Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?

Clayton E. Cramer

College of Western Idaho

April 13, 2016


In the last two decades, legislatures and courts have been increasingly willing to argue that a certain class of firearms termed “assault weapons” are not protected by the Second Amendment, and may be regulated or banned even though functionally identical firearms are not generally subject to such laws. Do such underinclusive bans survive even the lowest level of scrutiny: rational basis?

Assault Weapon Bans: Can They Survive Rational Basis Scrutiny? – Introduction

The U.S. Supreme Court has long recognized that distinctions in laws must be rationally related to a legitimate state interest.2 Do assault weapon bans meet this standard, or are they panic driven responses to fear of gang violence and random mass murders?

What Is An “Assault Weapon”?

Starting in 1989, with passage of California’s Roberti-Roos Assault Weapons Control Act3 a new term has entered American legal vocabulary: “assault weapon” (AW). What are they? Generally, these are semiautomatic rifles and pistols which use detachable magazines. The rifles are functionally identical to sporting arms that have been in use for decades in America (although AWs usually fire a less powerful cartridge than hunting rifles), with a somewhat military appearance (black plastic stocks, pistol grips, and bayonet lugs being common components). The handguns are functionally indistinguishable from handguns used for more than a century by civilians in the U.S. (semiautomatic, detachable magazine fed).

Most statutes have combined a ban based on maker and model name with a prohibition on weapons that are “substantially identical”4 to those on the named list. These named lists in different laws, while similar, tend to vary slightly. New Jersey’s named list bans the “Demro TAC-1 carbine” which is not named by California’s similar statute.5 Yet many guns appear on both lists (sometimes with very slight differences in name): FN-FAL, FN-LAR, or FN-FNC type semiautomatic firearms (in New Jersey’s list);6 Fabrique Nationale FAL, LAR, FNC (in California’s list). That most such laws choose to ban AWs primarily by name and model number, and not by functional characteristics, should be a tipoff that whatever the public safety hazards of these weapons, those interested in banning them had a hard time finding the common risk factors that would have enabled them to write a functional definition of an assault weapon.

Comparing the lists of named weapons and functional characteristics leads to some startling conclusions. The weapons in most cases were derived from full automatic military weapons and bear a strong resemblance to their full automatic ancestors. There are some exceptions, such as the Calico M-950, which has no military origins. None of these weapons are readily convertible to full automatic fire; if they were, they would already be considered machineguns ( “machinegun” is one word in federal law, but two words everywhere else) under federal law8 and subject to the much stricter federal9 and state licensing laws regulating machine guns.10

Named Lists As Careless Bills of Attainder

American laws usually prohibit or regulate items not by name but by functional characteristics. As an example, California defines a number of items as “destructive devices.” One clearly describes a Molotov cocktail, by functional characteristics, not by name: “Any breakable container that contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.”11 This clearly matches the dictionary definition: “a crude incendiary grenade consisting of a glass container filled with flammable liquid and a wick for ignition.”12 The California Penal Code definition is clearly legally superior to a dictionary definition for the following reasons: a defendant could argue that he did not know what the phrase “Molotov cocktail” meant and was therefore ignorant that he was violating the law; minor non-functional changes (such as substituting an electrical ignitor instead of a wick) might create questions as to whether a named prohibition of a “Molotov cocktail” was insufficiently precise.

While most AW bans also have functional definitions of the banned weapons, named list definitions based on manufacturer’s name and model number are a common part of these laws. These are similar to “bills of attainder,” in which legislative acts punish persons by name for alleged crimes instead of specifying a crime and allowing due process by the courts to determine guilt. While Colt Industries is not a person, and Colt’s AR-15 is not a person, it is clear that a law banning sale of a named product made by Colt, with no similar ban on sales by another manufacturer would effectively deny Colt equal protection of the law. To make these distinctions in an arbitrary manner is contrary to existing case law.

Not only does the named list approach lead to equal protection problems, but it makes it very easy to subvert these laws. As an example of the defective nature of named lists, California’s Assault Weapons Control Act (AWCA) banned the Intratec TEC-9 by name. The manufacturer responded by making minor non-functional changes to the gun and giving it a new model number: DC914 (presumably “Designed for California”). The TEC-9 and TEC-DC9 are otherwise identical.”15 When the 1994 federal ban took effect listing the TEC-9: “Intratec… manufactured an AB-10 (‘after ban’) model that does not have a threaded barrel or a barrel shroud but is identical to the TEC-9 in other respects, including the ability to accept an ammunition magazine outside the pistol grip.” While the federal AW ban prohibited new manufacture of 32 round magazines, ones made before the new law work in the AB-10.

Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?

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