By: Michael F. Kraemer, Esq.
The right to bear arms established under the Second Amendment to the United States Constitution is often misunderstood and often misrepresented. Given the proposed assault weapons ban bill pending in the General Assembly, it is important to understand what the law does and does not protect.
Q: What rights do the Second Amendment protect?
A: The U.S. Supreme Court ruled in District of Columbia vs Heller that an individual has the right to own and maintain a handgun at home for personal protection. In N.Y. State Rifle & Pistol Association vs Bruen, the Court held that the Second Amendment also established the right to bear arms in public for self-defense. Neither case involved semi-automatic weapons or assault weapons.
Q: Is this right unlimited?
A: No. Justice Antonin Scalia stated in Heller: “Like most rights, the right secured by the Second Amendment is not unlimited. [The right] is not a right to keep and carry a weapon whatsoever and for whatsoever purpose.” Similarly, the Bruen case recognized that the right to bear arms in public was subject to reasonable limitations.
Q: Can the General Assembly ban assault weapons?
Prior to the decision in Bruen, federal and state courts routinely upheld bans on assault weapons. For example, in Worman vs Healy, the 1st Circuit Court of Appeals, which sits in Boston and has jurisdiction over Rhode Island federal courts, upheld the Massachusetts legislature’s ban on AWs and HCMs. The decision was written by Rhode Islander Judge Bruce Selya, with retired Supreme Court Justice David Souter participating in the decision.
Since Bruen, no federal appeals court has held that an AW ban violated the Second Amendment. There is a case in Illinois where a state trial judge preliminarly enjoined the enforcement of that state’s AW ban, but did so on state constitutional grounds regarding equal protection and not based on the U.S. Constitution. That ruling is not final.
Q: Is Judge John J. McConnell’s recent ruling upholding the 2022 Rhode Island law banning high capacity magazines instructive?
In Ocean State Tactical vs Rhode Island, the federal district court in Rhode Island ruled that the state’s HCM ban did not contravene the Second Amendment, based on legal grounds that in part are equally applicable to an AW ban. Judge McConnell emphasized the Supreme Court’s reliance in Bruen on the history of the use of firearms for personal protection. Indeed, as Justice Clarence Thomas wrote: “individual self-defense is the cental component of the Second Amendment right.”
Judge McConnell detailed the extensive testimony presented by the litigants and their expert witnesses in Ocean State Tactical and concluded that HCMs, which enable a semi-automatic weapon to fire large amounts of bullets in a short amount of time, are not instruments of self-defense, but weapons of war which whose possession are not protected by the Second Amendment. His rationale, unquestionably, could and should be applicable to semi-automatic weapons.
Q: Will Second Amendment rights of Rhode Islanders be infringed upon if the General Assembly enacts an assault weapons ban?