Never Enough: Congressional Democrats Ignore SCOTUS and the Constitution to Push Another Gun Ban
Our friends at the National Rifle Association’s Institute for Legislative Affairs (NRA-ILA) the Democrats’ renewed effort to ban certain modern guns even as the ink was barely dry on their previous attempt to infringe on the rights guaranteed by the Second Amendment. The bill – H.R. 1808, sponsored by Rep. David N. Cicilline (D-RI) is scheduled for a markup in the
U.S. House Judiciary Committee and suffers every major defect attributable to Congressional gun control legislation.
As the NRA-ILA news release put it, the ink on the so-called “Bipartisan Safer Communities Act,” passed over the NRA’s objection, is barely dry. And the same can be said for the U.S. Supreme Court’s latest pronouncement on the Second Amendment, which reinforces the principle that the right to keep and bear arms is a defining feature of American freedom and self-governance.
And yet news is now breaking that Congressional Democrats are pushing the largest firearms ban in American history.
This demonstrates as clearly as possible that gun control advocates will never stop, that every “success” merely emboldens them to take the next, more sweeping and tyrannical step, and that any legislator or voter who thinks otherwise is dangerously naïve.
The bill – H.R. 1808, sponsored by Rep. David N. Cicilline (D-RI) is scheduled for a markup in the U.S. House Judiciary Committee and suffers every major defect attributable to Congressional gun control legislation.
First, it is blatantly unconstitutional.
Second, it would provide no appreciable benefit to public safety, while directly infringing on the rights of law-abiding Americans. Its most predictable effect would be to put the law on the side of predatory criminals and against ordinary people peaceably trying to live their lives.
Third, it is punitive, persecutory, divisive, and wholly partisan.
There are many things Congress could do in good faith within its constitutionally delegated powers to address the problems of violent crime and violent criminals. This bill does none of them.
Here’s what it would do.
The centerpiece of the bill is a sweeping ban on semi-automatic long guns (what it calls “assault weapons”), targeting what are in fact the most popular rifles in America today.
It would ban the importation, manufacture, sale, transfer, or possession of any semi-automatic rifle that has a removable magazine and any one of the following features: a pistol grip; a forward grip; a “folding, telescoping, or detachable stock” (or some feature that makes the firearm otherwise “foldable or adjustable in a manner that operates to reduce the length, size, or any other dimension, or otherwise enhances the concealability, of the weapon”); a grenade launcher; a barrel shroud; or a threaded barrel.
It would also ban any semi-automatic rifle “that has a fixed magazine with the capacity to accept more than 10 rounds, except for an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.”
The bill underscores its intentions with a lengthy list of firearms that are banned by name, which include all “AK types” and all “AR types,” as well as “copies, duplicates, variants, or altered facsimiles with the capability of any such weapon thereof.”
Semi-automatic shotguns and pistols, of course, also get their own types of bans.
Even more consequentially, however, the bill would ban any ammunition feeding device “that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than 10 rounds of ammunition,” excluding only “an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.”
Also banned by the bill would be any “part, combination of parts, component, device, attachment, or accessory that is designed or functions to accelerate the rate of fire of a semiautomatic firearm but not convert the semiautomatic firearm into a machinegun.”
Moreover, any “combination of parts from which a [banned] firearm [could] be assembled” or the “frame or receiver of a [banned] rifle or shotgun” would themselves be banned.
The consequences of these bans are literally too encompassing and far-reaching to analyze in depth in a general overview of the measure.
Suffice to say for present purposes that – despite the bill’s use of the term “assault weapon” – it does not target obscure firearms, firearms that are favored by criminals but not law-abiding citizens, firearms that are over-represented in crime, or firearms that are fielded by modern military forces. Rather, it goes after the very types of rifles, in particular, that are most often chosen by Americans for defense of their homes, their families, and their properties.
Thus, the first defect of the bill is that it violates the Second Amendment.
The U.S. Supreme Court has repeatedly stated that the Second Amendment protects firearms “in common use” for lawful purposes, most recently on June 23 in its opinion in New York State Rifle & Pistol Assn. v. Bruen.
There is no question that the AR-15 and other semi-automatic firearms and magazines targeted by this bill meet the “common use” threshold.
The National Shooting Sports Foundation (NSSF), the leading trade association for the U.S. firearms and ammunition industries, reports that semi-automatic rifles like the AR-15 “are among the most popular firearms being sold today.” As of late 2020, NSSF estimated (based on import and manufacturing data dating back to the 1990s) that there were 19.8 million of these types of rifles in circulation in the United States.
Moreover, the overwhelming number of semi-automatic rifles and pistols chambered for a defensive cartridge and available in the U.S. today come factory-equipped with magazines that can hold more than 10 rounds of ammunition. There also countless such aftermarket magazines in private hands.
Under any conceivable definition, both items are in common use.
The author of Bruen himself, Justice Clarence Thomas, has in fact already opined on the matter in a dissent to the high court’s refusal to hear a Second Amendment challenge to a ban on AR-15s and other semi-automatic rifles in 2015. Thomas wrote:
[District of Columbia] v. Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. … The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. [Internal citations omitted.]
Another current justice, Brett Kavanaugh, while a judge on the D.C. Circuit, dissented from a case that upheld a Second Amendment challenge to a similar ban. “Under the Heller history- and tradition-based test, or the strict scrutiny test, or even the majority opinion’s own intermediate scrutiny test, the D.C. ban on semi-automatic rifles is unconstitutional,” Kavanaugh wrote.
Still another current justice, Samuel Alito, wrote a concurring opinion to a Supreme Court case which concerned stun guns. Citing data that indicated some 200,000 Americans owned stun guns as of 2009, Alito opined: “While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.” This same rationale would apply even more strongly in the case of AR-15s and other semi-automatic rifles, which are vastly more common.
Bruen also clarified that gun control laws run afoul of the Second Amendment unless a similar legal tradition existed in America at the time the Bill of Rights or the 14th Amendment was ratified. Certainly, there was no legal tradition in the states during either period of banning ANY sort of rifle.
Beyond the clearly unconstitutional provisions of H.R. 1808, it is also bad policy.
Far from the “choice of criminals,” rifles of any type are actually under-represented among the firearms used to commit murder in the United States. FBI statistics consistently bear this out, year after year demonstrating that handguns (which the Supreme Court in District of Columbia v. Heller ruled cannot be banned just because they are potentially dangerous) are far and away the “crime gun” of choice.
Rifles fall not just below handguns as weapons used in murder but below non-firearm weapons as well. This includes not just edged weapons, like knives, or blunt-force weapons, such as clubs or bats, but even so-called “personal weapons” like hands, fists, and feet.
Even the decidedly anti-gun “fact-checkers” Politifact could not evade this simple truth. While straining to emphasize the point that firearms, generally, are the most commonly used weapons to commit murder in the U.S., the article had to admit: “A Facebook post claimed that more people were killed by hands, fists and feet in 2020 than by rifles. FBI data does confirm that statistic.”
Rigorous research also consistently fails to support any crime control benefits for bans of the type in Cicilline’s bill.
This was true of congressionally-mandated studies that followed the first nationwide experiment with categorically banning certain types of semi-automatic firearms and “large capacity” magazines from 1994 to 2004. The first such study concluded: “At best, the assault weapons ban can have only a limited effect on total gun murders, because the banned weapons and magazines were never involved in more than a modest fraction of all gun murders.” A follow-up study likewise acknowledged: “the ban’s impact on gun violence is likely to be small at best, and perhaps too small for reliable measurement.”
More recently, the RAND Corporation conducted a comprehensive survey of existing, high quality literature on the effects of various gun control measures. That effort was unable to substantiate any convincing evidence that magazine capacity limits or bans on categories of semi-automatic firearms have a beneficial effect on reducing violent crime generally or mass shootings in particular.
But, of course, crime control is not the point of H.R. 1808.
The most benign thing that could be said of it is that it’s a cynical attempt to appear pro-active to partisans and uninformed voters who understand neither firearms nor the dynamics of violent crime in the United States.
Gun control advocates of all stripes will occasionally admit that banning certain semi-automatic firearms is symbolic at best. Lois Beckett delivered this bad news to her fellow liberals in articles in The New York Times and Mother Jones.
UCLA Law Professor Adam Winkler, often cited in anti-gun propaganda as a subject matter expert, agreed in an interview with Vice:
My own view is that there's no way to make assault rifle bans effective. It's an ineffective law, it's an ineffective goal, it's an ineffective policy that's mostly about symbolism and not about substance. The truth is assault weapons are used very infrequently in crimes. I think there is a grand total of about 300 people a year who die from rifles of any sort––assault or otherwise.
Even an article in the hard-left Cardozo Law Review argued, “banning assault weapons is pointless and distracts attention from other gun control initiatives.”
Perhaps the most revealing discussion of the issue, however, came from the late Charles Krauthammer, generally considered a conservative pundit but one who supported firearm prohibition. “Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain,” Krauthammer wrote in the Washington Post. “Given the frontier history and individualist ideology of the United States, however, this will not come easily.” He continued: “Passing a law like the assault weapons ban is a symbolic -- purely symbolic -- move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation.”
Krauthammer did not live to see the creeping authoritarianism that that has lately taken hold in these “sister democracies,” but he likely would have approved.
Canadian Prime Minister Justin Trudeau purported to use executive authority to unilaterally ban huge categories of semi-automatic firearms in 2020, with current owners given “amnesty” to come into compliance by surrendering or deactivating their guns. As the deadline approached, Trudeau’s government blinked at its own overreach and extended the “amnesty” period until October 30, 2023. Meanwhile, Trudeau has gone even further and begun pursuing a ban on the importation and transfer of handguns.
In England, where private ownership of guns is nearly extinct and arming oneself for personal defense is considered a crime, police conduct “weapons” sweep at public housing projects and proudly display the bizarre fruits of their efforts, which include such things scissors, pliers, files, and even a bicycle wheel.
Make no mistake, this is the bright future of “domestic tranquility” that awaits the U.S. itself if gun control advocates get their way. And however reluctant they usually are to admit it, every step they take in restricting firearm ownership is done with this end in mind.
That is exactly why Biden, on July 11, used the occasion of celebrating a supposedly breakthrough gun control law to call for a broad ban on semi-automatic firearms.
Now his party is trying to accommodate him.
We join the NRA-ILA, Gun Owners of America and other Second Amendment defenders in urging CHQ readers and friends to call their Representative and Senators (the Capitol Switchboard is 1-866-220-0044) to demand they vote NO on the Democrats’ latest unconstitutional gun grab: H.R. 1808, sponsored by Rep. David N. Cicilline.
Joe Biden Administration
H.R. 1808 Rep. David N. Cicilline (D-RI)
Bipartisan Safer Communities Act
ban on semi-automatic long guns
assault weapons ban
magazine capacity limits
New York State Rifle & Pistol Assn. v. Bruen
National Shooting Sports Foundation (NSSF)
Canadian Prime Minister Justin Trudeau