Ask the Expert: Robert A. Levy on the Possibility of an Assault Weapons Ban

Seth, a J.D. candidate at the University of Miami Law School asks:

"If/when an Assault Weapons Ban is proposed in Congress, what is the likelihood that it will pass? Also, in light of the DC v. Heller ruling, would such a ban be considered unconstitutional? Would you fight against it?"

Robert A. Levy, chairman of Cato's board of directors and the man who organized the plaintiffs' case for D.C. v. Heller answers:

The 1994 assault weapons ban covered both automatic and selected semi-automatic weapons. The ban expired in September 2004. Seven months later, the New York Times reported: "Despite dire predictions that the streets would be awash in military-style guns, expiration of the assault weapons ban has not set off a sustained surge in sales [or] caused any noticeable increase in gun crime." According to the Times, the director of the Fraternal Order of Police - chief advocate of the 1994 ban - said he "could not recall a single ‘inquiry from the field about the reauthorization of the ban - and we have 330,000 members who are very vocal.'" So-called assault weapons have been around for more than 100 years. They're used by tens of millions of Americans for hunting, self-defense, target shooting, and formal competitions, including the Olympics. Under current law, felons, drug addicts, illegal aliens, minors, and incompetents cannot buy firearms, semi-automatic or otherwise. Even the notoriously anti-gun Washington Post admits, "Assault weapons play a part in only a small percentage of crime." Criminals use handguns; assault weapons are expensive and difficult to conceal.

Those are compelling arguments against reinstituting the 1994 ban. Moreover, President Obama claims to be pursuing a new era of bipartisanship. With so much on his table - the economy, two wars, Iran, the Israeli-Palestinian crisis - the president and his Democratic Congress would be ill advised politically to wade into the assault weapons swamp. Gun control is a highly divisive issue that has always been a loser for Democrats and red meat for Republicans.

That said, if a ban similar to the 1994 ban were to be enacted, it might well be unconstitutional in light of the Supreme Court's District of Columbia v. Heller ruling. The Heller case confirmed an individual right to possess functional firearms within the home for self-defense, unrelated to militia service. In his majority opinion, however, Justice Antonin Scalia acknowledged that the Second Amendment is not absolute. He noted, for example, that concealed carry prohibitions had been upheld in the past, although he stopped short of saying they should be upheld in the future. Ditto for licensing requirements, which Mr. Heller did not challenge. Scalia went even further in stating that the Court's opinion did not "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." He added that he could also find "support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Subsequent cases will have to resolve what weapons and persons can be regulated and what restrictions are permissible. Heller took the first step - getting the Supreme Court to acknowledge the existence of an individual right. More steps remain.

With regard to Cato's involvement in a constitutional challenge to an assault weapons ban: The Cato Institute is not a law firm; we do not litigate cases. No doubt, however, we would be in the forefront of those organizations supplying intellectual ammunition and legal analyses to support any such challenge. Our focus would be on ensuring that government has the burden to demonstrate, first, that the proposed gun regulations are absolutely necessary for public safety; second, that they will be effective at achieving the goals for which they were designed; and third, that the same goals could not be achieved in a manner that preserved an unrestricted individual right to keep and bear arms.