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AR-15 Bans Are (Still) Unconstitutional

The struggle to come up with a sound legal argument to ban a civilian rifle continues.


Gun control advocates have become so dependent on emotional arguments they often seem incapable of offering rational ones. So, I was eager to read a new Bloomberg column (via The Washington Post) headlined, “The Second Amendment Allows a Ban on the AR-15.”

The piece doesn’t get off to a promising start, as author Noah Feldman props up a familiar straw man:

If we each have the right to bear arms, is there a constitutional right to a military-style semiautomatic rifle like an AR-15? What about a rocket-propelled grenade launcher? A small tank?

Notice how he jumps from the oxymoronic “military-style semiautomatic rifle” — not a real thing — to a small tank. Anyway, the proposition is that we should not have access to military-grade armaments. (Feldman is unaware that owning a small tank is legal.) But we’ll get back to that in a moment.

Throughout the piece, Feldman treats the Second Amendment as some kind of courtesy “extend[ed]” by the state, rather than an inalienable right that can only be limited in extraordinary circumstances. The best way to avoid this confusion is to plug the words “First Amendment” whenever you see “Second Amendment” and the words “newspapers” every time you see “guns.” Though perhaps these days that won’t help either.

The main problem in the piece, however, is that Feldman misunderstands the Supreme Court’s 1939 United States v. Miller decision, which he contends is “background to the current doctrine” that makes it permissible to ban a semiautomatic rifle.

Miller revolved around a small-time bank robber and alleged murderer named Jackson “Jack” Miller and a sidekick, who in 1938 were caught in possession of an unregistered short-barreled shotgun while “making preparation for armed robbery,” according to the police. The two were charged with violating the relatively new National Firearms Act.

If it were up to the two criminals, the case would have ended right there, because both pled guilty. But the judge, Hiram Ragon, a New Dealer and NFA booster, refused to accept the pleas, assigning a court-appointed lawyer to the case. Instead of fighting the charges, the two crooks went on the lam. (Within a few months, Miller’s bullet-ridden body was found in an Oklahoma creek.)

Still, the case worked its way up to the Supreme Court, which is probably what Ragon had intended all along. The ruling was something of a sham. Miller’s lawyers didn’t even bother filing a brief or showing up to make any oral arguments. And because anyone could buy any gun they wanted whenever they wanted, there were no Second Amendment advocacy groups in existence to take up the cause.

The Supreme Court issued a muddled opinion affirming the constitutionality of the NFA, finding that the Second Amendment didn’t guarantee an individual the right to keep and bear a sawed-off double-barreled shotgun shorter than 18 inches, which was a weapon commonly used by criminals rather than law-abiding citizens. “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,” the court found, “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” (The justices were wrong, by the way. The military did use 14-inch barrel shotguns at the time, though there was no lawyer there to inform them of this fact.)

Feldman tries to argue that even Justice James McReynolds, a crazy “libertarian,” was a reasonable voice on guns 84 years ago. But the truth is the NFA didn’t ban any kind of mechanism or any class of weapon. In 1939, a person could walk into a drug store and buy a tommy gun if they pleased, after paying a tax.

Miller quite literally undercuts Feldman’s set-up. An unregistered sawed-off shotgun brought across state lines was illegal because such guns weren’t used by the military for the common defense. If it had been, it would have been legal. Meaning, not only an AR-15, but an M16 — a true military-grade weapon — would be legal.

Feldman dismisses this finding in the case as a “practical disadvantage.” Just ignore it, then, I guess. Instead, like many others before him, he pivots to claim that the Miller decision bolsters the revisionist case for a collective theory of gun rights. The left would have you believe they support gun rights, but only if you join a militia. Sure.

The problem is the court didn’t offer any broad ruling regarding the meaning of the Second Amendment. “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons,” Antonin Scalia wrote nearly 70 years later in D.C. v. Heller. “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”

To counter this claim, Feldman throws in this well-worn contention about the Heller decision:

That opinion featured the astonishing act (astonishing for an originalist, at least) of reinterpreting the original meaning of the Second Amendment. This took some jurisprudential jiu-jitsu. Scalia discounted the introductory clause that explains the purpose of amendment as ensuring a well-regulated militia. He shifted the meaning of the right to bear arms to personal self-defense.

The above paragraph is a completely concocted fantasy. Heller did not reinterpret anything. The “well-regulated” in the Bill of Rights refers to an orderly civilian military force, rather than a rabble of men. It always has. It does not mean “regulation” in its contemporary understanding of the state micromanaging your actions from the top down with a bunch of rules, which would have been alien to that generation.

And the regulated militia mentioned in the prefatory clause of the Second Amendment doesn’t erase the operative clause of the amendment, which protects the individual’s right to “bear” arms — a right that virtually every notable figure from the founding era is on the record defending. There is nothing astonishing about it. Anyone who’s spent five minutes reading about Madison and the Second Amendment understands why he wrote it the way he did. Many states codified the individual’s right to bear arms in their own constitutions before the Bill of Rights was even written, most of them in much more explicit terms. No SCOTUS case has ever treated the Second Amendment as anything but an individual right. No Founding Father ever argued otherwise. The “collective right” is an invention of the 1990s.

You have a right to own an AR-15 because it is a gun in common use among ordinary citizens. There is nothing unusual about it. The most popular rifle in America isn’t even close to being the deadliest weapon in the country.

The AR-15 has never been a military weapon. It was sold to civilians before it was modified. But even if we accepted the left’s contentions that ARs were some kind of military super gun — a talking point that might well contribute to its popularity with homicidal nuts — Miller still doesn’t allow for a ban.

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