How Circuit Courts Abuse "Weapons of War" Rationale in 2nd Amendment Cases
Today, assault weapon bans are a highly contentious issue in American politics, especially in the wake of a number of high profile mass shootings that have been occurring over the past decade. Coupled with this has been a nearly silent federal response, forcing states to define their own rules and procedures for regulating assault weapons. One particular branch that has been quiet on the issue has been the U.S Supreme Court, which hasn’t handed down a significant 2nd Amendment decision since Heller v D.C 554 U.S 570 (2008), which validated the individual right to keep and bear arms. As with state legislatures, this has left lower courts with a lack of meaningful guidance, forcing them to interpret various conflicting arguments surrounding the scope of 2nd Amendment rights.[1] Even in their best efforts, their rulings have been messy and in some cases littered with inaccurate information, particularly in regards to classifying assault weapons as “weapons of war.”
In the case Kolbe v Hogan (4 Cir. 2017), for example, the 4th circuit majority opinion stated that “...[t]he difference between the fully automatic and semiautomatic versions of those firearms is slight...” and that the AR-15 is intended to function “[L]ike [its] fully automatic counterparts...designed for the battlefield, for the soldier to be able to shoot a large number of rounds across the battlefield at a high rate of speed.”[2] Likewise in the Heller II (D.C Cir. 2010) decision the majority asserted that “...it is difficult to draw meaningful distinctions between the AR-15 and the M-16.”[3] The 7th circuit also supported this position in the case Friedman v Highland Park (7 Cir. 2015), with the majority opinion stating that assault weapons are “...designed to spray fire rather than to be aimed carefully…”.[4] That inference is based on a 2004 Legal Community Against Gun Violence Report mentioning that “...[a]ssault weapons are semi automatic firearms designed with military features to allow [for] rapid and accurate spray firing.”[5] For those unaware of specific firearm types, the M-16 is one of the standard issue assault rifles of the United States armed forces.
To start off, even in a legal sphere that cautions judges on deciding cases with overly technical factors, it is difficult to classify assault weapons under the “weapons of war” umbrella. For instance, while the 2008 Heller decision was a carefully constructed opinion, notable 2nd Amendment law professor E Gregory Wallace mentions that “Heller...recognizes that the Second Amendment protects not only small arms useful in warfare, but also firearms ‘typically possessed by law-abiding citizens for lawful purposes.’”[6] Moreover, even before the Supreme Court heard the 2008 case, it had squarely rejected the notion that AR-15’s are like their modern day M-16 counterparts in the case Staples v United States 511 U.S. 600 (1994). In this case, the 7-2 majority opinion categorically distinguished the two weapons, declaring that “The AR-15 is the civilian version of the military’s M-16 rifle, and is...a semiautomatic weapon. The M-16, in contrast, is a selective fire rifle that allows the operator...to choose [between] semi automatic or automatic fire.”[7] In another important assault weapons case involving the AR-15, the 5th circuit majority in United States v Kirk (5 Cir. 1997) made clear that “...[t]he firepower of a machine gun [like the M-16] puts it in a quite different category from...handguns, shotguns and rifles [that are] popular with sportsmen.”[8]
Aside from the legal rationale for opposing such a classification of the AR-15, the “weapons of war” stipulation is difficult to support when also examining how firearms are utilized by armed forces. To maintain that the AR-15 is a full M-16 counterpart, the two rifles must have the capability to be applied in similar situations arising from the battlefield. One such scenario includes tactical conditions requiring automatic fire, such as in close quarters combat situations or when soldiers are clearing multiple targets in designated hotspot zones. This illustration isn’t an inference but is existing procedure in the U.S Army field Manual on Rifle Marksmanship, which states that “[i]n some combat situations, the use of automatic or burst fire can improve survivability...enhance mission accomplishments...and [be used to] gain fire superiority over an enemy force…”.[9] This is the primary reason for why no military force uses a semiautomatic rifle like the AR-15, says military veteran and attorney Dennis Chapman as select fire capacity “...is the single, essential feature that makes a military firearm more useful in combat than its civilian counterpart.”[10] Since the civilian AR-15 does not have select fire capability that is required for varying combat scenarios, it cannot, then, be classified as a “weapon of war” and placed in the same class of firearms where the M-16 currently resides.
The contention from the Friedman case, arguing that assault weapons are capable of “spray firing” is also a seriously misinformed judgement on firearm functionality. The reality of the matter is that the rate of fire for assault weapons is more on par with that of pistols. In Rampage Nation: Securing America’s Future, for instance, author Louis Klaervas states that the average rate of fire for a semiautomatic rifle is around 2 rounds per second for an amateur shooter and 3 rounds per second for a highly skilled shooter.[11] By contrast, the modern M-16 is capable of firing 12-16 rounds per second when placed in its automatic fire mode. In addition to the previously mentioned figures, a 2007 Force Science Research Center study found these exact values for individuals firing pistols during police chase simulations, noting that “A strong majority of the shooters fired all 3 rounds within 1.5 seconds [which translates to 2 shots per second]...” and that “...Some were able to react and shoot all 3 shots within 1 second…”.[12] Furthermore, while a modern day M-16 can empty a 30 round magazine in 2-2.5 seconds, Jeff Gurwitch, a Special Forces veteran and firearms expert has demonstrated that on average it takes 8-10 seconds for an experienced competitive shooter to empty the same magazine for semi automatic rifles (although the rates of fire are highly subjective when compared with the consistent rate for the M-16). With a rate of fire that is comparable to most semi-automatic pistols, it is rather ambitious, then, to claim that assault weapons are even capable of “spray firing” or firing at rates anywhere near those of fully automatic rifles.
Alongside the opinions in the Kolbe and Heller II cases describing assault weapons as M-16 counterparts, the lower courts have also relied on a part of the Heller opinion stating that rifles “like” the M-16 be exempt from 2nd Amendment protections. This is done by relying on misleading information about military utility, rates of fire and from the effectiveness of weapon attachments. In the end, the evasive use of this information disqualifies the AR-15 from 2nd Amendment protections despite the fact that the AR-15 and the M-16 are not functionally similar. Certainly at first glance the two rifles appear to be the same, based on similar appearances, ability to accept like sized magazines and the ability to mount many of the same attachments. There are, however, major differences simply beyond the capability to fire in different modes that make the AR-15 different from the M-16. Most AR-15s, for instance, can only fire a .223 Remington round whereas the M-16 fires the 5.56 NATO round, which undergoes significantly more pressure when a weapon is being fired and was adopted for the M-16 when the Army purchased the rights for it in 1963.[13] Moreover, the full auto hammer and disconnector (which form the overall trigger system) for the M-16 are shaped differently from the AR-15 versions for the purpose of firing in full auto mode.[14] Finally, the M-16 has a larger fire control pocket compared to the AR-15 as a mechanism for sustaining automatic fire and for mounting the necessary parts for firing in that mode.[15]
While lower courts should be free to create a unique approach to arising Constitutional issues, especially with a lack of guidance from the high court, the approach utilized by the 4th circuit is incredibly unsound in describing the two rifles as “functionally equivalent.” With differing components and internal designs the two firearms cannot somehow be described as being “functionally equivalent”. A car that has a larger engine, driving axle, steering suspension and braking system does not make it “functionally similar” to the base model of that same automobile, and so in a similar manner, the fact that the AR-15 has different components from the M-16 means that it is an entirely separate firearm class from the M-16. On top of this is the fact that a year earlier in the Supreme Court case Caetano v Massachusetts 577 U.S. (2016), the unanimous opinion declared that the Second Amendment applies Prime Facie to all bearable arms.[16] As a final note, the comparison of weapons “like” the M-16 is employed hand-in-hand with the phrase “most useful in military service”, yet as it has already been mentioned before, the AR-15 is not useful at all in military capacity and certainly not “most useful” in that regard.
With many of these errors being presented at hand, it is especially important for future 2nd Amendment cases to be decided with concrete information. This does not mean that Assault weapon bans cannot be implemented, or that legislatures have to go to extraordinary steps to ensure that weapons bans strictly adhere to 2nd Amendment protections. It does, however, mean that they cannot rely on faulty information, especially when applied to regulations that excessively burden the right to keep and bear arms.[17] Furthermore, since the information used to justify the regulation must also satisfy an asserted state interest, it is abundantly important that it is accurate in its depiction of firearms. It is my hope then that future 2nd Amendment cases will adhere to this practice.
District of Columbia v Heller, 554 U.S. 570 (2008)
Kolbe v Hogan, 849 F. 3d 114, 125 (4th Cir. 2017)
Heller v. District of Columbia, 670 F.3d 1244, 1263 (D.C. Cir. 2011)
Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015)
“Banning Assault Weapons - A Legal Primer for State and Local Action.” Legal Community Against Violence, 2004, 59. https://lawcenter.giffords.org/wp- content/uploads/2012/05/Banning_Assault_Weapons_A_Legal_Primer_8.05_entire.pdf
Wallace, E. Gregory. “‘Assault Weapon’ Myths.” Southern Illinois University Law Journal 43 (2018): 203–4. https://law.siu.edu/_common/documents/law-journal/articles-2018/fall-2018/12 - Wallace - jr 12 8.pdf.
Staples v United States, 511 U.S. 600, 603 (1994)
United States v. Kirk, 105 F.3d 997, 1002 (5th Cir. 1997)
“RIFLE MARKSMANSHIP M16A1, M16A2/3, M16A4, AND M4 CARBINE,” April 2003, under Figure 7–11 in Automatic or burst fire training program. https://sill-www.army.mil/428thfa/FM 3-22.9.pdf.
Chapman, Dennis P. “The ‘Weapons of War’ Myth.” Dennis P Chapman Attorney at Law, December, 2015. http://dennischapmanlaw.com/the-weapons-of-war-myth/.
Klarevas, Louis. “Chapter Six: Guns Kill, Some More than Others.” In Rampage Nation: Securing America from Mass Shootings, 211-12. Prometheus Books, 2016.
“New Tests Show Deadly Accuracy & Startling Speed Even Inexperienced Shooters Can Achieve in Shooting Cops.” Force Science Institute, February 2007. https://www.forcescience.org/2007/02/new-tests-show-deadly- accuracy-startling-speed-even-inexperienced-shooters-can-achieve-in-shooting-cops/.
“The Difference Between .223 Rem and 5.56 Military Cartridges.” Federal Premium Law Enforcement Ammunition, 2016. http://www.mlefiaa.org/files/ERPR/223_vs_556.pdf.
“The Drop-in Auto Sear.” In AR-15 Modification Manual, 19–22. Acend, n.d.
http://ugcsurvival.com/WeaponsManuals/ar15conversion manual.pdf.
“M-16 vs AR-15 parts.” 10-13. Acend, n.d.
Caetano v. Massachusetts, 136 S. Ct. 1027, 194 L. Ed. 2d 99 (2016)
Peck, Sarah Herman. “Post-Heller Second Amendment Jurisprudence.” Congressional Research Service, 2019, 26–30. https://fas.org/sgp/crs/misc/R44618.pdf.