Generally a well-written and not overly biased article, i’m quite surprised to see something like that on Medium. Kudos.
However, i’ll address a few points. You give your lack of understanding of this issue away right up front when you conflate AR-15’s with assault rifles. You mean to say (at least i hope it was inadvertent because this conflation is intentional all too often) that AR-15’s are considered assault weapons by arbitrary statute. An assault rifle is an automatic rifle, the manufacture of which for civilian use has been banned for decades, and possession of which is exceedingly rare.
You’re going for an emotional response here, but this throwaway line is unsupported. Your source lists 5 shooters, would you call that enough to make such a proclamation? Aside from that, in 2015 a grand total of 252 people were killed by rifles of any type, of which AR-15’s are a subset. Doesn’t really sound like much of a national scourge to me, especially considering that’s only about 16% of the number of people killed by knives.
We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are unquestionably most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach
This, and you, have both overstated the holding from Heller. The wording in the decision states;
It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause.
This, in context, was in response to a limited reading of the Miller decision to uphold the “in common use” phrasing. They were acknowledging that weapons may be prohibited, even though they are useful for military/militia use (which was the holding in Miller), if they were not in common use by civilians for lawful purposes. The referenced line was a hypothetical in response to an anticipated criticism. That being, if Miller protects arms for militia purposes, how could M-16’s be banned? Because they were not in common use by civilians for lawful purposes.
Again, this was a hypothetical response that at best allows for the possibility that such weapons could be beyond the Second Amendment. They opened the door for the notion, but it wasn’t a finding as has been suggested here. There is no reason to believe that the AR-15 wouldn’t qualify for the common use criteria, an issue which i note the 4th circuit doesn’t seem to have addressed. The strength of the implied protection of common use can be seen in justice Breyer’s dissenting opinion in Heller.
On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.
According to your own NYtimes link, there are as many as 10–12 million AR-15’s in this country, many many multiples more than any other kind of rifle. That’s the absolute epitome of common use.
It’s safe to say that courts view assault weapons bans different than handguns, and there’s broad consensus amongst judges that these bans are constitutional,” Ruben says. “The Supreme Court will have the last say, but the Second Amendment argument has been a loser in federal courts thus far.
Let’s remember that Heller failed all the way to the SCOTUS, where it became the law of the land, indicating that every lower court had it wrong, as, if i recall correctly, did McDonald on a fairly easy to decide question on incorporation. So, i’m not too concerned with what the lower courts think, they have tended to allow their political biases to wildly influence their jurisprudence in a disgraceful manner. The lower courts have been in almost open defiance of the SCOTUS holdings in both Heller and McDonald in many cases for years now, some even taunting them to make their ruling more plain. The most egregious that comes to mind was the notion that swept through courts across the country that Heller really only intended to imply that the Second Amendment applied to one’s home. The courts ruled on the notion that the framers of the constitution literally believed that the entirety of the Second Amendment was written only to apply to a person’s home, all because of an asinine interpretation of Heller where they held that the core of 2A was self-defense, a right which occurred most notably in the home. As if the framers thought it was important enough to include in the Bill of Rights that citizens had the right not only to keep arms in their homes, but to bear them…in their homes. The astute observer should be able to glean that if something occurs most notably in one place, it must by definition occur less notably elsewhere, thereby defeating the premise. Still, we had to sit through district court decision after decision, then appeals courts, then circuit, then en banc before a circuit (the 9th iirc, probably the Peruta case) declared that the right existed outside one’s home. Suffice to say, i’m not overly concerned with the holdings of the lower courts.
I do agree that SCOTUS has seemed reluctant to take 2A cases since McDonald, even in the face of a few well-crafted and narrowly tailored cases, and even in the face of a circuit split. Not really sure why, although those were carry cases rather than assault weapons. We’ll see what happens if/when Gorsuch gets confirmed.
Again, overall a pretty good piece detailing the current state of the Second Amendment.
