Malcolm Comments on Proposed Assault Weapons Ban

In an article appearing in CQ NewsProfessor Joyce Lee Malcolm indicated she concurs with other constitutional experts that efforts by Senator Dianne Feinstein (D-Calif.) to introduce legislation resurrecting the federal assault weapons ban that expired in 2004 may face dim prospects in court. 

Critics of Feinstein's planned action assert that certain aspects of the proposed legislation, such as a ban on the future production of widely-owned semiautomatic handguns and the high-capacity ammunition magazines they frequently use, conflict with recent Supreme Court precedent. Feinstein has stated her legislation will seek to ban more than 100 different kinds of semiautomatic firearms "by name."

"A lot of the guns that they want to put on that list are very popular," said Malcolm. "I think that will be an issue."

Gun control groups counter that the earlier ban lasting from 1994 to 2004 was never held unconstitutional, despite criticism by gun-rights advocates. 

New Assault Weapons Ban Would Face Altered Legal Landscape, CQ News, January 10, 2013.

"The justices' ruling in Heller underscored that certain firearm restrictions are constitutional. Justice Antonin Scalia, in his majority opinion, wrote that the justices 'do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.' He added that Second Amendment rights are 'not unlimited.' 

"But Scalia's guidance doesn't answer the question of whether handguns that are widely available and commonly used for self-defense purposes -- rather than recreational purposes -- may be banned by Congress. That is an important legal distinction in the post-Heller world, said David B. Kopel, an adjunct professor of advanced constitutional law at the University of Denver and a policy analyst at the libertarian Cato Institute in Washington, D.C.

"'If you are in a recreational-only context, a ban on 10-plus rounds is plausible. You would use a magazine of more than 10 rounds for some types of hunting, but not for most,' he said. 'When you're in a self-defense context, what Heller instructs is that you look at guns that are commonly owned by people for self-defense purposes. You look at what real Americans actually do with guns, and what do they choose for self defense? Well, it's overwhelmingly handguns.'"