First Circuit holds its fire in debate over assault weapons ban

BOSTON (CN) — A First Circuit panel had a lot of questions about a Massachusetts ban on assault weapons at oral arguments Monday, but it didn’t tip its hand on whether it would uphold the law under recent Supreme Court decisions expanding the Second Amendment.

“Judges often ask me, why does a citizen need an AR-15?” said Barry Arrington, the lawyer challenging the ban — and Monday proved no exception as the judges peppered him with questions about whether citizens are actually using semiautomatic rifles to defend themselves.

“What does self-defense mean?” asked U.S. Circuit Judge Julie Rikelman, a Joe Biden appointee. “Are these arms actually used for self-defense, as opposed to being possessed for self-defense? Is there any evidence that they are actually used for self-defense?”

The question is important because recent Supreme Court cases protect firearms if they have a historical tradition of being commonly used for lawful purposes such as defense. But Arrington responded that Rikelman’s question missed the larger issue.

“Requiring a citizen to demonstrate use undermines the entire point of the right,” he argued. Most weapons are not used to defend a home most of the time, but “they’re commonly used for lawful purposes. That should be enough.”

Arrington said that under recent Supreme Court precedent, the right to self-defense can include not just repelling a home invasion but protecting against tyranny, as happened with colonial minutemen and freed slaves after the Civil War. “Take away guns, and you take away the inalienable right to defend liberty,” he said.

“Can we not possess weapons unless we can show that they have been used to resist tyranny or armed attacks on minorities? In the colonial militia, private people brought guns in common use. They didn’t bring handguns, they brought long guns. Muskets. What’s the modern-day analogue to citizen-owned long guns? The AR-15.”

U.S. Court of International Trade Judge Gary Katzmann, a Barack Obama appointee sitting by designation, asked what to make of a survey showing that millions of Americans said they owned an AR-15 for self-defense.

Representing the state, Grace Gohlke said the survey was methodologically flawed and “there’s no credible evidence that that is valid.” Regardless, she said, the correct test is “suitability of design and actual use,” and “owning an item with the vague belief that it might someday be used for self-defense is not enough.”

Assault weapons are currently banned in 10 states — California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York and Washington — as well as the District of Columbia.

The Massachusetts ban was challenged by the National Association for Gun Rights, a Colorado-based group whose website boasts 4.5 million members and vows “no compromise” on gun control, in contrast to what it sees as the more moderate National Rifle Association.

A lower court denied a preliminary injunction against the ban, finding that weapons such as the AR-15 are “dangerous and unusual.” But the plaintiffs claim the AR-15 isn’t “unusual” because almost 25 million of them are in circulation, and as of 2018 similar firearms comprised 35% of all new guns sold in the U.S.

The plaintiffs also say the guns aren’t dangerous because, according to the state’s own figures, they are responsible for only 0.002% of homicides, or one in every 50,000.

Katzmann asked if AR-15s posed a unique danger to law enforcement.

“All guns are dangerous to law enforcement,” Arrington replied. “The whole point of arms is they are dangerous.”

Rikelman asked if semiautomatic weapons pose a unique risk of mass casualties that didn’t exist in the colonial era. But Arrington replied the Supreme Court issued a decision shortly after the Virginia Tech massacre that rejected that argument.

Gohlke noted the plaintiffs had raised a facial challenge to the state’s general assault weapons ban, and suggested that the court could affirm the denial of an injunction but allow the plaintiffs to continue attack the law as it applied to particular weapons.

But Arrington insisted that the entire ban was plainly unconstitutional and that the Supreme Court has warned judges not to make social value judgments by weighing the pros and cons of various firearms.

“Does anyone here on the panel have expertise in what firearms are suitable for self-defense? That’s not within your ken, I would suspect — and that is the whole point. Judges need to get out of the business of making these policy decisions," he said.