More problems with “assault weapons” bans

As a follow-up to our recent post about the Fourth Circuit’s ruling on Marylands ban on “assault weapons” and high-capacity magazines, this piece from the Washington Post makes some good points about the dubious legal status of such bans.

Magazines holding more than 10 rounds are “common” and “standard.” There are more than 75 million of them in the United States. Indeed, “most pistols are manufactured with magazines holding ten to 17 rounds.” In fact, “Virtually every federal court to have addressed this question” has found that magazines over 10 rounds are in “common use,” and thus are covered by the Second Amendment.

Maryland had argued that the Second Amendment does not apply to magazines because magazine are not firearms. The Fourth Circuit disagreed because “Maryland’s logic” would “circumvent Heller.” Governments could de facto ban guns “simply by prohibiting possession of individual components of a handgun, such as the firing pin. . . . In our view, ‘the right to possess firearms for protection implies a corresponding right’ to possess component parts necessary to make the firearms operable.”

In the “two step test” created by the 3rd Circuit (U.S. v. Marzzarella, 2010) and adopted by the 4th Circuit (U.S. v. Chester, 2010) and many others, the first step is to determine whether the statute implicates the Second Amendment. In step one, “it is the government’s burden to establish that a particular weapon or activity falls outside the scope of the Second Amendment right.” The Maryland attorney general did not even come close. There was no historical tradition of bans on semiautomatics or magazines. “In fact, the Supreme Court, in a pre-Heller decision, hinted at the opposite, stating that ‘certain categories of guns,’ such as ‘machineguns, sawed-off shotguns, and artillery pieces,’ have a ‘quasi-suspect character,’ but that ‘guns falling outside those categories traditionally have been widely accepted as lawful possessions.’ Staples v. United States, 511 U.S. 600, 611-12 (1994).” Indeed, the Staples opinion was about the AR-15 rifle, which is among the many firearms banned by the Maryland statute.

Read the whole thing if you get a chance.

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