Can the Government Ban Assault Weapons? Constitutional Experts Weigh In

Since the shootings in Newtown, Connecticut, one of the major responses has been to increase restrictions on gun rights, presumably to reduce the probability that a mass shooting will take place.


But what if their proposed methods for doing so are unconstitutional? That’s the argument advanced by some experts on constitutional law, who argue that the landmark cases of District of Columbia v. Heller and McDonald v. Chicago protect against the most controversial ideas being proposed, such as an assault weapons ban. Moreover, even some renowned liberal experts on the same law law admit that the tools available to the government are limited.

Key questions in the debate are: Can the government ban assault weapons without violating the Constitution? If so, why? To answer these questions, TheBlaze spoke to legal authorities on both sides of the ideological divide, including some truly famous names within the realm of constitutional law. What we found may surprise you.

I. Background: Heller, McDonald and the Limits of the Second Amendment

When it comes to the regulation of gun rights, two Supreme Court cases stand out as definitive: The 2008 case District of Columbia v. Heller, and the 2010 case McDonald v. Chicago. Both cases conclusively established that the individual right to keep and bear arms is protected by the Constitution, and that this right is in force whether one is talking about state-level gun law or federal gun law.

One might think this is the end of almost every gun law. After all, if there’s a constitutional right involved, the assumption is that the government can’t do anything to infringe on that right, right? Wrong. Every constitutional right has exceptions, or place where a right doesn’t apply. For instance, the Supreme Court has found exceptions to the First Amendment to include things like fighting words, obscenity and words that present a “clear and present danger” (such as yelling “fire” in a crowded theater when no fire exists). That is, the government can regulate, and even ban, such exercises of “speech” without running afoul of the First Amendment.


Similarly, both Heller and McDonald set limits on the right to keep and bear arms, even as they affirm that that right exists. TheBlaze has covered some of those limits already, but for now, it’s enough to quote from U.S. Supreme Court Justice Antonin Scalia’s majority opinion in Heller, which sets up the current controversy:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

CONTINUED:  http://www.theblaze.com/stories/2013/04/30/can-the-government-ban-assault-weapons-constitutional-experts-weigh-in/