Is there a constitutional right to possess an assault weapon? This question was raised to me in light of my tumblr post on Aurora and the culture of gun violence.
Lets get down to the nitty gritty. The Second Amendment to the US Constitution says the following
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Does this create an individual right to bear arms? Yes.
Is that right unlimited? NO.
Can regulations and limitations be placed on it? YES.
The NRA would have you believe the first half of the Second Amendment does not exist, but the words “well regulated militia being necessary to the security of a free state” are not there as window-dressing. It is one sentence, and the second part is dependent on the first. A “well regulated” militia is one where citizens are part of an organized self-defense force. Organized by the government. Today that function is organized into the National Guard in each state. In 1789, it was organized locally, and all able-bodied men were part of it. Thus, to defend the security of a free state, it was essential that the people have the right to keep and bear arms.
You can not simply ignore the first part of the Second Amendment.
That said, is there an individual right to bear arms? YES. I repeat - you have a right to keep and bear arms. As recently as 2010 the Supreme Court in the Heller decision, reaffirmed that. And they said that an effort to completely ban firearms would be unconstitutional. No argument.
BUT does that mean there is a right to bear specific types of weapons? Absolutely not.
Does that mean the state, in the exercise of its police powers (the 10th Amendment powers to regulate health, safety, general welfare, and morality) cannot place reasonable restrictions on firearms? NO, it doesn’t.
The Second Amendment does not establish a right to bear assault weapons. States are not banned from imposing gun control restrictions. This has been the law throughout American history. No constitutional rights are absolute. I have freedom of speech, Congress (and the states) cannot abridge that; but they can certainly (and have on many occasions) place limitations on that right. Even political speech, the right to criticize the government, perhaps the essential core aspect of the First Amendment is subject to narrow restrictions (See Brandenberg v Ohio, 1968).
I have the constitutional right to free exercise of religion: I can believe anything I want, but it does not mean I can act on all of those beliefs. The Fourth Amendment guarantees me the right to be secure in my persons, papers, houses, and effects against unreasonable searches and seizures, but it does not mean government can never search me.
All constitutional rights are subject to reasonable limitations or regulations. They always have been. Even “fundamental rights” (as defined by the Court, and not all rights are thus defined) are subject to restrictions (such as a compelling state interest test). If the states wanted to say no citizen has the legal right to possess an assault weapon, or say that possession of an assault weapon by a civilian is a serious felony, it would be completely within their power to do so, as a legitimate government interest. As long as they did not ban all firearms.
Where am I going with this? While I have absolutely no expectation that political leaders will have the courage to stand up to the well-funded NRA lobby, and have little expectation that anything will change, I am not afraid to stand up and say ENOUGH. Columbine. Virginia Tech. Gabby Giffords. And now Aurora (among many others). It is time to wake up. We have a culture of gun violence that is unlike any other in the world. It results in almost double the amount of deaths that occurred in Aurora each and every day.
Sportsmen are not the problem.
Assault weapons like the AR-15 have one purpose. It is to efficiently kill human beings. They have a legitimate function in the hands of the military and in law enforcement (in certain circumstances). But the state has an obligation to protect the health, safety, and general welfare, and a ban on these types of weapons is not only constitutional - it is essential. Reasonable gun control is the first step - a very small step - in beginning to seriously address the culture of gun violence.
There is no constitutional right to assault weapons. There never has been. It may be legal to own one, but it is not a constitutional right. And if states want to regulate or ban them, it falls completely within their police powers to do so.