The Real Purpose of the Assault Weapons Ban

Recently, I've been seeing reports that the Violence Policy Center doesn't think that the Assault Weapons Ban was effective, because its restrictions were primarily cosmetic and easily worked around by manufacturers. Their proposed remedy, unsurprisingly, was to pass another ban -- a stronger one. Gun rights figures argue that the ban wasn't effective for other reasons, such as, for example, banning weapons that are almost never used in crime. Unfortunately, on this issue there's an elephant in the room that no one wants to talk about.

The Second Amendment says nothing about criminals, or criminal use of weapons. It says the right to keep and bear arms shall not be infringed. Despite this, the Assault Weapons Ban banned the manufacture of normal, properly functioning firearms. The ban is not about crime, it's not about criminals, and it's not about unsafe firearms presenting some kind of reliability or safety issue to their wielder or the public at large. It's a gun ban.

The Constitution says we can't do that. But Congress did it anyway, and it's been 10 years, and the gun rights groups are saying "Let it expire! Let it expire!". I'm all for fighting the ban, but I whenever I hear that warcry, I have to wince.

Why should we let a blatantly unConstitutional law expire normally, rather than mounting a serious, committed challenge to the law in court?

Answer: Because the courts would, currently, laugh at us. Sort of.

They didn't laugh in US v Emerson. We didn't win... but they didn't laugh. They didn't laugh in US v Silveira. We didn't get cert from the Supreme Court... but they didn't laugh. (Well, maybe the 9th Circus laughed -- but it was nervous laughter).

The elephant in the room with the Assault Weapons Ban that no one wants to talk about is the Second Amendment, and it's time someone mentioned it.

The Assault Weapons Ban violates the Second Amendment. For that reason alone, letting the law expire is a dangerous course -- a short-sighted victory. Letting the law expire, rather than striking it down as unconstitutional via a court challenge, will effectively act as precedent that such laws do not violate the Second Amendment. Not a binding prcedent in itself, mind, but a precedent all the same; future legislators can point to the Assault Weapons Ban to argue that there are no Constitutional issues with their own gun ban, and courts can refer to the law's existance, even following its expiration, as justification for upholding firearm bans. Such are the fruits of compromise.

So what's to do about it? I don't know. There's hardly enough time left to mount a court challenge, and we've already tried similar issues in Silviera. There may be other cases as well; I have not been following the issue closely since the bill was passed. For whatever reason we have been reduced to fighting this issue on political and pragmatic grounds; with a few exceptions the Constitutional issue has been abandoned by legislators and interest groups.

Pragmatically, I can see why. But I don't like it. And it will come back to bite us; I am certain of that.

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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