The Fourth Circuit’s decision to uphold Maryland’s “assault weapons” ban is a constitutional travesty.
As Judge Traxler’s dissent pointedly establishes, the majority achieved this transformation by contriving “a heretofore unknown ‘test,’ which is whether the firearm in question is ‘most useful in military service.’” In effect, this “test” is designed to permit judges to determine that any weapon they might dislike is unprotected by the Second Amendment and can therefore be prohibited with impunity. Forget that Heller contains its own explicit tests. Forget the “common use” standard. Forget “dangerous and unusual.” There’s a new kid in town, and he’s coming for your rifles.
What counts as “most useful in military service” under this rubric? Well . . . everything, theoretically. “Under the majority’s analysis,” the dissenters contend, “a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service — undoubtedly a weapon of war — and therefore not protected by the Second Amendment.” Indeed, “the ‘most useful in military service’ rubric would remove nearly all firearms from Second Amendment protection as nearly all firearms can be useful in military service.” A standard semi-automatic handgun is plausibly “most useful in military service.” So, too, is a hunting rifle. So is a sword. Perhaps the Fourth Circuit would like to strip the constitutional protection from those weapons, too?
That, of course would be absurd — not only because it would render the Second Amendment meaningless as a check on state action, but because the Supreme Court has already delivered clear instructions to the contrary. In Caetano v. Massachusetts, which, recall, was decided per curiam, Justice Alito explained in no uncertain terms that “even a stun gun capable of only non-lethal force is suitable for military use,” but that this did not mean that stun guns could be banned. Alito sits on the Supreme Court, and was writing in concurrence with the other eight justices.
He and his colleagues had a conclusion to reach, and by gum were they going to get there. This legal folly notwithstanding, the majority’s characterization of the AR-15 as “weapon of war” is flat-out wrong. First, the opinion suggests that because the AR looks like an M-16 (a weapon that is not widely owned by the citizenry), it counts as a military firearm. Then, perhaps anticipating the objection that the AR-15 has never been issued to a soldier in American military history, it makes a series of preposterous claims as to the weapon’s rate of fire, the sole purpose of which is to mislead readers into believing that the model shares more than an aesthetic relationship with the its automatic cousins. Semi-automatic rifles, Judge King suggests, can fire at a rate of between 300 and 500 rounds per minute — a capability that makes them “virtually indistinguishable” from a machine gun.
The majority’s assertion might surprise the United States Army, which sets the maximum effective rates of M4- and M16-series rifles operating in semi-automatic mode at 45 to 65 rounds per minute — only about five rounds in five seconds (not 30 rounds as the majority believes). This is far slower than 150 to 200 rounds per minute that may effectively be fired by the same arms operating in fully automatic mode.
The legal problem here is obvious: If the AR-15 is unacceptably dangerous because it is semi-automatic, then so must be every other gun that fires once per pull of the trigger — including the handguns that were protected by Heller. “If the majority is correct,” writes Traxler, “that the semiautomatic AR-15’s rate of fire makes it a weapon of war outside the scope of the Second Amendment, then all semiautomatic firearms — including the vast majority of semiautomatic handguns — enjoy no constitutional protection since the rate of fire for any semiautomatic firearm is determined by how fast the shooter can squeeze the trigger.”
Indeed. And a further question must present itself. Since 1934, automatic weapons have been treated differently under the law in the United States. Why? If semi-automatics that are protected by Heller are practically identical to automatics — and if the “common use” standard is to be ignored as it has been here — shouldn’t the court be striking down the National Firearms Act? Words matter, especially in the law. “Common” can’t mean “unusual.” “And” can’t mean “or.” And parlor games can be played both ways: If we are to subject the plain terms of our precedents to the amateurish deliberations of motive-riven judges, there will be nothing to stop a different court from inverting the trick and striking down the NFA on the grounds that fully automatic weapons are so similar to semi-autos as to enjoy all the protections of “normal” civilian weapons.