View Full Version : Will Heller stop a new Assault Weapons Ban?

Tennessee Gentleman
October 12, 2008, 11:28 PM
Well, I have to ask this. On every gun related podcast I hear two things; 1) Buy more ammo and 2) Buy an AR-15/AK-47 right now!

As to number one the reason given is that the prices are going up. I have never seen ammo prices go down so this seems to make sense most of the time regardless of an election.

But my question is about AR-15s (I own one) and their cousins. If the Presidential election goes one way and a certain party gets a bigger majority in Congress(filibuster proof), most folks seem to think that within 90 days of inauguration there will be another AWB with more guns on it and no sunset period introduced and passed.

So, Tom Gresham and Michael Bane say that the AR-15 is the most popular rifle sold today. Heller seemed to include language about weapons in common use by civilians being protected by the 2A.

If that is true and there are many many more ARs/AKs in civiliian hands today, and with Heller in place (both conditions not true in 1994) then, will a President Obama be able to pass a AWB that will withstand Heller? Would the fact that AR-15s and AKs are more widespread in civilian hands coupled with the Heller decision be an obstacle to such legislation?

Is the legal landscape that different today that an AWB won't stand as it did in 1994?

October 12, 2008, 11:54 PM
When the Heller decision came out, I interpreted it to mean that AWBs were unconstitutional due to the "weapons in common use" clause in the ruling. However, it appears to not have been the case since no one has filed a case that the CA and NY bans are unconstitutional. Maybe that will change someday, but for now, we seem to be stuck in a linguistic rut. I thought that the Heller decision should have been more concise in that matter and I have always felt that the adoption of the 14.5" M4 (and the common use of 10.5" models) and breaching shotguns (nothing opens a door like a 14" shotgun) by the military should have made the SBR and SBS clauses of the NFA moot since they are militarily useful. Also, the Heller ruling said that weapons in common use were good, but what does that do for new weapons such as the Sig 556 and the Robinson XCR? They're not in common use yet. I foresee any new AWB banning all of the EBRs (that's Enhanced Battle Rifles, there's nothing evil about them and not all are black) except for the AR and the ARs having to be limited to CA-compliant models in order to comply with Heller. I feel we would have a better chance of using Miller's militarily useful clause than Heller to overturn an AWB. Ultimately, I think we would have to use a combination of Heller and the militarily useful clause that stands in Miller to overturn an AWB, and hopefully it would overturn the SBR and SBS clauses in the NFA.

October 13, 2008, 12:02 AM
However, it appears to not have been the case since no one has filed a case that the CA and NY bans are unconstitutional.
Those cases will be filed, but for now they must wait for incorporation of the 2nd amendment under the 14th.

It's not at all clear to me what will happen if another AWB is passed; it would certainly be challenged in court, and no doubt Heller would play a significant part. But scrutiny is an issue, and there are plenty of liberal judges out there...

44 AMP
October 13, 2008, 12:32 AM
And their jobs are not on the line, the usual suspects in Congress will almost certainly trot out their pet gun ban bills again. They will be counting on us forgetting our anger over them before the next election cycle, and by and large, they will be correct.

The 94 AWB cost Demcorats their control over Congress, mainly because in their political arrogance they passed it the summer before a major election. They won't make that mistake again.

No matter who becomes our next president, I believe they will gladly sign any AWB that crosses their desk. What we have to do is ensure one never gets there.

I don't think the Heller decision can be used (as is) against and AWB, because of the fundamental difference in the concepts. The DC ban was struck down by Heller, because it banned all handguns (items in common use). The new AWB will (most likely) only affect "assault weapons" (their term, not mine) made after the enactment of the bill, the same as the 94 AWB. Since there will be grandfathered "pre-ban" guns available, it will be considered as regulating and not a complete ban. Since it is not a complete ban, Heller will be difficult (if not impossible) to apply.

October 13, 2008, 05:57 AM
Well, banning an entire class of arms is wrong, according to Heller:

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.

We just have to trick them into saying that "assault weapons" are a class of arms. ;)

Tennessee Gentleman
October 13, 2008, 09:35 AM
Well, banning an entire class of arms is wrong, according to Heller:

That is my understanding as well and it seems by definition any AWB is aimed at a "class" of firearms called assault weapons. I think they may have tricked themselves on that one. Oh, and lots of people have them now who didn't in 1994.

October 13, 2008, 10:12 AM
I think the Heller decision would give us good ammunition to fight any AWB that is enacted, but I wouldn't put it past SCOTUS to give a pass to such legislation, even though it would seem to violate the Heller decision.

Either way, if another AWB is brought up and seems to be close to having enough support to pass, we can indeed bring up Heller and explain how it is likely unconstitutional- that might well sway enough votes to kill such a bill.

Glenn E. Meyer
October 13, 2008, 10:32 AM
I don't think a ban would get through Congress - even a Democratic one - unless there was some horrific incident that stampedes folks.

If there was a horrific incident - that could also set a tone for a Heller based challenge that got to the SCOTUS to eventually fail.

One should not overestimate the mob mentality in Congress and the Courts. Basic principles are always subject to these influences.

If there is no such incident - the usual suspects will posture about such - but I predict it would get nowhere beyond committee.

Just a guess.

October 13, 2008, 03:57 PM
The Heller decision also said that "reasonable restrictions" were acceptable. I suspect there will be many, many lawsuits to define just what is "reasonable."

October 13, 2008, 04:16 PM
I think that Heller could prevent another AWB. However, I would like to see how the courts would handle a challenge against D.C.'s continued ban of semi-auto handguns. Then we would see how the courts might approach the banning of an AR/AK type rifle versus a bolt action rifle.

Glenn E. Meyer
October 13, 2008, 04:20 PM
I thought DC dropped the semi-auto ban?

Anyway, reasonable will be defined by social context. As I said before - get a horrific AR-15 or Ak-47 shootout - and they won't be reasonable.

October 13, 2008, 05:30 PM
I think it would probably be difficult to get another AWB through congress regardless of the party in charge. It would probably get through the Senate but I doubt it'd make it through the House. There are three reasons for this first is that a congressman's two-year term just isn't all that long (nice the way the founders designed that isn't it). While something a senator did six years ago can be fairly easily forgotten, something a congressman did one or two years ago isn't. Secondly, gun control is a losing issue right now. It lost the Democrats congress in '94 and helped lose them the White House twice in '00 and '04. I've only really heard the far left Democrats that are pretty secure in their seats (Kennedy, Feinstein, Pelosi, Schumer, McCarthy, etc.) say much for quite some time. Anyone who's had anything to lose seems to be very careful about the issue (Kerry, Hillary, and Obama have all kind of tiptoed around it trying not to sound too extreme while still playing to the base). Finally, I just don't think that all the house Democrats are all that liberal. Look at what happened to the Bailout bill the first time around. I've got a feeling that there are a lot of moderate and conservative Democrats in congress right now particularly in the House. What is at stake, as I see it, in this Presidential Election is the makeup of SCOTUS itself as the next president will likely have the opportunity to appoint multiple Justices. Once appointed, a Justice is no longer subject to the will of the people and a poor SCOTUS decision can last decades or even centuries.

October 13, 2008, 06:06 PM
Never mind, I misread the post I was responding too...

Tennessee Gentleman
October 13, 2008, 07:27 PM

I think you are right.


October 13, 2008, 09:08 PM
I am not sure if it will stop an AWB or not, I do know that both my senators and congressman have stated in correspondence with me they would vote no to any new gun control bills and I live in a pretty Blue state. I suppose they could be lying but all three signed the amicus brief in support of Heller. I may not like their position on some other issues but I cannot complain with respect to gun rights.

Bartholomew Roberts
October 14, 2008, 06:50 AM
I think the issue might be closer than I would like. It looks to me like the anti-Heller litigation strategy has changed from "fight them at every step" to "Start killing unreasonable laws ourselves so we can pick where we have the next fight."

This is good for us in that the end result is less gun control for now; but get a different Court makeup or a law that the other side feels is a good battle and that could change quickly. I think the other side would have to fight on an AWB.. the trick for our side would be how greedy did they get in writing the law? If they did an H.R. 1022, I like our chances better than if they did something more moderate.

October 14, 2008, 08:22 AM
However, it appears to not have been the case since no one has filed a case that the CA and NY bans are unconstitutional.
Those cases will be filed, but for now they must wait for incorporation of the 2nd amendment under the 14th.

Exactly. There is an incorporation case approaching the 9th Circuit. The 9th is of course the most liberal one out there but that may not be a problem here. Generally a "liberal" court is far more in favor of incorporation as it expands Federal powers.

Mind you the original purpose of the 2A was to protect against FEDERAL action on arms. The states were to have their on Constitutions and most do have protections in them on arms, which are widely ignored. It was ignoring basic rights in state constitutions (post civil war) which lead to the 14th and saying to the states "Fine, you can ignore your own Constitutions to deny citizens' their rights but you cannot ignore the U.S. Constitution!" I am still not certain how I feel about that being done but the problem present at the time was undeniable...

Either way we need the incorporation issue settled first. That is why DC was the perfect place to start a 2A case as incorporation was not an issue.

The Heller decision will not PREVENT an AWB, even with incorporation. The Heller decision though will provide grounds for CHALLENGING an AWB which is why it is still VERY IMPORTANT that we be conscious of who gets to sit on the bench at all levels (but most importantly at the SCOTUS).

October 14, 2008, 08:29 AM
On incorporation, which directly affects this discussion, there was a recent thread:


Tennessee Gentleman
October 14, 2008, 09:46 AM
Will incorporation even be an issue with a federal AWB? This won't be a state law but federal and so incorporation won't be an issue.:confused:

October 14, 2008, 10:23 AM
You are correct. Living in NY I am subject to a state AWB and am awaiting the case on incorporation.

For a Fed AWB the answer is, Heller will not stop one. It will give the means to challenge it and depending on who is one the bench may result in it being overturned.

Al Norris
October 14, 2008, 11:03 AM
Tennessee, as Musketeer pointed to, and Bart more directly answered in the other thread, should incorporation begin with the 9th, and should the 9th uphold the P&I clause of the 14th (essentially gutting Slaughterhouse) as the reason for incorporation, then some interesting side affects may begin to occur.

Glenn E. Meyer
October 14, 2008, 11:22 AM
Here's the kind of thing that might stampede folks:


What is the need?" asked Orange-Osceola's Chief Medical Examiner Dr. Jan Garavaglia, who autopsies the victims. "If you can shoot through the wall of a house, it's not for self-protection. . . . Why anybody has these types of rifles is probably not to do good."

------- If the killing was confined to BG on BG, then outrage would be somewhat limited. If such weapons spread into lots of killings of perceived innocents - then both parties would go for bans.

Tennessee Gentleman
October 14, 2008, 01:13 PM
and should the 9th uphold the P&I clause of the 14th (essentially gutting Slaughterhouse) as the reason for incorporation, then some interesting side affects may begin to occur.

Oh no doubt about that Al, and we definitely need incorporation of the 2A into the states but a federal ban would be within the scope of Heller's protection I would think?

October 14, 2008, 03:35 PM
Tennessee Gentleman -- I'm the one who brought up incorporation in this thread, in response to a question about existing state assault weapon bans in CA and NY. You are correct -- clearly, incorporation is not relevant to a federal ban. I hope that Heller is sufficient to forestall another federal AWB, but it's not as strong an opinion as I'd like.

October 14, 2008, 03:49 PM
Just remember, no SCOTUS ruling can prevent legislation from being passed. The Congress could theoretically pass legislation making all citizens not appointed to elected office the physical property of the Federal Gov't and the President could even sign it into law.

It would then be up to the SCOTUS to knock it down. They can't keep it from being passed.

I believe FDR passed a slew of stuff through which violated the COTUS. Congress passed it, he signed it, they tossed it out, rinse and repeat.

Tennessee Gentleman
October 14, 2008, 04:09 PM
Just remember, no SCOTUS ruling can prevent legislation from being passed.

True, but if the SCOTUS threw it out as they did part of the Brady Bill then it would be the same in effect. Also, I wonder if the fear of it being tossed might deter all but the most liberal from passing it?

October 14, 2008, 04:18 PM

I think you are right.


Thanks for this. I admit I wasn't aware of it. I would still like to see how the courts would handle a similar issue to at least get an idea of how the courts expand and or limit Heller in future rulings.

And I agree with Glenn about the mob mentality in Washington. A rash of shooting could very well put enough pressure on members of congress that they feel such a ban would be necessary no matter the failure of prior attempts with similiar legislation.

Hopefully Heller has set the legal groundwork for the courts to strike down such bans.