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Eugene Volokh raises some very interesting points about what standards are used to determine if a law is constitutional. The gist of it is that there are different standards for different situations, some being subject to stricter scrutiny than others. He therefore concludes that the 'strict scrutiny' test may not necessarily be applied to cases involving the Right to Arms.

Prof. Volokh has stated before that he does not think (but is not positive) that the [federal] assault weapons ban violates the second amendment due to its narrow scope. If the ban were broader & prohibited more arms or more types of arms then perhaps it would, but he reasons that because it does not affect the ability of the populace to have arms then it is perhaps constitutional.

So let's explore this subject.

I do not question Prof. Volokh's understanding of how tests are applied in matters of law to determine whether or not they comply with the constitution. What I do question, as many others probably do, are the specific tests applied to specific laws. While it is true that different interests exist that cannot necessarily be addressed by one static rule I think there is a static rule which can be applicable in most cases: "Is the governments interest so compelling that it merits the restriction or prohibition of a fundamental Right?"

In order to apply this rule we have to determine what constitutes a fundamental Right, & whether all aspects of the actions used to exercise that Right are considered to be part of the Right itself, or merely separate but closely related actions. I refer you back to an earlier post in which I argue that the Right to Arms is in fact absolute.

In this case we should examine the Right to Arms & how 'assault weapons' may or may not be necessary to the exercise of this Right. But first let’s look at what ‘assault weapons’ are.

Assault weapons by practical definition are shoulder fired weapons, firing a medium-powered cartridge, capable of fully automatic fire & are of a handy size (i.e. having a barrel shorter than 20" or so). The phrase was first used by Adolf Hitler in describing a new weapon (the SturmGewehr 44) designed for use on the eastern Front in WW2.
The legal definition of assault weapon is not dependant upon mechanical function as the practical definition is. Instead it relies strictly upon cosmetic features (with the exception of ammunition feeding devices) to determine a weapons' status.

U.S. Code Title 18 Part 1 Chapter 44 Section 921 Subsections 30 & 31 respectively define the objects of the Violent Crime Control & Law Enforcement Act of 1994, otherwise known as the Assault Weapons & High Capacity Magazine Ban.

" (30) The term ''semiautomatic assault weapon'' means - (A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as - (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v)Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12; (B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of - (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a bayonet mount; (iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and (v) a grenade launcher; (C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of - (i) an ammunition magazine that attaches to the pistol outside of the pistol grip; (ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned; (iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and (v) a semiautomatic version of an automatic firearm; and (D) a semiautomatic shotgun that has at least 2 of - (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a fixed magazine capacity in excess of 5 rounds; and (iv) an ability to accept a detachable magazine. (31) The term ''large capacity ammunition feeding device'' - (A) means a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition; but (B) does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition. "

The weapons that are prohibited are essentially semi-automatic versions of weapons that have a 'military' appearance & are capable of using magazines with a capacity of more than ten rounds.

How does this affect the public?

Since the ban took effect on September 13th of 1994 the weapons that were manufactured prior to the ban were grandfathered. Weapons manufactured after the ban had to comply with the conditions of the ban, namely not having the undesirable features defined by the ban. Manufacturers started producing weapons w/o bayonet lugs, flash hiders, etc... while retaining the same mechanical function.
They also started using what is called a 'thumbhole' stock. This stock has a functional pistol grip, but it is connected to the main body of the stock. For example, here is a picture of a VEPR K rifle with a pistol grip. In contrast here is a picture of basically the same rifle (VEPR) with a thumbhole stock. As another example here is a picture of an M96 Recon Carbine with a pistol grip. To make it legal in California they have omitted the pistol grip altogether as seen here. Mechanically the rifles pictured are no different from one another. They fire one shot for each separate squeeze of the trigger.

The availability of pre-ban weapons & magazines, except for models introduced a short time before the ban, is not really a concern. The types of weapons & magazines that were prohibited had been in production for almost 50 years. What did become an issue were after-market accessories.

Under the assault weapons ban it is perfectly legal to acquire a folding stock & attach it to a weapon manufactured before the ban, but attaching the same stock to a weapon manufactured after the ban is a felony. This applies even if the weapon in no other way violates the ban. A good example would be the Ruger 10/22. It's a semi-automatic rifle chambered for the .22LR cartridge. The .22LR is a favorite of small game hunters because of its relatively low power, negligible recoil, & low price. The 10/22 has been manufactured since the 1960's & is a very popular rifle. A common practice was to buy a 10/22 & then fit it with after-market accessories, such as a folding stock. One is shown here about half-way down the page. To get an idea of what the 10/22 would look like with a folding stock here is a picture of a 'folding-style' stock on a 10/22. (The 'folding-style' stocks are different than folding stocks in that they are permanently affixed in one position, hence negating the advantage of a folding stock but retaining the look. The real advantage to folding stocks is they allow storage in compact spaces, not that they may be fired as many contend like a pistol when the stock is folded.) If I bought a brand new Ruger 10/22 & replaced the factory stock with a folding stock, I would be committing a felony. The mechanical functioning of the 10/22 would be the same, only the appearance would have changed.

Another consequence of the ban is that pre-ban weapons & magazines have increased significantly in value. In some cases pre-ban weapons &/or magazines have quadrupled in price. Some have remained fairly consistent as far as price is concerned, but these are generally the older items that have been in production for a very long time & domestic distributors have a substantial supply of them. So while the price of a 15 round magazine for the Beretta 92 in 9mm is not severely inflated (between $30 & $60), the price for a 16 round magazine for the Para-Ordnance P-16 is ($130).

It can be argued that the object of the ban is so narrow that it does not hamper anyone’s ability to own arms generally. At the most it prohibits possession of certain types of arms, which in many cases can still be had if one is willing to pay the inflated price. & there is only a small percentage of the populace who would believe they have need of these specific types of arms.

However I find that even if the above arguments were plausible in fact they would still lack sufficient justification for the prohibition or restriction of these types of weapons.

For instance imagine a law that restricted speech that involved politics. I think most would agree that would be a violation of the First amendment. Similarly we could reason that a ban on all weapons that had defensive uses would be in violation of the Second Amendment. But what about a law banning speech about small unit infantry tactics? The majority of such discussions are harmless, but I’d imagine a few have been used for criminal purposes. Obviously only a small percentage of the population would be likely to engage in that type of discussion. If one does wish to talk about small unit infantry tactics, one could do so by joining a military institution, either a college or a branch of the military. & the majority of speech would not be affected by this hypothetical ban, so is it narrow enough in scope to comply with the Constitution’s prohibition upon Free Speech?

The answer is no. While there is the danger that discussion of small unit infantry tactics could be used to plan & execute a crime, it could also be used to repel an invading army, or most likely to pass the time discussing military history or current events.

Likewise there is no justification sufficient enough for the government to ban weapons, even if that ban affects only a small percentage of the total number of available weapons.

According to AWBansunset.com, who credit the original data to David Kopel, assault weapons account for less than 3% of firearms used in crimes.

For perspective, according to the Center for Disease Control in 1999 38% of the total traffic deaths were due to alcohol related crashes. You'll find this figure here on page 6 of the PDF. Since it is already illegal to drive under the influence of alcohol the only option left to the legislature would be to either ban cars or ban alcohol. But the legislature doesn’t consider doing this, even though banning automobiles would save approximately 42,000 people according to the CDC's 1999 figures (page 34 of the PDF). Merely banning alcohol would save 15,786 people according to the same CDC study.
The legislature however is not even contemplating a ban on alcohol or automobiles.

According to Prof. Volokh's own observations of a CBS report, firearms related deaths accounted for 28,663 people, of which a little over 11,000 were homicides. If we were to assume that 3% of the homicides & accidents (786) combined were contributable to assault weapons then we would arrive at 355 deaths according to my calculations. (Please note that this estimate is in all probability very high in relation to actual firearms deaths attributed to assault rifles.)

So the legislature feels it is of urgent necessity to ban an object which may save 355 lives per year, but will not even contemplate banning an object that could save 42,000 lives per year or a substance that could save 15,786 people per year.

Now to be fair Prof. Volokh has argued, & quite persuasively that firearms bans are usually bad policy even if there is no constitutional question. I contend however that part of the reason that the assault weapons ban is contrary to the Constitution is precisely because it is bad policy.

I am not trying to state that if the assault ban were effective then it would be permissible. But precisely because of its ineffectiveness it fails to demonstrate any substantial government interest which would merit the restriction of a Right, even in part.

The Constitution describes the powers delegated to the federal government. It is subject to some interpretation in parts, & in my opinion has been subject to too much interpretation (i.e. the commerce clause). The Bill of Rights specifically limits federal government (& via the 14th amendment state governments) from interfering with the Rights of the people & the states respectively. The Second Article of the Bill of Rights specifically protects weapons from prohibition. It does not prohibit regulation entirely, but it does seem clear that if the regulation impedes upon ones ability to own or possess a weapon or weapons then it is not constitutionally permissible. This means the federal government could pass a law requiring a certain type or caliber of arm be purchased but not that a certain type or caliber of arm could be banned altogether.

Now where do assault weapons fit in with the Right to Arms?

The main purpose of the Second Article of the Bill of Rights was to ensure that the federal government would not prohibit martial arms to the populace. This was so the people could not be intimidated by the organized military of a government bent on domination, be it foreign or domestic. In order to accomplish this final check against tyranny 3 things are necessary: the Means to resist, the Will to resist & the Knowledge to resist. It can be argued that the First Article of the bill of Rights would protect the Will to resist & the Knowledge to resist as much as it is possible to protect these two things, even though it doesn’t mention them specifically. However the Second Article of the Bill of Rights specifically protects the Means to resist.

Assault weapons are a necessary component of having the Means to resist oppressive government, whether foreign or domestic. As long as modern militaries are equipped with assault weapons, & perhaps even for a long time after modern militaries develop a better, more effective weapon for general issue, then assault weapons will remain a necessary part of the Right to Arms. While it is entirely possible that a successful defense against government oppression or foreign invasion could be affected using only bolt action rifles whose design goes back over 100 years, that’s not to say it should be the only option. One could successfully walk up 19 flights of stairs carrying a 100 pound chair, but that’s not an endorsement for doing it, especially if there’s an elevator handy.

Does the assault weapons ban place a significant burden on the people?

I would have to say yes. Even if relatively few people would wish to own assault rifles I see no reason why their Rights should be less valuable than say, a majority who wished to own handguns. While it does not affect every person, or perhaps even the majority of people I would say that it affects a sizable minority in the least. While assault weapons are still available there price is artificially influenced by the ban & therefore could place them out of the economic reach of many. & probably of most concern is the percentage of gun owners who are not able to legally alter their weapons through after-market accessories to suit their needs.

So is the government interest in banning assault rifles so compelling as to over-ride the Rights of the people?

I think not. Ideology aside there is no practical justification for the government to ban a category of weapons that are used so infrequently in crime. But even supposing there was a significant percentage of assault weapons used in crime it would not be justification to restrict the Rights of the people for the acts of criminals.

I have a great deal of respect for Prof. Volokh’s research, conclusions & opinions, this despite the fact that he is only a few years older than I. I must in this case respectfully disagree with his idea that because of its limited scope the assault weapons ban may be constitutional. However I do not doubt for a second that more judges would agree with Prof. Volokh’s theory than would agree with mine. This is not to admit error on my part, but to realize that there are many justices who do not agree with the idea of limited governmental power for the sake of the Right to Arms.