Illinois town’s 'assault weapon' ban is unconstitutional fear-mongering

Illinois town’s 'assault weapon' ban is unconstitutional fear-mongering
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The small village of Deerfield, Ill., and its recent decision to ban assault weapons is making headlines across the country. The measure makes it unlawful for any person to “carry, keep, bear, transport or possess an assault weapon,” with some narrow exceptions. The intent of the law, according to its authors, is to “increase the public’s sense of safety,” notwithstanding “potential objections regarding the availability of alternative weaponry or the enforceability of such a ban.”

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Local lawmakers should enjoy the media spotlight while they can, because that’s about all the new law is worth. An assault weapons ban like Deerfield’s will almost certainly make no difference in reducing gun violence. And it’s probably unconstitutional; indeed, a lawsuit has already been filed against it.

In terms of the law’s effectiveness, the facts are clear. Research has long indicated that bans on so-called “assault weapons” — like, for example, the AR-15 — would do almost nothing to reduce gun violence in the United States. In publishing the definitive study of the 1994 assault weapons ban (a ban, as you may recall, which attempted to restrict access to guns with “military style features and large ammunition capacities”) researchers could not “credit the ban with any of the nation’s recent drop in gun violence.” The study continued:

“And indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence, based on indicators like the percentage of gun crimes resulting in death or the share of gunfire incidents resulting in injury, as we might have expected had the ban reduced crimes with both (assault weapons) and (large capacity magazines).”

Even over time, the study concluded, a ban’s impact on gun violence is “likely to be small at best and perhaps too small for reliable measurement.”

But what about Australia, the golden poster child of gun confiscation? At best, experts are conflicted as to the effectiveness of Australia’s 1996 ban. Other observers point to how Australia’s solution is not a model for the United States. Perhaps most damaging to the Australia post hoc fallacy, however, is the indisputable fact that Australian firearm deaths were already in sharp decline before the 1996 law was enacted.

These are hardly just right-wing talking points. The foremost gun control groups — including the Sandy Hook Promise — have all disfavored banning assault weapons because such bans are ineffective. The Obama administration did the same, and for the same reason.

Beyond fights over policy efficacy, Deerfield’s law is unconstitutional, as it runs directly afoul Supreme Court precedent.

The law has an extremely broad definition of an “assault weapon” that includes some semi-automatic pistols and shotguns. A variety of seemingly-arbitrary factors determine whether a firearm may be considered an “assault weapon,” each of which is only tenuously related to a firearm’s lethality, and only when the operator is an especially skilled shooter. Factors include, among others, the presence of “a pistol grip,” “protruding grips that can be held by the non-trigger hand,” “a folding, telescoping or thumbhole stock,” and “a shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned.”

None of these factors can fairly be considered “narrowly tailored,” which lowers the law’s likelihood of surviving strict scrutiny, the standard of judicial review courts use when a law significantly abridges a fundamental right, and to which laws abridging Second Amendment rights should be subjected. Granted, some courts have made specious arguments to justify a lower standard of review (“intermediate scrutiny”), which enables them to uphold laws like Deerfield’s, but it’s unlikely the Supreme Court will buy into this sort of Frankenstein approach to jurisprudence.

Yet even if assault weapons as defined by the Deerfield law fell outside the Second Amendment’s protective shield, proponents would follow the Fourth Circuit’s lead and say the landmark case on gun rights, District of Columbia v. Heller, provides two convenient escapes. The first is Justice Scalia’s observation in Heller that weapons such as “M16-rifles and the like” may be banned. The second is Scalia’s acceptance of “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

It’s true the AR-15 and other weapons affected by Deerfield’s law are similar to the M-16 (overlooking, of course, the obvious difference between fully automatic and semi-automatic weapons), but such a fixation on the phrase “and the like” strains credulity. That language should be interpreted as hypothetical dicta, not as a rigid blueprint for limiting gun rights. Moreover, comparing purely aesthetic similarities and crude, operator-dependent performance metrics between military weapons and civilian-owned weapons is a poor foundation for a rule of law. As for the government’s power to prohibit the carrying of “dangerous and unusual weapons,” the operative word, “carrying,” excludes from the government’s reach the right to keep such arms at home.

Instead, the test universally accepted from Heller is one that asks which firearms are “in common use.” With an estimated 8 million AR-15s — the quintessential “assault weapon” — in circulation, Deerfield’s law collapses immediately.

Some supporters of the ban, in a desperate lunge at obfuscation, will point to an alleged hypocrisy concerning respect for states’ rights on the part of opponents of the ban. But they would be wrong to do so. Nowhere do federalist teachings recognize a power in state and local governments to violate rights explicitly protected by the constitution. States cannot use federalism to seize firearms protected by the Second Amendment any more than they could use federalism as a basis for secession, segregation, or Jim Crow.

Unfortunately, the above notwithstanding, the measure will likely be embraced by gun grabbers. Call it a chronic refusal to learn, a heaping pile of ignorance, or perhaps a compulsive preference for show over substance. Actual safety doesn’t matter; as the Deerfield lawmakers said, what matters more is a “sense of safety” — rights be damned.

Thomas Wheatley is an attorney and writer living in Arlington, Va. He is a regular contributor to the Washington Post’s “All Opinions Are Local” blog and was a 2016 Publius Fellow at the Claremont Institute. Follow him on Twitter @TNWheatley.