Why The Second Amendment Rulings May Make a Ban on Assault Weapons More Likely

In the aftermath of yesterday’s tragedy, several experts argue that new gun control measures are unlikely to succeed in part because of recent Court rulings that have strengthened the second amendment, including last week’s Seventh Circuit ruling written by Richard Posner (who cited this Monkey Cage post in the opinion!). I suspect this is true for some gun control measures but not for others. Indeed, it may strengthen the case for some forms of gun control.

Consider a ban on “assault weapons,” something that plausibly could have prevented  yesterday’s tragedy or could have limited the number of victims.  There is no defensive rationale for owning semi-automatic weapons that hold 10 rounds or more. No-one hunts with these weapons. People may enjoy owning them and shooting them but that is a fairly limited rationale. The case against a ban on semi-automatic weapons rests strongly on a “slippery slope” logic: the idea that once you start outlawing some weapons legislators will gradually impose more severe restrictions.

Recent Supreme Court rulings undermine that logic. The more credible the protection of core Second Amendment rights, the less credible the slippery slope argument. That is: fewer people should be concerned that the government is going to take away their hunting rifle or handgun next if the Supreme Court firmly protects Second Amendment rights. [A ban on semi-automatic rifles almost certainly does not violate the Second Amendment].

I am not saying that the NRA will buy this argument but contrary to gun control more generally, bans on semi-automatic rifles are popular with the public. If legislators feel assured that the Supreme Court protects core gun rights, then they have at least an argument to their constituents for accepting such a ban. A ban on the manufacturing and sale of semi-automatic rifles would also have important spillover effects for Central America, where many massacres are committed with assault weapons purchased in the U.S.. This may matter too in certain key states. In short, I don’t think it is so unlikely that the next Congress will pass a new and improved version of the assault weapons ban that expired in 2004 and I think that we will hear pro-gun control advocates using the Second Amendment rulings as an argument in favor of such a ban.

ps. I know that there are issues with the definitions of assault weapons and semi-automatic rifles but I do not think these are prohibitive and I didn’t want to touch them in this post.


34 Responses to Why The Second Amendment Rulings May Make a Ban on Assault Weapons More Likely

  1. Prolle December 15, 2012 at 5:13 pm #

    I was wondering if there were any studies about the public policy implications of a total ban on guns , in term of collect, enforcement and so on ?

  2. RobW December 15, 2012 at 5:37 pm #

    The major point here is interesting. However, I wish to take issue with the statement

    There is no defensive rationale for owning semi-automatic weapons that hold 10 rounds or more. No-one hunts with these weapons.

    The assumption here is that 10 rounds are sufficient for personal defense. However, this is not based on anything but the author’s normative conviction. Consider the fact that among the most popular semiautomatic handguns used by law enforcement is the Glock 9x19mm which comes standard with a 17 round capacity. The reasoning behind this is that active shooter situations are stressful; an individual will not match his/her performance on a closed range with a stationary target. Assuming one is engaging a moving target that is also firing back, accuracy in firing will decline further. This applies ever more to casual-carry shooters who are not law enforcement. Thus, having more rounds not only affords the opportunity to compensate with more chances to fire, it reduces the risk that the target will remain able to fire while you have to reload.

    As this was not the major point of the post, I do not wish to belabor it except to point out that the statement in question seems to emerge from the author’s normative convictions and not from any reasoned consideration of when and how semiautomatic handguns are intended to be used for defense.

    • BarryC December 15, 2012 at 6:14 pm #

      I appreciate that you couch this as a side point but, though having more rounds “reduces the risk that the target will remain able to fire while you have to reload”, it also reduces the ability of bystanders/law enforcement to stop somebody on a killing spree. They are one and the same. If you imagine graphing it, rounds necessary to cause carnage in a school (offensive) keeps rising almost ad infinitum, whereas rounds necessary to defend oneself (defensive) while initially rises, it at some point drops off. Isolating that point of divergence is an inherently imprecise process.

      Consequently, it is incumbent on lawmakers to draw an arbitrary line at which they say, based on nothing other than a normative assumption, that 10 (for arguments sake) is the optimal number of rounds to defend oneself in any given instance, any number above that is an unnecessary risk.

      I think it is very fair to point out what you did, but equally your prompt for ‘reasoned consideration’, I would imagine, for the reasons outlined above is unlikely to bear fruit.

      I think raising the law enforcement 17 rounds point is useful in that it highlights that law enforcement agencies believe that their goal is best met with 70% more firepower than suggested here. A point to which I would respond to in two ways;

      (1) Law enforcement agents are perhaps justified in the availability of greater firepower by virtue of the fact that they are representatives of the Weberian legitimate monopoly on violence. Those enforcing the laws, most would argue, ought to be better equipped than those breaking them. Additionally, their goal is likely, in practice, to be more demanding , than merely self defense.

      (2) This is a usefully comparison only if you query how the police got to the number 17. Did they analyse field data for instance where in shoot outs police needed more/less rounds to apprehend/stop their subject, or was it simply a normative assumption of what was ‘necessary’ to keep cops safe?

      • Orygunmike January 4, 2013 at 7:55 pm #

        The Police did not “arrive” at the number 17 (17 rounds in a normal capacity 9mm Glock 17 Magazine). Rather, that is the number or rounds that physically fits in the grip of that particular Glock. It was not specified by any law enforcement agency, it is a simple matter of design limitations (e.g. the larger the grip the less number of people who could effectively use/hold the gun)

    • Scott Monje December 17, 2012 at 11:53 am #

      RobW, how common is that scenario? I’m just speculating here, but I would guess that the most common outcomes would be (in no particular order): 1) defender quickly shoots assailant, 2) assailant quickly shoots defender, 3) both shoot each other, or 4) one or both run away when the shooting starts. The notion that both would dig in for an extended siege seems the least likely outcome to me, but again I’m just guessing. Does anyone here know?

    • franchot February 4, 2013 at 2:06 am #

      What happens if the bad guy has one to?

  3. Bauerton December 15, 2012 at 9:27 pm #

    [” The case against a ban on semi-automatic weapons rests strongly on a “slippery slope” logic… Recent Supreme Court rulings undermine that logic. “]



    SCOTUS clearly rejected the banning of an entire “class” of normal citizen firearms in the landmark ‘District of Columbia v. Heller, 2008’ decision. The City of Washington DC had essentially banned all privately-owned handguns … though this “class” of guns was well established in the U.S. as a normal type/class of citizen firearms, protected by the Second Amendment.

    Likewise, the class of firearms technically known as “Semi-Automatic” — has been well established for over a century as normal citizen firearms. Banning or infringing citizen rights to own semi-automatics would clearly violate the SCOTUS precedent. Politicians can NOT do that, according to SCOTUS.

    The Second Amendment indeed presents a huge obstacle to those of the anti-gun viewpoint, especially since SCOTUS so recently noticed the actual text of that quaint directive. Of course, SCOTUS and the lower courts have proven very unreliable defenders of the Constitution– and we have many decades of severe anti-gun-rights legislation & judicial indifference still in force.

    • Erik voeten December 16, 2012 at 7:36 am #

      Heller explicitly says that “it is not a right to keep any weapon whatsoever and for whatever purpose”. The opinion also explicitly mentions that it does not deviate from Miller, which limits a specific size shotgun. The opinion affirms “the historical tradition prohibiting the carrying of dangerous and unusual weapons.” it found a violation because the dc law outlawed “An entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense.” Whether a ban is going to meet these standards will be a matter of some debate (and depend on the details of a ban and on the beliefs of individuals about the use of semi automatic weapons for self defense) but the justices will have to go significantly beyond Heller to declare a reasonably written ban on assault weapons unconstitutional. I don’t think they would if congress adopts such a law and if Americans support it.

    • GiT December 16, 2012 at 5:51 pm #

      “The Second Amendment indeed presents a huge obstacle to those of the anti-gun viewpoint”

      Not really. Current SCOTUS interpretation of the amendment presents a huge obstacle. The amendment itself (and its history and the history of its “original” or “contextual” meaning), not so much.

  4. Melvin Hecht December 15, 2012 at 11:57 pm #

    This only goes to show why schools should allow concealed weapons. If the kids were packing, the death toll would have been much lower.

    Another example of the pointy headed libruls ruining America.

    • robotchimp December 17, 2012 at 8:53 pm #

      Hey Melvin – good point. The kindergartners should be armed, but only with handguns. Let the 4th graders man up with the heavier “librul-busting” weaponry. That would certainly save many. Please run for office, oh, wait . . don’t

  5. Eric December 16, 2012 at 9:29 am #

    1) Semi-autos are, contrary to your claim, very common as hunting rifles.

    2) The previous “assault weapon” ban also did not ban semi-autos, but rather guns that some politicians thought looked dangerous. I do not rule out that Obama will try re-introduce the “assault-weapons ban” however.

    • Erik voeten December 16, 2012 at 12:46 pm #

      You are correct. I should have written that banning semi automatic weapons with 10 or more rounds poses at most a minor inconvenience to some hunters. The main point is that the self defense and hunting rationales are by themselves rather weak justifications and so slippery slope type arguments become prominent in the argument against a ban.

      • Bill Wohlforth December 17, 2012 at 1:04 pm #

        “The main point is that the self defense and hunting rationales are by themselves rather weak justifications” You got that right: My state of New Hampshire is very gun and hunter friendly, but here it is “illegal to hunt with a semi-automatic rifle with a clip or magazine holding more than five cartridges.” You can have as big a magazine as you want–just don’t have >5 cartridges if you are hunting. WHich makes sense, as a good hunter takes only good shots. If you need >5 rounds to drop the game, you are either a poor marksman or took a crazy shot.

  6. Christopher Connelly December 16, 2012 at 1:24 pm #

    Two news events from Friday:
    Knife attack at Chinese school wounds 22 children. 12/14/12
    26 shot dead in elementary school massacre in Connecticut. 12/14/12
    The difference? The weapon.

    Why Why should the right to bear arms be more important than the right to life, liberty, and the pursuit of happiness?

    • Jerry February 6, 2013 at 1:50 pm #

      Why Why should abortions be more important than the right to life, liberty, and the pursuit of happiness? Is there some hypocrisy here??

  7. Rex Brynen December 16, 2012 at 3:24 pm #

    “I should have written that banning semi automatic weapons with 10 or more rounds poses at most a minor inconvenience to some hunters.” I’m not sure this makes any technical sense in the case of most rifles, given that ammunition capacity is a function of magazine size (an easily replaceable/swappable item), not intrinsic weapon design.

    Are you proposing a limit on magazine sizes?

    • Erik Voeten December 16, 2012 at 4:49 pm #

      I am not proposing anything. All I am trying to do is say something about the politics surrounding this issue and how it is affected by the court rulings. 10 rounds was the limit set in the past assault weapons ban. Yes, I know there are issues with that definition but that is not really the point of the post.

  8. Ajax December 16, 2012 at 4:51 pm #

    In light of the most recent tragedy in Newtown, CT, the gun grabbers are even more energized to dismantle the 2nd amendment. Senator Blumenthal (D) has vowed to take up the issue as early as next week. As gun owners and defenders of the Constitution, we are in for the fight of our lives. If you are presently not a member of the NRA, you need to join. No matter where you reside, write letters to your elected representatives by putting them on notice that you will not tolerate any more attacks on the 2nd amendment. If the politicians are looking for real solutions, suggest that they enforce mandatory minimum sentences on those who use firearms in the commission of a crime. It is time we take away the discretion from liberal judges who want to treat the symptoms rather than the disease.

    • GiT December 16, 2012 at 5:54 pm #

      The NRA has already successfully dismantled the 2nd amendment. Consequently, “gun grabbers” must work within the confines of their disfigured work of artifice.

  9. Andrew Straticzuk December 16, 2012 at 11:25 pm #

    I tend to question the usefulness of the second amendment itself. It purportedly deals with well-regulated militias, which to my knowledge are a sort of irregular army and not a police forces or hunting clubs at all. The Absurdity of SCOTU’s interpreting this second amendment to implying that is was intended to arm the people for other purposes is just not there.
    It might be that SCOTUS intended extending the amendment to encompass historical English law which apparently sees the arming of citizens as a natural right.
    We are just going to face the fact that the founding fathers did not think of everything and were far from exhaustive of all the contingencies that the future has brought upon us. Originalism is sort of a joke in my view purporting to imbue the Supreme Court justices with psychic powers that can discern what the founding fathers really meant or alternatively what the founding fathers would say about the present situation if we could bring them back to life. As if we are too dumb to figure out sensible legislation to fit the modern situation without pretending we are reading Jefferson’s ossified mind.

    • handworn December 17, 2012 at 8:59 pm #

      Originalism is not a joke, it’s an argument for amending the Constitution more often. Which I think should happen. If the legitimacy of the government rests on the consent of the governed, a core tenet of democracy, that consent should never be taken as having been granted sub silentio on each new issue. Sure, interpretation is possible up to a point, but at that point (behind us on the commerce clause issue, for example, in my opinion) you have to either work to change the Constitution or give up trying to push that solution.

  10. handworn December 17, 2012 at 9:06 pm #

    Banning semiautomatic weapons wholesale is ridiculous, as it’s tantamount to banning a revolver, a separate type of gun that many people choose for self-protection, with that many rounds of capacity. A semiautomatic means “one shot per trigger pull” which is what occurs with a revolver. There isn’t such a thing as a 17-shot revolver, but there might come to be if “separate type” is the distinction bans come to turn on. If that argument were rejected and if you want to ban certain capacities of magazine, okay, but I’d put the dividing line at 15 to 17 (the Glock capacity mentioned earlier), or to make an exception for historical weapons. There are many collectors who won’t want to give up their 15-round-capacity M-1 carbines, and these weapons run $800 or so in any case, so they’re unlikely to be used in crimes.

  11. Chaz December 18, 2012 at 5:23 am #

    I think it is perfectly reasonable for Erik and others to talk about banning guns with ammo capacity above a certain number of rounds. Not clips, guns. As people have said, a semiautomatic gun can by nature take a clip of arbitrary size. The gun may not be designed to fit clips above a certain size, but could usually be made to with minor adjustments. Therefore if you want to limit the number of shots possible before reload, it is best to only allow types of guns that, by the basic nature of their design, cannot accept an arbitrary number of cartridges (i.e. on a clip or belt). That would mean only allowing revolvers, single shot weapons, and the like.

    It is true that revolvers could technically be made with very high ammo capacities. Therefore the law should also state that a gun cannot be capable of holding more than X bullets. Problem solved.

    The reason to limit ammo capacity is not just school shootings. It is very easy for criminals to buy semiautomatic rifles and convert them into auto or burst fire rifles by replacing a couple parts. It is inherently easy because the weapons are based on military models which have those capabilities. Ban semiautomatic rifles and criminals can’t do that anymore. If you just limit the size of ammo clips then criminals can manufacture or obtain bigger clips, which is easier than making rifles from scratch.

    • Don December 23, 2012 at 10:50 pm #

      Many documented comments from the founding fathers clearly show the intent of the 2nd amendment was to allow civilians to protect themselves from tyrannical governments. How big of a clip does this require? Too many people interpret the 2nd amendment to be some sort of hunting right.

  12. BenF December 23, 2012 at 4:56 am #

    The problem here is that a ban will not do a thing guys. I want you to seriously think about it and the only people who are going to be hurt are the law abiding citizenry. The criminal element and the next garden variety psychopath isn’t going to think ” oh, there’s a ban on my high capacity magazine semi auto handgun/rifle so I shouldn’t use this to… Blah..blah..blah… We are not talking about thousands of guns here we are talking about MILLIONS!!! Each one of those guns is sure to have several MAGAZINES(not clips as the stupid or thugs and felons call them) that are high capacity. So no matter how much it would make everybody feel better to “BAN” said products it’s NOT going to do ANYTHING to stop violence. If they want to commit a crime they will buy their weapons through nefarious means that’s according to their nature. These thing were not invented a few years ago and even during the ban you could buy magazines made prior to 1994 that were high capacity. The “banned” weapons were still semi automatic as automatic weapons have been severely controlled sine 1934. Now I’m all for safety and yes I’m a VERY responsible gun owner with trigger locks and a safe as well to store them in. I also have been certified in gun safety to attain my concealed carry permit. I have that for a VERY good reason and trust me you will agree with me. I am not anti government and follow the laws to a t. I am a family man and I’m not here to debate but help. The root cause of these shootings is mental and all we can really do is try and find ways to boost security and I learned this the hard way and in my own way. Here’s my story- In February of 2007 I was on my way home and decided to stop for pizza at a local shop. Well it was late and this part of town wasn’t seedy at all. As I sat there at the counter a man ran in with a drawn pistol. I don’t remember anything after that but the shops video showed it. He ran in and pistol whipped me repeatedly until I blacked out and stole the money from the register. I have a family and want to go home to them every night so as this could happen th anybody I CHOOSE to carry a glock 19 with a 15 round magazine that I am trained to use. I would protect anybody as by my state law under any kind of severe threat. As for if ten rounds is enough? Ha couldnt tell you but Ifeel much safer with those 5 extra bullets in there if it came to having to defend anybody or myself.

  13. Paul Lundstrom December 29, 2012 at 2:36 am #

    It is not about hunting or target practice, the idea is that having high capacity “assault” weapons puts the public in a position to defend themselves against an administration bent on taking away rights and limiting freedoms. Those who think an assault weapons ban will do anything but disarm law abiding citizens must be smoking crack, or so bent on supporting anything Obama says they ignore reality. Modern rifles are not to blame in 99% of gun violence, criminals love to tuck some cheap handgun into their pants and go rob liqour stores or shoot up rival thugs. Use some objectivity, put the liberal kool aid down, and try to understand why “shall not be infringed” was added to this bit of legislation by much more honorable and decent men than those that currently occupy the White house.

  14. Jerry February 6, 2013 at 3:06 pm #

    The US Constitution is the supreme law of the land. It is met to be held to “the letter of the law.” Members of all three branches of government are required to take sworn oaths to “support and defend” the Constitution. The Second clearly states: “the right of the people to keep and bear arms shall not be infringed”. Since when do the words reasonable, sensible, or common sense synonyms for the words “not be infringed”? Congress is not granted the power to simply legislate away a part of the Constitution without following Article V first. The Supreme Court is not granted the power to reword, rewrite, ignore parts of, or change the meaning of words in a law before ruling on it. The Court, according to their “good Behaviour”, would be forced to interpret the 2nd as it is clearly written and refer it back to Congress and the States to follow Article V. The President is not granted the power, through “executive order”, to make, change, or ignore a law. He is bound by his oath to propose provisions in Article V be adhered to first before he signs any gun ban bill into law! Any actions, other than those stated above, are UNCONSTITUTIONAL!!

  15. Vince February 8, 2013 at 11:37 pm #

    “No-one hunts with these weapons”. 2nd amendment isn’t about hunting.

  16. pro-gun daughter February 13, 2013 at 12:15 am #

    When was the constitution written? When was the first “assault” type rifle or weapon conceptualized and then consequently manufactured? I doesn’t matter what level of insight any human may have, no one today can rationally predict the capability of technology 200 years into the future. Guns like these modern guns, technology like we have today, was never seen or thought of 200 years ago. Weapons in 1776 were single shot musket loaders and flintlock pistols barely capable of killing one person without advanced warning. Our founding father’s did not have any way of knowing that assault rifles capable of killing hundreds of people in mere minutes would ever exist, so how can the 2nd ammendment be protective of unforseen technology with the capacity to take such a toll on (most often) innocent lives?

  17. Matt February 17, 2013 at 2:32 am #

    I do not have the time or luxury to belittle everyone on here that is posting as anti-2AD ranters. I do however have time to say this one little fact. The 2AD in part gives The People the right to overthrow a tyrannical government. If the government (including police departments) which is comprised of citizens mostly have the ability to own AR-15’s in their stock, so the citizenry. Even IF they didn’t have this power, We still would have that right. It’s a common argument by leftists and even those disguising themselves as conservative/Constitutionalists to say, we don’t need anything with over 7 or 10 rounds of ammo. Who are YOU to decide what is appropriate or not appropriate? Your ignorance is not sound & will cost everyone here who support anti-2AN legislation, proposals and laws that are not even legal that are meant to disarm us alot. So keep on debating all you want, the time is short now and while our government is preparing to slaughter anyone who disagrees with them, so are The People preparing for a war too. Go ahead, laugh, chuckle, go to sleep at night in the bed you cherish but know that one day, a 2nd Revolution is nigh and we are getting ready. This is NOT what we wanted but this is the fight we will have to have because corrupt men have conspired for decades to usurp our Constitution & Bill of Rights. If we are to preserve our Country & it’s freedom’s and liberties for The People, that being Us, the Citizenry, then we have to fight for it or we will be enslaved forever to a totalitarian system of which we are fast approaching. Good night.

  18. David April 18, 2013 at 9:55 am #

    Actually when someone doesn’t understand afterward its up to other users that they will assist, so here it takes place.

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  20. dwight looi August 8, 2013 at 9:50 pm #

    Complete and utter rubbish.

    First of all, there is this presumption by the author that firearms ownership and possession should have a sporting or hunting purpose. It does not. I can tell you that my only interest in owning a firearm is to kill human beings. And, any sporting activity I partake in at the shooting range or in competitive shooting sports is mostly to prepare me to be more adept at using a gun to kill human beings — quickly, efficiently and accurately.

    The reasons for my ownership of so called “assault” weapons are simple.

    (1) I want a weapon which — in a scenario where there is a total breakdown of law and order, when one cannot depend on law enforcement agencies to safeguard life and property — I can rely on to engage not one armed assailant but potentially a mob of assailants.

    (2) I also want a weapon with which I can adequately fulfill my duty as a Citizen to fight Tyranny foreign or domestic should that become necessary. This means I need a weapon which will enable me to be a useful member of a militia that is taking up arms against the military or para-military organization — potentially an arm of the State or Federal government — which has rejected accountability to the public and is imposing tyranny on the Republic. To this end, I need a weapon which is at least somewhat effective when fighting soldiers!