Right to keep and bear arms and assault rifles

[Volokh, Eugene]

        This ultimately proves to be a very interesting constitutional law
question, because there's no way to avoid having to confront an individual
right to keep and bear arms:  Even if one concludes that the 2nd Am secures
no individual right (in my view an incorrect reading, but let's set that
aside for now), 44 of the 50 state bills of rights secure a right to keep
and bear arms.  None of them, I think, can be reasonably read as securing a
states' right (though regrettably two, the Kansas and the Massachusetts one,
have indeed been read this way); but in any event, the great majority have
text that indubitably secures an individual right, including an individual
right aimed at self-defense.  I collect the various provisions, sorted in
chronological order, at
http://www.law.ucla.edu/faculty/volokh/beararms/statedat.htm; the most
recently enacted one, for instance, is the Wisconsin right (1998), which
reads "The people have the right to keep and bear arms for security,
defense, hunting, recreation or any other lawful purpose."

        So how do the assault weapons bans fare under these provisions?  I
think both Greg and Michael are in some measure right on the facts.  Greg is
correct that assault weapons differ from other weapons largely in cosmetic
ways, and that they are in fact not appreciably more lethal than other
weapons.  Gary Kleck's "Targeting Guns" (1997) summarizes the criminological
data quite effectively.  Besides the fact that assault weapons are identical
in most crime- and injury-relevant ways to non-assault-weapons, fewer than
2% of all crime guns appear to be "assault weapons," and 2% also seems to be
the best (very rough) guess as to the fraction of all guns that are "assault
weapons."  The one potential noncosmetic difference between assault weapons
and other weapons -- assault weapons tend to, under some definitions, have
larger magazines than other weapons -- proves not to be relevant, because
the overwhelming majority of all shootings, including all the mass shootings
that had been in the news in the several years before the book was
published, either do not involve many rounds being fired, or leave the
shooter with plenty of time to reload.  The panic over assault weapons seems
to have no foundation in criminological reality.

        On the other hand, the very fact that assault weapons are no more
useful than other weapons for criminals also makes them no more useful for
self-defense.  I do not think that they're any less useful for self-defense,
for target shooting, or perhaps even for hunting; there's no inherent reason
why a bayonet lug or a folding stock (two attributes used in some statutes
to distinguish assault weapons from other weapons) would make a gun less
useful for those purposes, and while a pistol grip (another such attribute)
may make the gun less accurate than a shoulder-fired weapon, that might make
it more of a challenge for hunting or target shooting purposes.  Moreover,
as I understand it, some definitions of assault weapons have been so broad
as to include many weapons that people did indeed use for these purposes.
But even if assault weapons are no less useful than other weapons for these
purposes, they are no more useful either; and they wouldn't even be
appreciably more useful than other semiautomatic (as opposed to fully
automatic) weapons for deterrence of government tyranny or for military uses
generally.

        So the constitutional question, I think, boils down to whether one
uses a test that focuses on the effectiveness of the law -- say, strict
scrutiny or intermediate scrutiny, with no burden threshold, as is the
formal test for content-based speech restrictions or race or sex
classifications -- or a test that also focuses on the degree to which the
law burdens the right -- say, the Casey substantial burden test, or the
Sherbert/Yoder Free Exercise Clause test.

        If we applied something like intermediate scrutiny or strict
scrutiny -- the real deal, not the feeble versions used during, say, the
Sherbert/Yoder era -- to an assault weapons ban, I think we'd quickly find
that the law does not substantially advance the government interest.  Cf.,
e.g., Rubin v. Coors Brewing Co.  On the other hand, if we applied a
substantial burden test, we'd find that the law doesn't substantially burden
the right, and thus no further scrutiny is necessary.  The question is what
the right test would be, and that's a question that neither state courts
applying state constitutional provisions (in a singularly unenlightening and
ill-reasoned array of cases, and I've generally found them unenlightening
and ill-reasoned whether they struck down the gun control law or upheld it)
nor most commentators discussing the federal or state constitutional
provisions have adequately confronted.  I've actually been thinking about
writing on this subject, but that project is on a far, far back burner . . .
.


Michael Masinter writes:

> Let me pose the question differently.  Do you know anyone who hunts with
> an assault rifle?  Who thinks that its short barrel and large clip make it
> useful for shooting something other than people?  Do you know anyone who
> thinks that an assault rifle is useful for personal protection or crime
> deterrence? Who thinks that it is a good bedside weapon, or perhaps a
> useful sidearm?  Do you know anyone who uses an assault rifle in
> competitive target shooting (and if you do, I would like to discuss a
> match)?
>
> The assault rifle legislation may have only a marginal impact, but that
> does not make it irrational.
>
> Michael R. Masinter                     3305 College Avenue
> Nova Southeastern University            Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center                (954) 262-6151
> masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>
> On Tue, 2 Jan 2001, Greg Sisk wrote:
>
> > I don't disagree with Professor Masinter's statements, but it doesn't
> > respond to my point about much of the gun-control debate being a
> > matter of political image issues rather than substance.  Of course,
> > he is correct in saying that true military assault rifles are also
> > designed to fire rapidly -- that is, they are fully automatic
> > (continuing to fire bullets as long as the trigger is depressed).
> > Quite independent of any current gun control proposals or the
> > supposed "assault weapons" ban, fully automatic weapons are illegal,
> > that is, they may not be sold or possessed (except under very strict
> > licensing limitations).  In other words, the ban on so-called assault
> > weapons is not directed at fully automatic weapons, which already are
> > prohibited by other laws.  Instead, the assault weapons ban is
> > directed at rifles that by appearance look like a fully automatic
> > military weapon, even though they functionally are not -- it remains
> > a matter of cosmetics.  Nor is the assault weapons ban directed at
> > semi-automatic weapons (a bullet fired every time the trigger is
> > depressed again), which would describe most rifles and handguns and
> > thus would broadly prohibit most gun ownership (very few politicians
> > openly take that position, at least as yet).  The assault weapons ban
> > was a politician's dream, because it allows the supporter to pretend
> > to his or her constituents that a dangerous weapon is being banned;
> > in truth, nothing of significance is eliminated from the fire-arms
> > market by this ban.
> >
> > >Military assault rifles are not designed for accuracy (and certainly
> not
> > >for inaccuracy); they are designed for rapid fire.  Their particular
> > >danger arises from their capacity to discharge many rounds quickly, not
> > >from their capacity to dicharge them accurately.  Were I concerned with
> > >the accuracy of a single shot, I would choose a well designed and
> balanced
> > >bolt action rifle.  Were I concerned with causing the maximum harm to
> the
> > >maximum number of people, I would choose an assault rifle.
> > >
> > >Michael R. Masinter                     3305 College Avenue
> > >Nova Southeastern University            Fort Lauderdale, Fl. 33314
> > >Shepard Broad Law Center                (954) 262-6151
> > >masinter at nova.edu                       Chair, ACLU of Florida Legal
> Panel
> > >
> > >On Tue, 2 Jan 2001, Greg Sisk wrote:
> > >
> > >>  Just as a note, which has some ironic aspects given the debate,
> > >>  military assault weapons -- which are the subject of the strongest
> > >>  federal limitations and often tauted by politicians for political
> > >>  reasons -- in fact are designed to be somewhat less likely to kill
> > >>  than to wound and incapacitate, the reason being that in war-time
> > >>  causing injury to enemies is more debilitating because the injured
> > >>  soldier's comrades are distracted by attending to him and then
> > >>  transporting him to medical assistance.  The average deer-rifle,
> > >>  subject to the most minimal of gun-control restrictions, is a much
> > >>  deadlier weapon, as one of the school shooting episodes
> demonstrated.
> > >>  As ironic and perverse as it may seem, but strangely true, more of
> > >>  those shot during that episode would have survived if the fire-arm
> > >>  used to commit the crime had been a so-called "assault weapon"
> rather
> > >>  than a deer rifle.  Whatever one's views about gun control, we must
> > >>  acknowledge that much of the debate is misguided.  The so-called
> > >>  "assault weapons" ban focuses primarily upon the cosmetic appearance
> > >>  of certain firearms, not upon their functional capacities.
> > >>
> > >>
> > >>  >  >        It turns out that fewer than 20-25% of all assault
> > >>wounds inflicted
> > >>  >with firearms today lead to death (see National Safety Council,
> > >>  >Accident Facts).
> > >>  >The fraction is even less for handguns as opposed to shotguns.  Do
> we know
> > >>  >whether this is an appreciable increase -- or for that matter an
> > >>appreciable
> > >>  >decrease -- from the lethality of firearms in the late 1700s.
> > >>  >
> > >>  >During that period, infection was the major killer.  Gunshot
> wounds,
> > >  > >especially
> > >>  >those that were made through cloth, tended to infect easily.
> > >>Actual piercing
> > >>  >wounds to the viscera would almost always result in infection, if
> > >>they did not
> > >>  >kill acutely.  In either case, if you hit your target, you tended
> > >>to kill him.
> > >>  >Modern guns are much more lethal acutely, even with modern surgical
> > >>  >care, but we
> > >>  >lose far fewer to subsequent infection.  While hitting the target
> > >>was a real
> > >>  >problem, it probably did not reassure folks much when the
> > >>expectation was of
> > >>  >slow and very painful death if hit.
> > >>  >
> > >>  >Ed
> > >>  >
> > >>  >Edward P. Richards
> > >>  >Executive Director - Center for Public Health Law
> > >>  >Professor of Law
> > >>  >University of Missouri Kansas City
> > >>  >(816)235-2370 Fax (816)235-5276
> > >>  >richardse at umkc.edu
> > >>  >http://plague.law.umkc.edu
> > >>
> > >>  --
> > >>  Gregory Sisk
> > >>  Richard M. & Anita Calkins
> > >>     Distinguished Professor
> > >>  Drake University Law School
> > >>  2507 University Avenue
> > >>  Des Moines, Iowa  50311-4505
> > >>  515-271-4184
> > >>  greg.sisk at drake.edu
> > >>
> > >>
> >
> > --
> > Gregory Sisk
> > Richard M. & Anita Calkins
> >    Distinguished Professor
> > Drake University Law School
> > 2507 University Avenue
> > Des Moines, Iowa  50311-4505
> > 515-271-4184
> > greg.sisk at drake.edu
> >
> >
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010102/cda3ba60/attachment.htm