by Rod Williams, 6-16-2022 - I am not a legal scholar and I am not an attorney and I don't even play one on TV, but I do research and read and reason. My research has led me to conclude that it is most likely not possible to ban the AR-15 rifle. I will explain why and provide resources for anyone interested in doing their own research.
Before getting into that argument, however, let us look at the reason why there is such a clamor to ban this particular weapon. It has been the weapon of choice in several mass shootings including the recent school shooting in Uvalde Texas in which 19 children were slaughtered and was the weapon of choice at Sandy Hook Elementary School in Connecticut and Stoneman Douglas High School in Florida. These horrific horrors focus the public's attention. Here is a partial list of shootings involving AR-15-type weapons.
Outside of the use in mass shootings, the AR-15 is not the weapon of choice for most other violent actions such as robbery, suicide, or gang warfare. Statistically, it is not the most deadly weapon in circulation.
This type of weapon is sometimes called an "assault rifle, and of course, it is not. It is a semi-automatic weapon and firing fully automatic is not an option. And, the "AR" in AR-15 does not stand for "Assult Rifle," as is sometimes said by uninformed people. If you want to know more about this type of weapon, just Google it. There are numerous sites that explain what it is.
Given that the AR-15 weapon is the weapon of choice for slaughtering innocent young school children, I understand the desire to ban it. I could be persuaded it should be banned if I believed it was possible to do so. It is probably not possible, however.
Why, unlike other developed democracies, America cannot just ban private gun ownership.
When having a discussion with someone over a recent tragedy of a school shooting, you may hear someone say we should be like Great Britain, or Canada, or Australia and ban the private ownership of all weapons or a particular weapon. They may ask why if these countries can do it we can't do it? That they ask the questions illustrates how our education system fails to educate people on the nature of our system of government and our history. When you respond that these countries do not have a Second Amendment, your response will most likely be met with anger and some dismissive comment.
The nature of our rights
Before delving into the specifics of the Second Amendment, I would like to address the nature of our liberties in general. America is exceptional in many ways and one way is that our conception of rights is different from the way rights are understood in many other nations. First of all, let us make a distinction between a "rights" as some benefit or service or claim against the government to which you are entitled and liberties. If your state constitution says the government will provide public education you may say you have the right to a public education. Whether providing free health care, or education, or old age pensions is proper or not is not the question, but assuming it is proper, that kind of "right" is categorically different than a liberty.
That many cannot distinguish the difference between an entitlement and a liberty should be of no surprise. The 1948 UN Declaration of Human Rights list as rights many liberties we could all agree upon but it then lists "a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services." Those are not liberties, they are claims against society; they are entitlements. For this discussion, let us talk about "rights" that are clearly liberties.
Many people see rights as a grant from the government that the government will not do certain things to people. That is the way many people in other nations earned their rights, They compelled concessions from the government. That is not the American conception of rights.
Also, many people believe the Constitution grants us certain rights. It does not. The Constitution confirms and codifies our rights. We have more rights than just those listed in the Bill of Rights. The founders just couldn't think of them all so the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And, the Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Declaration of Independences explains the sources of our rights thusly: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Government can abuse our rights, government can keep us from exercising our rights, but our rights are "unalienable." They are unable to be taken away. When people live under tyranny we do not say their rights are not violated simply because the government decrees they do not have a certain right. We recognize that a right has been violated.
Our rights are natural rights. Natural rights are those that are not dependent on the laws or constitutions of a government or the customs or habits of any particular culture or people. Thre are universal, basic, and fundamental.
What are these natural rights? Well, we have a right to our thoughts and opinions, and beliefs, we have the right to not be imprisoned unjustly, we have the right to privacy, and we have the right to self-preservation to name just a few. From the inalienable natural right of self-defense comes the Second Amendment.
Understanding the Second Amendment
This is the wording of the Second Amendment: "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."
What does that mean? The fact that there are two clauses to the amendment has caused some to argue that the first clause, the prefatory clause, mentioning "a well-regulated militia," means this right means nothing more than that the armed forces or the national guard shall have the right to carry weapons.
This ignores history and the term "right of the people" in the primary clause of the amendment. Most scholars and those with knowledge of the history of the Revolutionary war period and the development of the Constitution understand the Second Amendment to grant the individual the right to bear arms.
In discussing the Second Amendment, one may have heard advocates of the Second Amendment say, the purpose of the Second Amendment is not for hunting, or target practice and not even for personal protection from criminals but so people can defend themselves against a tyrannical government. The prefatory clause reflects the accuracy of this view.
The Articles of Confederation had been a failure and needed to be replaced. The Constitution was designed to form a more powerful central government. Yet many feared such a strong central government. They feared that a strong Federal government would become tyrannical. They feared a standing army and saw the citizens' militia as a defense against a politicized standing army. Thus the phrase, "A well regulated Militia, being necessary to the security of a free State." The militia was understood to be all able-bodied male citizens. That a justification was offered as to why we needed such a right to be enshrined in the Constitution does not negate the right of the people to bear arms.
While most scholars viewed the Second Amendment as recognizing an individual right to possess firearms, there has been a minority view that has argued that the right is a collective right and simply recognized the right of citizens to form militias. That argument was addressed in the case of DISTRICT OF COLUMBIA v. HELLER.
DISTRICT OF COLUMBIA v. HELLER.
In 2008 in District of Columbia v Heller, the court affirmed that the right to possess weapons is an individual right. The case involved residents of the federal District of Columbia who asked the court to enjoin enforcement of three provisions of the district’s Firearms Control Regulation Act (1975) that banned the registration of handguns, prohibited the carrying of unlicensed handguns, and required that lawfully stored firearms be disassembled or locked to prevent firing. The court did so. In addition, the court went further. Until this ruling, the Supreme Court had never ruled on the question of if the 2nd Amendment was an individual right.
The Supreme Court said the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia. Also, "the right does not limit the right to keep and bear arms to militia purposes but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."
The term "those in common use for lawful purposes," would undoubtedly make banning an AR-15 illegal. The AR-15 is in common use for lawful purposes.
The ruling does not say that there could be no restrictions or regulations of firearms. This is what it said
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
So, while the public and their elected representatives may want to ban the AR-15 or some other weapon "in common use for lawful purposes,' they cannot. That does not however rule out reasonable regulation.
What Could be done?
Quite frankly, I have been leaning toward support for an AR-15 ban if it were legal to do so. If not a ban, I could support raising the age to purchase such a weapon to age 21. There is nothing enshrined in common law or the constitution that establishes the age of majority at age 18. Up until 1970, 18-year-old did not have the right to vote. Still, 18-year-olds cannot purchase alcohol or cigarettes.
A waiting period to take possession after the weapon is purchased may be an option. I do not know if banning high-capacity magazines would be legal. Probably not. High-capacity magazines are in common use for a lawful purpose. Such a ban would no doubt be challenged.
For those who want an outright ban, you may not like it but that is not currently an option. However, the ruling in DISTRICT OF COLUMBIA v. HELLER was 5 to 4 and a future case could reverse the ruling. That is highly unlikely now that more conservatives are on the court than in 2008. Even if liberals pack the Court or a future president has the occasion to change the balance of the Court, even a liberal court does not see itself as a political body that follows opinion polls. Such a case would have to find a nuanced argument that would justify overturning a previous ruling of the Court. Even if the Court had a liberal majority, it would likely be years before a case would reach the Court that could result in a ruling to overturn the current ruling of the Court.
The only option I can see for banning the AR-15 is to amend the Constitution. No matter how much one may wish to just ignore the Constitution, that can not happen.
Those who want to ban the AR-15 will need to amend the Constitution and repeal the 2nd Amendment or modify the 2nd Amendment to permit the banning of certain weapons. Amending the Constitution is not easy. It has only happened 27 times. First, you need to get supermajorities in Congress, that is two-thirds in both the House and the Senate. That is not likely to happen anytime soon. Even if you get a joint resolution proposing to amend the constitution through Congress, you still need to get the amendment ratified by three-fourths of the states. That's 38 states. There would have to be an unrepresented change in the political makeup of State Governments for that to happen.
Like it or not, the AR-15 is not likely to be banned.
For more on this topic, consult the following:
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