On July 9, Sen. Chris Murphy (D-Conn.) offered the following ham-handed statement in the attempted attack on President Donald Trump’s U.S. Supreme Court nominee, D.C. Circuit Judge Brett Kavanaugh.
Brett Kavanaugh is really a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a job exit with the judicial mainstream, far right of even late Justice Scalia.
Murphy’s comment increases the optical illusion that Former U.S. Supreme Court Justice Antonin Scalia, who authored from the majority opinion within the landmark 2008 District of Columbia v. Heller case that recognized the Second Amendment protects a person right to keep and bear arms, did not consider bans on commonly-owned semi-automatic firearms (termed “assault weapons” by gun control advocates) to be unconstitutional.
Unfortunately, Murphy is not the only individual to peddle this falsehood. Murphy’s fallacious claim was parroted by Rep. Ted Deutch (D-Fla.), who tweeted, “Even Justice Scalia knew the next Amendment has limits. It doesn’t guarantee entry to every weapon, he said, and assault weapons could be banned.” In bemoaning Kavanaugh’s 2011 dissent in Heller II, where he figured that D.C.’s semi-auto ban is unconstitutional, Brady Campaign Co-President Avery Gardiner contended that Kavanaugh’s view is “inconsistent w/ Scalia’s Heller opinion.”
Political operatives and partisan hacks aside, this deceit has infected those that ought to know better. Earlier this year, U.S. District Court for the District of Massachusetts Judge William G. Young distorted Scalia’s views in the opinion in Workman v. Healy, which rejected a Second Amendment challenge to Massachusetts’ ban on commonly-owned semi-automatic firearms. Young found that the banned firearms “are not from the scope from the personal to ‘bear arms’ underneath the Second Amendment.” Suggesting that Justice Scalia would endorse such an outcome, Young concluded his opinion by writing, “Justice Scalia would be proud.”
Taken alone, Justice Scalia’s Heller opinion is sufficient to dispel this deception. In it, Justice Scalia made clear the kinds of firearms protected from the Second Amendment include those “in common use at the time” for “lawful purposes like self-defense.” The AR-15, which is the favorite target of so-called “assault weapon” ban legislation, is regarded as the popular rifle in America and for that reason undoubtedly “in common use” and protected through the Second Amendment. Gun control advocates manage to agree that such semi-automatic rifles are typical, considering they routinely complain regarding the “proliferation” of such firearms.
Further, within the 1994 case Staples v. United States, the Supreme Court determined that semi-automatic rifles were common. The case concerned the mens rea requirement for a conviction for possessing an unregistered machine gun. The subject from the case had argued that they was unaware how the AR-15 in his possession had been modified for automatic fire and wasn’t only a legal semi-automatic AR-15. In the majority opinion, Justice Clarence Thomas explained the mere possession of a converted AR-15 isn’t enough to infer a mens rea sufficient for conviction, as some firearms are, “so commonplace and usually available we would not consider these to alert visitors to the likelihood of strict regulation.” Justice Thomas went on to publish that a lot of kinds of guns, including semi-automatic rifles, “traditionally are already widely accepted as lawful possessions.”
If after Heller there was clearly any remaining doubt regarding where Justice Scalia stood about this matter, he settled the situation in 2015. That year, Justice Scalia joined Justice Thomas in a dissent in the denial of certiorari in Friedman v. Highland Park, an instance concerning a nearby ban on commonly-owned semi-automatic firearms.
In the dissent, Justice Thomas lamented that despite the Supreme Court’s holdings in Heller and McDonald v. Chicago, “several Courts of Appeals have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes,” which he clarified was “noncompliance with our Second Amendment precedents.”
Justice Thomas continued to spell out,
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming tastes citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that’s all that is certainly needed for citizens to have a right underneath the Second Amendment to hold such weapons.