Ban semiautomatic assault weapons?

I say yes! Semiautomatic rifles, aka "assault weapons," ought to be banned. The Bushmaster .223-caliber rifle recently used by Adam Lanza in Newtown, CT, to kill 20 schoolchildren and 6 adults at Sandy Hook Elementary School (not to mention Lanza's mother and Lanza himself) ought to be ancient history.

But wait! Don't Americans have a Second Amendment right to keep and bear whatever arms they desire?

Bushmaster .223-Cal. Rifle
with "Banana Clip"
Ammo Magazine

"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." So reads the Second Amendment to the U.S. Constitution, and the National Rifle Association believes it covers the right to possess AR-15s and similar semiautomatic rifles, such as AK-47s, not to mention semiautomatic handguns that likewise can fire numerous rounds of ammunition in very short order. (The Bushmaster .223 is one of several versions of the AR-15 being sold.)

Unlike fully automatic firearms that keep firing bullets as long as the trigger is pulled back, semiautomatics require a separate trigger pull for each round fired.

Bolt-Action Rifle
(Sliding bolt is on the
right, near the trigger)

Older rifle and shotgun designs are not semiautomatic. In addition to requiring one trigger pull per round, they require that each new round be loaded into the firing chamber individually by manually operating a bolt or lever near the trigger or pumping a handle beneath the barrel.

Fully automatic firearms have been banned since the 1930s, when gangsters and mobsters used Tommy guns to mow one another down. Semiautomatic pistols have been in common use for many decades, and semiautomatic "long guns" — basically rifles, but also shotguns — have become the most popular firearms purchased in America. Yet new purchases of long semiautomatics were outlawed, albeit temporarily, between 1994 and 2004, after which the assault weapons ban was allowed to perish by Congress. In the wake of Newtown, Senator Dianne Feinstein (D-Calif.) wants now to reinstate that ban.

Should that happen? I say yes, but ...

... will banning these weapons prospectively rather than retrospectively — that is, not allowing new semiautomatic rifles to be made, bought, or owned while "grandfathering in" existing ones — do any good?

And would such a ban pass constitutional muster?

I have looked in vain for statistics on how many semiautomatic rifles are currently owned in the U.S., but given that various versions of semiautomatic rifle are being called our most popular firearms today, sales-wise, there have to be millions in existence already. No one knows exactly how many pistols, rifles, and shotguns Americans own, taken all together, but I have seen estimates of 290 million, or nearly one per person. If 1/3 of those are rifles, and if 3/4 of the rifles are semiautomatic, then there must be some 72.5 million semiautomatic rifles abroad in the land. And that's likely an underestimate.

I can't see the good in doing no more than turning off the tap now on new semiautomatic rifles, if that many already exist and won't happily be relegated to the trash heap by their owners.

So I think we need to do something about those long-format semiautomatic weapons presently possessed and dearly cherished by gun owners throughout the land. My remedy? Tax the hell out of them, while also setting up a federal buyback fund (admittedly pricey) to take up weapons that owners don't want to pay the tax on.

By "taxes" I mean federal fees — steep ones — to license every gun owner and to register every firearm in the land that has not been disabled and is in good working order. Just as we pay a fee to renew our driver's licenses and auto registrations, gun owners should have to shell out money on an annual basis for exercising their right to keep and bear arms.

That means there needs to be a registry at the federal level for gun owners and for the guns they own.

So there ought to be a ban on newly minted semiautomatic rifles and a tax on those that exist at present, augmented by a buyback of weapons that owners don't want to be taxed on.

Would all this pass constitutional muster? I don't think anyone can say for sure.

Justice Antonin Scalia

In its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court found that the Second Amendment supports an individual's right to possess a firearm for purposes of self-defense. Justice Antonin Scalia wrote the decision for a 5-4 conservative majority.

The idea that the right to bear arms belongs to an individual and not just a group, such as a state militia, was established by the Heller decision for the first time in U.S. constitutional law. Gun-control proponents such as myself took gas at that, but Scalia and the majority on the court said, seemingly once and for all, that self-defense using firearms in the home is a constitutionally protected part of the fabric of American life.

The Heller decision added to and clarified the court's position in United States v. Miller in 1939:

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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

It seems likely that, in view of Heller, a ban on semiautomatic rifles would pass constitutional muster only if:

1. These rifles are properly deemed "dangerous" weapons, and/or
2. These rifles are properly deemed "unusual" weapons, and/or
3. These rifles are not clearly used for "self-defense."

When I say "and/or" above, I mean that it's not clear how the Court might conjoin these three criteria in reaching a decision on a newly instituted assault weapons ban.

Heller established the right of individuals to own firearms for self-defense in the home and left open the extent to which that right applies to the use of weapons for self-defense outside the home. I think it would be hard to claim that weapons such as the Bushmaster .223, sold as "sporting" rifles that are intended for hunting and target shooting, are self-defense weapons in either context ... but I am not going to bet the farm on it.

Dangerous? Unusual? We know from the wording of the decision that the Heller majority upheld, in broad brush strokes, historical bans on weapons that qualify as both dangerous and unusual. What about weapons that are one but not the other? The numbers of AR-15s in American hands today clearly make them, to say the least, not uncommon. How "dangerous" must they be before that characteristic overrides the fact that so many of them presently exist?

30-Round Magazine
for an AR-15 Rifle

Moves are afoot not only to ban such wea­pons, but also the high-capa­city ammu­nition maga­zines that hold more than 10 rounds. If such a maga­zine ban were en­acted, it would mani­festly reduce the danger posed by semi­automatic rifles. It there­fore might ulti­mately convince the Court that the as­sault weapons ban per se does not meet the Miller/Heller test.

If the Court struck down a new assault weapons ban, we would even more than before need (I think) to place a steep tax on guns and gun ownership. As I say, that would require that we license owners and register guns. And those are moves that have never before been tested constitutionally. I have no idea whether they would pass muster, but I do know that their first hurdle would not be the courts. It would be Congress and the political will of the nation.