2013). 

Proposed Assault Weapons Ban would violate the Constitution

by Matt MacBradaigh | Feb 11, 2013 | 2nd Amendment Facts | 1 comment

Feinstein stated on CNN’s Pier’s Morgan Tonight that, “There’s no Second Amendment right to bear every type of weapon that you know of. These [assault weapons] are a certain class of weapons … I don’t believe the Second Amendment covers them.”

Sen. Feinstein is wrong.

She says she believes the Second Amendment wouldn’t protect the right of American’s to keep so-called “assault weapons,” however, Feinstein’s bill would face serious constitutional challenge.

The government is empowered to restrict and regulate “dangerous and unusual weapons,” like fully automatic machine guns and bazooka’s (which it has since the 1934 National Firearms Act), but not weapons “in common use at the time.” This would include so-called “assault rifles.

What the Second Amendment Says:The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Supreme Court Justice Scalia, writing the majority opinion in the landmark case, D.C. vs. Heller, goes into great detail about the historical precedent, legal history leading up to the writing of the Second Amendment (as well as providing legal comparison’s in the early state’s constitution’s, early American law and law pre- & post-Civil War), and the historical context for the words used in the Second Amendment. Let’s examine his review:

Individual RightThe Second Amendment is a personal right. Justice Scalia notes, “Nowhere else in the Constitution does a ‘right’ attributed to “the people” refer to anything other than an individual right” (p.6) . He further says that it is a natural right to self-defense that is “clearly an individual right,having nothing whatever to do with service in a militia” (p.20).

Dangerous and Unusual Weapons can be LimitedThe Court states that the Second Amendment is not unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited … the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (p.54).

Notably, the Court states that “dangerous and unusual weapons” may be lawfully limited, “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (p.55). The key word is “unusual;” all weapons are inherently dangerous. Weapons that are unusually dangerous are lawful to limit under the Second Amendment. This is why we can’t all own rocket launchers. However, there is more to it than just being unusual.

Common use at the time is protectedWeapons that are in “common use at the time” are protected under the Second Amendment: “The sorts of weapons protected were those “in common use at the time” (p.55). Scalia also states that “modern developments … cannot change our interpretation of the right” (p.56). This also precludes the sometimes proposed argument that only muskets and single-shot pistols are protected by the Second Amendment; Scalia addresses this directly, calling the suggestion “frivolous,” noting other rights are not interpreted in this manner and stating “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8).

Popularity and prevalence of use is relevantThe Supreme Court also cites prevalence and popularity as relevant factors, specifically as they relate to handguns, “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid” (p.57-58). Also noting that an entire class of arms may not be banned, “The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose” (p.56).

They preempted argument that as long as other classes of arms are not banned, the ban of one class is permissible, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed” (p.57). It is clear from the Court’s remarks, that it is not permissible to ban an entire class of weapons that are popular and in common in use at the time.

Why is this relevant? Because semi-automatic rifles have been on the U.S. commercial market since 1903 (from Winchester and Remington) and are in broad use among law-abiding citizens for self-defense, target shooting, and sport. They accounted for about 40% of rifle sales in 2010. The AR-15 is the most popular model in America – accounting for 5.5% of all U.S. guns manufactured in 2007 alone. There are millions in circulation. It has been popular since it was created in 1958. The semi-automatic civilian versions of AK-47’s have been popular for decades (Kalashnikov invented the rifle in 1947). FN FAL’s have been around since the 1950’s. Semi-automatic, so-called “assault rifles” are a very popular class of rifle. There are literally millions of them in the various proposed ban of more than 150 named models (AR-15, AK-47, Mini-14, FN FAL, HK-91, AR-10, etc.)

Therefore the Feinstein ban would be unconstitutional. The Second Amendment protects popular classes of arms that are in common use at the time. So-called “assault rifles” fit that description. The fact that gun violence is a problem doesn’t justify violating the Constitution. The Court ruled “we are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many … who believe that prohibition of handgun ownership is a solution … But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64, emphasis added). Feinstein doesn’t think that her proposed ban would be unconstitutional. As Justice Scalia has explained in great detail, the Supreme Court rationale in the D.C. vs Heller case shows that she’s wrong.

This article was originally published on PolicyMic.com, now Mic.com. Original publish date Feb 11, 2013. Original author, Matt MacBradaigh.

Media makes us afraid of the wrong things. The truth is eating at McDonald's is more likely to kill you than a lunatic with a gun. But we are more afraid of the hypothetical gun-wielding psychopath than we are of eating fatty, sugary food. 

New York state is great case study in this phenomenon (as well as a study in making controversial headlines). New York recently passed “tough” new gun control legislation, which includes more narrowly defining and restricting so-called “assault weapons” in an effort to show the rest of us how it's done. Last year, New York also made headlines when New York City Mayor Michael Bloomberg proposed a controversial ban of sugary drinks in NYC. Let's take a look at each.

FBI data shows that in all of New York state, there were 774 total homicides in 2011. Of those, 445 were firearm homicides. Total rifle homicides numbered just five. The "hands, fist, feet, etc." category, which includes pushing, numbered 26 homicides (NYC has also recently made headlines for subway pushing deaths). Knives were used in 160 homicides. The "other weapons" category numbered 143 homicides. Ban “dangerous assault weapons” (a subset of the rifles category)? Why? They numbered just five deaths.

Perhaps because of the percentage of population that NYC comprises of the total state of New York, and perhaps also because of the tendency of crimes to increase in concentrated urban centers, NYC itself saw the majority of homicides in the state. In 2011, NYC saw 515 homicides out of the total 774 in the state. Three hundred-fourteen of these (61%) were from firearms, out of the 445 total firearm homicides statewide.

Contrasted with obesity deaths, NYC city alone has 5,800 of them a year. New York City Department of Health states 58% of NYC adults are overweight or obese, and nearly 40% of NYC’s public school students are obese or overweight. Obesity among adults in NYC increased from 18% in 2002 to 23% in 2010.

"2011 Rifle homicides numbered just five for all of New York state"

According to the New York state Department of Health, state-wide obesity increased almost 40% from 2000 to 2010 to include almost a quarter (24.5%) of state residents. An estimated six out of every ten adult New Yorkers is overweight or obese. In 2010, over 5 million of adult New Yorkers were considered overweight, and over 3.5 million obese.  The U.S. surgeon general reports that obese individuals (BMI > 30) have a 50%-100% increased risk of premature death from all causes, compared to individuals with a healthy weight, and “an estimated 300,000 deaths per year may be attributable to obesity.”

300,000.

That's a big number. Nationally, the FBI reports roughly 8,000-9,000 firearm homicides, of which 323 were from rifles in 2011. We are afraid of the wrong things.

In the gun control debate, we often hear “if even one life can be saved, we have to try [to do something]” (one could argue – convincingly – that such proponents would be willing to try anything regardless of how ineffective it has been proven to be).

President Obama has used that statement at least twice – addressing Newtown and during a press conference announcing 23 executive orders. Vice President Joe Biden said: “We have a moral obligation to do everything in our power to diminish the prospect that anything like this could happen again."

But was New York's new gun control legislation that focused on so-called “assault rifles” even necessary? Or was it political posturing that amounts to very little public benefit? NYC Mayor Michael Bloomberg, a high profile gun control advocate (gun rights advocates would call him “anti-gun” rights), even acknowledges, "Banning these [military-style assault] weapons and ammunition does not mean there will never be another mass shooting."  James Alan Fox, a criminologist at Northeastern University, says regarding crime reduction, “There is only so much air you can squeeze out of a balloon.”

This means, of course, that is virtually impossible to completely change human morality 100% of the time. We work for gains where we can get them. But an expectation of no ill will or evil action – ever – is not a realistic expectation.
If we have a moral obligation to try to save a life, there is much more “air in the balloon” so to speak, in the obesity balloon than there is in the assault rifle balloon. Five deaths. Crime in NYC has been trending down for 40 years. By contrast, those 3.5 million obese New Yorkers are much more likely to die (a 50%-100% increased risk of premature death) from what they eat than a crazy lunatic with a gun.

Banning sugary drinks is controversial, with many comparing the suggestion to “nanny statism” (“What time should I go to bed? How big should my steaks be? - NYC councilman, Dan Halloran). However, according to many health experts, it would help to save lives. Kelly Brownell, director of the Rudd Center for food policy and obesity at Yale University stated “You don’t feel as full when you consume calories in liquids. … These beverages are the single greatest source of added sugar in the American diet.” Walter Willett, professor of epidemiology and nutrition at Harvard School of Public Health said “Soda in large amounts is metabolically toxic. … It’s obvious that this is the right thing to do.” Is there a moral imperative to ban sugar drinks since doing so would save people from themselves (save a life)?

And yet, for most of us, we are afraid more of the image on a news story of an AR-15 so-called “assault rifle.” This is not because the AR-15 is more likely to kill you. The truth is for many of us, what we choose to eat is more likely to kill us. The numbers in New York confirm this. The 300,000 that the surgeon general reports will die from obesity vs. the FBI Uniform Crime Report data of 12
,664 homicides (just 8,583 from guns) confirms that. We're afraid of the wrong things.


 

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on PolicyMic. (Original publication January 22, 2013). 

Assault Rifles Kill 5 People Every Year in NY, While Obesity Kills 6,000: Do Gun Bans Make Sense?

by Matt MacBradaigh | Jan 22, 2013 | Gun Control Facts | 1 comment

Media makes us afraid of the wrong things. The truth is eating at McDonald’s is more likely to kill you than a lunatic with a gun. But we are more afraid of the hypothetical gun-wielding psychopath than we are of eating fatty, sugary food. 

New York state is great case study in this phenomenon (as well as a study in making controversial headlines). New York recently passed “tough” new gun control legislation, which includes more narrowly defining and restricting so-called “assault weapons” in an effort to show the rest of us how it’s done. Last year, New York also made headlines when New York City Mayor Michael Bloomberg proposed a controversial ban of sugary drinks in NYC. Let’s take a look at each.

FBI data shows that in all of New York state, there were 774 total homicides in 2011. Of those, 445 were firearm homicides. Total rifle homicides numbered just five. The “hands, fist, feet, etc.” category, which includes pushing, numbered 26 homicides (NYC has also recently made headlines for subway pushing deaths). Knives were used in 160 homicides. The “other weapons” category numbered 143 homicides. Ban “dangerous assault weapons” (a subset of the rifles category)? Why? They numbered just five deaths.

Perhaps because of the percentage of population that NYC comprises of the total state of New York, and perhaps also because of the tendency of crimes to increase in concentrated urban centers, NYC itself saw the majority of homicides in the state. In 2011, NYC saw 515 homicides out of the total 774 in the state. Three hundred-fourteen of these (61%) were from firearms, out of the 445 total firearm homicides statewide.

Contrasted with obesity deaths, NYC city alone has 5,800 of them a year. New York City Department of Health states 58% of NYC adults are overweight or obese, and nearly 40% of NYC’s public school students are obese or overweight. Obesity among adults in NYC increased from 18% in 2002 to 23% in 2010.

“2011 Rifle homicides numbered just five for all of New York state”

According to the New York state Department of Health, state-wide obesity increased almost 40% from 2000 to 2010 to include almost a quarter (24.5%) of state residents. An estimated six out of every ten adult New Yorkers is overweight or obese. In 2010, over 5 million of adult New Yorkers were considered overweight, and over 3.5 million obese.  The U.S. surgeon general reports that obese individuals (BMI > 30) have a 50%-100% increased risk of premature death from all causes, compared to individuals with a healthy weight, and “an estimated 300,000 deaths per year may be attributable to obesity.”

300,000.

That’s a big number. Nationally, the FBI reports roughly 8,000-9,000 firearm homicides, of which 323 were from rifles in 2011. We are afraid of the wrong things.

In the gun control debate, we often hear “if even one life can be saved, we have to try [to do something]” (one could argue – convincingly – that such proponents would be willing to try anything regardless of how ineffective it has been proven to be).

President Obama has used that statement at least twice – addressing Newtown and during a press conference announcing 23 executive orders. Vice President Joe Biden said: “We have a moral obligation to do everything in our power to diminish the prospect that anything like this could happen again.”

But was New York’s new gun control legislation that focused on so-called “assault rifles” even necessary? Or was it political posturing that amounts to very little public benefit? NYC Mayor Michael Bloomberg, a high profile gun control advocate (gun rights advocates would call him “anti-gun” rights), even acknowledges, “Banning these [military-style assault] weapons and ammunition does not mean there will never be another mass shooting.”  James Alan Fox, a criminologist at Northeastern University, says regarding crime reduction, “There is only so much air you can squeeze out of a balloon.”

This means, of course, that is virtually impossible to completely change human morality 100% of the time. We work for gains where we can get them. But an expectation of no ill will or evil action – ever – is not a realistic expectation.

If we have a moral obligation to try to save a life, there is much more “air in the balloon” so to speak, in the obesity balloon than there is in the assault rifle balloon. Five deaths. Crime in NYC has been trending down for 40 years. By contrast, those 3.5 million obese New Yorkers are much more likely to die (a 50%-100% increased risk of premature death) from what they eat than a crazy lunatic with a gun.

Banning sugary drinks is controversial, with many comparing the suggestion to “nanny statism” (“What time should I go to bed? How big should my steaks be? – NYC councilman, Dan Halloran). However, according to many health experts, it would help to save lives. Kelly Brownell, director of the Rudd Center for food policy and obesity at Yale University stated “You don’t feel as full when you consume calories in liquids. … These beverages are the single greatest source of added sugar in the American diet.” Walter Willett, professor of epidemiology and nutrition at Harvard School of Public Health said “Soda in large amounts is metabolically toxic. … It’s obvious that this is the right thing to do.” Is there a moral imperative to ban sugar drinks since doing so would save people from themselves (save a life)?

And yet, for most of us, we are afraid more of the image on a news story of an AR-15 so-called “assault rifle.” This is not because the AR-15 is more likely to kill you. The truth is for many of us, what we choose to eat is more likely to kill us. The numbers in New York confirm this. The 300,000 that the surgeon general reports will die from obesity vs. the FBI Uniform Crime Report data of 12,664 homicides (just 8,583 from guns) confirms that. We’re afraid of the wrong things.

This article was originally published on PolicyMic.com, now Mic.com. Original publish date Jan 22, 2013. Original author, Matt MacBradaigh.