Explore The NRA Universe Of Websites

Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

Friday, July 13, 2018

Justice Scalia Made Clear the Second Amendment and Heller Prohibit “Assault Weapon” Bans

On July 9, Sen. Chris Murphy (D-Conn.) offered the following ham-handed statement in an attempted attack on President Donald Trump’s U.S. Supreme Court nominee, D.C. Circuit Judge Brett Kavanaugh.

Brett Kavanaugh is a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even late Justice Scalia.

Murphy’s comment gives the false impression that Former U.S. Supreme Court Justice Antonin Scalia, who authored of the majority opinion in the landmark 2008 District of Columbia v. Heller case that recognized the Second Amendment protects an individual right to keep and bear arms, did not consider bans on commonly-owned semi-automatic firearms (termed “assault weapons” by gun control advocates) to be unconstitutional.

Unfortunately, Murphy is not the only individual to peddle this falsehood. Murphy’s fallacious claim was parroted by Rep. Ted Deutch (D-Fla.), who tweeted, “Even Justice Scalia knew the 2nd Amendment has limits. It doesn’t guarantee access to every weapon, he said, and assault weapons can be banned.” In bemoaning Kavanaugh’s 2011 dissent in Heller II, where he concluded that D.C.’s semi-auto ban is unconstitutional, Brady Campaign Co-President Avery Gardiner contended that Kavanaugh’s view is “inconsistent w/ Scalia’s Heller opinion.”

Political operatives and partisan hacks aside, this deceit has infected those who should know better. Earlier this year, U.S. District Court for the District of Massachusetts Judge William G. Young distorted Scalia’s views in his opinion in Workman v. Healy, which rejected a Second Amendment challenge to Massachusetts’ ban on commonly-owned semi-automatic firearms. Young found that the banned firearms “are not within the scope of the personal right to ‘bear arms’ under the Second Amendment.” Suggesting that Justice Scalia would endorse such an outcome, Young concluded his opinion by writing, “Justice Scalia would be proud.”

Taken alone, Justice Scalia’s Heller opinion is enough to dispel this deception. In it, Justice Scalia made clear that the types of firearms protected by the Second Amendment include those “in common use at the time” for “lawful purposes like self-defense.” The AR-15, which is the favorite target of so-called “assault weapon” ban legislation, is the most popular rifle in America and therefore undoubtedly “in common use” and protected by the Second Amendment. Gun control advocates seem to agree that such semi-automatic rifles are common, considering they routinely complain about the “proliferation” of these firearms.

Further, in the 1994 case Staples v. United States, the Supreme Court determined that semi-automatic rifles were common. The case concerned the mens rea requirement for a conviction for possession of an unregistered machine gun. The subject of the case had argued that he was unaware that the AR-15 in his possession had been modified for automatic fire and was not simply a legal semi-automatic AR-15. In the majority opinion, Justice Clarence Thomas made clear that the mere possession of a converted AR-15 is not enough to infer a mens rea sufficient for conviction, as some firearms are, “so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation.” Justice Thomas went on to write that most categories of guns, including semi-automatic rifles, “traditionally have been widely accepted as lawful possessions.”

If after Heller there was any remaining doubt as to where Justice Scalia stood on this matter, he settled the matter in 2015. That year, Justice Scalia joined Justice Thomas in a dissent from the denial of certiorari in Friedman v. Highland Park, a case concerning a local ban on commonly-owned semi-automatic firearms.

In the dissent, Justice Thomas lamented that despite the Supreme Court’s holdings in Heller and McDonald v. Chicago, “several Courts of Appeals… have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes,” which he made clear was “noncompliance with our Second Amendment precedents.”

Justice Thomas went on to explain,

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.

 

TRENDING NOW
Biden Reiterates Call to Ban 9mm Handguns

News  

Monday, July 26, 2021

Biden Reiterates Call to Ban 9mm Handguns

During a July 21 CNN “presidential town hall,” Joe Biden expressed his support for a ban on commonly-owned handguns. Responding to a question about the recent increase in violent crime, the career politician stated,

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Great Expectations, Empty Promises: Gun Control in Washington State

News  

Monday, July 26, 2021

Great Expectations, Empty Promises: Gun Control in Washington State

For years, voters in the Evergreen State have been assured that if only they approve certain gun control ballot initiatives, they would “save lives” and reduce crime. The Washington Alliance for Gun Responsibility (WAGR), the organization pushing ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Monday, June 30, 2014

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

How Anti-Gun Research Works

News  

Monday, July 26, 2021

How Anti-Gun Research Works

The objective world mistrusts most gun policy research because it’s clear the objective is to produce an anti-gun outcome rather than honest analysis. Politicians and professional activists claim the mantle of evidence but will ignore ...

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

News  

Monday, July 26, 2021

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

Similar to many other urban areas of the country, St. Louis saw a dramatic increase in homicide in 2020. The Gateway to the West’s homicide rate per 100 thousand residents exploded from 64.5 in 2019 to 87.2 in 2020. The homicide ...

ATF Targets Pistol Stabilizing Braces in New Rulemaking

News  

Wednesday, June 9, 2021

ATF Targets Pistol Stabilizing Braces in New Rulemaking

On June 7th, ATF published a new notice of proposed rulemaking on its website...

DOJ Releases Biden Gun Confiscation Order Legislation

News  

Wednesday, June 9, 2021

DOJ Releases Biden Gun Confiscation Order Legislation

DOJ has made clear that Garland’s selective definition of “civil rights” has no room for the Second Amendment...

Canada’s Gun Confiscation Scheme: Still More Questions than Answers

News  

Monday, July 19, 2021

Canada’s Gun Confiscation Scheme: Still More Questions than Answers

On June 29, Yves Giroux, Canada’s Parliamentary Budget Officer, released a report on the estimated cost of implementing the firearm confiscation (“buyback”) program that is part of the sweeping Order-in-Council announced by Liberal Prime Minister Justin Trudeau ...

Louisiana: Betrayal at the Capitol

Wednesday, July 21, 2021

Louisiana: Betrayal at the Capitol

Yesterday, SB 118, Constitutional Carry, was defeated due to several Senators reversing their initial vote of support on the bill.  Two of the Senators who flip-flopped were Senators Patrick Connick (SD-8) and Louie Bernard (SD-31). 

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.