Law & the Courts

Virginia’s Unconstitutional Attack on Gun Owners

Virginia Governor Ralph Northam speaks to gun control activists at a rally by Moms Demand Action and other family members of shooting victims outside of the Virginia State Capitol Building in Richmond, Va., July 9, 2019. (Michael A. McCoy/Reuters)
Simply because a small number of psychopaths happen to like the aesthetics of a popular gun doesn’t magically transform that firearm something distinctively menacing to American society.

Today, Virginia Democrats continue their multi-front offensive against the Second Amendment, taking up Governor Ralph Northam’s “assault weapons” ban, magazine limits, and suppressor-confiscation bills in the state house’s Public Safety Committee. That makes it as good time as any to remind people again that “assault weapons” bans are unconstitutional. The quicker an “assault weapon” ban case can be put in front of the Supreme Court — which, granted, has been reluctant to take on new gun cases — the better.

District of Columbia v. Heller found that the Second Amendment protected weapons “in common use by law-abiding citizens.” AR-15-style weapons, the most popular rifle in America, with over a million sold every year, clearly meet this criterion. Everything about the gun, from its mechanisms to its purpose, is common. Notwithstanding the rhetoric you hear from Virginia lawmakers, some appellate-court judges, and gun-control lobby mouthpieces, the AR-15 is not, nor has it ever been, a “weapon of war.” To say so is historically and functionally incorrect. Eugene Stoner, chief engineer of ArmaLite and its parent company, Colt, designed and marketed the AR specifically for civilians in the early 1960s, years before any military version was adopted. The AR-15 is less a “weapon of war” than a 1911 handgun, which the U.S. military adopted from that year to 1986.

Not that we should have any problems with weapons of war being in civilian hands per se. Muskets and flintlock rifles, the predominant guns of the revolutionary era, were also weapons of war. The Founders wanted civilians to own lethal weapons. Sorry, John Kerry, but the Second Amendment isn’t about hunting or recreation, or even predominately about personal home protection. So, yes, ARs are indeed dangerous. That’s the point. But the concerted effort to depict ARs as especially “dangerous and unusual” is only meant to place them outside the protections of Heller.

Indeed, there is no evidence that AR-15s pose a unique threat. Simply because a small number of psychopaths happen to like the aesthetics of a popular gun doesn’t magically transform that firearm something distinctively menacing to American society. Even if one conceded for the sake of argument that the presence of criminality was a sound rationale for restricting constitutional rights — an increasingly popular argument for ignoring the First Amendment, as well — the argument to ban AR-15s would become weaker.

Gun crimes fell precipitously, hitting historic lows, after the federal assault-weapon ban instituted in 1994 expired. In 2018, the last year of FBI data, there were 6,603 Americans murdered by handguns, 297 by rifles (most of them not AR-15s), and 236 by shotguns. (Gun types used in crimes aren’t reported by all police departments, but the trend is almost surely the same.) To put it in perspective, there were 1,604 knife homicides during that same span, and 656 people killed by fists and kicking. ARs are rarely used in crimes.

More important, if the state can ban one type of semi-automatic weapon simply because it looks a certain way or because one type of criminal favors it, what principle would constrain it from banning every semi-automatic weapon? The worst mass shooter in Virginia history did not use an AR but .22-caliber and 9mm handguns. If Northam can ban ARs, what stops him from banning a 9mm? Surely the cheering crowd at a CNN “townhall,” or the average Democratic presidential candidate, would answer, nothing.

Virginia lawmakers are also debating legislation that would make it a felony to possess a magazine that holds more than twelve rounds after January 1st, 2021, which, as Cam Edwards points out, would turn most Virginia gun owners into felons. Another bill would make it illegal to own a silencer. Right now, Americans own over a million silencers for all kinds of reasons — to avoid damaging their hearing or bothering their neighbors — but almost none of them own a silencer for criminal reasons. The ATF reports that there are around 44 silencer-related crimes per year over the past decade — or as Stephen Gutowski noted, something like .003 percent of silencers are used in crimes each year.

For now, most of the bills seem likely to fail. A more draconian state-senate bill that would have authorized the confiscation of assault-style weapons was already discarded. “This is a compromise that takes into account folks’ concerns and is still a good bill that will help reduce mass murders in the commonwealth,” Delegate Mark Levine, the Democrat sponsoring the legislation, told the Associated Press. There’s no evidence that any of these initiatives would make Virginians any safer, nor, as a matter of principle, is preemptively banning Americans from owning a firearm objectively different from confiscating the one they already own. Both are means to stop citizens from owning the gun. Both should be discarded as unconstitutional.


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