Fourth Circuit Shootout: 'Assault Weapons' and the Second Amendment

Severe restrictions on so-called assault weapons and large-capacity magazines have long been an important agenda item for organized proponents of gun control. For just as long, gun rights activists have accused their opponents of a kind of bait and switch. The main targets of these restrictions have been rifles that look like M16s, AK-47s, and other military rifles, but operate differently. Since 1934, civilians have been required to undergo a costly and burdensome federal licensing process in order to possess fully automatic weapons, commonly referred to as machineguns. Such weapons, which include military rifles, are now rare and expensive because the federal government froze the civilian supply in 1986. The rifles at which more recent laws are aimed, such as the AR-15 and AR-10, have a superficial resemblance to military weapons but use a semi-automatic operating system like those found in many ordinary hunting guns, as well as in a very large proportion of modern handguns. These semi-automatics are now called “modern sporting rifles” by their defenders, who hope to discourage the public from being fooled into mistaking them for machineguns. The debate about this issue assumed national prominence in 1994, when Congress enacted a statute that restricted the sale of semi-automatic rifles with a military appearance and all magazines that can hold more than ten rounds of ammunition. Although the statute contained a grandfather clause exempting weapons already in civilian hands, it provoked a firestorm of criticism, and the Democratic Party promptly lost control of both Houses of Congress for the first time in four decades. When the law expired by operation of a sunset provision ten years later, President Bush advocated its renewal. The Republican Congress ignored him, and the Democrats failed to revive the measure after they regained control of Congress and the presidency in 2009. Evidently regarding such legislation as politically toxic, neither party has enacted a major gun control law at the national level for almost a quarter of a century. Several states, however, have enacted laws that are modeled on the 1994 federal statute. Maryland’s version was recently upheld by the Fourth Circuit, sitting en banc, in Kolbe v. Hogan. This decision offers a useful lens through which to view the landmark decision in District of Columbia v. Heller, which recognized a constitutional right to keep a handgun at home for self defense. In Kolbe, the majority concluded that the Second Amendment has no bearing on the Maryland statute. The dissent went almost to the opposite extreme by arguing that the statute should be subjected to strict scrutiny. Both the majority and the dissent went to great lengths to argue that their opposing conclusions were dictated by Justice Scalia’s Heller opinion, and both of them are demonstrably wrong about that. Taken as a whole, the Heller opinion is exquisitely equivocal about issues like the ones raised in Kolbe. The large doctrinal space left open by Heller is inevitably being filled according to the policy views of judges on the lower courts. Those views are no doubt influenced to some extent by judges’ opinions about the desirability of the gun control regulations they review. In a distinct and more important sense, the approach of the judges is determined by their views about the value of the Second Amendment and the right it secures. Heller contains a lot of rhetoric supporting those, like the Kolbe dissenters, who place a high value on Second Amendment rights. But that rhetoric is undermined by a series of pro-regulation dicta in the opinion. The Supreme Court has declined to back its rhetoric up with any decisions actually rejecting the dismissive approach adopted by the Kolbe majority and many other courts. Justice Thomas, joined by Justice Scalia and now by Justice Gorsuch, has strongly objected to the Court’s passive acceptance of such decisions, but there is no sign yet that the Court is prepared to recognize any Second Amendment rights beyond the narrow holding in Heller.