A modest proposal to regulate assault-style weapons — again

There are several ways to measure the health of a democracy, but perhaps the most telling test is the capacity of Congress to reflect the will of the people. When it comes to the control of weapons used in mass shootings that test has been flunked numerous times in recent years. 

No other country in the Western world compares to the United States when it comes to mass shootings. And we continue to break the record every year. One organization reports that, in 2014, there were 273 mass shootings (defined as four or more deaths per incident). In 2022, it reports there were 647 such incidents and we are already setting a record-breaking pace in 2023. 

When children are the victims, as in Uvalde, Texas, the polls show a general revulsion and strong support for a ban on military-style weapons that are intended to fire multiple rounds in quick succession. However, when the National Rifle Association, gun manufacturers and the “Second Amendment community” offer resistance, members of Congress find ways to ignore the views of the majority. 

The most convenient rationale for ignoring public opinion is to hide behind a 2008 Supreme Court interpretation of the Second Amendment that, for the first time in U.S. history, said individual Americans have a constitutional right to own a gun. That narrow 5-4 District of Columbia v. Heller decision strained credulity. A strict- constructionist interpretation of the Second Amendment would acknowledge that it was written to allow states to create armed militias to compensate for the absence of a national military force. 

Given the current makeup of the court, it is of little use to expect that erroneous ruling to be reversed. However, as it relates to the prospect of a ban on military-style semiautomatic weapons, it is useful to read the words of the majority opinion written by the late Antonin Scalia, a hero to conservatives and the Federalist Society.  

“The right secured in the Second Amendment is not unlimited,” he wrote. It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  

Relevant to the issue of a ban on assault weapons, Scalia recognized that prohibitions on the carrying of “dangerous and unusual weapons” could be allowed. He also noted language from 1939’s United States v. Miller decision saying that the type of weapons protected in that case were those “in common use at the time.” 

Those who oppose a ban now argue that this last phrase protects assault-style weapons as they are in “common use.” Arguably, Scalia was referring to the muskets used when the Constitution was written.  

Guns classified as assault-style weapons were banned by federal legislation from 1994 to 2004. That ban was never ruled unconstitutional. Applying the 2008 ruling to military-style weapons, one would be hard-pressed to argue that they are not “dangerous and unusual.” The legal question may come down to whether they are in “common use.” 

Of the 393 million guns in the United States (an incredible number that shocks the rest of the civilized world), some are classified as assault-style weapons. There are 20 million AR-15-style rifles in the United States, a firearm that some consider to be an assault weapon (but a classification that’s rejected by others). 

These numbers have grown, as have the number of gun deaths, now averaging 45,222, according to the Pew Research Center. This is a “14 percent increase from the year before, a 25 percent increase from five years earlier and a 43 percent increase from a decade prior.” This constitutes a national emergency caused in large part by weapons that are “dangerous and unusual.” 

Gun advocates do not argue that these weapons are needed for hunting. Hunters are sportsmen and -women. During certain seasons, many of them are happy to use a bow and arrow; shooting multiple rounds at a deer isn’t a sport. 

Some gun owners talk about the thrill of using assault-style weapons and AR-15-style rifles for target practice. In fact, if gun advocates wish to argue that assault-style weapons are now in “common use,” that use is most likely at a rifle range. 

And therein lies a modest proposal: Allow these dangerous weapons to be used only at secure ranges where they can be stored and used safely.  

It is past time that “common sense” gun safety legislation be enacted as called for by President Biden. We have seen enough mass shootings made easier with weapons that shoot multiple rounds — in schools, shopping centers, churches and bars. The American people have made it clear in poll after poll that they want Congress to act. 

J. Brian Atwood is a senior fellow at Brown University’s Watson Institute. He served as an undersecretary of State and administrator of USAID under President Clinton.