Assault Weapon Article

Banning Assault Weapons:
A Political
and
Legal Perspective
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A Political and Legal Perspective
INTRODUCTION
Second Amendment jurisprudence is in its infancy.
The Second Amendment reads, A well regulated Militia,
being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.
The Supreme Courts decision in District of Columbia v.
Heller, 554 U.S. 570 (2008), which held the Second
Amendment to be an individual, as opposed to a collective,
right,1 fundamentally altered this area of constitutional
law; prior to Heller, the Federal Circuits largely got
Hellers basic premisethe Second Amendment protects
an individual, not collective, rightwrong. In fact, ten of
the twelve Federal CircuitsFirst, Second, Third, Fourth,
Sixth, Seventh, Eighth, Ninth, Tenth, Elevenththat
purported to resolve the meaning of the Second
Amendment, concluded the opposite of Heller.2 The Fifth
and District of Columbia Circuits stood alone in
embracing the individual rights view.3 Two years after
Heller, in McDonald v. City of Chicago, 561 U.S. 742
(2010), the Second Amendment was applied to the states
through the Due Process Clause of the Fourteenth
Amendment.4
Post-Heller jurisprudence has shifted the discussion
from who has a right to keep and bear arms to which
arms the Second Amendment allows one to keep and bear.
One of the more intense battles, and the subject of this
article, is the fight over whether so-called assault
weapons are protected under the Second Amendment. At
District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
See id. at 639 n. 2 (Stevens, J., dissenting) (collecting cases).
2 See id. at 639 n. 2 (Stevens, J., dissenting) (collecting cases).
3 United States v. Emerson, 270 F.3d 203, 264-265 (CA5 2001);
Parker v. District of Columbia, 478 F.3d 370, 395-396 (CADC 2007).
4 McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
1
2
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a time when most Americans do not support a ban on

assault weapons,5 battles over the permissibility of their
prohibition are ripe for legal challenge.
In terms of political feasibility, the most significant
barrier to the enactment, and consequently the success, of
an assault weapons ban is the fact that assault
weapon lacks a definitional consensus. The term assault
weapon is of a recent vintage, gaining popularity in the
aftermath of 1989 Stockton Schoolyard mass shooting in
Stockton, California.6 The shooter, Patrick Purdy, used a
semiautomatic AK-47-style rifle. 7 Following this
massacre, California passed the Roberti-Roos Assault
See, e.g., Gary Langer, Most Now Oppose an Assault Weapon Ban;
Doubts About Stopping a Lone Wolf Run High (POLL), ABC NEWS
(Dec. 16, 2015, 7:00 AM), http://abcnews.go.com/Politics/now-opposeassault-weapons-ban-doubts-stopping-lone/story?id=35778846
(last
visited Feb. 11, 2016); Eliza Collins, Poll: Support for assault weapons
ban drops to lowest level in 20 years, POLITICO (Dec. 16, 2015, 8:26
AM), http://www.politico.com/story/2015/12/poll-assault-weapons-ban216846 (last visited Feb. 11, 2016). Ariel Edwards-Levy, Most
Americans No Longer Support A Ban On Assault Weapons,
HUFFINGTON
POST
(Dec.
16,
2015,
9:38
AM),
http://www.huffingtonpost.com/entry/assault-weapons-banpoll_us_56715c23e4b0dfd4bcbff62e (last visited Feb. 11, 2016).
6 See e.g., Thomas R. Thompson, Form or Substance? Definitional
Aspects of Assault Weapon Legislation 17 Fla. St. U.L. Rev. 649, 651
(1990) (No state statutes distinguishing between assault weapons
and hunting rifles or shotguns existed as of January 1989.); Bruce H.
Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal
and Economic Analysis of Strict Liability for the Manufacture and
Sale of Assault Weapons 8 Stan. L. & Pol'y Rev 41, 43 (1997) (Prior
to 1989, the term assault weapon did not exist in the lexicon of
firearms.).
7 Associated Press, Five School Children Killed As Gunman Attacks A
California School NEW YORK TIMES (Jan. 18, 1989).
5
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Weapons Control Act of 1989, and became the first state

in the nation to enact a ban on assault weapons.8
Around this same time, anti-gun advocacy groups
faced a serious problem: banning handguns consistently
remain[ed] a non-issue with the vast majority of
legislators, the press, and public.9 In order to revitalize
the push for gun control, anti-gun interest groups brought
up a new topicbanning assault weapons. 10 Josh
Sugarmann, former communications director for the
National Coalition to Ban Handguns11 and founder of the
Violence Policy Center, summarized the new campaign:
Assault weaponsjust like armor-piercing bullets,
machine guns, and plastic firearmsare a new topic.
The weapons' menacing looks, coupled with the
public's confusion over fully automatic machine guns
versus semi-automatic assault weaponsanything
that looks like a machine gun is assumed to be a
machine guncan only increase the chance of public
support for restrictions on these weapons.12
Indeed, anti-gun advocates were, and still are, in part,
playing on the publics ignorance in pursuing this agenda.
Cal Pen Code 12776(a) (1989) (in 1 Statutes of California and

Digests of Measures 55-56 (Bion M. Gregory Legislative Counsel ed.
1989)).
9 Josh Sugarmann, Assault Weapons and Accessories in America
Violence Policy Center (1988).
11 The National Coalition to Ban Handguns later changed its name to
the Coalition to Stop Gun Violence.
8
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In the debates and legislative hearings leading up to

the passage of Californias assault weapons ban, gun
control advocates and legislators faced another problem:
legally defining assault weapon. Sugarmann noted this
would be an issue in crafting any sort of legislation
directed at these firearms:
Defining an assault weaponin legal termsis not
easy. It's not merely a matter of going after guns that
are black and wicked looking. Although those
involved in the debate know the weapons being
discussed, it's extremely difficult to develop a legal
definition that restricts the availability of assault
weapons without affecting legitimate semi-automatic
guns.13
The difficulty in crafting a legal definition of assault
weapon derives from the near impossible task of
distinguishing between semiautomatic firearms. Indeed,
this type of classification differs from [p]ast legislation
which focused on machine guns and submachine guns[,]
which was successful because it dealt with an entire
class of weapons. [Assault weapons legislation] attempts
to make distinctions between weapons in the same class
(semi-automatic).14
Those attempting to define assault weapons typically
utilize two methods: (1) listing weapons by make and
model, and (2) drawing distinctions based on the cosmetic
Josh Sugarmann, Assault Weapons and Accessories in America
14 Memorandum from S.C. Helsley, Acting Assistant Director,
Investigation and Enforcement Branch, California Department of
Justice, to Patrick Kenady, Assistant Attorney General, California
Department of Justice (Feb. 14, 1991) (reprinted in Appendix).
13
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appearance of the firearm (i.e., whether a rifle has a pistol

griptypically a vertical hanging piece of plastic).
Additionally, some pieces of legislation use both methods
in tandem with one another. Because no objective rubric
for determining what is and is not an assault weapon
exists, there is not, and has never been, a consensus as to
which cosmetic accessories and models of firearms should
be placed onto the list.
While the topic of assault weapons is unquestionably
vast and wide, this Article focuses specifically on whether
a flat ban on the possession of assault weapons survives
intermediate scrutiny. I chose this focus out of my
frustration with the dispositions in assault weapons
cases. First, given the current state of the law, it seems to
me that, if any standard of scrutiny were to apply in the
first instance, Heller would require strict scrutiny in these
cases. Almost every federal court has disagreed with this
view, and has adopted intermediate scrutiny as the test of
choice in these cases. Second, even assuming that
intermediate scrutiny does apply, the research I present
here casts doubt on the most important part of
intermediate scrutinynarrow tailoring. It is not enough
for the government to posit substantial interests and
attempt to further those interests; the government must
also demonstrate a fit that the means chosen to further
those interests are calculated to directly impact the
societal ill targeted by the regulation. This fit cannot be
underinclusive (i.e., arbitrarily ban conduct that is no
different in kind or nature from conduct that is left
unbanned), as the government would not be reasonably
furthering their asserted interests; and cannot be
overbroad (i.e., affect substantially more conduct than
necessary).
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In this Article, I examine a brief history of the assault

weapon issue, and argue that a ban on assault weapons
is both underinclusive and unnecessarily overbroad. To
arrive at this latter conclusion, this Article is divided into
four Parts. Part-I reviews the teachings of Heller, and
pays particular attention to which arms Heller
suggested the Second Amendment protects. Part-II
reviews the framework lower courts have employed in
post-Heller Second Amendment challenges. Part-III
applies the portion of that framework which evaluates the
ban under intermediate scrutiny. Part-IV provides some
closing remarks with respect to current assault weapon
jurisprudence.
I. MEANING OF THE SECOND AMENDMENT
The Second Amendment provides, A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed. Generally speaking, there are two schools of
thought with respect to this Amendment. First, some
believe the scope of the right is strictly limited to the right
of States to raise a militia, and for those in the militia to
bear arms. Second, others take the position that the
Second Amendment secures an individual right to keep
and bear arms, unconnected to service in a well-regulated
militia.
In the landmark case District of Columbia v. Heller,
554 U.S. 570 (2008), the Supreme Court endorsed the
latter view. At issue was whether the District of
Columbias total ban on the possession of handguns was
consistent with the Second Amendment. The Heller Court
needed to answer two questions in order to arrive at the
proper legal conclusion: (1) who has a right to keep and
bear arms under the Second Amendment, and (2) what
arms may one keep and bear under that Amendment.
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With respect to the first question, the Heller Court

drew vastly upon the historical record, and ultimately
concluded, the Second Amendment conferred an
individual right to keep and bear arms.15 Heller noted
that virtually all interpreters of the Second Amendment
in the century after its enactment interpreted the
Amendment as protecting an individual right,
unconnected with militia service. 16 Most of these
commentators believed, as Heller held, the inherent right
of self-defense has been central to the Second Amendment
right. 17 Self-defense was held to be the central
component of the right itself.18
The Heller Court answered the second question by
drawing upon its earlier decision in United States v.
Miller, 307 U.S. 174 (1939), which explained that the
sorts of weapons protected were those in common use at
the time.19 Like other Constitutional rights, Heller noted
that it would be bordering on the frivolous20 to hold that
the Second Amendment only protected those weapons
that existed at the time of the Founding, such as muskets.
Indeed, within the context of the First Amendment,
[w]hen the Framers thought of the press, they did not
envision the large, corporate newspaper and television
establishments of our modern world. Instead, they
employed the term the press to refer to the many
independent printers who circulated small newspapers or
Heller, 554 U.S. at 595.

Id. at 605.
17 Id. at 628.
18 Id. at 599.
19 Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179
(1939)).
20 Id. at 582.
15
16
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published writers pamphlets for a fee.21 Nonetheless, the

First Amendment extends to modern forms of
communication, such as the digital press known as the
Internet.22 Additionally, the Fourth Amendment protects
the highly sensitive contents stored on a cell phone.
Indeed, the fact that such information is more portable,
and as a consequence more accessible, than before does
not make the information any less worthy of the [Fourth
Amendments] protection for which the Founders
fought. 23 In line with these traditional modes of
Constitutional interpretation, the Heller Court recognized
that the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those
that were not in existence at the time of the founding.24
After establishing this frameworkthat the Second
Amendment is an individual right to keep and bear arms
in common use at the timethe Heller majority made
three observations justifying its disposition. First, [t]he
[handgun] prohibition extend[ed] . . . to the home, where
the need for defense of self, family, and property is most
acute.25 Second, the American people have considered
the handgun to be the quintessential self-defense weapon
and, accordingly, handguns are the most popular weapon
chosen by Americans for self-defense in the home[.] 26
Third, the Court explained that the availability of other
types of firearms did not affect the outcome of the case: It
is no answer to say, as petitioners do, that it is
permissible to ban the possession of handguns so long as
McIntyre v. Ohio Election Commission, 514 U.S. 334, 360 (1995)
(Thomas, J., concurring).
22 See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
23 Riley v. California, 134 S. Ct. 2473, 2495 (2014).
24 Heller, 554 U.S. at 582.
25 Id. at 628.
26 Id. at 629.
21
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the possession of other firearms (i.e., long guns) is

allowed.27 Thus, the Supreme Court said of the handgun
ban, a complete prohibition of their use is invalid.28
Since [f]ew laws in the history of our Nation have
come close to the severe restriction of the District's
handgun ban[,] Heller reasoned that [u]nder any of the
standards of scrutiny that we have applied to enumerated
constitutional rights, banning from the home the most
preferred firearm in the nation to keep and use for
protection of ones home and family, [Parker v. District of
Columbia,] 478 F.3d [370,] 400 [2007], would fail
constitutional muster.29 As a result, the Heller majority
did not establish a level of scrutiny for evaluating Second
Amendment restrictions.30 But the Court did explicitly
foreclose the applicability of rational-basis review.31
Post-Heller jurisprudence has largely focused on two
issues: (1) which, if any, standard of scrutiny to apply to
certain firearms restrictions, and (2) other than
handguns, which arms are protected by the Second
Amendment. One of the most prominent types of cases in
which both of these debates play out are those evaluating
the constitutionality of bans on assault weapons.
Currently, there exists no split among the three Federal
Circuit Courts of AppealsSecond, Seventh, and District
of Columbia Circuitsthat have rendered final
dispositions on the merits of these prohibitions. But
Ibid.
Ibid.
29 Id. at 628-629.
30 Id. at 634.
31 See id. at 629 n. 27 (If all that was required to overcome the right
to keep and bear arms was a rational basis, the Second Amendment
would be redundant with the separate constitutional prohibitions on
irrational laws, and would have no effect.).
27
28
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judges have issued fierce dissents in two of these cases.32

So while the Circuits are not split, the courts themselves
are. More notably, Justice Thomas, joined by Justice
Scalia, issued a sharp dissent from the denial of certiorari
in the Seventh Circuits case.33 Indeed, the debate over
assault weapons is still in its infancy, and is far from
settled.
II. THE POST-HELLER TWO-STEP
Almost every post-Heller court has adopted a two-step
approach to evaluating Second Amendment challenges.
This approach originated in the Third Circuit Court of
Appeals decision in United States v. Marzzarella, 614
F.3d 85 (2010):
As we read Heller, it suggests a two-pronged
approach to Second Amendment challenges. First,
we ask whether the challenged law imposes a
burden on conduct falling within the scope of the
Second Amendment's guarantee . . . If it does not,
our inquiry is complete. If it does, we evaluate the
law under some form of means-end scrutiny. If the
law passes muster under that standard, it is
constitutional. If it fails, it is invalid.34
With respect to the first prong, lower courts have
consistently determined that [w]hether legislation
substantially burdens a Second Amendment right is
See Heller v. District of Columbia, 670 F.3d 1244, 1269-1296
(CADC 2011) (Kavanaugh, J., dissenting) (Heller II); Friedman v.
City of Highland Park, 784 F.3d 406, 412-421 (CA7 2015) (Manion, J.,
dissenting).
33 Friedman v. City of Highland Park, 136 S. Ct. at 447-450 (2015)
(Thomas, J., dissenting from denial of certiorari).
34 United States v. Marzzarella, 614 F.3d 85, 89 (3rd Cir. 2010).
32
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heavily dependent on the firearms in question being in

common use.35 Many lower courts have concluded that
assault weaponshowever they are definedare in
common use. In Heller v. District of Columbia, 670 F.3d
1244 (D.C. Cir. 2011) (Heller II), the court noted that both
assault weapons and semi-automatic rifles are in
common use:
We think it clear enough in the record that semiautomatic rifles . . . are indeed in common use, as
the plaintiffs contend. Approximately 1.6 million
AR-15s alone have been manufactured since 1986,
and in 2007 this one popular model accounted for
5.5 percent of all firearms, and 14.4 percent of all
rifles, produced in the U.S. for the domestic
market.36
The District Court in Shew v. Malloy, 994 F. Supp. 2d 234
(D. Conn. 2014), also made this determination in context
of Connecticuts assault weapons ban, and concluded
that such a ban constitutes a substantial burden:
Shew v. Malloy, 994 F. Supp. 2d 234, 244-245 (D. Conn. 2014). See
also, Heller II, 670 F.3d at 1260-1261 (Because the prohibitions at
issue, . . . apply only to particular classes of weapons, we must also
ask whether the prohibited weapons are typically possessed by lawabiding citizens for lawful purposes[.]) (internal quotation marks
omitted); New York State Rifle & Pistol Assn v. Cuomo, 990 F. Supp.
2d 349, 363 (W.D.N.Y. 2013) ([I]nherent in the substantial-burden
analysis is the question whether the SAFE Act affects weapons in
common use.); Kolbe v. OMalley, 42 F. Supp. 3d 768, 784 (D.
Maryland. 2014) (stating that weapons not in common use fell outside
the scope of the Second Amendment).
36 Heller II, 670 F.3d at 1261.
35
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The Connecticut legislation here bans firearms in

common use. Millions of Americans possess the
firearms banned by this act for hunting and target
shooting. . . . The court concludes that the firearms
and magazines at issue are in common use within
the meaning of Heller and, presumably, used for
lawful purposes. The legislation here bans the
purchase, sale, and possession of assault weapons .
. . which the court concludes more than minimally
affect the plaintiffs' ability to acquire and use the
firearms, and therefore levies a substantial burden
on the plaintiffs' Second Amendment rights.37
The Western District of New York, in New York State
Rifle & Pistol Assn v. Cuomo, 990 F. Supp. 2d 349 (2014),
though not taking a stance on whether assault weapons
are in common use, did find that there can be little
dispute that tens of thousands of Americans own these
guns and use them exclusively for lawful purposes such as
hunting, target shooting, and even self-defense.38
When Shew and New York State Rifle & Pistol Assn
were appealed to the Second Circuit Court of Appeals and
consolidated, that court held that, [e]ven accepting the
most conservative estimates cited by the parties and by
amici, the assault weapons and large-capacity magazines
at issue are in common use as that term was used in
Heller.39
The modern riflelike the pistol and long-barreled
shotgunis undoubtedly quite improved over its
Shew, 994 F. Supp. 2d at 245-246 (citing Heller II, 670 F.3d at
1261).
38 New York State Rifle & Pistol Assn, 990 F. Supp. 2d at 365.
39 New York State Rifle & Pistol Assn v. Cuomo, 804 F.3d 242, 255
(CA2 2015).
37
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colonial-era predecessor, but it is, after all, a lineal

descendant of that founding-era weapon[.]40 In Staples v.
United States, 511 U.S. 600 (1994), the Supreme Court
recognized that the AR-15 semiautomatic rifle, and
semiautomatic firearms generally, are items that
traditionally have been widely accepted as lawful
possessions[.]41
With respect to the means-end scrutiny analysis,
inferior courts have wrestled with whether intermediate
scrutiny or strict scrutiny applies in Second Amendment
challenges. In this context, every federal court, with the
exception of two, has applied intermediate scrutiny.42 The
two exceptions are the Fourth and Seventh circuits. The
former applied strict scrutiny,43 while the later did not
apply any standard of review and left the decision of
which arms one could keep and bear up to the political
process.44
While there is a healthy debate occurring as to
whether intermediate scrutiny is the appropriate level of
scrutiny, I seek not to interject into this discussion.
Instead, I am only concerned with analyzing lower courts
application of intermediate scrutiny. Since little dispute
exists among lower courts with respect to the
commonality of assault weapons, the next section is
primarily focused on the second prong of the Marzzarella
test (i.e., the application of some standard of review). As I
argue below, lower courts have not been particularly
faithful to the principle of narrow tailoring in the context
Parker, 478 F.3d at 398-99.
Staples v. United States, 511 U.S. 600, 612 (1994).
42 See Heller II, 670 F.3d at 1261-1264; New York State Rifle & Pistol
Assn, 804 F.3d at 258-261; Kolbe, 42 F. Supp. 3d at 789-791.
43 Kolbe v. Hogan, 2016 U.S. App. LEXIS 1883, 36-50 (CA4 2016).
44 Friedman, 784 F.3d at 412.
40
41
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of assault weapon prohibition. Application of this

principle reveals that such a ban is fatally underinclusive
and unnecessarily overbroad.
III. APPLYING INTERMEDIATE SCRUTINY TO A BAN ON
ASSAULT WEAPONS
While intermediate scrutiny has been applied in
numerous Constitutional contexts,45 the way it has been
applied in Second Amendment challenges has its origins
in the United States Supreme Courts first amendment
jurisprudence, pursuant to which certain speech is
unprotected, and varying degrees of judicial scrutiny are
applied to speech depending on the nature of the speech
at issue.46
Intermediate scrutiny is applied to regulations
affecting the time, place, or manner in which speech
occurs, as well as to regulations affecting commercial
speech. These regulations of speech are subjected to a
lesser form of judicial scrutiny because in most cases
they pose a less substantial risk of excising certain ideas
or viewpoints from the public dialogue.47
Restrictions upon the time, place, and manner of
speech may be constitutionally permissible, provided the
restrictions are justified without reference to the content
of the regulated speech, that they are narrowly tailored to
See Richard H. Fallon, Jr., Strict Judicial Scrutiny 54 UCLA L.
Rev. 1267, 1268-1269 (2007) (citing the Equal Protection Clause, Free
Speech Clause, and Religious Free Exercise Clause).
46 Connecticut v. Deciccio, 315 Conn. 70 (2014). See also, Ezell v. City
of Chicago, 651 F.3d 684 (CA7 2011); United States v. Chester, 628
F.3d 673 (4th Cir. 2010); Marzzarella, 614 F.3d at 89-100; Heller II,
670 F.3d at 1257-1260.
47 Turner Broadcasting System, Inv. v. Federal Communications
Commission, 512 U.S. 622, 641-642 (1994) (Turner I) (citation
omitted).
45
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serve a significant governmental interest, and that they

leave open ample alternative channels for communication
of the information.48 This is virtually the same test for
determining the permissibility of restrictions on
commercial speech, which has its origins in Central
Hudson Gas & Electric Co. v. Public Service Commission
of New York, 447 U.S. 557 (1980):
The State must assert a substantial interest to be
achieved by restrictions on commercial speech.
Moreover, the regulatory technique must be in
proportion to that interest. The limitation on
expression must be designed carefully to achieve the
State's goal.49
The two critical aspects of intermediate scrutiny are the
interest asserted, and the fit between the interest and the
means chosen to further that interest. This fit assists in
determining whether a restriction is narrowly tailored.
The relationship between the interest and the means
chosen to further it is interdependent. The government
must demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.50
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293
(1984) (emphasis added)).
49 Central Hudson Gas & Electric Co. v. Public Service Commission of
New York, 447 U.S. 557, 564 (1980).
50 Turner I, 512 U.S. at 664. See also, ibid. (That the Government's
asserted interests are important in the abstract does not mean,
however, that the [regulation] will in fact advance those interests.
When the Government defends a regulation on speech as a means to
redress past harms or prevent anticipated harms, it must do more
than simply posit the existence of the disease sought to be cured.
48
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While the Governments asserted interests are important

in the abstract does not mean, however, that the
[restriction] will in fact advance those interests.51 The fit
between the legislatures ends and the means chosen to
accomplish those ends52 is a fit that is not necessarily
perfect, but reasonable; that represents not necessarily
the single best disposition but one whose scope is in
proportion to the interest served, In re R. M. J., [455 U.S.
191, 203 (1982)]; that employs not necessarily the least
restrictive means but, . . . a means narrowly tailored to
achieve the desired objective. 53 To be sure, although
intermediate scrutiny does not require a restriction to be
through the least restrictive means to accomplish the
asserted interest(s), it does require that a restriction use a
less intrusive means54 to further those interests.
Narrow tailoring may be measured by two criteria.
First, the restriction must directly advance the state
(internal quotation marks omitted)); Edenfield v. Fane, 507 U.S. 761,
770-771 (1993) (This burden is not satisfied by mere speculation or
conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a
material degree.).
51 Turner I, 512 U.S. at 664.
52 Board of Trustees of the State University of New York v. Fox, 492
U.S. 469, 480 (1989) (quoting Posadas de Puerto Rico Associates v.
Tourism Company of Puerto Rico, 478 U.S. 328 (1986).
53 Id. at 480.
54 McCullen v. Coakley, 134 S. Ct. 2518, 2538 (2014). See also, Village
of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620,
637 (1980) (explaining that [t]he Village's legitimate interest in
preventing fraud can be better served by measures less intrusive than
a direct prohibition on solicitation.); Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 73-74 (1981) (invalidating a state statute that
prohibited all live commercial entertainment, because [t]he Borough
ha[d] not established that its interests could not be met by
restrictions that are less intrusive on protected forms of expression.).
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interest involved; the regulation may not be sustained if it

provides only ineffective or remote support for the
government's purpose. Second, if the governmental
interest could be served as well by a more limited
restriction . . . the excessive restrictions cannot survive.55
Accordingly, a narrowly tailored restriction will (1) not
burden substantially more [conduct] than necessary to
further those interests[,]56 and (2) be through means that
are not substantially broader than necessary to achieve
the governments interest.57
Under this test, the validity of the regulation depends
on the relation it bears to the overall problem the
government seeks to correct, not on the extent to which it
furthers the government's interests in an individual
case. 58 This means that, even if the government is
furthering some interest in the abstract, the government
does not have a compelling interest in each marginal
percentage point by which its goals are advanced.59 Thus,
[a] statute is narrowly tailored if it targets and
eliminates no more than the exact source of the evil it
seeks to remedy.60
Theoretically, then, [a] complete ban can be narrowly
tailored, but only if each activity within the proscription's
scope is an appropriately targeted evil.61 An example of a
complete ban being upheld is found in Frisby v. Schultz,
487 U.S. 474 (1988), a case that upheld a ban on
Central Hudson Gas & Electric Co., 447 U.S. at 564.
Turner Broadcasting System, Inc. v. Federal Communications
Commission, 520 U.S. 180, 189 (1997) (Turner II).
57 Ward, 491 U.S. at 800.
58 Id. at 801.
59 Brown v. Entertainment Merchants Association, 131 S. Ct. 2729,
2741, n. 9 (2011).
60 Frisby v. Schultz, 487 U.S. 474, 485 (1988) (emphasis added)
61 Ibid.
55
56
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residential picketing. This restriction was permitted,

because the evil of targeted residential picketing, the
very presence of an unwelcome visitor at the home, is
created by the medium of expression itself. Accordingly,
the . . . ordinances complete ban of that particular
medium of expression is narrowly tailored.62 However, in
other contexts, the notion that a flat ban . . . could be
regarded as a content-neutral time, place, or manner
restriction on speech, [is] a proposition that is open to
serious doubt[.]63
One must be especially cautious in this area of law,
and avoid accepting arguments made by those who have
taken the effect of the statute and posited that effect as
the State's interest. If accepted, this sort of circular
defense can sidestep judicial review of almost any statute,
because it makes all statutes look narrowly tailored. 64
This circular reasoning was explicitly adopted in Shew v.
Malloy, 994 F. Supp. 2d 234, 248 (D. Conn. 2014). There,
the court held that Connecticuts statute eliminating
assault weapons from the public sphere furthered the
States interest in eliminating assault weapons . . . from
the public sphere. 65 Indeed, it becomes quite easy to
understand the problems with this tautological approach,
for it leaves unanswered the question whether banning
assault weapons furthers any beneficial societal
interests.
Lower courts upholding bans on assault weapons
have clung onto the Supreme Courts decision in Turner
Id. at 487-488 (1988) (citations and internal quotation marks
omitted).
63 Edenfield, 507 U.S. at 771.
64 Schuster v. Members of the New York State Crime Victims Board,
502 U.S. 105, 120 (1991) (emphasis added).
65 Shew, 994 F. Supp. 2d at 248.
62
-18-
Broadcasting System, Inc. v. Federal Communications

Commission, 512 U.S. 622 (1994), which upheld a mustcarry provision for broadcast television, for the
proposition that courts must accord substantial deference
to the predictive judgments of Congress.66 But although
Congress predictive judgments are entitled to
substantial deference does not mean, . . . that they are
insulated from meaningful judicial review altogether.67
Likewise, legislative deference does not foreclose [a
courts] independent judgment of the facts bearing on an
issue of constitutional law.68 Three years later, in Turner
Broadcasting System, Inc. v. Federal Communications
Commission, 520 U.S. 180 (1997) (Turner II),69 the Court
outlined that the judgments made by the legislature must
be drawn from reasonable inferences based on
substantial evidence70; that the evidence must show a
substantial basis to support [the legislatures] conclusion
that a real threat justified enactment of the71 regulation;
and that the record, even if it contains evidence . . .
susceptible [to] varying interpretations, must support
definite conclusions [that] can be drawn about the
Turner I, 512 U.S. at 665.

Id. at 666.
68 Ibid. (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115 (1989)).
69 Due to the bare record, the Court remanded the original Turner
case to evaluate whether the regulation furthered a governmental
interest that was narrowly tailored to achieve that interest. Turner I,
512 U.S. at 664-668.
70 Turner I, 512 U.S. at 666 (1994) (citing Century Communications
Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292, 304 (CADC
1987)). See also, Turner II, 520 U.S. at 196 (Congress must base its
conclusions upon substantial evidence . . .).
71 Turner II, 520 U.S. at 196.
66
67
-19-
burdens of [the regulation].72 With these principles in

mind, I now apply them to a ban on assault weapons.
A. ASSERTED INTERESTS
The governmental interests asserted in prohibiting
assault weapons include protecting police officers,
preventing crime and enhancing public safety. 73 The
common thread tying all of these interests together is the
concern over the perceived dangerousness of these
guns[.] 74 Ban advocates also assert, assault weapons
and their features are unusually dangerous, [and]
commonly associated with military combat situations, and
are commonly found on weapons used in mass
shootings.75
Accordingly, I examine the interests in banning
dangerous and unusual weapons, protecting police
officers, crime prevention and public safety.
Id. at 215.
New York State Rifle & Pistol Assn, 990 F. Supp. 2d at 368 (the
only remaining question is whether the challenged provisions are
substantially related to the governmental interest in public safety
and crime prevention.); Heller II, 670 F.3d at 1262 (suggesting the
government has important interests in protecting police officers and
controlling crime.); Kolbe, 42 F. Supp. 3d at 792 (the government
has a substantial interest in providing for public safety and
preventing crime[.]); Shew, 994 F. Supp. 2d at 239 (public safety and
crime control).
74 Christopher S. Koper, An Updated Assessment of the Federal
Assault Weapons Ban: Impacts on Gun Markets and Gun Violence,
1994-2003 80 (2004) [hereinafter, Koper, Updated Assessment of the
Federal Assault Weapons Ban].
75 N.Y. State Rifle & Pistol Assn, 990 F. Supp. 2d at 368. See also,
Heller II, 670 F.3d at 1262-1263; Kolbe, 42 F. Supp. 3d at 788-789;
Shew, 994 F. Supp. 2d at 248-250; Koper, An Updated Assessment of
the Federal Assault Weapons Ban, supra note 74, at 80 (Ban
advocates also argued that the banned AWs possessed additional
features conducive to criminal applications).
72
73
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1. DANGEROUS AND UNUSUAL WEAPONS

The disturbing trend of announcing certain weapons
beyond the scope of the Second Amendment as dangerous
and unusual has caught on in the lower courts. 76
However, the limitation, as outlined in Heller, had
nothing to do with the keeping of dangerous and unusual
weapons, but with the carrying of dangerous and
unusual weapons.77 And as Heller noted, [a]t the time of
the founding, as now, to bear meant to carry.78
The secondary sources cited in Heller also confirm this
distinction. The historical tradition of prohibiting the
carrying of dangerous and unusual weapons has its roots
in the common law crime of an affray. 79 Blackstone
described the tradition as targeting an individual riding
or going armed, with dangerous or unusual weapons[.]80
The Honorable James Wilson described the prohibition
as where a man arms himself with dangerous and
unusual weapons, in such a manner, as will naturally
See Heller II, 670 F.3d at 1263; Kolbe, 42 F. Supp. 3d at 788, 789 n.
29; N.Y. State Rifle & Pistol Assn, 990 F. Supp. 2d at 367.
77 Heller, 554 U.S. at 627 (emphasis added).
78 Id. at 584. See also, Muscarello v. United States, 524 U.S. 125, 143
(1998) (Ginsburg, J., dissenting) (Surely a most familiar meaning is,
as the Constitutions Second Amendment (keep and bear Arms)
(emphasis added) and Blacks Law Dictionary, at 214, indicate: wear,
bear, or carry . . . upon the person or in the clothing or in a pocket, for
the purpose . . . of being armed and ready for offensive or defensive
action in a case of conflict with another person.).
79 See Statute of Northampton, 2 Edward III. c. 3. (1328)No man
shall come before the justices, or go or ride armed, reprinted in 5
WILLIAM DAVID EVANS, A COLLECTION OF STATUTES CONNECTED WITH
THE GENERAL ADMINISTRATION OF LAW 218 (3d ed. 1836).
80 4 William Blackstone, Commentaries on the Laws of England 148149 (Edward Christian 12th ed. 1795) (emphasis added) (cited in
Heller, 554 U.S. at 627).
76
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diffuse a terrour among the people.81 John A. Dunlap also

explained that it was likewise said to be an affray, at
common law, for a man to arm himself with dangerous
and unusual weapons, in such manner as will naturally
cause terror to the people.82 Charles Humphreys, in his
compendium on Kentucky common law, noted the Second
Amendment altered the elements of an affray from the
English common law understanding of the offense:
Riding or going armed with dangerous or unusual
weapons, is a crime against the public peace, by
terrifying the people of the land, which is punishable
by forfeiture of the arms, and fine and imprisonment.
But here it should be remembered, that in this country
the constitution guarranties to all persons the right to
bear arms; then it can only be a crime to exercise this
right in such a manner, as to terrify the people
unnecessarily. We have a statute on the subject,
relating to concealed weapons.83
William Oldnall Russell expressed a similar view within
the context of the Statute of Northampton:
[N]o wearing of arms is within its meaning, unless it
be accompanied with such circumstances as are apt to
terrify the people; from whence it seems clearly to
follow, that persons of quality are in no dangers of
offending against the statute by wearing common
3 BIRD WILSON, THE WORKS OF THE HONOURABLE JAMES WILSON 79
(1804) (cited in Heller, 554 U.S. at 627) (emphasis added).
82 JOHN A. DUNLAP, THE NEW-YORK JUSTICE 8 (1815) (cited in Heller,
554 U.S. at 627) (emphasis added).
83 CHARLES HUMPHREYS, A COMPENDIUM OF THE COMMON LAW IN
FORCE IN KENTUCKY 482 (1822) (Heller, 554 U.S. at 627) (emphasis
added).
81
-22-
weapons, or having their usual number of attendants

with them for their ornament or defence, in such
places, and upon such occasions, in which it is the
common fashion to make use of them, without causing
the least suspicion of an intention to commit any act of
violence, or disturbance of the peace.84
The final three commentators cited confirm that the
manner in which dangerous and unusual weapons are
carried is the focus of the historical tradition.85 Likewise,
the three cases cited for support also indicate that the
tradition is with regard to bearing, not keeping.86
But even beyond overlooking that distinction, lower
courts, as will be shown, rely on evidence that is
1 WILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND
MISDEMEANORS 292 (8th American ed. 1857) (cited in Heller, 554 U.S.
at 627).
85 ELLIS LEWIS, AN ABRIDGMENT OF THE CRIMINAL LAW OF THE UNITED
STATES 64 (1848) (cited in Heller, 554 U.S. at 627); H. STEPHEN,
SUMMARY OF THE CRIMINAL LAW 48 (1840) (same); 2 FRANCIS
WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES
405 (5th ed. 1861) (same).
86 State v. Langford, 10 N. C. 381, 383-384 (1824) ([T]here may be an
affray when there is no actual violence: as when a man arms himself
with dangerous and unusual weapons, in such a manner as will
naturally cause a terror to the people; which is said always to have
been an offence at common law[.]) (cited in Heller, 554 U.S. at 627);
ONeil v. State, 16 Ala. 65, 67 (1849) (It is probable, however, that if
persons arm themselves with deadly or unusual weapons for the
purpose of an affray, and in such manner as to strike terror to the
people, they may be guilty of this offence, without coming to actual
blows.) (cited in Heller, 554 U.S. at 627); English v. State, 35 Tex.
473, 476 (1872) (citing Blackstone) (cited in Heller, 554 U.S. at 627);
State v. Lanier, 71 N.C. 288, 289 (1874) (The elementary writers say
that the offence of going armed with dangerous or unusual weapons is
a crime against the public peace by terrifying the good people of the
land[.]) (cited in Heller, 554 U.S. at 627).
84
-23-
questionable, at best, in determining the apparent

dangerous and unusual character of assault weapons.
We are told that these weapons are weapons of war,87
designed not for sport or hunting purposes, but for killing
people[,] 88 and that rounds shot from such [assault]
weapons have the capability--more so than rounds shot
from many other types of guns--to penetrate the soft body
armor worn by law enforcement officers, as well as many
kinds of bullet-resistant glass used by law enforcement.89
Moreover, we are told, assault weapons allegedly pose a
See, e.g., Banning the Importation of Assault Weapons and Certain
Accessories into the United States: Hearing on H.R. 1154 Before the
Subcomm. on Trade of the H. Comm. on Ways and Means 101st Cong.
37-38, 41-43 (1989) [hereinafter, Banning the Importation of Assault
Weapons Hearing] (statement of Sheriff Patrick J. Sullivan, Jr.,
Arapahoe County Sheriffs Department, Littleton, CO); Assault
Weapons: A View from the Front Lines: Hearing on S. 639 and S. 653
Before the S. Comm. on the Judiciary 103rd Cong. 11 [hereinafter, A
View from the Front Lines Hearing] (1993) (prepared statement of
Sen. Dianne Feinstein); Hearing on H.R. 4296 and H.R. 3527, Public
Safety and Recreational Firearms Use Protection Act, House of
Representatives, Committee on the Judiciary, Subcommittee on Crime
and Criminal Justice 103rd Cong. 33 (1994) [hereinafter, Hearing on
Public Safety and Recreational Firearms Use Protection Act]
(Statement of Jim Brady, Handgun Control, Inc.).
88 Banning the Importation of Assault Weapons Hearing, supra note
87, at 13 (opening statement of Rep. Frank J. Guarini). See also, id. at
42-43 (statement of Sheriff Patrick J. Sullivan, Jr., Arapahoe County
Sheriffs Department, Littleton, CO); id. at 55 (statement of Dewey
Stokes, National President, National Fraternal Order of Police,
Columbus, OH); Assault Weapons: Hearings S. 386 and S. 747 Before
S. Subcomm. on the Constitution of Comm. on the Judiciary 101st
Cong. 39-41 (1989) [hereinafter, Assault Weapons Hearings]
(prepared statement of Daryl F. Gates, Chief of Police, Los Angeles,
CA, Police Department); Hearing on Public Safety and Recreational
Firearms Use Protection Act, supra note 87, at 33 (Statement of Sarah
Brady); id. at 78 (Statement of Representative Mel Reynolds).
89 Kolbe, 42 F. Supp. 3d at 794 (emphasis added).
87
-24-
heightened risk to civilians . . . in their homes, . . . bullets

fired from assault weapons . . . can penetrate walls and
other home structures and remain more effective than
penetrating bullets fired from other guns, endangering
those in neighboring rooms, apartments, or even other
homes.90
2. CRIME
Lower courts rely on descriptive statistics detailing
instances in which assault weapons were used in gun
violence. 91 However, these statistics alone do not
Id. at 795 (emphasis added) (citing a document from the Brady

Center to Prevent Gun Violence inter alia citing a statement by Jim
Pasco, executive director of the Fraternal Order of Police, that he
would not be surprised if a bullet fired from an AK-47 went through
six walls of conventional drywall in a home[.]).
91 See, e.g., Koper, Updated Assessment of the Federal Assault
Weapons Ban, supra note 74, at 2 (AWs and other guns equipped
with LCMs tend to account for a higher share of guns used in murders
of police and mass public shootings, though such incidents are very
rare.) (emphasis added); id. at 11 (AWs or other semiautomatics
with LCMs were involved in 6, or 40%, of 15 mass shooting incidents
occurring between 1984 and 1993[.]) (emphasis added); id. (AWs
recovered by police were often associated with drug trafficking and
organized crime[.]) (emphasis added); Heller II, 670 F.3d at 12621264 (citing the part of the 2004 Koper study indicating a correlation
between the use of assault weapons in mass shootings and police
officer murders); Wilson v. County of Cook, 2012 IL 112026, P48, 968
N.E.2d 641, 656, 2012 Ill. LEXIS 337, 34-35, 360 Ill. Dec. 148 (IL.
Sup. Ct. 2012) (relying on Koper and other evidence that correlates
assault weapons and crime); New York State Pistol & Rifle Assn,
990 F. Supp. 2d at 369-371 (same); Kolbe, 42 F. Supp. at 787-788
(assault weapons and LCMs are disproportionately represented in
mass shootings); Shew, 994 F. Supp. 2d at 250 n. 53 (agreeing with
the Western District of New Yorks finding in New York State Pistol
& Rifle Assn correlating assault weapons to crime and mass
shootings); Friedman, 784 F.3d at 411 (without citation to authority,
90
-25-
adequately qualify the interest in banning assault

weapons. If these sorts of surface-level observations
sufficed to demonstrate the substantiality of the
governmental interest, then the government would have a
stronger interest in banning handguns, for handguns are
the quintessential assault weapons in todays society;
they are used far more often than any other kind of gun in
violent crimes.92
To put this into perspective, consider that rifles of all
types were used in 3,747 murders between 2004 and 2013
(an average of 375 per year), which amounts to 2.3% of all
murders, 2.7% of all murders involving a weapon, and 4%
of all murders involving a firearm.93 Handguns, on the
other hand, were involved in 93,458 murders, or 43.21% of
all murders, 49.12% of all murders involving a weapon,
and 72.66% of all murders involving a firearm.94
The insubstantiality of the interest in an outright ban
on assault weapons is further illustrated when
compared to murder involving other weapons. Between
2004 and 2013, rifles of all types were involved in fewer
murders than knives or cutting instruments (17,708 total;
13,961 more murders than rifles), blunt objects (5,778
total; 2,031 more murders than rifles), and personal
posing the unsubstantiated rhetorical question of Why else are
[assault weapons] the weapons of choice in mass shootings?).
92 Heller II, 670 F.3d at 1290 (Kavanaugh, J., dissenting).
93 For civilian deaths between 2004-2012, see, the FBI Uniform Crime
Reporting Statistics Data Tool, http://www.ucrdatatool.gov/index.cfm
(last visited Jul. 12, 2015). Go to national crime estimates and create
a table using murder and nonnegligent murder as the variable. For
civilian deaths in 2013, see FBI, Uniform Crime Reports: Crime in the
United
States
2013,
table
12,
https://www.fbi.gov/aboutus/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/tables/table12/table_12_crime_trends_by_population_group_2012-2013.xls (last
visited Jul. 12, 2015).
94 Id.
-26-
weapons (8,150 total; 4,403 more murders than rifles),

which includes hands, fists, feet, etc.95
A similar set of facts is true for officers killed in the
line of duty. Between 2004 and 2013, officers killed in the
line of duty accounted for 0.33% (511) of all murders.96
Broken down further, out of the 93,458 firearm homicides
in this same period, officers killed in the line of duty
accounted for 474 (0.51%).97 Because assault weapons
are semiautomatic rifles, this data must be broken down
further to ensure the interest is fully articulated.
Of the 3,747 murders involving a rifle between 2004
and 2013, police officers accounted for 87 of those murders
(0.056% of all murders; 0.062% of all murders involving a
weapon; 0.093% of all murders involving a firearm; 2.32%
of all murders involving a rifle; 17% of all feloniously
murdered officers; 18.35% of all officers feloniously
murdered with a firearm).98
The FBI breaks down the data even further to include
the caliber of bullet used in a murder. The standard AR15 bullet is the .223 caliber round.99 Of the 87 officers
killed with a rifle between 2004 and 2013, twenty were
murdered by a .223 caliber round (0.012% of all murders;
0.014% of all murders involving a weapon; 0.021% of all
Id.
For officer deaths, see FBI, Uniform Crime Reports: 2013 Law
Enforcement
Officers
Killed
&
Assaulted,
table
27,
https://www.fbi.gov/aboutus/cjis/ucr/leoka/2013/tables/table_27_leos_fk_type_of_weapon_20042013.xls (last visited Jul. 12, 2015). For civilian deaths between 20042013, see, supra note 93.
97 See supra notes 93 and 96.
98 Id.
99 Massachusetts Municipal Police Training Committee, Patrol Rifle
Instructor
13
(2007),
available
http://www.mlefiaa.org/files/MPTC_NEWS/Patrol_Rifle_Student_Ma
nual_2010.pdf.
95
96
-27-
murders involving a firearm; 0.53% of all murders-byrifle; 3.91% of all officers feloniously murdered; 4.22% of
all officers feloniously murdered with a firearm).100
Since these numbers are indicative of murders
committed with any type of rifle (including non-assault
weapons), the overall total is surely smaller. But even
assuming that all of these murders-by-rifle did involve an
assault weapon, there does not seem to be a substantial,
or even compelling, enough interest to justify their total
prohibition. This is especially true in light of the fact that
constitutionally protected handguns were involved in
72.78% (474 out of 511) of all feloniously murdered police
officers deaths between 2004 and 2013.101
The governmental interest, once properly quantified,
includes only a very small portion of overall gun crime,
and crime in general. So regardless of whether the overall
societal ill sought to be cured is gun violence or violence
generally, the interest in prohibiting assault weapons
assuming that every crime involving an assault weapon
would be prevented, and not be substituted for a legal
firearmis magnitudes smaller compared with other
firearms and other forms of violence generally.
Nevertheless, I now turn to examining the fit between
assault weapon prohibition and furthering the interests
of public safety.
B. NARROW TAILORING
A narrowly tailored prohibition of certain Second
Amendment conduct (1) should conceivably affect only
arms not considered to be in common use, and (2) should
neither include within its reach concededly lawful
conduct, such as keeping a commonly used arm in the
100
101
See supra notes 93 and 96.

Id.
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home for self-defense, nor affect those who enjoy the most
Second Amendment protectionlaw-abiding, responsible
citizens. Prohibiting assault weapons commits both
offenses, rendering such a ban fatally underinclusive and
unnecessarily overbroad.
1. THE BAN IS FATALLY UNDERINCLUSIVE
Lower courts have upheld bans on assault weapons,
because the legislation ban[s] only a limited subset of
semiautomatic firearms[.]102 While that may reduce the
severity of the burden placed upon the Second
Amendment right, 103 it does not ensure that the
restriction will, in fact, advance the governments
interests in a direct and material way.
At first, one might find it odd to think that a law runs
afoul of the Second Amendment by infringing too little on
the right. 104 But [u]nderinclusiveness raises serious
doubts about whether the government is in fact pursuing
the interest it invokes[.] 105 Several examples highlight
this principle.
First, in Cincinnati v. Discovery Network, Inc., 507
U.S. 410 (1993), the Supreme Court made the
comparative judgment that, while the City had an
interest in maintaining esthetics, respondent publishers
New York State Rifle & Pistol Association, 804 F.3d at 260. See
also, Heller II, 670 F.3d at 1262 (the prohibition of semi-automatic
rifles and large-capacity magazines does not effectively disarm
individuals).
103 See, e.g., Heller II, 670 F.3d at 1265-1267; Shew, 994 F. Supp. 2d
at 247 (Unlike the law struck down in Heller, the legislation here
does not amount to a complete prohibition on firearms for self-defense
in the home.).
104 Cf. Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656, 1668
(2015) (It is always somewhat counterintuitive to argue that a law
violates the First Amendment by abridging too little speech.)
105 Brown, 131 S. Ct. at 2740.
102
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newsracks [we]re no greater an eyesore than the

newsracks permitted to remain on Cincinnati's sidewalks.
Each newsrack, whether containing newspapers or
commercial handbills, [wa]s equally unattractive.106 The
lack of an esthetical difference between the newsracks
ensured [t]he benefit to be derived from the removal of 62
newsracks while about 1,500-2,000 remain in place was
considered minute[.]107 This example is also particularly
instructive, because it quantifies the fit between the
interest and the means chosen to advance it; because the
regulation only affected between 3.1%-4.1% of the evil
sought to be eliminated (street clutter), it failed muster
under intermediate scrutiny.
Second, in striking down a ban on directional signs,
the Supreme Court in Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015), recognized that the Code allow[ed]
unlimited proliferation of larger ideological signs while
strictly limiting the number, size, and duration of smaller
directional ones. 108 The Reed Court continued, [t]he
Town cannot claim that placing strict limits on temporary
directional signs is necessary to beautify the Town while
at the same time allowing unlimited numbers of other
types of signs that create the same problem. 109 Here
again, the availability of equally ugly and distracting
signs undercut the supposed substantiality of the asserted
governmental interests.
Third, in The Florida Star v. B.J.F., 491 U.S. 524
(1989), the Supreme Court struck down a law prohibiting
an instrument of mass communication (there, a Florida
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425
(1993) (emphasis added).
107 Discovery Network, Inc., 507 U.S. at 417-418.
108 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015).
109 Ibid.
106
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newspaper) from publishing the names of sexual assault

victims. The Court reasoned that the law did not further
the governmental interest in protecting the privacy of
sexual assault victims, because [a]n individual who
maliciously spreads word of the identity of a rape victim
[wa]s thus not covered, despite the fact that the
communication of such information to persons who live
near, or work with, the victim may have consequences as
devastating as the exposure of her name to large numbers
of strangers.110 The Court further explained that [w]hen
a State attempts the extraordinary measure of punishing
truthful publication in the name of privacy, it must
demonstrate its commitment to advancing this interest by
applying its prohibition evenhandedly, to the smalltime
disseminator as well as the media giant.111 Indeed, [a]
ban on disclosures effected by instrument[s] of mass
communication simply cannot be defended on the ground
that partial prohibitions may effect partial relief. 112
Indeed, the depth and breadth of a challenged regulation
goes to the very heart of whether the asserted
governmental interests are truly substantial.
These cases, and countless others,113 reveal that a law
cannot be regarded as protecting an interest of the
highest order, Smith v. Daily Mail Publishing Co., 443
U.S. 97, 103 (1979), . . . when it leaves appreciable
damage to that supposedly vital interest unprohibited.114
The Florida Star v. B.J.F., 491 U.S. 524, 540 (1989).
The Florida Star, 491 U.S. at 540.
112 The Florida Star, 491 U.S. at 540.
113 See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 543-547 (1993) (animal sacrifice statute); City of Ladue v. Gilleo,
512 U. S. 43, 52-53 (1994) (law banning signs displayed on private
property).
114 The Florida Star, 491 U.S. at 541-542 (Scalia, J., concurring in
part and concurring in the judgment).
110
111
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Accordingly, if the semiautomatic firearms left

unregulated by assault weapon prohibition are equally
as dangerous and unusual as the limited subset of
semiautomatic firearms 115 affected by the restriction,
then banning assault weapons has not substantially
furthered an important governmental interest. As will be
shown, every argument advanced in support of the
proposition that banning assault weapons is
permissible, because it does not impose a substantial
burden on the core Second Amendment right, is, in
reality, support for the argument that such a ban is
fatally underinclusive.
Many, if not all, of the assertions regarding the
inherent dangerous and unusual character of assault
weapons lack any citation to a neutral, objective
authority. Reliance on this substandard evidence has
caused federal courts to render decisions that are in
conflict with the vast body of irrefutable scientific
evidence to the contrary.
Assault weapons are not inherently more dangerous
and unusual than their semiautomatic counterparts. As
an initial matter, it is necessary to mention that [t]he
basic principle behind any gun is an explosive barge and
projectile that is propelled upon ignition of the charge into
a barrel and beyond at a high velocity, with variable
accuracy and distance. 116 In this respect, [a]ll small
arms work in roughly the same way. 117 Additionally,
nearly
all
definitions
of
semiautomatic
are
substantially identical: they each refer to automatic
New York State Rifle & Pistol Association, 804 F.3d at 260
(emphasis added).
116 JAN E. LEESTMA, FORENSIC NEUROPATHOLOGY 656 (3d ed. 2014).
117 PETER F. MAHONEY ET AL., BALLISTIC TRAUMA: A PRACTICAL GUIDE
44 (2d ed. 2005).
115
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reloading and the necessity to release the trigger before

each shot.118 This definition is more than mere technical
jargon, the explanation of how a semiautomatic firearm
operates [is] simply a statement of scientific fact.119
The wound potential of any firearm is also influenced
by objective science, and is determined by the kinetic
energy of the bullet it shoots, which is calculated by
taking half the mass of the projectile, multiplied by its
velocity squared.120 This formula is independent of the
People v. Ricketts, 2008 Cal. App. Unpub. LEXIS 10062, 63-66
(2008). See also, e.g., Crime Control Act of 1990, Pub. L. No. 101-647,
104 Stat. 4857 (Nov. 29, 1990); Crime Control Act of 1994, Pub. L. No.
103-322, 108 Stat. 2015 (Sept. 13, 1994); Cal Pen Code 17140
(LEXIS 2015); 56 D.C. REG. 1365, 1375 (LEXIS 2009); ALM GL ch.
140, 121 (LEXIS 2015); N.J. Stat. 2C:39-1(x) (LEXIS 2015); NY
CLS Penal 265.00(21) (LEXIS 2015); Staples, 511 U.S. at 602 n. 1;
In Re Jorge, 23 Cal. 4th 866, 874, n. 4 (2000); People v. Souza, 54 Cal.
4th 90, 103 (2012); People v. Nguyen, 212 Cal. App. 4th 1311, 13191321 (2013); People v. Wilson, 2002 Cal. App. Unpub. LEXIS 6587,
14-17 (2002); Connecticut v. Johnson, 253 Conn. 1, 58 (2000); Hawaii
v. Antonio, 133 Haw. 451; 330 P.3d 389; 2014 Haw. App. LEXIS 117,
3-7 (Haw. Ct. App. 2014); Illinois v. Fornear, 176 Ill. 2d 523, 529
(1997); North Carolina v. Taylor, 362 N.C. 514, 531-532 (2008); Ohio
v. Jordan, 1999 Ohio App. LEXIS 3465, 24-25 (Ohio Ct. App.,
Montgomery County, 1999) (citing Staples, 511 U.S. at 602-605, 618619); Ohio v. Jones, 2013-Ohio-5915, P71; 2013 Ohio App. LEXIS
6225, 36-37 (Ohio Ct. App., Mahoning County, 2013); Id. at P71, 63
(DeGenaro, P.J., dissenting) (quoting Trial Tr., pp. 2262-4, 2283);
Ohio v. Ream, 2013-Ohio-4319, P45; 2013 Ohio App. LEXIS 4509, 3031 (Ohio Ct. App., Allen County, 2013); Tennessee v. Burson, 2013
Tenn. Crim. App. LEXIS 705, 17-19 (2013); McCain v. Texas, 1998
Tex. App. LEXIS 5376, 24 (1998); Wisconsin v. Kramar, 149 Wis. 2d
767, 794 (1989).
119 People v. Pineda, 2013 Cal. App. Unpub. LEXIS 1166, 47 (Cal. Ct.
App. Unpub. 2013).
120
See
MARIATERESA
A.
TERSIGNI-TARRANT,
FORENSIC
ANTHROPOLOGY: AN INTRODUCTION 293 (2013) (The wounding
capacity of a bullet is derived from the kinetic energy that it transfers
118
-33-
cosmetic appearance of the wound, the number of bullets a

weapon can fire without reloading, or other similar
aspects of the nature of the weapon or of the bullet
itself.121 So while so-called assault weapons may or may
not lead to multiple wounds in the same patient, . . . the
nature and characteristics of each individual wound are
still described by the same kinetic energy formula. 122
And as the formula suggestsi.e., velocity being
squaredbullets with a higher velocity, as a general
rule, [will] have a greater wounding capability than larger
bullets with lower velocity.123
In line with this general rule, muzzle velocity can
typically be estimated for a class of weapon based solely
on the type of ammunition it uses. In the context of rifles,
there are two categories of ammunition: rimfire and
centerfire.124 The former is considered low power/velocity,
to the body tissues.); JASON PAYNE-JAMES ET AL., FORENSIC
MEDICINE: CLINICAL AND PATHOLOGICAL ASPECTS 155-156 (2003)
[hereinafter, PAYNE-JAMES, FORENSIC MEDICINE] (The wounding
capability of a bullet depends upon the amount of kinetic energy (KE)
the bullet possesses when it strikes a target.); VINCENT J.M. DI
MAIO, GUNSHOT WOUNDS: PRACTICAL ASPECTS OF FIREARMS,
BALLISTICS, AND FORENSIC TECHNIQUES 14 (2d. 1999) (the severity of
the wound is determined by the amount of kinetic energy lost by a
bullet in the body.); MARY LOU SOLE ET AL., INTRODUCTION TO
CRITICAL CARE NURSING 594 (6th ed. 2013) [hereinafter, SOLE,
CRITICAL CARE NURSING] (The velocity and type of bullet (missile)
influence the transfer of energy creating tissue injury.).
121 2 BARBARA AEHLERT, PARAMEDIC PRACTICE TODAY: ABOVE AND
BEYOND 491 (Revised Reprint 2011).
122 Id at. 491-492 (emphasis added).
123 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 155.
124 DAVID DOLINAK ET AL., FORENSIC PATHOLOGY: PRINCIPLES AND
PRACTICE 163 [hereinafter, DOLINAK, FORENSIC PATHOLOGY] (2005);
JOSEPH A. PRAHLOW, FORENSIC PATHOLOGY FOR POLICE, DEATH
INVESTIGATORS, ATTORNEYS, AND FORENSIC SCIENTISTS 342 (2010)
[hereinafter, PRAHLOW, FORENSIC PATHOLOGY FOR POLICE].
-34-
with muzzle velocities below 1,400 feet per second, while

the latter is considered high power/velocity, with muzzle
velocities ranging between 2,000 and 3,500 feet per
second.125
High-velocity weapons are assault weapons and
hunting rifles 126 and either rifle may fire hunting
ammunition or military ammunition.127 Centerfire rifle
bullets are cased in metal jackets, which are commonly
used in semi-automatic weapons, and may be either fully
jacketed (jacket covers tip and sides of the bullet), or
semi-jacketed (jacket covers sides and base of the
bullet).128 Full metal-jacketed bullets and semi-jacketed
bullets differ in two respects.
First, [m]ilitary ammunition is full metal jacketed,
while centerfire rifle ammunition used by the civilian
hunter is semi-jacketed.129
Second, semi-jacketed bullets are more lethal than full
metal-jacketed bullets. As a semi-jacketed bullet travels
through the body, the jacket peels back, exposing the
lead core which mushrooms, losing scores, if not
hundreds, of small lead fragments. . . . This phenomenon
creates the characteristic radiological picture of wounds
caused by hunting ammunition the lead
DOLINAK, FORENSIC PATHOLOGY, supra note 115, at 163.
SOLE, CRITICAL CARE NURSING, supra note 111, at 594 (emphasis
added).
127 PRAHLOW, FORENSIC PATHOLOGY FOR POLICE supra note 115, at
342 (emphasis added).
128 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 155
(emphasis added).
129 Ibid. See also, VINCENT J.M. DIMAIO ET AL., HANDBOOK OF
FORENSIC PATHOLOGY 142-143 (2d ed. 2006) [hereinafter, DIMAIO,
FORENSIC PATHOLOGY] (A. Two types of ammunition are used in
centerfire rifles: 1. Full-metal jacketed military 2. Semi-jacketed
hunting ammunition.).
125
126
-35-
snowstorm[.] 130 These small lead fragments not only

cause the bullet to lose kinetic energy, but also have the
effect of widening the impact of the wound. Full metaljacketed bullets, on the other hand, are designed to
perforate a target, instead of mushrooming upon impact.
The result is that full metal-jacketed bullets leave wounds
DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143. See also,

PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168
(centerfire rifle wounds caused by semi-jacketed hunting
ammunition usually have a distinctive appearance, in which multiple
tiny lead fragments are present along the wound track. This
distinctive radiographic picture is referred to as a lead snowstorm,
and is produced by small lead fragments being stripped from the lead
core of the bullet as it travels through the body[.]); RICHARD C.
FROEDE, HANDBOOK OF FORENSIC PATHOLOGY 411 (2003) (Highvelocity hunting rifle rounds create a typical lead snowstorm
appearance radiographically because of extreme fragmentation and
scattering of the unjacketed bullet.); MELINDA D. MERCK,
VETERINARY FORENSICS: ANIMAL CRUELTY INVESTIGATIONS 145 (2007)
(Radiographs of victims shot with hunting ammunition show a
typical pattern called a lead snowstorm. Fragments of lead break off
the lead core and are propelled into the surrounding tissues.); M.
PRAKASH, UNDERSTANDING BIOINSTRUMENTATION 75 (2009) (The
unjacketed bullet commonly used in high-velocity hunting
ammunition fragments so extensively that the resulting pattern is
called a lead snowstorm.); MICHAEL J. THALI, FORENSIC RADIOLOGY
212 (2d ed. 2011) ([H]igh-velocity hunting ammunition wounds can
leave a characteristic lead snowstorm radiographic picture because
of extensive fragmentation of the unjacketed bullet[.]); LIANG CHENG
& DAVID G. BOSTWICK 434 (3d ed. 2011) (The goal of hunting
ammunition is to expend all of its energy so that it frequently does
not exit body, but fragments inside; has a characteristic lead
snowstorm x-ray pattern.).
130
-36-
devoid of lead fragments131 and do not lose significant

amounts of kinetic energy within the body.132
The lethality of a bullet is not altered by the firearm
from which the bullet is fired, for [w]ounds produced by
the full-metal-jacketed bullet are significantly less severe
when compared to wounds produced by cartridges of the
same caliber fired from the same weapon but with these
cartridges loaded with hunting bullets.133 The difference
is not in the gun; the difference is in the bullethunting
ammunition, which is readily available to civilians, is
more lethal than military-grade ammunition, which is
also readily available to civilians.
The reduced lethality of military-grade bullets, to be
sure, is not accidental, and serves many battlefield
benefits. One former military official explained the
primary benefit to reduced bullet lethality:
Military bullets are designed to limit tissue
disruption--to wound rather than kill. The full-metaljacketed bullet is actually more effective for most
warfare; it removes the one hit and those needed to
care for him ... newspaper descriptions comparing
their effects with a grenade exploding in the abdomen
... must cause the thinking individual to ask: ... how is
it possible that 29 children and one teacher out of 35
hit in the Stockton schoolyard survived? If producers
of "assault rifles" had advertised their effects as
PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168. See
also, DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143 (Fullmetal-jacketed bullets tend to go through the body undeformed. In
most cases, no bullet fragments are seen on x-ray.)
132 PAYNE-JAMES, FORENSIC MEDICINE, supra note 120, at 168.
133 DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143 (emphasis
added). See also, Koper, An Updated Assessment of the Federal
Assault Weapons Ban, supra note 74, at 11.
131
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depicted by the media, they would be liable to

prosecution under truth-in-advertising laws.134
Put simply, within a military context, wounding is
preferred to killing, because the wounded produce more
of a strain on enemy resources than do the dead.135
With respect to concerns about the potential for bullets
to penetrate walls in houses and apartments, the
Massachusetts Municipal Police Training Committees
manual regarding the AR-15 rifle informs officers that
the most popular patrol rifle round, the 5.56mm NATO
(.223 Remington) will penetrate fewer walls than service
pistol rounds or 12 gauge slugs.136 Interestingly, police
officers own user manuals for these firearms contradict
their own testimony.
Finally, many courts and commentators find it
significant that assault weapons are, in some cases, the
civilian versions of weapons designed for military use.137
David Kopel, Rational Basis Analysis of Assault Weapon
Prohibition, 20 J. of Contemp. L. 381-417 (1994), (quoting Martin L.
Fackler, Wall St. J., Apr. 10, 1989, at A15, col. 1) (emphasis added)
135 Martin L. Fackler, Getting Your Guns Straight, Wash. Post, Apr.
24, 1993, Page A25.
136 Massachusetts Municipal Police Training Committee, Patrol Rifle
Instructor
3
(2007)
(emphasis
added),
available
http://www.mlefiaa.org/files/MPTC_NEWS/Patrol_Rifle_Student_Ma
nual_2010.pdf. It is noteworthy that the manual described the
penetration capacity in terms of the bullet and not the weapon,
because it demonstrates that police officers do understand that the
difference is in the bullet.
137 Brady Center to Prevent Gun Violence, On Target: The Impact of
the 1994 Federal Assault Weapons Act 3 (2004) (citing ATF, Assault
Weapons Profiles). See also, Heller II, 670 F.3d at 1263; Kolbe, 42 F.
Supp. 3d at 789 n. 29 (The Supreme Court indicated in Heller I that
M-16 rifles could be banned as dangerous and unusual. 554 U.S. at
627. Given that assault rifles like the AR-15 are essentially the
134
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The distinction lies in the fact that military-grade

firearms are capable of automatic fire, while assault
weapons (only resembling a military-style) are only
capable of semiautomatic fire. Some lower courts have
found the distinction between semiautomatic and fully
automatic to be almost de minimis, concluding that
military-style weapons and military-grade weapons are
essentially the same[.]138 Lower courts substantiate this
conclusion with reference to the testimony of a paid
lobbyist, Brian J. Siebel, for the Brady Campaign to End
Gun Violence, who claimed, without reference to
authority, that [w]hen San Jose, California, police testfired an UZI, a 30-round magazine was emptied in
slightly less than two seconds on full automatic, while the
same magazine was emptied in just five seconds on
semiautomatic.139
Several problems exist with Siebels claim. First,
Siebels statement is an unsworn allegation, which cited
no source, [and] lacked any indicia of expertise. 140
Second, semiautomatic firearms, when doing the math
according to Siebels own testimony, fire two-and-a-half
times slower than automatics[.] 141 According to the
United States Armys own training manual for the M-16,
functional equivalent of M-16s--and arguably more effective--the
same reasoning would seem to apply here.).
138 Kolbe, 42 F. Supp. 3d at 793.
139 4 Joint Appendix, Testimony of Brian J. Siebel at A-1105, New
York State Rifle and Pistol Assn. v. Cuomo, 990 F. Supp. 2d 349,
affd, 804 F.3d 242 (CA2 2015). See also, Shew, 994 F. Supp. 2d at 249
(citing Siebel Testimony) Kolbe, 42 F. Supp. 3d at 793 (same); Heller
II, 670 F.3d at 1263 (same).
140 Stephen P. Halbrook, New Yorks Not So SAFE Act: The Second
Amendment in an Alice-In-Wonderland World Where Words Have no
Meaning 78 Alb. L. Rev. 789, 802 (2014).
141 Heller II, 670 F.3d at 1289 (Kavanaugh, J., dissenting) (emphasis
added).
-39-
the Maximum Effective Rate of Fire (rounds per min) in

semiautomatic for the M-4 and M16A2 rifles is 45 rounds
per minute, not even close to Siebels claimed 30 rounds in
five seconds.142 Third, the fact that Siebel, at the time of
making the statement, was a Brady Center attorney143
should cause any court to proceed with caution. That is
not to say that all those testifying on behalf of an interest
group are liars. But as the scientific evidence is
concerned, it would appear that Siebel was either grossly
ignorant of the issue on which he was speaking, or that he
was being less than honest in his testimony, both of which
demonstrate[] the fallacy of relying on lobbyist
exhortations instead of demonstrated facts[.]144
Apart from failing to distinguish assault weapons
from other semiautomatic firearms with respect to their
rates of fire, lower courts have relied on arguments
related to the features prohibited by assault weapon
legislation, which generally include pistol grips, barrel
shrouds, flash hiders, noise suppressors, etc. 145 The
assertions used to justify the prohibition of these features
fail in every material respect to substantively and
Halbrook, supra note 140, at 803 (citing Dep't of the Army, FM 322.9, Rifle Marksmanship: M16-/M4-Series Weapons 2-1 (2008)).
143 Id. at 802.
144 Id. at 803.
145 See, e.g., Cal Pen Code 30515(a)(1) (LEXIS 2015); D.C. Code 72501.01(3A)(A)(i)(IV) (LEXIS 2015); NY CLS Penal 265.00(22)(a)
(LEXIS 2015); H.R. 2038, 108th Cong. (May 8, 2003); S. 1034, 108th
Cong. (May 8, 2003); S. 1431, 108th Cong. (Jul. 17, 2003); S. 2109,
108th Cong. (Feb. 24, 2004); H.R. 3831, 108th Cong. (Feb. 25, 2004);
S. 620, 109th Cong. (Mar. 14, 2005); H.R. 1312, 109th Cong. (Mar. 15,
2005); H.R. 437, 113th Cong. (Jan. 29, 2013); S. 150, 113th Cong.
(Mar. 14, 2013); Heller II, 670 F.3d at 1262-1263; Kolbe, 42 F. Supp.
3d at 786-787; New York State Rifle & Pistol Assn, 990 F. Supp. 2d
at 368-369; New York State Rifle & Pistol Assn, 804 F. 3d 262-263;
Friedman, 784 F.3d at 411-412.
142
-40-
materially qualify the dangerous and unusual character

of the features.
To take one example, we are told that pistol grips
attached to rifles help stabilize the weapon during rapid
fire and allow the shooter to spray-fire from the hip
position. 146 It is true that pistol grips stabilize the
weapon in both regular and rapid fire, but claiming that
a pistol grip allows one to spray-fire from the hip is
unfounded. Additionally, those putting forth these
assertions about pistol grips do not come from a neutral
source, or any qualified source for that matter. Lower
courts again cite the 2008 testimony of Brian J. Siebel, in
which he asserted that [p]istol grips on assault rifles and
shotguns help stabilize the weapon during rapid fire and
allow the shooter to spray-fire from the hip position.147
Siebel, despite repeating the talking point, provides no
citation to authority. The lack of cited evidence for these
overzealous claims is a common staple for assault
weapons ban supporters. Every brief filed in support of
the ban that asserted pistol grips were inherently
dangerous due to hip-fire either did not provide reference
to any authority whatsoever, or cited an authority that
did not support the assertion of spray-fire from the
hip. 148 The same is true for those testifying before
Congress.149
Heller II, 670 F. 3d at 1263. See also, e.g., N.Y. State Rifle & Pistol
Assn, 990 F. Supp. 2d at 370 (a pistol grip and thumbhole stock, . . .
aid[s] shooters when spray firing from the hip.); Appellees Brief at
4-5, Heller v. District of Columbia, 670 F.3d 1244 (CADC 2011) (No.
10-7036).
147 4 Joint Appendix, Testimony of Brian J. Siebel at A-1105, New
York State Rifle and Pistol Assn. v. Cuomo, 990 F. Supp. 2d 349,
affd, 804 F.3d 242 (CA2 2015).
148 See Brief for Amicus Curiae Brady Center to Prevent Gun Violence
et al. in Support of Appellees and Affirmance at 27, Heller v. District
146
-41-
of Columbia, 670 F.3d 1244 (CADC 2011) (No. 10-7036) (no citation);
Brief for Amici Curiae Law Center to Prevent Gun Violence et al.
corrected at 4-5, New York State Rifle & Pistol Assn v. Cuomo, 804
F.3d 242 (CA2 2015) (No. 14-0036 cv(L)) (no citation); Brief for the
State Defendants as Appellees and as Cross-Appellants (corrected) at
13, New York State Rifle & Pistol Assn v. Cuomo, 804 F.3d 242 (CA2
2015) (No. 14-0036 cv(L)) (citing Siebel, and a document produced by
the Brady Center to Prevent Gun Violence making no mention of hipfire); Brief for Amicus Curiae Major Cities Chiefs Police Association
in Support of Defendants/Appellees/Cross-Appellants at 8, New York
State Rifle & Pistol Assn v. Cuomo, 804 F.3d 242 (CA2 2015) (No. 140036 cv(L)) (citing Sibel testimony); Brief of Amicus Curiae the Brady
Center to Prevent Gun Violence in Support of Appellee at 19,
Friedman v. City of Highland Park, 784 F.3d 406 (CA7 2014) (No. 143091) (ironically citing themselves, i.e. the Siebel testimony); Brief for
Amicus Curiae Law Center to Prevent Gun Violence et al. at 5,
Friedman v. City of Highland Park, 784 F.3d 406 (CA7 2014) (No. 143091) (no citation).
149 See, e.g., Banning the Importation of Assault Weapons Hearing,
supra note 87, at 51 (1989) (prepared questions and answers of
Sheriff Patrick J. Sullivan, Jr., Arapahoe County Sheriffs
Department, Littleton, CO); Semiautomatic Assault Weapons Act of
1989: Hearing on H.R. 1190 and Related Bills Before the H.
Subcomm. on Crime of the H. Comm. on the Judiciary 101st Cong. 6970 (1989) (statement of Congressman Edward W. Feighan); id. at 96
(testimony of Hon. Tom Campbell); id. at 247 (statement of Phillip
McGuire, Law Enforcement Advisor for Handgun Control, Inc.); id. at
255; The Flow of Precursor Chemicals and Assault Weapons from the
United States into the Andean Nations: Hearing Before the H. Select
Comm. on Narcotics Abuse and Control 101st Cong. 125 (1989)
(testimony of Phillip McGuire, Law Enforcement Advisor for
Handgun Control, Inc.); id. at 232 (record submission of Handgun
Control, Inc., Assault Weapons Questions & Answers); id. at 233; id. at
240; Assault Weapons Hearings, supra note 88, at 365 (1989)
(testimony of Phillip C. McGuire, Law Enforcement Advisor for
Handgun Control, Inc.); id. at 368-369 (exchange between Senator
Simon and Philip C. McGuire); Comprehensive Violent Crime Control
Act of 1989: Hearing on H.R. 2709 Before the H. Subcomm. on Crime
of the Comm. on the Judiciary 101st Cong. 175 (1990) (prepared
statement of Sarah Brady, Chair, Handgun Control, Inc.); Selected
-42-
Pistol grips on rifles are not new. In fact, the first

pistol grip in the United States was patented in 1875
(eighty-three years before the AR-15 was made), and
designed so the gun could be conveniently and firmly
grasped by the hand of the sportsman when taking aim
and during the act of firing.150 Two years before the first
variant of the M-16 was issued to soldiers in 1958,
another patent for a pistol grip was filed.151 Like the 1875
pistol grip, this pistol grip was designed for the ordinary
types of hunting rifles[.]152 Furthermore, the principal
object of the invention [was] to provide pistol grips which
may be applied to rifle stocks, particularly to those of
repeating rifles that are equipped with automatic
reloading mechanisms, for an easier and steadier holding
of the rifle while sighting and firing.153
Another patent expressed several medical
justifications for using a pistol grip:
Accordingly several objects and advantages of the
present invention are: allowing the user to reduce the
angle of their hand relative to the forearm when
aiming and/or firing the rifle. Using the standard
Crime Issues: Prevention and Punishment: Hearings Before the H.
Subcomm. on Crime and Criminal Justice of the Comm. on the
Judiciary 102nd Cong. 730-731 (1991) (statement of Phillip C.
McGuire, Law Enforcement Adviser, Handgun Control Inc.); A View
from the Front Lines, supra note 87, at 11 (1993) (prepared statement
of Sen. Dianne Feinstein); id. at 51 (statement of Chris Sullivan,
Legislative Director, International Brotherhood of Police Officers); id.
at 55 (statement of Kenneth T. Lyons, National President,
International Brotherhood of Police Officers).
150 U.S. Patent No. 168, 834 (filed Oct. 19, 1875) (emphasis added).
151 Pistol Grip Attachment for Rifle, U.S. Patent No. 2,832,166 (filed
Jun. 18, 1956) (issued Apr. 29, 1958).
152 Id. (emphasis added).
153 Id. (emphasis added).
-43-
pistol grip configuration, the acute angle (approx. 40

degrees forearm to hand) for proper rifle handling and
aiming puts an undue strain and fatigue on the wrist,
hand and forearm. Carpal tunnel occurs when there is
inordinate and repetitive stress on the wrist thereby
putting pressure on the median nerve at the point that
the nerve passes through the wrist.154
Indeed, [f]iring a semi-automatic or automatic weapon
with the wrist cocked at an acute angle, especially upon
recoil, may cause such inordinate stress.155 A pistol grip
reduces the angle, thereby reducing the stress, fatigue,
and potential Carpal tunnel of the hand using the pistol
grip of the rifle.156 The ergonomic design likewise allows
the shooter to position the weapon, relative to the
shooters body, for accurate aiming.157
To claim that pistol grips were originally designed for
the battlefield is ahistorical and backwards, as pistol
grips were originally designed for, and used in, hunting.
That the military has co-opted this domestic innovation
does not revoke, or determine in the first instance,
constitutional protection. If, as supporters claim, pistol
grips were designed for the purpose of spray-firing from
the hip, it is hard to imagine why there is never any
citation to authority supporting this claim. Even more
discrediting to these claims is the fact that nothing in the
design history of the M-16 (the firearm the AR-15 is based
on) even remotely hints that the purpose of placing a
Ergonomic Pistol Grip for Rifles, U.S. Patent No. 0,283,583 (filed
Jan. 18, 2011).
155 Id.
156 Id.
157 Id.
154
-44-
pistol grip on the weapon was to facilitate spray-fire

from the hip.158
Lower courts have failed to scientifically and factually
distinguish assault weapons from other semiautomatic
firearms. Indeed, every argument made in support of
assault weapon prohibition on the grounds that the ban
only [affects] a limited subset of semiautomatic
firearms159 is really an argument for why such a ban is
fatally underinclusive. Since all semiautomatic firearms
are equal in power and rate of fire, the governmental
interests in banning such a limited subset of
semiautomatic firearms leaves appreciable damage to
that supposedly vital interest unprohibited.160
The author of the 2004 study evaluating the
effectiveness of the 1994 assault weapons ban concedes
in an affidavit that, [b]ecause criminals and mass
shooters will be able to substitute legal firearms for the
banned assault weapons and [high-capacity magazines],
it is true that this kind of legislation is unlikely to
substantially reduce overall gun violence in terms of the
See United States Army, Report of the M16 Rifle Review Panel:
History of the M16 Weapon System (1968); United States Army,
Report of the M16 Rifle Review Panel: Review and Analysis of the M16
System Reliability (1968); Dept. Army, Rifle Marksmanship M16A1,
M16A2/3, and M4 Carbine (2006). See also, GORDON L. ROTTMAN,
THE M16 (2011).
159 New York State Rifle & Pistol Assn, 804 F.3d at 260. See also,
Heller II, 670 F.3d at 1262 (the prohibition of semi-automatic rifles
and large-capacity magazines does not effectively disarm
individuals).
160 The Florida Star, 491 U.S. at 541-542 (Scalia, J., concurring in
part and concurring in the judgment).
158
-45-
number or rate of crimes committed.161 To be sure, Koper

does warn against wholly discrediting the efficacy of
banning assault weapons, as even small reductions in
gunshot victimizations could produce significant societal
benefits. 162 Koper does admit, however, that whatever
these significant societal benefits are, the overall effect
of the legislation would likely be small in percentage
terms and could be difficult to measure reliably[.]163
The best one can extract from Kopers observations is that
the ban will do something more than nothing; but,
whatever that something is, it is too small to accurately
measure with a reasonable degree of certainty.
Accordingly, such a ban is fatally underinclusive,
because it bears little, if any, relation to the overall
problem of gun violence. 164 Indeed, the argument that
such a ban is permissible, because it ban[s] only a limited
subset of semiautomatic firearms 165 is precisely the
reason why it fails constitutional muster.
2. THE BAN IS UNNECESSARILY OVERBROAD
Prohibiting the possession of assault weapons is
overbroad in two respects: (1) the prohibition extends, . . .
to the home, where the need for defense of self, family,
and property is most acute166; and (2) the ban includes
Affidavit of Christopher S. Koper at 83, in 5 Joint Appendix A1412, Shew v. Malloy, 944 F. Supp. 2d 234 (D. Conn. 2014) (Civil No:
3:13CV739(AVC)) (emphasis added).
162 Ibid.
163 Ibid.
164 Cf. Ward, 491 U.S. at 801.
165 New York State Rifle & Pistol Assn, 804 F.3d at 260. See also,
Heller II, 670 F.3d at 126 (the prohibition of semi-automatic rifles
and large-capacity magazines does not effectively disarm
individuals).
166 Heller, 554 U.S. at 628. See also, McDonald, 561 U.S. at 780 (the
Second Amendment protects a personal right to keep and bear arms
161
-46-
within its scope acts that do not advance the asserted

governmental interests, like stor[ing] [the weapon] in a
manner posing a danger to no one, such as unloaded,
disassembled, or locked away.167
First, even if a grandfather clause exists, a ban on
assault weapons poses a barrier to future keeping of
such weapons in the home. This runs contrary to the
special respect for individual liberty in the home [that]
has long been part of our culture and our law[.]168 Within
the context of the Second Amendment right:
The decision to keep a loaded handgun in the house is
often motivated by the desire to protect life, liberty,
and property. It is comparable, in some ways, to
decisions about the education and upbringing of one's
children. For it is the kind of decision that may have
profound consequences for every member of the family,
and for the world beyond. In considering whether to
keep a handgun, heads of households must ask
themselves whether the desired safety benefits
outweigh the risks of deliberate or accidental misuse
that may result in death or serious injury, not only to
residents of the home but to others as well. Millions of
Americans have answered this question in the
affirmative, not infrequently because they believe they
have an inalienable right to do so--because they
for lawful purposes, most notably for self-defense within the home.);
Ezell, 561 F.3d at 703 (Both Heller and McDonald suggest that
broadly prohibitory laws restricting the core Second Amendment
right--like the handgun bans at issue in those cases, which prohibited
handgun possession even in the home--are categorically
unconstitutional.).
167 Johnson v. United States, 135 S. Ct. 2551, 2565 (2015) (Thomas,
J., concurring in the judgment).
168 Gilleo, 512 U.S. at 58 (1994) (opinion of Stevens, J.).
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consider it an aspect of the supreme human dignity of

being master of ones fate rather than a ward of the
State, Indiana v. Edwards, 554 U.S. 164, 186, 128 S.
Ct. 2379, 171 L. Ed. 2d 345 (2008) (Scalia, J.,
dissenting). Many such decisions have been based, in
part, on family traditions and deeply held beliefs that
are an aspect of individual autonomy the government
may not control.169
These decisions forcefully demonstrate that our law has
long recognized that the home provides a kind of special
sanctuary in modern life. 170 While many courts have
been concerned with deferring to the judgment of the
legislature, these same courts have, as a result,
overlooked the long accorded special deference to the
privacy of the home, whether a humble cottage or a
magnificent manse. 171 This deference, in tandem with
the right recognized in Heller, compels the conclusion that
the individuals interest in firearm possession is thus
heightened in the home, [while] the States corresponding
interest in regulation is somewhat weaker. 172 This
conclusion aligns with the historically longstanding
regulatory practices related to firearm ownership,173 and
McDonald, 561 U.S. at 885-886 (Stevens, J., dissenting).
Id. at 886 (Stevens, J., dissenting) (citing U.S. Const. Amdts 3, 4;
Lawrence v. Texas, 539 U.S. 558, 562, 567 (2003); Payton v. New
York, 445 U.S. 573, 585-590 (1980); Stanley v. Georgia, 394 U.S. 557,
565-568 (1969); Griswold v. Connecticut, 381 U.S. 479, 484-485
(1965)).
171 Ibid.
172 Id. at 886-887 (Stevens, J., dissenting).
173 Id. at 887 (2010) (Stevens, J., dissenting) (The historical case for
regulation is likewise stronger outside the home, as many States have
for many years imposed stricter, and less controversial, restrictions
on the carriage of arms than on their domestic possession.). See also,
Heller, 554 U.S. at 626 (the majority of the 19th-century courts to
169
170
-48-
the general observation that firearms kept inside the

home generally pose a lesser threat to public welfare as
compared to firearms taken outside.174
Whatever regulatory interests the State might have in
regulating the possession of commonly used weapons in
the home, Heller made explicit that the Second
Amendment right elevates above all other interests the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home.175 Presumably those other
interests include the interests of the State.
Second, in Johnson v. United States, 135 S. Ct. 2551
(2015), the Supreme Court examined whether possession
of a short-barreled shotgun by a convicted felon qualified
as a violent felony under the Armed Career Criminal
Act (ACCA), which, as relevant here, was defined as any
crime punishable by imprisonment for a term exceeding
one year . . . that . . . (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another. 924(e)(2)(B) (emphasis added). 176 As felon
unlawfully in possession of a firearm was not a
specifically enumerated offense, the Court wrestled with
whether the residual clause (emphasized text) included
within its scope unlawful possession of a firearm by a
felon. The majority invalidated the residual clause as
unconstitutionally vague.177
consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state
analogues.); id. at 627 (describing the historical tradition of
prohibiting the carrying of dangerous and unusual weapons.).
174 McDonald, 561 U.S. at 887 (Stevens, J., dissenting).
176 Johnson, 135 S. Ct. at 2555-2556 (some internal quotation marks
omitted).
177 Id. at 2563.
-49-
Justice Thomas, joined in Part-I by Justice Kennedy,

concurred in the judgment. Instead of evaluating the
ambiguity of the residual clause, Justice Thomas took a
different approach, and argued that mere possession of a
short-barreled shotgun by a felon was not conduct that
present[ed] a serious potential risk of physical injury to
another.178 Justice Thomas would have reverse[d] the
Court of Appeals on that basis. 179 Justice Thomas
explained the basis for this conclusion by indicating that
even a firearm unprotected by the Second Amendment,
such as a short-barreled shotgun, could be possessed by a
person prohibited from firearm ownership, such as a
convicted felon, in a manner that does not, in the
ordinary case, pose a serious risk of injury to others.180
Justice Thomas further indicated that, [a]s a conceptual
matter, simple possession [of a firearm], even by a felon,
takes place in a variety of ways (e.g., in a closet, in a
storeroom, in a car, in a pocket) many, perhaps most, of
which do not involve likely accompanying violence. 181
Indeed, short-barreled shotguns, like assault weapons,
also can be stored in a manner posing a danger to no one,
such as unloaded, disassembled, or locked away. 182
Strikingly, Justice Thomas found that even assuming
that those who unlawfully possess [short-barreled
shotguns] typically intend to use them in a serious crime,
th[at] risk arises not from the act of possessing the
weapon, but from the act of using it.183
Id. at 2564 (quoting 18 U.S.C. 924(e)(2)(B)(ii)).

Id. at 2566 (Thomas, J., concurring in the judgment).
180 Id. at 2565 (Thomas, J., concurring in the judgment).
181 Ibid. (Thomas, J., concurring in the judgment) (quoting United
States v. Doe, 960 F.2d 221, 225 (CA1 1992)).
182 Ibid. (Thomas, J., concurring in the judgment).
183 Ibid. (Thomas, J., concurring in the judgment).
178
179
-50-
Justice Thomass analysis, though unbinding, is

instructive in the case of a ban on assault weapons. If a
convicted felon can unlawfully possess a firearm
historically understood to be outside the scope of Second
Amendment protection, in a manner that poses no risk of
injury to others[,] 184 then surely a law-abiding,
responsible citizen can possess a firearm that
traditionally ha[s] been widely accepted as [a] lawful
possession[]185 in a similar manner.
The question under intermediate scrutiny, then,
becomes whether mere possession of an assault weapon
by a law-abiding, responsible citizen in his or her home is
an appropriately targeted evil.186 Under any metric of
evaluation, the answer is no, because such a flat ban
reaches every instance where an AR-15 platform semiautomatic rifle or LCM might be preferable to handguns
or bolt-action rifles--for example hunting, recreational
shooting, or competitive marksmanship events, all of
which are lawful purposes protected by the
Constitution. 187 But even if mere possession were an
appropriately targeted evil, the resultstriking the ban
downwould be the same, because the Second
Amendment elevates above all other interests the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.188 True, the result would not be the
same as-applied to a short-barreled shotgun, but this
result is consistent as-applied to an arm in common use,
Id. at 2566 (2015) (Thomas, J., concurring in the judgment).

Staples, 511 U.S. at 612.
186 Frisby, 487 U.S. at 485.
187 Kolbe v. Hogan, 2016 U.S. App. LEXIS 1883, 28-29 (CA4 2016).
184
185
-51-
by law-abiding, responsible citizens, for lawful purposes,

such as assault weapons.189
IV. CONCLUSION
This article has called into question whether banning
assault weapons is narrowly tailored to achieve greater
public safety and prevent crime. Despite unanimity
among lower courts with respect to the belief that
intermediate scrutiny is the appropriate standard of
review to apply in these cases, lower courts have deviated
substantially from the principles of narrow tailoring. This
has resulted in States functionally being given a pass on
carrying their burden. The evidence oftentimes proffered
to justify these prohibitions turns out to be nothing more
than pages of self-serving and unsupported statements
by the State to demonstrate that [the] regulation directly
and materially advances the elimination of a real
harm[.]190 This evidence is largely anecdotal in nature,
and, as I have demonstrated, has no foundation in
science. Consequently, the evidence relied upon by
numerous federal courts runs contrary to objective
scientific findings.
More importantly, however, is that the anecdotal
evidence cited in these decisions comes from biased
sources like paid lobbyists. This has the potential to do far
greater damage than an improper disposition, for the
perception of judicial legitimacy is, in part, derived from
the manner in which a court conducts itself. A court
failing to rely upon neutral, objective authorities gives
See Heller, 554 U.S. at 625-627.

Florida Bar v. Went For It, Inc., 515 U.S. 618, 641 (1995)
(Kennedy, J., dissenting).
189
190
-52-
rise to the reasonable suspicion that a court may not truly

be blind to those coming before it.
Even if these evidentiary hurdles did not exist, a flat
ban on the possession of assault weapons is not
narrowly tailored to achieve the governmental interests
asserted by the State. Such a ban, because it bans only a
small portion of semiautomatic weapons, allows one to
still own the vast majority of other semiautomatic
weapons, which are equal in power and dangerousness to
assault weapons. This type of restriction also
contravenes the deference given to private conduct
occurring in the home, such as keeping a commonly
possessed weapon for self-defense.
The utter disarray of post-Heller Second Amendment
jurisprudence in the lower courts could, in part, be due to
the polarized nature of the public policy debates regarding
the place of firearms in society. Whatever the cause, I do
believe that [t]here is hope, . . . that in calmer times,
when present pressures, passions and fears subside, this
or some later Court will restore the [Second] Amendment
liberties to the high preferred place where they belong in
a free society.191
Dennis v. United States, 341 U.S. 494, 581 (1951) (Black, J.,
dissenting).
191
-53-

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Assault Weapon Article

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Banning Assault Weapons:

a time when most Americans do not support a ban on

Weapons Control Act of 1989, and became the first state

Cal Pen Code 12776(a) (1989) (in 1 Statutes of California and

In the debates and legislative hearings leading up to

appearance of the firearm (i.e., whether a rifle has a pistol

In this Article, I examine a brief history of the assault

With respect to the first question, the Heller Court

Heller, 554 U.S. at 595.

published writers pamphlets for a fee.21 Nonetheless, the

the possession of other firearms (i.e., long guns) is

judges have issued fierce dissents in two of these cases.32

heavily dependent on the firearms in question being in

The Connecticut legislation here bans firearms in

colonial-era predecessor, but it is, after all, a lineal

of assault weapon prohibition. Application of this

serve a significant governmental interest, and that they

While the Governments asserted interests are important

interest involved; the regulation may not be sustained if it

residential picketing. This restriction was permitted,

Broadcasting System, Inc. v. Federal Communications

Turner I, 512 U.S. at 665.

burdens of [the regulation].72 With these principles in

1. DANGEROUS AND UNUSUAL WEAPONS

diffuse a terrour among the people.81 John A. Dunlap also

weapons, or having their usual number of attendants

questionable, at best, in determining the apparent

heightened risk to civilians . . . in their homes, . . . bullets

Id. at 795 (emphasis added) (citing a document from the Brady

adequately qualify the interest in banning assault

weapons (8,150 total; 4,403 more murders than rifles),

See supra notes 93 and 96.

newsracks [we]re no greater an eyesore than the

newspaper) from publishing the names of sexual assault

Accordingly, if the semiautomatic firearms left

reloading and the necessity to release the trigger before

cosmetic appearance of the wound, the number of bullets a

with muzzle velocities below 1,400 feet per second, while

snowstorm[.] 130 These small lead fragments not only

DIMAIO, FORENSIC PATHOLOGY, supra note 129, at 143. See also,

devoid of lead fragments131 and do not lose significant

depicted by the media, they would be liable to

The distinction lies in the fact that military-grade

the Maximum Effective Rate of Fire (rounds per min) in

materially qualify the dangerous and unusual character

Pistol grips on rifles are not new. In fact, the first

pistol grip configuration, the acute angle (approx. 40

pistol grip on the weapon was to facilitate spray-fire

number or rate of crimes committed.161 To be sure, Koper

within its scope acts that do not advance the asserted

consider it an aspect of the supreme human dignity of

the general observation that firearms kept inside the

Justice Thomas, joined in Part-I by Justice Kennedy,

Id. at 2564 (quoting 18 U.S.C. 924(e)(2)(B)(ii)).

Justice Thomass analysis, though unbinding, is

Id. at 2566 (2015) (Thomas, J., concurring in the judgment).

by law-abiding, responsible citizens, for lawful purposes,

See Heller, 554 U.S. at 625-627.

rise to the reasonable suspicion that a court may not truly

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