Last week the United States District Court for the District of Massachusetts refused to find Massachusetts’ ban on the possession and transfer of assault style rifles unconstitutional. To be clear, assault rifles are already regulated under the National Firearms Act of 1934 which makes it illegal for a civilian to possess a machine gun not registered before May 19, 1986, and always illegal to possess one not registered after that date unless the possessor is a dealer in these arms. This ruling resulted from a challenge arising when the Commonwealth’s Attorney General notified citizens that she intended to enforce a ban on transfer and possession of assault–style rifles in place in Massachusetts since 1994.
Procedural aspects caused the court to hold that the case was not ripe for a hearing on the grounds that the Commonwealth’s Attorney General’s Enforcement Notice lacked the binding effect of law and was not a final agency action. Nevertheless, he court leaped into defining what constitutes an assault rifle, as banned by the Massachusetts law (the semi–automatic, self–loading version of the military rifle) and concluded, as did our Fourth Circuit in Kolbe v. Hogan, that these semi–automatic, civilian–legal, AR-15 rifles are like the fully automatic M-16 military versions and are properly banned as not being protected by the Second Amendment because they are instruments of war.
The basis of this decision is that M-16 rifles and AR-15 rifles are “weapons that are most useful in military service” and thus outside the ambit of the Second Amendment, citing Kolbe, and quoting District of Columbia v. Heller. In Heller, Justice Scalia mentioned the M-16 fully automatic rifle as outside the scope of the Second Amendment’s protection and clearly intended to preserve the ability of the government to ban machine guns under the National Firearms Act of 1934. Machine guns, though they are most useful in military service, were banned by the 1934 Act and according to Justice Scalia, outside the protections of the Second Amendment. These semi–automatic versions of the M-16, incapable of full automatic, or burst fire, are not the same as the “weapons most useful in military service” that Justice Scalia wrote of.
To the contrary, these AR rifles are rifles that are in common use. It is estimated that there are 10 million of these AR–style rifles in possession and many AK semi–automatic rifles. The District Court appeared to be making this up as it went, using Kolbe as its model. It ignored that AR rifles are not M-16 rifles and it ignored that guns in common use are protected under the Second Amendment. In fact, the District Court centers its holding on the proclaimed fact that these AR–style rifles are “most useful in military service.” To my knowledge, these AR–style rifles are not used in military service: M-16 and M4 rifles are, and they are capable of fully automatic fire.
For sure, the court could have put the kibosh on the challenge the old fashioned way, holding that while the guns in question are protected as in common use, the statute serves a legitimate government purpose – safety – and survives constitutional challenge applying intermediate scrutiny. It chose not to do this, and instead join the one district court and the only appellate court – the Fourth Circuit – that have so ruled.
Challenge is in the air, but the gun rights groups will lose again and again unless they can get the Supreme Court to hold these guns as protected under the Second Amendment and convince the Court a core constitutional right – not the right of self–defense – is at stake so that the Court will apply strict constitutional scrutiny.
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