The Democrats’ ‘Assault Weapons’ Ban is Unconstitutional, Useless, and Wildly Popular on the Left
A new interview with Second Amendment expert Mark W. Smith
Given that the House of Representatives just passed a much-hyped ban on weapons like his own AR-15 pistol, Stream editor John Zmirak decided to interview Constitutional attorney and author Mark W. Smith about the meaning of this potential law.
John Zmirak: Where does the term “assault weapon” come from? Does it have any functional meaning?
Mark Smith: The term “assault weapon” is a propaganda term contrived by those who oppose the right to keep and bear arms. It is akin to “weapons of war” and “gun violence.” Any weapon can be an “assault weapon” if it is used in a manner to assault someone. Consider, for example, the recent report about the 73-year-old man who was fatally beaten with a traffic cone by seven Philadelphia teens. That traffic cone was used an assault weapon, but it is not an “assault weapon.”
In the context of firearms, the term “assault weapons” has no modern meaning. It is a politically contrived, pejorative label that opponents of the Second Amendment adopted to describe certain semiautomatic firearms. An “assault weapon” — as defined in the proposed ban — does not function any differently from other semiautomatic firearms. All semiautomatic firearms fire one bullet with one pull of the trigger.
Those who embrace the term “assault weapon” are unable to distinguish those firearms that they label “assault weapons” from other semiautomatic firearms based on functionality. So they have identified a group of secondary features that they argue make certain semiautomatics “like weapons of war.”
But, in fact, these features actually promote accuracy and/or the usability of the firearm when it is in the hands of the law-abiding. For example, the adjustable shoulder stock (one of the features that turns an ordinary semiautomatic rifle into a prohibited “assault weapon”), allows the length of the firearm to be adjusted or customized to the user such that the same exact firearm can be used as skillfully by a petite woman and a tall man.
Proponents of the term “assault weapon” seek to ban a contrived class of firearms commonly owned by millions of law-abiding Americans because these firearms possess features that only enhance their use for self-defense. The firearms labeled “assault weapons” are no different from semiautomatic firearms generally and the contested features largely help level the playing field between the attacker and the attacked.
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What weapons would the current proposed ban on so-called “assault rifles” outlaw?
The ban would outlaw commonly possessed semiautomatic rifles that can accept magazines holding over 10 rounds or that have certain contested features like adjustable shoulder stocks, pistol grips, forward grips, or folding stocks.
Are these weapons “in common use,” as the Supreme Court defines weapons whose ownership is indeed protected by the Second Amendment?
The semiautomatic firearms falling with the proposed ban are among the most popular centerfire semiautomatic rifles in the United States. A recent industry report by the National Shooting Sports Foundation estimates that there are approximately 24.4 million semiautomatic rifles in circulation. Moreover, a recent survey by Georgetown professor William English found similar estimates. As a point of reference, in the Caetano v. Massachusetts case in 2016, the Supreme Court held that stun guns, of which there were approximately 200,000 in circulation, were held to be in common use and protected by the Second Amendment. Semiautomatic rifles, which number in the tens of millions, are likewise entitled to Second Amendment protection.
The Constitution on “Weapons of War”
Were the weapons the Founders had in mind when they wrote the Second Amendment also “weapons of war” such as the U.S. Army and citizens militias used? Or was it just muskets for hunting?
Our Founders did not distinguish among arms based on any purpose of use, and the text of the Second Amendment makes no mention of any such distinction. Our Founders did not consider certain firearms to be “weapons of war” and others to be “weapons of hunting” or “weapons of self-defense.”
Americans would bring their own private weapons that they used for private civilian uses with them to militia duty, if called to serve in the militia. The private weapons and the militia weapons were the same weapons. Note that colonial and revolutionary Americans took to rifles with such enthusiasm because they valued the rifles accuracy and ease of use in all contexts thus making it a distinctly American firearm in both military and private use.
Why did the Founders wish to keep such weapons in civilian hands? Did they make their reasons clear in the debates over the ratification of the Bill of Rights?
The Founders were no strangers to tyranny, given the authoritarian governments of their time and of history. The Antifederalists, who were the driving force behind the Bill of Rights, were very concerned that the federal government would interfere with state and local militias and attempt to disarm the people.
This fear, as discussed by the Supreme Court in Heller, contextualizes the prefatory clause of the Second Amendment. This is further made apparent by the language in the state constitutional analogs. For example, Pennsylvania’s Declaration of Rights, adopted in 1776, secured the right of the people to “bear arms for the defence of themselves.” The Founders understood self-defense and self-preservation to be a natural, pre-existing right, and the Second Amendment memorialized that right and gave it practical force.
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What is the connection between an armed citizenry and the rise of authoritarian governments, historically?
History is replete with examples of the disarming of citizens and the rise of authoritarianism. From Ancient Greece, the British colonies, and Nazi Germany to modern Russia and China, authoritarian regimes seek to disarm the general populace to subdue resistance to their despotism — as night follows day. Conversely, societies that have long prized the right to keep and bear arms, like Americans and the Swiss, historically have been able to keep themselves safe from the reach of tyranny.
Is such a ban as Democrats wish to pass likely to survive Supreme Court scrutiny?
No. The Supreme Court was very clear in Heller and, more recently, in Bruen, about the exclusive role of history and tradition in Second Amendment analysis. There is absolutely no historical evidence from the Founding era that supports a ban on commonly possessed firearms. For this reason, the proposed “assault weapon” ban would not survive constitutional scrutiny — provided, of course, that our Constitution and the rule of law are faithfully applied.
Mark W. Smith is the host of the Four Boxes Diner YouTube channel, which covers Second Amendment and firearms scholarship and issues. Mark is a Distinguish Scholar and Senior Fellow in Law and Public Policy at the Ave Marie School of Law, and is a bestselling author of six books including First They Came for the Gun Owners and #Duped: How the Anti-Gun Lobby Exploits the Parkland School Shooting.