Assault Weapon Article

Banning “Assault Weapons”:

A Political and

Legal Perspective

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Banning Assault Weapons: A Political and Legal Perspective

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INTRODUCTION Second Amendment jurisprudence is in its infancy. The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which held the Second Amendment to be an individual, as opposed to a collective, right,1 fundamentally altered this area of constitutional law; prior to Heller, the Federal Circuits largely got Heller’s basic premise—the Second Amendment protects an individual, not collective, right—wrong. In fact, ten of the twelve Federal Circuits—First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh—that purported to resolve the meaning of the Second Amendment, concluded the opposite of Heller.2 The Fifth and District of Columbia Circuits stood alone in embracing the individual rights view.3 Two years after Heller, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Second Amendment was applied to the states through the Due Process Clause of the Fourteenth Amendment.4 Post-Heller jurisprudence has shifted the discussion from who has a right to keep and bear arms to which arms the Second Amendment allows one to keep and bear. One of the more intense battles, and the subject of this article, is the fight over whether so-called “assault weapons” are protected under the Second Amendment. At

1 District of Columbia v. Heller, 554 U.S. 570, 592 (2008). 2 See id. at 639 n. 2 (Stevens, J., dissenting) (collecting cases). 2 See id. at 639 n. 2 (Stevens, J., dissenting) (collecting cases). 3 United States v. Emerson, 270 F.3d 203, 264-265 (CA5 2001); Parker v. District of Columbia, 478 F.3d 370, 395-396 (CADC 2007). 4 McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).



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a time when most Americans do not support a ban on “assault weapons,”5 battles over the permissibility of their prohibition are ripe for legal challenge. In terms of political feasibility, the most significant barrier to the enactment, and consequently the success, of an “assault weapons” ban is the fact that “assault weapon” lacks a definitional consensus. The term “assault weapon” is of a recent vintage, gaining popularity in the aftermath of 1989 Stockton Schoolyard mass shooting in Stockton, California.6 The shooter, Patrick Purdy, used a semiautomatic AK-47-style rifle. 7 Following this massacre, California passed the Roberti-Roos Assault

5 See, e.g., Gary Langer, Most Now Oppose an Assault Weapon Ban; Doubts About Stopping a Lone Wolf Run High (POLL), ABC NEWS (Dec. 16, 2015, 7:00 AM), http://abcnews.go.com/Politics/now-oppose-assault-weapons-ban-doubts-stopping-lone/story?id=35778846 (last visited Feb. 11, 2016); Eliza Collins, Poll: Support for assault weapons ban drops to lowest level in 20 years, POLITICO (Dec. 16, 2015, 8:26 AM), http://www.politico.com/story/2015/12/poll-assault-weapons-ban-216846 (last visited Feb. 11, 2016). Ariel Edwards-Levy, Most Americans No Longer Support A Ban On Assault Weapons, HUFFINGTON POST (Dec. 16, 2015, 9:38 AM), http://www.huffingtonpost.com/entry/assault-weapons-ban-poll_us_56715c23e4b0dfd4bcbff62e (last visited Feb. 11, 2016). 6 See e.g., Thomas R. Thompson, Form or Substance? Definitional Aspects of Assault Weapon Legislation 17 Fla. St. U.L. Rev. 649, 651 (1990) (“No state statutes distinguishing between assault weapons and hunting rifles or shotguns existed as of January 1989.”); Bruce H. Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of “Assault Weapons” 8 Stan. L. & Pol'y Rev 41, 43 (1997) (“Prior to 1989, the term ‘assault weapon’ did not exist in the lexicon of firearms.”). 7 Associated Press, Five School Children Killed As Gunman Attacks A California School NEW YORK TIMES (Jan. 18, 1989).



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Weapons Control Act of 1989, and became the first state in the nation to enact a ban on “assault weapons.”8 Around this same time, anti-gun advocacy groups faced a serious problem: banning handguns “consistently remain[ed] a non-issue with the vast majority of legislators, the press, and public.”9 In order to revitalize the push for gun control, anti-gun interest groups brought up a “new topic”—banning “assault weapons.” 10 Josh Sugarmann, former communications director for the National Coalition to Ban Handguns11 and founder of the Violence Policy Center, summarized the new campaign: “Assault weapons—just like armor-piercing bullets,

machine guns, and plastic firearms—are a new topic. The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons.”12

Indeed, anti-gun advocates were, and still are, in part, playing on the public’s ignorance in pursuing this agenda.

8 Cal Pen Code § 12776(a) (1989) (in 1 Statutes of California and Digests of Measures 55-56 (Bion M. Gregory Legislative Counsel ed. 1989)). 9 Josh Sugarmann, Assault Weapons and Accessories in America Violence Policy Center (1988). 10 Josh Sugarmann, Assault Weapons and Accessories in America Violence Policy Center (1988). 11 The National Coalition to Ban Handguns later changed its name to the Coalition to Stop Gun Violence. 12 Josh Sugarmann, Assault Weapons and Accessories in America Violence Policy Center (1988).



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In the debates and legislative hearings leading up to the passage of California’s “assault weapons” ban, gun control advocates and legislators faced another problem: legally defining “assault weapon.” Sugarmann noted this would be an issue in crafting any sort of legislation directed at these firearms: “Defining an assault weapon—in legal terms—is not

easy. It's not merely a matter of going after guns that are ‘black and wicked looking.’ Although those involved in the debate know the weapons being discussed, it's extremely difficult to develop a legal definition that restricts the availability of assault weapons without affecting legitimate semi-automatic guns.”13

The difficulty in crafting a legal definition of “assault weapon” derives from the near impossible task of distinguishing between semiautomatic firearms. Indeed, this type of classification differs from “[p]ast legislation which focused on machine guns and submachine guns[,]” which “was successful because it dealt with an entire class of weapons. [“Assault weapons” legislation] attempts to make distinctions between weapons in the same class (semi-automatic).”14 Those attempting to define “assault weapons” typically utilize two methods: (1) listing weapons by make and model, and (2) drawing distinctions based on the cosmetic

13 Josh Sugarmann, Assault Weapons and Accessories in America Violence Policy Center (1988). 14 Memorandum from S.C. Helsley, Acting Assistant Director, Investigation and Enforcement Branch, California Department of Justice, to Patrick Kenady, Assistant Attorney General, California Department of Justice (Feb. 14, 1991) (reprinted in Appendix).



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appearance of the firearm (i.e., whether a rifle has a pistol grip—typically a vertical hanging piece of plastic). Additionally, some pieces of legislation use both methods in tandem with one another. Because no objective rubric for determining what is and is not an “assault weapon” exists, there is not, and has never been, a consensus as to which cosmetic accessories and models of firearms should be placed onto the list. While the topic of “assault weapons” is unquestionably vast and wide, this Article focuses specifically on whether a flat ban on the possession of “assault weapons” survives intermediate scrutiny. I chose this focus out of my frustration with the dispositions in “assault weapons” cases. First, given the current state of the law, it seems to me that, if any standard of scrutiny were to apply in the first instance, Heller would require strict scrutiny in these cases. Almost every federal court has disagreed with this view, and has adopted intermediate scrutiny as the test of choice in these cases. Second, even assuming that intermediate scrutiny does apply, the research I present here casts doubt on the most important part of intermediate scrutiny—narrow tailoring. It is not enough for the government to posit substantial interests and attempt to further those interests; the government must also demonstrate a fit that the means chosen to further those interests are calculated to directly impact the societal ill targeted by the regulation. This fit cannot be underinclusive (i.e., arbitrarily ban conduct that is no different in kind or nature from conduct that is left unbanned), as the government would not be reasonably furthering their asserted interests; and cannot be overbroad (i.e., affect substantially more conduct than necessary).



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In this Article, I examine a brief history of the “assault weapon” issue, and argue that a ban on “assault weapons” is both underinclusive and unnecessarily overbroad. To arrive at this latter conclusion, this Article is divided into four Parts. Part-I reviews the teachings of Heller, and pays particular attention to which “arms” Heller suggested the Second Amendment protects. Part-II reviews the framework lower courts have employed in post-Heller Second Amendment challenges. Part-III applies the portion of that framework which evaluates the ban under intermediate scrutiny. Part-IV provides some closing remarks with respect to current “assault weapon” jurisprudence.

I. MEANING OF THE SECOND AMENDMENT The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Generally speaking, there are two schools of thought with respect to this Amendment. First, some believe the scope of the right is strictly limited to the right of States to raise a militia, and for those in the militia to bear arms. Second, others take the position that the Second Amendment secures an individual right to keep and bear arms, unconnected to service in a well-regulated militia. In the landmark case District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court endorsed the latter view. At issue was whether the District of Columbia’s total ban on the possession of handguns was consistent with the Second Amendment. The Heller Court needed to answer two questions in order to arrive at the proper legal conclusion: (1) who has a right to keep and bear arms under the Second Amendment, and (2) what arms may one keep and bear under that Amendment.



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With respect to the first question, the Heller Court drew vastly upon the historical record, and ultimately concluded, “the Second Amendment conferred an individual right to keep and bear arms.”15 Heller noted that “virtually all interpreters of the Second Amendment in the century after its enactment interpreted the Amendment” as protecting an individual right, unconnected with militia service. 16 Most of these commentators believed, as Heller held, “the inherent right of self-defense has been central to the Second Amendment right.” 17 Self-defense was held to be “the central component of the right itself.”18 The Heller Court answered the second question by drawing upon its earlier decision in United States v. Miller, 307 U.S. 174 (1939), which explained “that the sorts of weapons protected were those ‘in common use at the time.’”19 Like other Constitutional rights, Heller noted that it would be “bordering on the frivolous”20 to hold that the Second Amendment only protected those weapons that existed at the time of the Founding, such as muskets. Indeed, within the context of the First Amendment, “[w]hen the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term ‘the press’ to refer to the many independent printers who circulated small newspapers or

15 Heller, 554 U.S. at 595. 16 Id. at 605. 17 Id. at 628. 18 Id. at 599. 19 Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). 20 Id. at 582.



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published writers’ pamphlets for a fee.”21 Nonetheless, the First Amendment extends to modern forms of communication, such as the digital press known as the Internet.22 Additionally, the Fourth Amendment protects the highly sensitive contents stored on a cell phone. Indeed, the fact that such information is more portable, and as a consequence more accessible, than before “does not make the information any less worthy of the [Fourth Amendment’s] protection for which the Founders fought.” 23 In line with these traditional modes of Constitutional interpretation, the Heller Court recognized that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”24 After establishing this framework—that the Second Amendment is an individual right to keep and bear arms in common use at the time—the Heller majority made three observations justifying its disposition. First, “[t]he [handgun] prohibition extend[ed] . . . to the home, where the need for defense of self, family, and property is most acute.”25 Second, “the American people have considered the handgun to be the quintessential self-defense weapon” and, accordingly, handguns “are the most popular weapon chosen by Americans for self-defense in the home[.]”26 Third, the Court explained that the availability of other types of firearms did not affect the outcome of the case: “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as 21 McIntyre v. Ohio Election Commission, 514 U.S. 334, 360 (1995) (Thomas, J., concurring). 22 See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). 23 Riley v. California, 134 S. Ct. 2473, 2495 (2014). 24 Heller, 554 U.S. at 582. 25 Id. at 628. 26 Id. at 629.



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the possession of other firearms (i.e., long guns) is allowed.”27 Thus, the Supreme Court said of the handgun ban, “a complete prohibition of their use is invalid.”28 Since “[f]ew laws in the history of our Nation have come close to the severe restriction of the District's handgun ban[,]” Heller reasoned that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ [Parker v. District of Columbia,] 478 F.3d [370,] 400 [2007], would fail constitutional muster.”29 As a result, the Heller majority did not “establish a level of scrutiny for evaluating Second Amendment restrictions.”30 But the Court did explicitly foreclose the applicability of rational-basis review.31 Post-Heller jurisprudence has largely focused on two issues: (1) which, if any, standard of scrutiny to apply to certain firearms restrictions, and (2) other than handguns, which arms are protected by the Second Amendment. One of the most prominent types of cases in which both of these debates play out are those evaluating the constitutionality of bans on “assault weapons.” Currently, there exists no split among the three Federal Circuit Courts of Appeals—Second, Seventh, and District of Columbia Circuits—that have rendered final dispositions on the merits of these prohibitions. But

27 Ibid. 28 Ibid. 29 Id. at 628-629. 30 Id. at 634. 31 See id. at 629 n. 27 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”).



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judges have issued fierce dissents in two of these cases.32 So while the Circuits are not split, the courts themselves are. More notably, Justice Thomas, joined by Justice Scalia, issued a sharp dissent from the denial of certiorari in the Seventh Circuit’s case.33 Indeed, the debate over “assault weapons” is still in its infancy, and is far from settled.

II. THE POST-HELLER TWO-STEP Almost every post-Heller court has adopted a two-step approach to evaluating Second Amendment challenges. This approach originated in the Third Circuit Court of Appeals’ decision in United States v. Marzzarella, 614 F.3d 85 (2010): “As we read Heller, it suggests a two-pronged

approach to Second Amendment challenges. First, we ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee . . . If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.”34

With respect to the first prong, lower courts have consistently determined that “[w]hether legislation substantially burdens a Second Amendment right is

32 See Heller v. District of Columbia, 670 F.3d 1244, 1269-1296 (CADC 2011) (Kavanaugh, J., dissenting) (Heller II); Friedman v. City of Highland Park, 784 F.3d 406, 412-421 (CA7 2015) (Manion, J., dissenting). 33 Friedman v. City of Highland Park, 136 S. Ct. at 447-450 (2015) (Thomas, J., dissenting from denial of certiorari). 34 United States v. Marzzarella, 614 F.3d 85, 89 (3rd Cir. 2010).



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heavily dependent on the firearms in question being in ‘common use.’”35 Many lower courts have concluded that “assault weapons”—however they are defined—are in common use. In Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (Heller II), the court noted that both “assault weapons” and semi-automatic rifles are in common use:

“We think it clear enough in the record that semi-automatic rifles . . . are indeed in ‘common use,’ as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market.”36

The District Court in Shew v. Malloy, 994 F. Supp. 2d 234 (D. Conn. 2014), also made this determination in context of Connecticut’s “assault weapons” ban, and concluded that such a ban constitutes a “substantial burden”:

35 Shew v. Malloy, 994 F. Supp. 2d 234, 244-245 (D. Conn. 2014). See also, Heller II, 670 F.3d at 1260-1261 (“Because the prohibitions at issue, . . . apply only to particular classes of weapons, we must also ask whether the prohibited weapons are typically possessed by law-abiding citizens for lawful purposes[.]”) (internal quotation marks omitted); New York State Rifle & Pistol Ass’n v. Cuomo, 990 F. Supp. 2d 349, 363 (W.D.N.Y. 2013) (“[I]nherent in the substantial-burden analysis is the question whether the SAFE Act affects weapons in common use.”); Kolbe v. O’Malley, 42 F. Supp. 3d 768, 784 (D. Maryland. 2014) (stating that weapons not in common use fell outside the scope of the Second Amendment). 36 Heller II, 670 F.3d at 1261.



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“The Connecticut legislation here bans firearms in common use. Millions of Americans possess the firearms banned by this act for hunting and target shooting. . . . The court concludes that the firearms and magazines at issue are ‘in common use’ within the meaning of Heller and, presumably, used for lawful purposes. The legislation here bans the purchase, sale, and possession of assault weapons . . . which the court concludes more than minimally affect the plaintiffs' ability to acquire and use the firearms, and therefore levies a substantial burden on the plaintiffs' Second Amendment rights.”37

The Western District of New York, in New York State Rifle & Pistol Ass’n v. Cuomo, 990 F. Supp. 2d 349 (2014), though not taking a stance on whether “assault weapons” are in common use, did find that “there can be little dispute that tens of thousands of Americans own these guns and use them exclusively for lawful purposes such as hunting, target shooting, and even self-defense.”38 When Shew and New York State Rifle & Pistol Ass’n were appealed to the Second Circuit Court of Appeals and consolidated, that court held that, “[e]ven accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are ‘in common use’ as that term was used in Heller.”39 The modern rifle—like the pistol and long-barreled shotgun—“is undoubtedly quite improved over its

37 Shew, 994 F. Supp. 2d at 245-246 (citing Heller II, 670 F.3d at 1261). 38 New York State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 365. 39 New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 255 (CA2 2015).



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colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon[.]”40 In Staples v. United States, 511 U.S. 600 (1994), the Supreme Court recognized that the AR-15 semiautomatic rifle, and semiautomatic firearms generally, are items that “traditionally have been widely accepted as lawful possessions[.]”41 With respect to the means-end scrutiny analysis, inferior courts have wrestled with whether intermediate scrutiny or strict scrutiny applies in Second Amendment challenges. In this context, every federal court, with the exception of two, has applied intermediate scrutiny.42 The two exceptions are the Fourth and Seventh circuits. The former applied strict scrutiny,43 while the later did not apply any standard of review and left the decision of which arms one could keep and bear up to the political process.44 While there is a healthy debate occurring as to whether intermediate scrutiny is the appropriate level of scrutiny, I seek not to interject into this discussion. Instead, I am only concerned with analyzing lower courts’ application of intermediate scrutiny. Since little dispute exists among lower courts with respect to the commonality of “assault weapons,” the next section is primarily focused on the second prong of the Marzzarella test (i.e., the application of some standard of review). As I argue below, lower courts have not been particularly faithful to the principle of narrow tailoring in the context

40 Parker, 478 F.3d at 398-99. 41 Staples v. United States, 511 U.S. 600, 612 (1994). 42 See Heller II, 670 F.3d at 1261-1264; New York State Rifle & Pistol Ass’n, 804 F.3d at 258-261; Kolbe, 42 F. Supp. 3d at 789-791. 43 Kolbe v. Hogan, 2016 U.S. App. LEXIS 1883, 36-50 (CA4 2016). 44 Friedman, 784 F.3d at 412.



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of “assault weapon” prohibition. Application of this principle reveals that such a ban is fatally underinclusive and unnecessarily overbroad.

III. APPLYING INTERMEDIATE SCRUTINY TO A BAN ON

“ASSAULT WEAPONS” While intermediate scrutiny has been applied in numerous Constitutional contexts,45 the way it has been applied in Second Amendment challenges “has its origins in the United States Supreme Court’s first amendment jurisprudence, pursuant to which certain speech is unprotected, and varying degrees of judicial scrutiny are applied to speech depending on the nature of the speech at issue.”46 Intermediate scrutiny is applied to regulations affecting the time, place, or manner in which speech occurs, as well as to regulations affecting commercial speech. These regulations of speech are subjected to a lesser form of judicial scrutiny “because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”47 Restrictions upon the time, place, and manner of speech may be constitutionally permissible, “provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to

45 See Richard H. Fallon, Jr., Strict Judicial Scrutiny 54 UCLA L. Rev. 1267, 1268-1269 (2007) (citing the Equal Protection Clause, Free Speech Clause, and Religious Free Exercise Clause). 46 Connecticut v. Deciccio, 315 Conn. 70 (2014). See also, Ezell v. City of Chicago, 651 F.3d 684 (CA7 2011); United States v. Chester, 628 F.3d 673 (4th Cir. 2010); Marzzarella, 614 F.3d at 89-100; Heller II, 670 F.3d at 1257-1260. 47 Turner Broadcasting System, Inv. v. Federal Communications Commission, 512 U.S. 622, 641-642 (1994) (Turner I) (citation omitted).



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serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’”48 This is virtually the same test for determining the permissibility of restrictions on commercial speech, which has its origins in Central Hudson Gas & Electric Co. v. Public Service Commission of New York, 447 U.S. 557 (1980): “The State must assert a substantial interest to be

achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal.”49

The two critical aspects of intermediate scrutiny are the interest asserted, and the fit between the interest and the means chosen to further that interest. This “fit” assists in determining whether a restriction is narrowly tailored. The relationship between the interest and the means chosen to further it is interdependent. The government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”50

48 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (emphasis added)). 49 Central Hudson Gas & Electric Co. v. Public Service Commission of New York, 447 U.S. 557, 564 (1980). 50 Turner I, 512 U.S. at 664. See also, ibid. (“That the Government's asserted interests are important in the abstract does not mean, however, that the [regulation] will in fact advance those interests. When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured.”



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While “the Government’s asserted interests are important in the abstract does not mean, however, that the [restriction] will in fact advance those interests.”51 The fit “between the legislature’s ends and the means chosen to accomplish those ends”52 is “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ In re R. M. J., [455 U.S. 191, 203 (1982)]; that employs not necessarily the least restrictive means but, . . . a means narrowly tailored to achieve the desired objective.” 53 To be sure, although intermediate scrutiny does not require a restriction to be through the least restrictive means to accomplish the asserted interest(s), it does require that a restriction use a “less intrusive means”54 to further those interests. Narrow tailoring “may be measured by two criteria. First, the restriction must directly advance the state

(internal quotation marks omitted)); Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (“This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”). 51 Turner I, 512 U.S. at 664. 52 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989) (quoting Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986). 53 Id. at 480. 54 McCullen v. Coakley, 134 S. Ct. 2518, 2538 (2014). See also, Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980) (explaining that “[t]he Village's legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation.”); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 73-74 (1981) (invalidating a state statute that prohibited all live commercial entertainment, because “[t]he Borough ha[d] not established that its interests could not be met by restrictions that are less intrusive on protected forms of expression.”).



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interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction . . . the excessive restrictions cannot survive.”55 Accordingly, a narrowly tailored restriction will (1) “not burden substantially more [conduct] than necessary to further those interests[,]”56 and (2) be through means that “are not substantially broader than necessary to achieve the government’s interest.”57 Under this test, “the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case.” 58 This means that, even if the government is furthering some interest in the abstract, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”59 Thus, “[a] statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”60 Theoretically, then, “[a] complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil.”61 An example of a complete ban being upheld is found in Frisby v. Schultz, 487 U.S. 474 (1988), a case that upheld a ban on

55 Central Hudson Gas & Electric Co., 447 U.S. at 564. 56 Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 189 (1997) (Turner II). 57 Ward, 491 U.S. at 800. 58 Id. at 801. 59 Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, 2741, n. 9 (2011). 60 Frisby v. Schultz, 487 U.S. 474, 485 (1988) (emphasis added) 61 Ibid.



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residential picketing. This restriction was permitted, because “the ‘evil’ of targeted residential picketing, the very presence of an unwelcome visitor at the home, is created by the medium of expression itself. Accordingly, the . . . ordinance’s complete ban of that particular medium of expression is narrowly tailored.”62 However, in other contexts, the notion that “a flat ban . . . could be regarded as a content-neutral time, place, or manner restriction on speech, [is] a proposition that is open to serious doubt[.]”63 One must be especially cautious in this area of law, and avoid accepting arguments made by those who have “taken the effect of the statute and posited that effect as the State's interest. If accepted, this sort of circular defense can sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored.”64 This circular reasoning was explicitly adopted in Shew v. Malloy, 994 F. Supp. 2d 234, 248 (D. Conn. 2014). There, the court held that Connecticut’s statute eliminating assault weapons from the public sphere furthered the State’s interest in “eliminating assault weapons . . . from the public sphere.”65 Indeed, it becomes quite easy to understand the problems with this tautological approach, for it leaves unanswered the question whether banning “assault weapons” furthers any beneficial societal interests. Lower courts upholding bans on “assault weapons” have clung onto the Supreme Court’s decision in Turner

62 Id. at 487-488 (1988) (citations and internal quotation marks omitted). 63 Edenfield, 507 U.S. at 771. 64 Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105, 120 (1991) (emphasis added). 65 Shew, 994 F. Supp. 2d at 248.



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Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994), which upheld a must-carry provision for broadcast television, for the proposition “that courts must accord substantial deference to the predictive judgments of Congress.”66 But although “Congress’ predictive judgments are entitled to substantial deference does not mean, . . . that they are insulated from meaningful judicial review altogether.”67 Likewise, legislative deference “does ‘not foreclose [a court’s] independent judgment of the facts bearing on an issue of constitutional law.’”68 Three years later, in Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997) (Turner II),69 the Court outlined that the judgments made by the legislature must be drawn from “reasonable inferences based on substantial evidence”70; that the evidence must show “a substantial basis to support [the legislature’s] conclusion that a real threat justified enactment of the”71 regulation; and that the record, even if it contains “evidence . . . susceptible [to] varying interpretations,” must support “definite conclusions [that] can be drawn about the

66 Turner I, 512 U.S. at 665. 67 Id. at 666. 68 Ibid. (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989)). 69 Due to the bare record, the Court remanded the original Turner case to evaluate whether the regulation furthered a governmental interest that was narrowly tailored to achieve that interest. Turner I, 512 U.S. at 664-668. 70 Turner I, 512 U.S. at 666 (1994) (citing Century Communications Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292, 304 (CADC 1987)). See also, Turner II, 520 U.S. at 196 (“Congress must base its conclusions upon substantial evidence . . .”). 71 Turner II, 520 U.S. at 196.



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burdens of [the regulation].”72 With these principles in mind, I now apply them to a ban on “assault weapons.”

A. ASSERTED INTERESTS The governmental interests asserted in prohibiting “assault weapons” include protecting police officers, preventing crime and enhancing public safety. 73 The common thread tying all of these interests together is the “concern over the perceived dangerousness of these guns[.]”74 Ban advocates also assert, “assault weapons” and their features are “unusually dangerous, [and] commonly associated with military combat situations, and are commonly found on weapons used in mass shootings.”75 Accordingly, I examine the interests in banning “dangerous and unusual” weapons, protecting police officers, crime prevention and public safety.

72 Id. at 215. 73 New York State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 368 (“the only remaining question is whether the challenged provisions are substantially related to the governmental interest in public safety and crime prevention.”); Heller II, 670 F.3d at 1262 (suggesting the government has “important interests in protecting police officers and controlling crime.”); Kolbe, 42 F. Supp. 3d at 792 (“the government has a substantial interest in providing for public safety and preventing crime[.]”); Shew, 994 F. Supp. 2d at 239 (public safety and crime control). 74 Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003 80 (2004) [hereinafter, Koper, Updated Assessment of the Federal Assault Weapons Ban]. 75 N.Y. State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 368. See also, Heller II, 670 F.3d at 1262-1263; Kolbe, 42 F. Supp. 3d at 788-789; Shew, 994 F. Supp. 2d at 248-250; Koper, An Updated Assessment of the Federal Assault Weapons Ban, supra note 74, at 80 (“Ban advocates also argued that the banned AWs possessed additional features conducive to criminal applications”).



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1. DANGEROUS AND UNUSUAL WEAPONS The disturbing trend of announcing certain weapons beyond the scope of the Second Amendment as “dangerous and unusual” has caught on in the lower courts. 76 However, the limitation, as outlined in Heller, had nothing to do with the keeping of dangerous and unusual weapons, but with the “carrying of ‘dangerous and unusual weapons.’”77 And as Heller noted, “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’”78 The secondary sources cited in Heller also confirm this distinction. The historical tradition of prohibiting the carrying of dangerous and unusual weapons has its roots in the common law crime of an affray. 79 Blackstone described the tradition as targeting an individual “riding or going armed, with dangerous or unusual weapons[.]”80 The Honorable James Wilson described the prohibition “as where a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally

76 See Heller II, 670 F.3d at 1263; Kolbe, 42 F. Supp. 3d at 788, 789 n. 29; N.Y. State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 367. 77 Heller, 554 U.S. at 627 (emphasis added). 78 Id. at 584. See also, Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting) (“Surely a most familiar meaning is, as the Constitution’s Second Amendment (“keep and bear Arms”) (emphasis added) and Black’s Law Dictionary, at 214, indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”). 79 See Statute of Northampton, 2 Edward III. c. 3. (1328)—No man shall come before the justices, or go or ride armed, reprinted in 5 WILLIAM DAVID EVANS, A COLLECTION OF STATUTES CONNECTED WITH

THE GENERAL ADMINISTRATION OF LAW 218 (3d ed. 1836). 80 4 William Blackstone, Commentaries on the Laws of England 148-149 (Edward Christian 12th ed. 1795) (emphasis added) (cited in Heller, 554 U.S. at 627).



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diffuse a terrour among the people.”81 John A. Dunlap also explained that it was “likewise said to be an affray, at common law, for a man to arm himself with dangerous and unusual weapons, in such manner as will naturally cause terror to the people.”82 Charles Humphreys, in his compendium on Kentucky common law, noted the Second Amendment altered the elements of an affray from the English common law understanding of the offense: “Riding or going armed with dangerous or unusual

weapons, is a crime against the public peace, by terrifying the people of the land, which is punishable by forfeiture of the arms, and fine and imprisonment. But here it should be remembered, that in this country the constitution guarranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify the people unnecessarily. We have a statute on the subject, relating to concealed weapons.”83

William Oldnall Russell expressed a similar view within the context of the Statute of Northampton: “[N]o wearing of arms is within its meaning, unless it

be accompanied with such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are in no dangers of offending against the statute by wearing common

81 3 BIRD WILSON, THE WORKS OF THE HONOURABLE JAMES WILSON 79 (1804) (cited in Heller, 554 U.S. at 627) (emphasis added). 82 JOHN A. DUNLAP, THE NEW-YORK JUSTICE 8 (1815) (cited in Heller, 554 U.S. at 627) (emphasis added). 83 CHARLES HUMPHREYS, A COMPENDIUM OF THE COMMON LAW IN

FORCE IN KENTUCKY 482 (1822) (Heller, 554 U.S. at 627) (emphasis added).



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weapons, or having their usual number of attendants with them for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence, or disturbance of the peace.”84

The final three commentators cited confirm that the manner in which “dangerous and unusual weapons” are carried is the focus of the historical tradition.85 Likewise, the three cases cited for support also indicate that the tradition is with regard to bearing, not keeping.86 But even beyond overlooking that distinction, lower courts, as will be shown, rely on evidence that is

84 1 WILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND

MISDEMEANORS 292 (8th American ed. 1857) (cited in Heller, 554 U.S. at 627). 85 ELLIS LEWIS, AN ABRIDGMENT OF THE CRIMINAL LAW OF THE UNITED

STATES 64 (1848) (cited in Heller, 554 U.S. at 627); H. STEPHEN, SUMMARY OF THE CRIMINAL LAW 48 (1840) (same); 2 FRANCIS

WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 405 (5th ed. 1861) (same). 86 State v. Langford, 10 N. C. 381, 383-384 (1824) (“[T]here may be an affray when there is no actual violence: as when a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people; which is said always to have been an offence at common law[.]”) (cited in Heller, 554 U.S. at 627); O’Neil v. State, 16 Ala. 65, 67 (1849) (“It is probable, however, that if persons arm themselves with deadly or unusual weapons for the purpose of an affray, and in such manner as to strike terror to the people, they may be guilty of this offence, without coming to actual blows.”) (cited in Heller, 554 U.S. at 627); English v. State, 35 Tex. 473, 476 (1872) (citing Blackstone) (cited in Heller, 554 U.S. at 627); State v. Lanier, 71 N.C. 288, 289 (1874) (“The elementary writers say that the offence of going armed with dangerous or unusual weapons is a crime against the public peace by terrifying the good people of the land[.]”) (cited in Heller, 554 U.S. at 627).



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questionable, at best, in determining the apparent “dangerous and unusual” character of “assault weapons.” We are told that these weapons are “weapons of war,”87 designed “not for sport or hunting purposes, but for killing people[,]” 88 and that “rounds shot from such [assault] weapons have the capability--more so than rounds shot from many other types of guns--to penetrate the soft body armor worn by law enforcement officers, as well as many kinds of bullet-resistant glass used by law enforcement.”89 Moreover, we are told, “assault weapons” allegedly “pose a

87 See, e.g., Banning the Importation of Assault Weapons and Certain Accessories into the United States: Hearing on H.R. 1154 Before the Subcomm. on Trade of the H. Comm. on Ways and Means 101st Cong. 37-38, 41-43 (1989) [hereinafter, Banning the Importation of Assault Weapons Hearing] (statement of Sheriff Patrick J. Sullivan, Jr., Arapahoe County Sheriff’s Department, Littleton, CO); Assault Weapons: A View from the Front Lines: Hearing on S. 639 and S. 653 Before the S. Comm. on the Judiciary 103rd Cong. 11 [hereinafter, A View from the Front Lines Hearing] (1993) (prepared statement of Sen. Dianne Feinstein); Hearing on H.R. 4296 and H.R. 3527, Public Safety and Recreational Firearms Use Protection Act, House of Representatives, Committee on the Judiciary, Subcommittee on Crime and Criminal Justice 103rd Cong. 33 (1994) [hereinafter, Hearing on Public Safety and Recreational Firearms Use Protection Act] (Statement of Jim Brady, Handgun Control, Inc.). 88 Banning the Importation of Assault Weapons Hearing, supra note 87, at 13 (opening statement of Rep. Frank J. Guarini). See also, id. at 42-43 (statement of Sheriff Patrick J. Sullivan, Jr., Arapahoe County Sheriff’s Department, Littleton, CO); id. at 55 (statement of Dewey Stokes, National President, National Fraternal Order of Police, Columbus, OH); Assault Weapons: Hearings S. 386 and S. 747 Before S. Subcomm. on the Constitution of Comm. on the Judiciary 101st Cong. 39-41 (1989) [hereinafter, Assault Weapons Hearings] (prepared statement of Daryl F. Gates, Chief of Police, Los Angeles, CA, Police Department); Hearing on Public Safety and Recreational Firearms Use Protection Act, supra note 87, at 33 (Statement of Sarah Brady); id. at 78 (Statement of Representative Mel Reynolds). 89 Kolbe, 42 F. Supp. 3d at 794 (emphasis added).



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heightened risk to civilians . . . in their homes, . . . bullets fired from assault weapons . . . can penetrate walls and other home structures and remain more effective than penetrating bullets fired from other guns, endangering those in neighboring rooms, apartments, or even other homes.”90

2. CRIME Lower courts rely on descriptive statistics detailing instances in which “assault weapons” were used in gun violence. 91 However, these statistics alone do not

90 Id. at 795 (emphasis added) (citing a document from the Brady Center to Prevent Gun Violence inter alia citing “a statement by Jim Pasco, executive director of the Fraternal Order of Police, that he would not be surprised if a bullet fired from an AK-47 went through six walls of conventional drywall in a home[.]”). 91 See, e.g., Koper, Updated Assessment of the Federal Assault Weapons Ban, supra note 74, at 2 (“AWs and other guns equipped with LCMs tend to account for a higher share of guns used in murders of police and mass public shootings, though such incidents are very rare.”) (emphasis added); id. at 11 (“AWs or other semiautomatics with LCMs were involved in 6, or 40%, of 15 mass shooting incidents occurring between 1984 and 1993[.]”) (emphasis added); id. (“AWs recovered by police were often associated with drug trafficking and organized crime[.]”) (emphasis added); Heller II, 670 F.3d at 1262-1264 (citing the part of the 2004 Koper study indicating a correlation between the use of “assault weapons” in mass shootings and police officer murders); Wilson v. County of Cook, 2012 IL 112026, P48, 968 N.E.2d 641, 656, 2012 Ill. LEXIS 337, 34-35, 360 Ill. Dec. 148 (IL. Sup. Ct. 2012) (relying on Koper and other evidence that correlates “assault weapons” and crime); New York State Pistol & Rifle Ass’n, 990 F. Supp. 2d at 369-371 (same); Kolbe, 42 F. Supp. at 787-788 (“assault weapons and LCMs are disproportionately represented in mass shootings”); Shew, 994 F. Supp. 2d at 250 n. 53 (agreeing with the Western District of New York’s finding in New York State Pistol & Rifle Ass’n correlating “assault weapons” to crime and mass shootings); Friedman, 784 F.3d at 411 (without citation to authority,



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adequately qualify the interest in banning “assault weapons.” If these sorts of surface-level observations sufficed to demonstrate the substantiality of the governmental interest, then the government would have a stronger interest in banning handguns, for “handguns are the quintessential ‘assault weapons’ in today’s society; they are used far more often than any other kind of gun in violent crimes.”92 To put this into perspective, consider that rifles of all types were used in 3,747 murders between 2004 and 2013 (an average of 375 per year), which amounts to 2.3% of all murders, 2.7% of all murders involving a weapon, and 4% of all murders involving a firearm.93 Handguns, on the other hand, were involved in 93,458 murders, or 43.21% of all murders, 49.12% of all murders involving a weapon, and 72.66% of all murders involving a firearm.94 The insubstantiality of the interest in an outright ban on “assault weapons” is further illustrated when compared to murder involving other weapons. Between 2004 and 2013, rifles of all types were involved in fewer murders than knives or cutting instruments (17,708 total; 13,961 more murders than rifles), blunt objects (5,778 total; 2,031 more murders than rifles), and personal posing the unsubstantiated rhetorical question of “Why else are [“assault weapons”] the weapons of choice in mass shootings?”). 92 Heller II, 670 F.3d at 1290 (Kavanaugh, J., dissenting). 93 For civilian deaths between 2004-2012, see, the FBI Uniform Crime Reporting Statistics Data Tool, http://www.ucrdatatool.gov/index.cfm (last visited Jul. 12, 2015). Go to national crime estimates and create a table using “murder and nonnegligent murder” as the variable. For civilian deaths in 2013, see FBI, Uniform Crime Reports: Crime in the United States 2013, table 12, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/tables/table-12/table_12_crime_trends_by_population_group_2012-2013.xls (last visited Jul. 12, 2015). 94 Id.



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weapons (8,150 total; 4,403 more murders than rifles), which includes hands, fists, feet, etc.95 A similar set of facts is true for officers killed in the line of duty. Between 2004 and 2013, officers killed in the line of duty accounted for 0.33% (511) of all murders.96 Broken down further, out of the 93,458 firearm homicides in this same period, officers killed in the line of duty accounted for 474 (0.51%).97 Because “assault weapons” are semiautomatic rifles, this data must be broken down further to ensure the interest is fully articulated. Of the 3,747 murders involving a rifle between 2004 and 2013, police officers accounted for 87 of those murders (0.056% of all murders; 0.062% of all murders involving a weapon; 0.093% of all murders involving a firearm; 2.32% of all murders involving a rifle; 17% of all feloniously murdered officers; 18.35% of all officers feloniously murdered with a firearm).98 The FBI breaks down the data even further to include the caliber of bullet used in a murder. The “standard” AR-15 bullet is the “.223 caliber round.”99 Of the 87 officers killed with a rifle between 2004 and 2013, twenty were murdered by a .223 caliber round (0.012% of all murders; 0.014% of all murders involving a weapon; 0.021% of all 95 Id. 96 For officer deaths, see FBI, Uniform Crime Reports: 2013 Law Enforcement Officers Killed & Assaulted, table 27, https://www.fbi.gov/about-us/cjis/ucr/leoka/2013/tables/table_27_leos_fk_type_of_weapon_2004-2013.xls (last visited Jul. 12, 2015). For civilian deaths between 2004-2013, see, supra note 93. 97 See supra notes 93 and 96. 98 Id. 99 Massachusetts Municipal Police Training Committee, Patrol Rifle Instructor 13 (2007), available http://www.mlefiaa.org/files/MPTC_NEWS/Patrol_Rifle_Student_Manual_2010.pdf.



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murders involving a firearm; 0.53% of all murders-by-rifle; 3.91% of all officers feloniously murdered; 4.22% of all officers feloniously murdered with a firearm).100 Since these numbers are indicative of murders committed with any type of rifle (including non-“assault weapons”), the overall total is surely smaller. But even assuming that all of these murders-by-rifle did involve an “assault weapon,” there does not seem to be a substantial, or even compelling, enough interest to justify their total prohibition. This is especially true in light of the fact that constitutionally protected handguns were involved in 72.78% (474 out of 511) of all feloniously murdered police officers deaths between 2004 and 2013.101 The governmental interest, once properly quantified, includes only a very small portion of overall gun crime, and crime in general. So regardless of whether the overall societal ill sought to be cured is gun violence or violence generally, the interest in prohibiting “assault weapons”—assuming that every crime involving an “assault weapon” would be prevented, and not be substituted for a legal firearm—is magnitudes smaller compared with other firearms and other forms of violence generally. Nevertheless, I now turn to examining the fit between “assault weapon” prohibition and furthering the interests of public safety.

B. NARROW TAILORING A narrowly tailored prohibition of certain Second Amendment conduct (1) should conceivably affect only arms not considered to be “in common use,” and (2) should neither include within its reach concededly lawful conduct, such as keeping a commonly used arm in the

100 See supra notes 93 and 96. 101 Id.



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home for self-defense, nor affect those who enjoy the most Second Amendment protection—law-abiding, responsible citizens. Prohibiting “assault weapons” commits both offenses, rendering such a ban fatally underinclusive and unnecessarily overbroad.

1. THE BAN IS FATALLY UNDERINCLUSIVE Lower courts have upheld bans on “assault weapons,” because the legislation “ban[s] only a limited subset of semiautomatic firearms[.]”102 While that may reduce the severity of the burden placed upon the Second Amendment right, 103 it does not ensure that the restriction will, in fact, advance the government’s interests in a direct and material way. At first, one might find it odd to think that a law runs afoul of the Second Amendment by infringing too little on the right. 104 But “[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes[.]”105 Several examples highlight this principle. First, in Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), the Supreme Court made the comparative judgment that, while the City had an interest in maintaining esthetics, “respondent publishers’ 102 New York State Rifle & Pistol Association, 804 F.3d at 260. See also, Heller II, 670 F.3d at 1262 (“the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals”). 103 See, e.g., Heller II, 670 F.3d at 1265-1267; Shew, 994 F. Supp. 2d at 247 (“Unlike the law struck down in Heller, the legislation here does not amount to a complete prohibition on firearms for self-defense in the home.”). 104 Cf. Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656, 1668 (2015) (“It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech.”) 105 Brown, 131 S. Ct. at 2740.



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newsracks [we]re no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks. Each newsrack, whether containing ‘newspapers’ or ‘commercial handbills,’ [wa]s equally unattractive.”106 The lack of an esthetical difference between the newsracks ensured “[t]he benefit to be derived from the removal of 62 newsracks while about 1,500-2,000 remain in place was considered minute[.]”107 This example is also particularly instructive, because it quantifies the fit between the interest and the means chosen to advance it; because the regulation only affected between 3.1%-4.1% of the “evil” sought to be eliminated (street clutter), it failed muster under intermediate scrutiny. Second, in striking down a ban on directional signs, the Supreme Court in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), recognized that “the Code allow[ed] unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones.” 108 The Reed Court continued, “[t]he Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.”109 Here again, the availability of equally ugly and distracting signs undercut the supposed substantiality of the asserted governmental interests. Third, in The Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court struck down a law prohibiting an “instrument of mass communication” (there, a Florida

106 City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993) (emphasis added). 107 Discovery Network, Inc., 507 U.S. at 417-418. 108 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015). 109 Ibid.



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newspaper) from publishing the names of sexual assault victims. The Court reasoned that the law did not further the governmental interest in protecting the privacy of sexual assault victims, because “[a]n individual who maliciously spreads word of the identity of a rape victim [wa]s thus not covered, despite the fact that the communication of such information to persons who live near, or work with, the victim may have consequences as devastating as the exposure of her name to large numbers of strangers.”110 The Court further explained that “[w]hen a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.”111 Indeed, “[a] ban on disclosures effected by ‘instrument[s] of mass communication’ simply cannot be defended on the ground that partial prohibitions may effect partial relief.” 112 Indeed, the depth and breadth of a challenged regulation goes to the very heart of whether the asserted governmental interests are truly “substantial.” These cases, and countless others,113 reveal that “a law cannot be regarded as protecting an interest ‘of the highest order,’ Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979), . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”114

110 The Florida Star v. B.J.F., 491 U.S. 524, 540 (1989). 111 The Florida Star, 491 U.S. at 540. 112 The Florida Star, 491 U.S. at 540. 113 See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 543-547 (1993) (animal sacrifice statute); City of Ladue v. Gilleo, 512 U. S. 43, 52-53 (1994) (law banning signs displayed on private property). 114 The Florida Star, 491 U.S. at 541-542 (Scalia, J., concurring in part and concurring in the judgment).



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Accordingly, if the semiautomatic firearms left unregulated by “assault weapon” prohibition are equally as “dangerous and unusual” as the “limited subset of semiautomatic firearms” 115 affected by the restriction, then banning “assault weapons” has not substantially furthered an important governmental interest. As will be shown, every argument advanced in support of the proposition that banning “assault weapons” is permissible, because it does not impose a substantial burden on the core Second Amendment right, is, in reality, support for the argument that such a ban is fatally underinclusive. Many, if not all, of the assertions regarding the inherent “dangerous and unusual” character of “assault weapons” lack any citation to a neutral, objective authority. Reliance on this substandard evidence has caused federal courts to render decisions that are in conflict with the vast body of irrefutable scientific evidence to the contrary. “Assault weapons” are not inherently more dangerous and unusual than their semiautomatic counterparts. As an initial matter, it is necessary to mention that “[t]he basic principle behind any gun is an explosive barge and projectile that is propelled upon ignition of the charge into a barrel and beyond at a high velocity, with variable accuracy and distance.” 116 In this respect, “[a]ll small arms work in roughly the same way.”117 Additionally, nearly all definitions of “semiautomatic” are “substantially identical: they each refer to automatic

115 New York State Rifle & Pistol Association, 804 F.3d at 260 (emphasis added). 116 JAN E. LEESTMA, FORENSIC NEUROPATHOLOGY 656 (3d ed. 2014). 117 PETER F. MAHONEY ET AL., BALLISTIC TRAUMA: A PRACTICAL GUIDE 44 (2d ed. 2005).



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reloading and the necessity to release the trigger before each shot.”118 This definition is more than mere technical jargon, the “explanation of how a semiautomatic firearm operates [is] simply a statement of scientific fact.”119 The wound potential of any firearm is also influenced by objective science, and is determined by the kinetic energy of the bullet it shoots, which is calculated by taking half the mass of the projectile, multiplied by its velocity squared.120 This formula “is independent of the

118 People v. Ricketts, 2008 Cal. App. Unpub. LEXIS 10062, 63-66 (2008). See also, e.g., Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4857 (Nov. 29, 1990); Crime Control Act of 1994, Pub. L. No. 103-322, 108 Stat. 2015 (Sept. 13, 1994); Cal Pen Code § 17140 (LEXIS 2015); 56 D.C. REG. 1365, 1375 (LEXIS 2009); ALM GL ch. 140, § 121 (LEXIS 2015); N.J. Stat. § 2C:39-1(x) (LEXIS 2015); NY CLS Penal § 265.00(21) (LEXIS 2015); Staples, 511 U.S. at 602 n. 1; In Re Jorge, 23 Cal. 4th 866, 874, n. 4 (2000); People v. Souza, 54 Cal. 4th 90, 103 (2012); People v. Nguyen, 212 Cal. App. 4th 1311, 1319-1321 (2013); People v. Wilson, 2002 Cal. App. Unpub. LEXIS 6587, 14-17 (2002); Connecticut v. Johnson, 253 Conn. 1, 58 (2000); Hawai’i v. Antonio, 133 Haw. 451; 330 P.3d 389; 2014 Haw. App. LEXIS 117, 3-7 (Haw. Ct. App. 2014); Illinois v. Fornear, 176 Ill. 2d 523, 529 (1997); North Carolina v. Taylor, 362 N.C. 514, 531-532 (2008); Ohio v. Jordan, 1999 Ohio App. LEXIS 3465, 24-25 (Ohio Ct. App., Montgomery County, 1999) (citing Staples, 511 U.S. at 602-605, 618-619); Ohio v. Jones, 2013-Ohio-5915, P71; 2013 Ohio App. LEXIS 6225, 36-37 (Ohio Ct. App., Mahoning County, 2013); Id. at P71, 63 (DeGenaro, P.J., dissenting) (quoting Trial Tr., pp. 2262-4, 2283); Ohio v. Ream, 2013-Ohio-4319, P45; 2013 Ohio App. LEXIS 4509, 30-31 (Ohio Ct. App., Allen County, 2013); Tennessee v. Burson, 2013 Tenn. Crim. App. LEXIS 705, 17-19 (2013); McCain v. Texas, 1998 Tex. App. LEXIS 5376, 24 (1998); Wisconsin v. Kramar, 149 Wis. 2d 767, 794 (1989). 119 People v. Pineda, 2013 Cal. App. Unpub. LEXIS 1166, 47 (Cal. Ct. App. Unpub. 2013). 120 See MARIATERESA A. TERSIGNI-TARRANT, FORENSIC

ANTHROPOLOGY: AN INTRODUCTION 293 (2013) (“The wounding capacity of a bullet is derived from the kinetic energy that it transfers



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cosmetic appearance of the wound, the number of bullets a weapon can fire without reloading, or other similar aspects of the nature of the weapon or of the bullet itself.”121 So while “so-called assault weapons may or may not lead to multiple wounds in the same patient, . . . the nature and characteristics of each individual wound are still described by the same kinetic energy formula.”122 And as the formula suggests—i.e., velocity being squared—“bullets with a higher velocity, as a general rule, [will] have a greater wounding capability than larger bullets with lower velocity.”123 In line with this general rule, muzzle velocity can typically be estimated for a class of weapon based solely on the type of ammunition it uses. In the context of rifles, there are two categories of ammunition: rimfire and centerfire.124 The former is considered low power/velocity,

to the body tissues.”); JASON PAYNE-JAMES ET AL., FORENSIC

MEDICINE: CLINICAL AND PATHOLOGICAL ASPECTS 155-156 (2003) [hereinafter, PAYNE-JAMES, FORENSIC MEDICINE] (“The wounding capability of a bullet depends upon the amount of kinetic energy (KE) the bullet possesses when it strikes a target.”); VINCENT J.M. DI

MAIO, GUNSHOT WOUNDS: PRACTICAL ASPECTS OF FIREARMS, BALLISTICS, AND FORENSIC TECHNIQUES 14 (2d. 1999) (“the severity of the wound is determined by the amount of kinetic energy lost by a bullet in the body.”); MARY LOU SOLE ET AL., INTRODUCTION TO

CRITICAL CARE NURSING 594 (6th ed. 2013) [hereinafter, SOLE, CRITICAL CARE NURSING] (“The velocity and type of bullet (missile) influence the transfer of energy creating tissue injury.”). 121 2 BARBARA AEHLERT, PARAMEDIC PRACTICE TODAY: ABOVE AND

BEYOND 491 (Revised Reprint 2011). 122 Id at. 491-492 (emphasis added). 123 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 155. 124 DAVID DOLINAK ET AL., FORENSIC PATHOLOGY: PRINCIPLES AND

PRACTICE 163 [hereinafter, DOLINAK, FORENSIC PATHOLOGY] (2005); JOSEPH A. PRAHLOW, FORENSIC PATHOLOGY FOR POLICE, DEATH

INVESTIGATORS, ATTORNEYS, AND FORENSIC SCIENTISTS 342 (2010) [hereinafter, PRAHLOW, FORENSIC PATHOLOGY FOR POLICE].



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with muzzle velocities below 1,400 feet per second, while the latter is considered high power/velocity, with muzzle velocities ranging between 2,000 and 3,500 feet per second.125 “High-velocity weapons are assault weapons and hunting rifles” 126 and either rifle “may fire hunting ammunition or military ammunition.”127 Centerfire rifle bullets are cased in metal jackets, which are “commonly used in semi-automatic weapons, and may be either fully jacketed (jacket covers tip and sides of the bullet), or semi-jacketed (jacket covers sides and base of the bullet).”128 Full metal-jacketed bullets and semi-jacketed bullets differ in two respects. First, “[m]ilitary ammunition is full metal jacketed, while centerfire rifle ammunition used by the civilian hunter is semi-jacketed.”129 Second, semi-jacketed bullets are more lethal than full metal-jacketed bullets. As a semi-jacketed bullet travels through the body, the jacket “peels back, exposing the lead core which mushrooms, losing scores, if not hundreds, of small lead fragments. . . . This phenomenon creates the characteristic radiological picture of wounds caused by hunting ammunition — the ‘lead

125 DOLINAK, FORENSIC PATHOLOGY, supra note 115, at 163. 126 SOLE, CRITICAL CARE NURSING, supra note 111, at 594 (emphasis added). 127 PRAHLOW, FORENSIC PATHOLOGY FOR POLICE supra note 115, at 342 (emphasis added). 128 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 155 (emphasis added). 129 Ibid. See also, VINCENT J.M. DIMAIO ET AL., HANDBOOK OF

FORENSIC PATHOLOGY 142-143 (2d ed. 2006) [hereinafter, DIMAIO, FORENSIC PATHOLOGY] (“A. Two types of ammunition are used in centerfire rifles: 1. Full-metal jacketed military 2. Semi-jacketed hunting ammunition.”).



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snowstorm[.]’” 130 These small lead fragments not only cause the bullet to lose kinetic energy, but also have the effect of widening the impact of the wound. Full metal-jacketed bullets, on the other hand, are designed to perforate a target, instead of mushrooming upon impact. The result is that full metal-jacketed bullets leave wounds

130 DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143. See also, PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168 (“centerfire rifle wounds caused by semi-jacketed hunting ammunition usually have a distinctive appearance, in which multiple tiny lead fragments are present along the wound track. This distinctive radiographic picture is referred to as a “lead snowstorm”, and is produced by small lead fragments being stripped from the lead core of the bullet as it travels through the body[.]”); RICHARD C. FROEDE, HANDBOOK OF FORENSIC PATHOLOGY 411 (2003) (“High-velocity hunting rifle rounds create a typical “lead snowstorm” appearance radiographically because of extreme fragmentation and scattering of the unjacketed bullet.”); MELINDA D. MERCK, VETERINARY FORENSICS: ANIMAL CRUELTY INVESTIGATIONS 145 (2007) (“Radiographs of victims shot with hunting ammunition show a typical pattern called a lead snowstorm. Fragments of lead break off the lead core and are propelled into the surrounding tissues.”); M. PRAKASH, UNDERSTANDING BIOINSTRUMENTATION 75 (2009) (“The unjacketed bullet commonly used in high-velocity hunting ammunition fragments so extensively that the resulting pattern is called a “lead snowstorm.”); MICHAEL J. THALI, FORENSIC RADIOLOGY 212 (2d ed. 2011) (“[H]igh-velocity hunting ammunition wounds can leave a characteristic “lead snowstorm” radiographic picture because of extensive fragmentation of the unjacketed bullet[.]”); LIANG CHENG

& DAVID G. BOSTWICK 434 (3d ed. 2011) (“The goal of hunting ammunition is to expend all of its energy so that it frequently does not exit body, but fragments inside; has a characteristic “lead snowstorm” x-ray pattern.”).



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“devoid of lead fragments”131 and “do not lose significant amounts of kinetic energy within the body.”132 The lethality of a bullet is not altered by the firearm from which the bullet is fired, for “[w]ounds produced by the full-metal-jacketed bullet are significantly less severe when compared to wounds produced by cartridges of the same caliber fired from the same weapon but with these cartridges loaded with hunting bullets.”133 The difference is not in the gun; the difference is in the bullet—hunting ammunition, which is readily available to civilians, is more lethal than military-grade ammunition, which is also readily available to civilians. The reduced lethality of military-grade bullets, to be sure, is not accidental, and serves many battlefield benefits. One former military official explained the primary benefit to reduced bullet lethality: “Military bullets are designed to limit tissue

disruption--to wound rather than kill. The full-metal-jacketed bullet is actually more effective for most warfare; it removes the one hit and those needed to care for him ... newspaper descriptions comparing their effects with a grenade exploding in the abdomen ... must cause the thinking individual to ask: ... how is it possible that 29 children and one teacher out of 35 hit in the Stockton schoolyard survived? If producers of "assault rifles" had advertised their effects as

131 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168. See also, DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143 (“Full-metal-jacketed bullets tend to go through the body undeformed. In most cases, no bullet fragments are seen on x-ray.”) 132 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168. 133 DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143 (emphasis added). See also, Koper, An Updated Assessment of the Federal Assault Weapons Ban, supra note 74, at 11.



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depicted by the media, they would be liable to prosecution under truth-in-advertising laws.”134

Put simply, within a military context, wounding is preferred to killing, because “the wounded produce more of a strain on enemy resources than do the dead.”135 With respect to concerns about the potential for bullets to penetrate walls in houses and apartments, the Massachusetts Municipal Police Training Committee’s manual regarding the AR-15 rifle informs officers that “the most popular patrol rifle round, the 5.56mm NATO (.223 Remington) will penetrate fewer walls than service pistol rounds or 12 gauge slugs.”136 Interestingly, police officers’ own user manuals for these firearms contradict their own testimony. Finally, many courts and commentators find it significant that “assault weapons” are, in some cases, the “civilian versions of weapons designed for military use.”137

134 David Kopel, Rational Basis Analysis of “Assault Weapon” Prohibition, 20 J. of Contemp. L. 381-417 (1994), (quoting Martin L. Fackler, Wall St. J., Apr. 10, 1989, at A15, col. 1) (emphasis added) 135 Martin L. Fackler, Getting Your Guns Straight, Wash. Post, Apr. 24, 1993, Page A25. 136 Massachusetts Municipal Police Training Committee, Patrol Rifle Instructor 3 (2007) (emphasis added), available http://www.mlefiaa.org/files/MPTC_NEWS/Patrol_Rifle_Student_Manual_2010.pdf. It is noteworthy that the manual described the penetration capacity in terms of the bullet and not the weapon, because it demonstrates that police officers do understand that the difference is in the bullet. 137 Brady Center to Prevent Gun Violence, On Target: The Impact of the 1994 Federal Assault Weapons Act 3 (2004) (citing ATF, Assault Weapons Profiles). See also, Heller II, 670 F.3d at 1263; Kolbe, 42 F. Supp. 3d at 789 n. 29 (“The Supreme Court indicated in Heller I that M-16 rifles could be banned as dangerous and unusual. 554 U.S. at 627. Given that assault rifles like the AR-15 are essentially the



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The distinction lies in the fact that military-grade firearms are capable of automatic fire, while “assault weapons” (only resembling a military-style) are only capable of semiautomatic fire. Some lower courts have found the distinction between semiautomatic and fully automatic to be almost de minimis, concluding that military-style weapons and military-grade weapons are “essentially the same[.]”138 Lower courts substantiate this conclusion with reference to the testimony of a paid lobbyist, Brian J. Siebel, for the Brady Campaign to End Gun Violence, who claimed, without reference to authority, that “[w]hen San Jose, California, police test-fired an UZI, a 30-round magazine was emptied in slightly less than two seconds on full automatic, while the same magazine was emptied in just five seconds on semiautomatic.”139 Several problems exist with Siebel’s claim. First, Siebel’s statement is an “unsworn allegation, which cited no source, [and] lacked any indicia of expertise.” 140 Second, semiautomatic firearms, when doing the math according to Siebel’s own testimony, “fire two-and-a-half times slower than automatics[.]” 141 According to the United States Army’s own training manual for the M-16, functional equivalent of M-16s--and arguably more effective--the same reasoning would seem to apply here.”). 138 Kolbe, 42 F. Supp. 3d at 793. 139 4 Joint Appendix, Testimony of Brian J. Siebel at A-1105, New York State Rifle and Pistol Ass’n. v. Cuomo, 990 F. Supp. 2d 349, aff’d, 804 F.3d 242 (CA2 2015). See also, Shew, 994 F. Supp. 2d at 249 (citing Siebel Testimony) Kolbe, 42 F. Supp. 3d at 793 (same); Heller II, 670 F.3d at 1263 (same). 140 Stephen P. Halbrook, New York’s Not So “SAFE” Act: The Second Amendment in an Alice-In-Wonderland World Where Words Have no Meaning 78 Alb. L. Rev. 789, 802 (2014). 141 Heller II, 670 F.3d at 1289 (Kavanaugh, J., dissenting) (emphasis added).



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“the ‘Maximum Effective Rate of Fire (rounds per min)’ in semiautomatic for the M-4 and M16A2 rifles is 45 rounds per minute, not even close to Siebel’s claimed 30 rounds in five seconds.”142 Third, the fact that Siebel, at the time of making the statement, was a “Brady Center attorney”143 should cause any court to proceed with caution. That is not to say that all those testifying on behalf of an interest group are liars. But as the scientific evidence is concerned, it would appear that Siebel was either grossly ignorant of the issue on which he was speaking, or that he was being less than honest in his testimony, both of which “demonstrate[] the fallacy of relying on lobbyist exhortations instead of demonstrated facts[.]”144 Apart from failing to distinguish “assault weapons” from other semiautomatic firearms with respect to their rates of fire, lower courts have relied on arguments related to the features prohibited by “assault weapon” legislation, which generally include pistol grips, barrel shrouds, flash hiders, noise suppressors, etc. 145 The assertions used to justify the prohibition of these features fail in every material respect to substantively and

142 Halbrook, supra note 140, at 803 (citing Dep't of the Army, FM 3-22.9, Rifle Marksmanship: M16-/M4-Series Weapons 2-1 (2008)). 143 Id. at 802. 144 Id. at 803. 145 See, e.g., Cal Pen Code § 30515(a)(1) (LEXIS 2015); D.C. Code § 7-2501.01(3A)(A)(i)(IV) (LEXIS 2015); NY CLS Penal § 265.00(22)(a) (LEXIS 2015); H.R. 2038, 108th Cong. (May 8, 2003); S. 1034, 108th Cong. (May 8, 2003); S. 1431, 108th Cong. (Jul. 17, 2003); S. 2109, 108th Cong. (Feb. 24, 2004); H.R. 3831, 108th Cong. (Feb. 25, 2004); S. 620, 109th Cong. (Mar. 14, 2005); H.R. 1312, 109th Cong. (Mar. 15, 2005); H.R. 437, 113th Cong. (Jan. 29, 2013); S. 150, 113th Cong. (Mar. 14, 2013); Heller II, 670 F.3d at 1262-1263; Kolbe, 42 F. Supp. 3d at 786-787; New York State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 368-369; New York State Rifle & Pistol Ass’n, 804 F. 3d 262-263; Friedman, 784 F.3d at 411-412.



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materially qualify the dangerous and unusual character of the features. To take one example, we are told that pistol grips attached to rifles “help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.” 146 It is true that pistol grips stabilize the weapon in both regular and “rapid fire,” but claiming that a pistol grip allows one to “spray-fire” from the hip is unfounded. Additionally, those putting forth these assertions about pistol grips do not come from a neutral source, or any qualified source for that matter. Lower courts again cite the 2008 testimony of Brian J. Siebel, in which he asserted that “[p]istol grips on assault rifles and shotguns help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.”147 Siebel, despite repeating the talking point, provides no citation to authority. The lack of cited evidence for these overzealous claims is a common staple for “assault weapons” ban supporters. Every brief filed in support of the ban that asserted pistol grips were inherently dangerous due to hip-fire either did not provide reference to any authority whatsoever, or cited an authority that did not support the assertion of “spray-fire” from the hip. 148 The same is true for those testifying before Congress.149

146 Heller II, 670 F. 3d at 1263. See also, e.g., N.Y. State Rifle & Pistol Ass’n, 990 F. Supp. 2d at 370 (“a pistol grip and thumbhole stock, . . . aid[s] shooters when ‘spray firing’ from the hip.”); Appellees’ Brief at 4-5, Heller v. District of Columbia, 670 F.3d 1244 (CADC 2011) (No. 10-7036). 147 4 Joint Appendix, Testimony of Brian J. Siebel at A-1105, New York State Rifle and Pistol Ass’n. v. Cuomo, 990 F. Supp. 2d 349, aff’d, 804 F.3d 242 (CA2 2015). 148 See Brief for Amicus Curiae Brady Center to Prevent Gun Violence et al. in Support of Appellees and Affirmance at 27, Heller v. District



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of Columbia, 670 F.3d 1244 (CADC 2011) (No. 10-7036) (no citation); Brief for Amici Curiae Law Center to Prevent Gun Violence et al. – corrected at 4-5, New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (CA2 2015) (No. 14-0036 cv(L)) (no citation); Brief for the State Defendants as Appellees and as Cross-Appellants (corrected) at 13, New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (CA2 2015) (No. 14-0036 cv(L)) (citing Siebel, and a document produced by the Brady Center to Prevent Gun Violence making no mention of hip-fire); Brief for Amicus Curiae Major Cities Chiefs Police Association in Support of Defendants/Appellees/Cross-Appellants at 8, New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242 (CA2 2015) (No. 14-0036 cv(L)) (citing Sibel testimony); Brief of Amicus Curiae the Brady Center to Prevent Gun Violence in Support of Appellee at 19, Friedman v. City of Highland Park, 784 F.3d 406 (CA7 2014) (No. 14-3091) (ironically citing themselves, i.e. the Siebel testimony); Brief for Amicus Curiae Law Center to Prevent Gun Violence et al. at 5, Friedman v. City of Highland Park, 784 F.3d 406 (CA7 2014) (No. 14-3091) (no citation). 149 See, e.g., Banning the Importation of Assault Weapons Hearing, supra note 87, at 51 (1989) (prepared questions and answers of Sheriff Patrick J. Sullivan, Jr., Arapahoe County Sheriff’s Department, Littleton, CO); Semiautomatic Assault Weapons Act of 1989: Hearing on H.R. 1190 and Related Bills Before the H. Subcomm. on Crime of the H. Comm. on the Judiciary 101st Cong. 69-70 (1989) (statement of Congressman Edward W. Feighan); id. at 96 (testimony of Hon. Tom Campbell); id. at 247 (statement of Phillip McGuire, Law Enforcement Advisor for Handgun Control, Inc.); id. at 255; The Flow of Precursor Chemicals and Assault Weapons from the United States into the Andean Nations: Hearing Before the H. Select Comm. on Narcotics Abuse and Control 101st Cong. 125 (1989) (testimony of Phillip McGuire, Law Enforcement Advisor for Handgun Control, Inc.); id. at 232 (record submission of Handgun Control, Inc., Assault Weapons Questions & Answers); id. at 233; id. at 240; Assault Weapons Hearings, supra note 88, at 365 (1989) (testimony of Phillip C. McGuire, Law Enforcement Advisor for Handgun Control, Inc.); id. at 368-369 (exchange between Senator Simon and Philip C. McGuire); Comprehensive Violent Crime Control Act of 1989: Hearing on H.R. 2709 Before the H. Subcomm. on Crime of the Comm. on the Judiciary 101st Cong. 175 (1990) (prepared statement of Sarah Brady, Chair, Handgun Control, Inc.); Selected



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Pistol grips on rifles are not new. In fact, the first pistol grip in the United States was patented in 1875 (eighty-three years before the AR-15 was made), and designed so the gun could “be conveniently and firmly grasped by the hand of the sportsman when taking aim and during the act of firing.”150 Two years before the first variant of the M-16 was issued to soldiers in 1958, another patent for a pistol grip was filed.151 Like the 1875 pistol grip, this pistol grip was designed “for the ordinary types of hunting rifles[.]”152 Furthermore, “the principal object of the invention [was] to provide pistol grips which may be applied to rifle stocks, particularly to those of repeating rifles that are equipped with automatic reloading mechanisms, for an easier and steadier holding of the rifle while sighting and firing.”153 Another patent expressed several medical justifications for using a pistol grip: “Accordingly several objects and advantages of the

present invention are: allowing the user to reduce the angle of their hand relative to the forearm when aiming and/or firing the rifle. Using the standard

Crime Issues: Prevention and Punishment: Hearings Before the H. Subcomm. on Crime and Criminal Justice of the Comm. on the Judiciary 102nd Cong. 730-731 (1991) (statement of Phillip C. McGuire, Law Enforcement Adviser, Handgun Control Inc.); A View from the Front Lines, supra note 87, at 11 (1993) (prepared statement of Sen. Dianne Feinstein); id. at 51 (statement of Chris Sullivan, Legislative Director, International Brotherhood of Police Officers); id. at 55 (statement of Kenneth T. Lyons, National President, International Brotherhood of Police Officers). 150 U.S. Patent No. 168, 834 (filed Oct. 19, 1875) (emphasis added). 151 Pistol Grip Attachment for Rifle, U.S. Patent No. 2,832,166 (filed Jun. 18, 1956) (issued Apr. 29, 1958). 152 Id. (emphasis added). 153 Id. (emphasis added).



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pistol grip configuration, the acute angle (approx. 40 degrees forearm to hand) for proper rifle handling and aiming puts an undue strain and fatigue on the wrist, hand and forearm. Carpal tunnel occurs when there is inordinate and repetitive stress on the wrist thereby putting pressure on the median nerve at the point that the nerve passes through the wrist.”154

Indeed, “[f]iring a semi-automatic or automatic weapon with the wrist cocked at an acute angle, especially upon recoil, may cause such inordinate stress.”155 A pistol grip “reduces the angle, thereby reducing the stress, fatigue, and potential Carpal tunnel of the hand using the pistol grip of the rifle.”156 The ergonomic design likewise “allows the shooter to position the weapon, relative to the shooter’s body, for accurate aiming.”157 To claim that pistol grips were originally designed for the battlefield is ahistorical and backwards, as pistol grips were originally designed for, and used in, hunting. That the military has co-opted this domestic innovation does not revoke, or determine in the first instance, constitutional protection. If, as supporters claim, pistol grips were designed for the purpose of “spray-firing” from the hip, it is hard to imagine why there is never any citation to authority supporting this claim. Even more discrediting to these claims is the fact that nothing in the design history of the M-16 (the firearm the AR-15 is based on) even remotely hints that the purpose of placing a

154 Ergonomic Pistol Grip for Rifles, U.S. Patent No. 0,283,583 (filed Jan. 18, 2011). 155 Id. 156 Id. 157 Id.



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pistol grip on the weapon was to facilitate “spray-fire” from the hip.158 Lower courts have failed to scientifically and factually distinguish “assault weapons” from other semiautomatic firearms. Indeed, every argument made in support of “assault weapon” prohibition on the grounds that the “ban only [affects] a limited subset of semiautomatic firearms”159 is really an argument for why such a ban is fatally underinclusive. Since all semiautomatic firearms are equal in power and rate of fire, the governmental interests in banning such a “limited subset” of semiautomatic firearms “leaves appreciable damage to that supposedly vital interest unprohibited.”160 The author of the 2004 study evaluating the effectiveness of the 1994 “assault weapons” ban concedes in an affidavit that, “[b]ecause criminals and mass shooters will be able to substitute legal firearms for the banned assault weapons and [“high-capacity” magazines], it is true that this kind of legislation is unlikely to substantially reduce overall gun violence in terms of the

158 See United States Army, Report of the M16 Rifle Review Panel: History of the M16 Weapon System (1968); United States Army, Report of the M16 Rifle Review Panel: Review and Analysis of the M16 System Reliability (1968); Dept. Army, Rifle Marksmanship M16A1, M16A2/3, and M4 Carbine (2006). See also, GORDON L. ROTTMAN, THE M16 (2011). 159 New York State Rifle & Pistol Ass’n, 804 F.3d at 260. See also, Heller II, 670 F.3d at 1262 (“the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals”). 160 The Florida Star, 491 U.S. at 541-542 (Scalia, J., concurring in part and concurring in the judgment).



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number or rate of crimes committed.”161 To be sure, Koper does warn against wholly discrediting the efficacy of banning “assault weapons,” as “even small reductions in gunshot victimizations could produce significant societal benefits.”162 Koper does admit, however, that whatever these “significant” societal benefits are, the overall effect of the legislation “would likely be small in percentage terms” and “could be difficult to measure reliably[.]”163 The best one can extract from Koper’s observations is that the ban will do something more than nothing; but, whatever that “something” is, it is too small to accurately measure with a reasonable degree of certainty. Accordingly, such a ban is fatally underinclusive, because it bears little, if any, relation to the overall problem of gun violence.164 Indeed, the argument that such a ban is permissible, because it “ban[s] only a limited subset of semiautomatic firearms” 165 is precisely the reason why it fails constitutional muster.

2. THE BAN IS UNNECESSARILY OVERBROAD Prohibiting the possession of “assault weapons” is overbroad in two respects: (1) the prohibition “extends, . . . to the home, where the need for defense of self, family, and property is most acute”166; and (2) the ban includes 161 Affidavit of Christopher S. Koper at ¶83, in 5 Joint Appendix A-1412, Shew v. Malloy, 944 F. Supp. 2d 234 (D. Conn. 2014) (Civil No: 3:13CV739(AVC)) (emphasis added). 162 Ibid. 163 Ibid. 164 Cf. Ward, 491 U.S. at 801. 165 New York State Rifle & Pistol Ass’n, 804 F.3d at 260. See also, Heller II, 670 F.3d at 126 (“the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals”). 166 Heller, 554 U.S. at 628. See also, McDonald, 561 U.S. at 780 (“the Second Amendment protects a personal right to keep and bear arms



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within its scope acts that do not advance the asserted governmental interests, like “stor[ing] [the weapon] in a manner posing a danger to no one, such as unloaded, disassembled, or locked away.”167 First, even if a grandfather clause exists, a ban on “assault weapons” poses a barrier to future keeping of such weapons in the home. This runs contrary to the “special respect for individual liberty in the home [that] has long been part of our culture and our law[.]”168 Within the context of the Second Amendment right: “The decision to keep a loaded handgun in the house is

often motivated by the desire to protect life, liberty, and property. It is comparable, in some ways, to decisions about the education and upbringing of one's children. For it is the kind of decision that may have profound consequences for every member of the family, and for the world beyond. In considering whether to keep a handgun, heads of households must ask themselves whether the desired safety benefits outweigh the risks of deliberate or accidental misuse that may result in death or serious injury, not only to residents of the home but to others as well. Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so--because they

for lawful purposes, most notably for self-defense within the home.”); Ezell, 561 F.3d at 703 (“Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right--like the handgun bans at issue in those cases, which prohibited handgun possession even in the home--are categorically unconstitutional.”). 167 Johnson v. United States, 135 S. Ct. 2551, 2565 (2015) (Thomas, J., concurring in the judgment). 168 Gilleo, 512 U.S. at 58 (1994) (opinion of Stevens, J.).



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consider it an aspect of ‘the supreme human dignity of being master of one’s fate rather than a ward of the State,’ Indiana v. Edwards, 554 U.S. 164, 186, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008) (Scalia, J., dissenting). Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.”169

These decisions forcefully demonstrate that “our law has long recognized that the home provides a kind of special sanctuary in modern life.” 170 While many courts have been concerned with deferring to the judgment of the legislature, these same courts have, as a result, overlooked the “long accorded special deference to the privacy of the home, whether a humble cottage or a magnificent manse.”171 This deference, in tandem with the right recognized in Heller, compels the conclusion that “the individual’s interest in firearm possession is thus heightened in the home, [while] the State’s corresponding interest in regulation is somewhat weaker.” 172 This conclusion aligns with the historically longstanding regulatory practices related to firearm ownership,173 and 169 McDonald, 561 U.S. at 885-886 (Stevens, J., dissenting). 170 Id. at 886 (Stevens, J., dissenting) (citing U.S. Const. Amdts 3, 4; Lawrence v. Texas, 539 U.S. 558, 562, 567 (2003); Payton v. New York, 445 U.S. 573, 585-590 (1980); Stanley v. Georgia, 394 U.S. 557, 565-568 (1969); Griswold v. Connecticut, 381 U.S. 479, 484-485 (1965)). 171 Ibid. 172 Id. at 886-887 (Stevens, J., dissenting). 173 Id. at 887 (2010) (Stevens, J., dissenting) (“The historical case for regulation is likewise stronger outside the home, as many States have for many years imposed stricter, and less controversial, restrictions on the carriage of arms than on their domestic possession.”). See also, Heller, 554 U.S. at 626 (“the majority of the 19th-century courts to



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the general observation that “firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside.”174 Whatever regulatory interests the State might have in regulating the possession of commonly used weapons in the home, Heller made explicit that the Second Amendment right “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”175 Presumably those “other interests” include the interests of the State. Second, in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court examined whether possession of a short-barreled shotgun by a convicted felon qualified as a “violent felony” under the Armed Career Criminal Act (ACCA), which, as relevant here, was defined as “‘any crime punishable by imprisonment for a term exceeding one year . . . that . . . (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’ §924(e)(2)(B) (emphasis added).” 176 As “felon unlawfully in possession of a firearm” was not a specifically enumerated offense, the Court wrestled with whether the residual clause (emphasized text) included within its scope unlawful possession of a firearm by a felon. The majority invalidated the residual clause as unconstitutionally vague.177

consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”); id. at 627 (describing “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”). 174 McDonald, 561 U.S. at 887 (Stevens, J., dissenting). 175 Heller, 554 U.S. at 635 (emphasis added). 176 Johnson, 135 S. Ct. at 2555-2556 (some internal quotation marks omitted). 177 Id. at 2563.



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Justice Thomas, joined in Part-I by Justice Kennedy, concurred in the judgment. Instead of evaluating the ambiguity of the residual clause, Justice Thomas took a different approach, and argued that mere possession of a short-barreled shotgun by a felon was not “conduct that present[ed] a serious potential risk of physical injury to another.”178 Justice Thomas would have “reverse[d] the Court of Appeals on that basis.” 179 Justice Thomas explained the basis for this conclusion by indicating that even a firearm unprotected by the Second Amendment, such as a short-barreled shotgun, could be possessed by a person prohibited from firearm ownership, such as a convicted felon, in a manner that “does not, in the ordinary case, pose a serious risk of injury to others.”180 Justice Thomas further indicated that, “[a]s a conceptual matter, ‘simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence.’”181 Indeed, short-barreled shotguns, like “assault weapons,” “also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away.” 182 Strikingly, Justice Thomas found that “even assuming that those who unlawfully possess [short-barreled shotguns] typically intend to use them in a serious crime, th[at] risk arises not from the act of possessing the weapon, but from the act of using it.”183

178 Id. at 2564 (quoting 18 U.S.C. §924(e)(2)(B)(ii)). 179 Id. at 2566 (Thomas, J., concurring in the judgment). 180 Id. at 2565 (Thomas, J., concurring in the judgment). 181 Ibid. (Thomas, J., concurring in the judgment) (quoting United States v. Doe, 960 F.2d 221, 225 (CA1 1992)). 182 Ibid. (Thomas, J., concurring in the judgment). 183 Ibid. (Thomas, J., concurring in the judgment).



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Justice Thomas’s analysis, though unbinding, is instructive in the case of a ban on “assault weapons.” If a convicted felon can unlawfully possess a firearm historically understood to be outside the scope of Second Amendment protection, in a manner that “poses no risk of injury to others[,]” 184 then surely a law-abiding, responsible citizen can possess a firearm that “traditionally ha[s] been widely accepted as [a] lawful possession[]”185 in a similar manner. The question under intermediate scrutiny, then, becomes whether mere possession of an “assault weapon” by a law-abiding, responsible citizen in his or her home is an “appropriately targeted evil.”186 Under any metric of evaluation, the answer is “no,” because such a flat ban “reaches every instance where an AR-15 platform semi-automatic rifle or LCM might be preferable to handguns or bolt-action rifles--for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”187 But even if mere possession were an appropriately targeted evil, the result—striking the ban down—would be the same, because the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”188 True, the result would not be the same as-applied to a short-barreled shotgun, but this result is consistent as-applied to an arm in common use,

184 Id. at 2566 (2015) (Thomas, J., concurring in the judgment). 185 Staples, 511 U.S. at 612. 186 Frisby, 487 U.S. at 485. 187 Kolbe v. Hogan, 2016 U.S. App. LEXIS 1883, 28-29 (CA4 2016). 188 Heller, 554 U.S. at 635 (emphasis added).



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by law-abiding, responsible citizens, for lawful purposes, such as “assault weapons.”189

IV. CONCLUSION This article has called into question whether banning “assault weapons” is narrowly tailored to achieve greater public safety and prevent crime. Despite unanimity among lower courts with respect to the belief that intermediate scrutiny is the appropriate standard of review to apply in these cases, lower courts have deviated substantially from the principles of narrow tailoring. This has resulted in States functionally being given a pass on carrying their burden. The evidence oftentimes proffered to justify these prohibitions turns out to be nothing more than “pages of self-serving and unsupported statements by the State to demonstrate that [the] regulation directly and materially advances the elimination of a real harm[.]”190 This evidence is largely anecdotal in nature, and, as I have demonstrated, has no foundation in science. Consequently, the evidence relied upon by numerous federal courts runs contrary to objective scientific findings. More importantly, however, is that the anecdotal evidence cited in these decisions comes from biased sources like paid lobbyists. This has the potential to do far greater damage than an improper disposition, for the perception of judicial legitimacy is, in part, derived from the manner in which a court conducts itself. A court failing to rely upon neutral, objective authorities gives

189 See Heller, 554 U.S. at 625-627. 190 Florida Bar v. Went For It, Inc., 515 U.S. 618, 641 (1995) (Kennedy, J., dissenting).



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rise to the reasonable suspicion that a court may not truly be blind to those coming before it. Even if these evidentiary hurdles did not exist, a flat ban on the possession of “assault weapons” is not narrowly tailored to achieve the governmental interests asserted by the State. Such a ban, because it bans only a small portion of semiautomatic weapons, allows one to still own the vast majority of other semiautomatic weapons, which are equal in power and dangerousness to “assault weapons.” This type of restriction also contravenes the deference given to private conduct occurring in the home, such as keeping a commonly possessed weapon for self-defense. The utter disarray of post-Heller Second Amendment jurisprudence in the lower courts could, in part, be due to the polarized nature of the public policy debates regarding the place of firearms in society. Whatever the cause, I do believe that “[t]here is hope, . . . that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the [Second] Amendment liberties to the high preferred place where they belong in a free society.”191

191 Dennis v. United States, 341 U.S. 494, 581 (1951) (Black, J., dissenting).

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Assault Weapon Article