We don’t need to overturn the Second Amendment to enact strong gun laws

Posted on March 28, 2018

Former Supreme Court Justice John Paul Stevens recently wrote an op-ed calling for a constitutional amendment to repeal the Second Amendment. And he is correct that Justice Antonin Scalia’s majority ruling in District of Columbia v. Heller, 554 U.S. 570 (2008) was legally wrong. Many other legal scholars have also criticized Scalia for rationalizing away the first half of that Amendment, “A well regulated Militia being necessary to the security of a free State….”

But the Heller decision, by itself, does minimal harm. All it guarantees is the right to own a handgun in the home—it does not block the gun violence legislation being debated today. Heller does not hinder laws to require a thorough background check for all gun transfers, or licensing, fingerprint checks, safety training requirements, waiting periods, and a host of other restrictions.

And most important for the current discussion, it does not stop governments from banning semiautomatic assault weapons like the AR-15 variants used to murder 14 students and 3 teachers at the Stoneman Douglas High School in Florida, 58 people gathered for a concert in Las Vegas, 49 in a nightclub in Orlando, as well as 20 elementary school children and 6 teachers in Newtown, Connecticut.

No federal Court of Appeals has ever struck down a ban on assault weapons. Since Scalia’s opinion ten years ago, four different Courts of Appeals (the District of Columbia and the 2nd, 4th and 7th Circuits) have ruled that assault weapon bans do not violate the Second Amendment as interpreted by Heller.

So that’s the short answer. Scalia’s opinion twisted facts and made absurd distinctions between types of guns and among types of gun laws, but at the same time, he explicitly upheld a great deal of the gun laws already on the books.

For those who might be interested, let me provide a longer answer.

There is only one other Supreme Court decision on the Second Amendment, United States v. Miller, 307 U.S. 174 (1939) and Heller confirmed that Miller remains in force. In Miller, a unanimous Court upheld the constitutionality of the National Firearms Act of 1934, a law which essentially bans machine guns and sawed-off shotguns and rifles (as well as guns secreted in pens or canes or other similar devices, rifles and handguns with extra-wide barrels, and silencers, grenade launchers, explosive devices and the like).

Justice Scalia wrote in Heller that Miller stands for the proposition that “the Second Amendment right, whatever its nature, extends only to certain types of weapons” Heller at 623, and made it clear that the Second Amendment does not protect the ownership of short-barreled shotguns or machine guns. (The second time Heller refers to machine guns it calls them “M-16 rifles and the like…” Heller at 627.)

Let us compare these two old guns which Justice Scalia thought were too “dangerous and unusual” to be protected under the Second Amendment to current-day assault weapons. (To lawyers: I am simplifying the legal issues here in order to dig into the factual ones.)

In Miller, the defendants had been convicted of carrying across state lines “a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length….” By modern standards, this gun is not very dangerous. It shoots two shells and then the user has to hinge it open, remove the shell casings, manually insert new shells, and reclose the gun. That makes it one of the slowest guns to fire multiple rounds.

During the 1934 hearings on the National Firearms Act (NFA), no one ever questioned the need for restricting short-barreled shotguns. U.S. Attorney General Homer S. Cummings said: “A sawed-off shotgun is one of the most dangerous and deadly weapons” and the National Rifle Association’s Executive Vice President, General Milton A. Reckord, readily agreed. (The NRA didn’t become a nut-case organization until the 1970s.)

The NFA also banned machine guns, but it wasn’t today’s guns that persuaded Congress in 1934, it was the Tommy Gun in the hands of gangsters. The Thompson fires a .45 caliber pistol cartridge which is not very powerful compared to modern military ammunition. A semiautomatic AR-15 firing the military’s standard 5.56 NATO round has a muzzle velocity more than three times faster than the Thompson and shoots accurately (has an effective firing range) about ten times farther than the Thompson.

Today’s semiautomatic assault weapons are far more “dangerous and unusual weapons” than those banned by the NFA.

What makes these assault weapons unusually dangerous is that each incorporates the features of a modern military rifle or submachinegun, enabling the shooter to fire numerous bullets very rapidly, and yet keep control of the gun. For example, because it’s a version of the M-16, the AR-15 used to kill schoolchildren in both Parkland and Newtown is designed with a pistol grip so it can be fired rapidly from the shoulder or hip; it is designed with a barrel shroud so the non-trigger hand can keep the gun stable during rapid fire; it is designed to accept very large capacity magazines so there is no pause to reload. The parts or features of an assault weapon are not there to look scary; they are there to make it possible for the shooter to do scary things.

Modern semiautomatic assault weapons are just as dangerous as modern military rifles because they are essentially the same gun but fixed in semiautomatic mode. For example, there are two models of the standard military M-16. One has a switch that allows the rifle to be fired in full-auto (bullets stream out as you hold down the trigger) or in semiautomatic mode (one shot for each pull of the trigger). The other has a switch that allows the M-16 to be fired in a three-shot burst or in semiautomatic mode. The AR-15 is virtually identical to an M-16 fixed in semiautomatic mode.

There is really little difference in how dangerous a semiautomatic assault weapon (AR-15) is compared to the same weapon with a switch for full-auto fire (M-16). The U.S. Army trains its soldiers that “The most important firing technique during fast-moving, modern combat is rapid semiautomatic fire.” (See: Headquarters, Department of the Army, Rifle Marksmanship M16-/M4-Series Weapons (August 2008), page 7-8.) Or as a veteran battlefield reporter explains:

[D]oes the infantry need full auto when most battle-seasoned veterans – including special operators – agree that semi-auto fire is highly effective for suppressing the enemy?… Back in the mid-1980s – before the shift to the M16A2 and the three-round burst – active-duty infantry units kept to a strict rule that rifleman only fired their M16A1s on semi auto. Today’s combat-experienced infantrymen are even more disciplined.

When soldiers fire M-16s in semi-auto, it is the same as if they were firing AR-15s.

While assault weapons are just as dangerous as modern machine guns and somewhat more dangerous than the Thompson, they are enormously more dangerous than the short-barreled shotgun in Miller. So let us not let Second Amendment arguments slow down the work for rational gun laws. The Second Amendment is not the problem; the NRA is.