14 C
New York
Sunday, May 28, 2023

Do we really need assault weapons for self-defense?

By Todd Buchanan

We just passed the first anniversary of the massacre at Robb Elementary School in Uvalde, Texas. One month following that horrific event, in the case of New York State Rifle and Pistol Association, Inc. v. Bruen, the Supreme Court set a new, restrictive standard for Second Amendment cases.

No longer will it suffice to demonstrate that a gun regulation is narrowly tailored to address a compelling governmental interest. Instead, it must be shown to be consistent with the national tradition of gun regulation.

This was an innovation, though Justice Thomas, in the majority opinion, asserted that the 2008 case of District of Columbia v. Heller had established the precedent by expressly rejecting “means-end scrutiny” in Second Amendment cases. Justice Alito had first made that claim in his plurality opinion in McDonald v. Chicago in 2010.

But a careful reading of the Heller opinion by Justice Scalia can demonstrate that the Court did not reject means-end scrutiny. Satisfied that history provided no precedent for the regulation in question, the majority saw no need to resort to means-end scrutiny. It rejected what Scalia dubbed a “freestanding” interest-balancing inquiry proposed by dissenting Justice Breyer, which Scalia believed fell short of any of the traditional levels of means-end scrutiny (strict scrutiny, intermediate scrutiny, rational basis). (See: When Common Weapons are Dangerous Weapons — For the Common Good, Appendix C.)

Heller was something of an innovation as well, but one we can live with. Heller established that the Second Amendment protects the individual right to possess a firearm for self-defense, chiefly for the home, unrelated to service in a militia.

Just about everyone or his uncle has a gun, most commonly for self-defense. And those of us who do not would be hard-pressed to argue that former slaves after the Civil War were not entitled to own guns for self-defense, or that laws of southern states outlawing the keeping of arms by blacks were constitutional.

We would be hard-pressed to argue that neither women nor gay men nor transgendered individuals nor Muslims nor anyone else has any need to own a gun for self-defense.

But legislatures, subject to judicial review, should be free to distinguish between the sorts of guns that are suitable for self-defense and those which exceed the requirements of self-defense, and which are regularly used to spread terror and anguish throughout the land.

In 2013, Colorado banned ammunition-feeding devices over 15 rounds. In 2020, Rocky Mountain Gun Owners challenged that regulation, but the Colorado Supreme Court upheld it. “The overwhelming evidence demonstrated that limiting magazine capacity to 15 rounds does not significantly interfere with the core of Coloradans’ … rights to bear arms in self-defense,” the justices wrote. “Indeed, testimony at trial established that in no case had a person fired even five shots in self-defense, let alone 10, 15, or more.”

Likewise for the nation. Would banning assault weapons, and ammunition feeding devices over 15 rounds, or even over 10 rounds, burden the right of self-defense enough that society must instead accept that such weapons will remain in abundance, and accessible for any aspiring mass killer?

The number of AR-15 and other “modern sporting” rifles in the U.S. exceeds 24 million. Champions of those weapons assert that they are untouchable because the Heller Court distinguished between “dangerous and unusual” weapons, which can be regulated, and “weapons in common use,” which the Court presumes are protected under the Second Amendment.

But assault weapons land in both categories. They are unquestionably common and unquestionably dangerous. And being so common and easily accessible makes them all the more dangerous.

Means-end scrutiny could handle this situation, but a” history-only” standard might not be able to. If we are limited to demonstrating that banning a weapon that is both dangerous and common conforms with the tradition of gun regulations, we might be out of luck.

Why should the legislative branch be hobbled by the Bruen decision that rejected means-end scrutiny, and did so based on a likely misreading of the Heller decision?

Our children especially should not have to bear the cost of particularly dangerous weapons being so common. Government has a compelling interest in making such weapons scarce, and the Supreme Court can surely find its way to not impede that.

Todd Buchanan lives in Eldora.

Source link

Related Articles


Please enter your comment!
Please enter your name here

Stay Connected

- Advertisement -spot_img

Latest Articles