Last Wednesday, The Washington Post published an editorial entitled, “No one needs an AR-15 — or any gun tailor-made for mass shootings.” That piece followed an earlier series of articles about the AR-15 under the heading, “AMERICAN ICON: The gun that divides a nation.” Both efforts were meant to echo and amplify Joe Biden’s call to ban semiautomatic long guns and “large capacity” magazines. They were, however, ironically self-refuting and established beyond any doubt that AR-15s are in fact shielded by the Second Amendment. Meanwhile, the logic of the authors’ arguments (such as it was), had no limiting principles and would inevitably lead to calls for banning ALL guns.
Two of the main themes to emerge from the Post’s reporting and editorializing were the authors’ ignorance on the subject matter and the prolific, paradigmatic, and overwhelmingly popular nature of the AR-15 in America. Had any of the numerous writers on these efforts known what they were talking about, they would have realized they were working against their goal of banning AR-15s with the content of their stories. That is because the U.S. Supreme Court has repeatedly made clear that the Second Amendment protects firearms “in common use” for lawful purposes (particularly self-defense), even if those firearms are potentially dangerous and misused by criminals for illegitimate purposes as well. And it’s also because the more elites act on or even mention banning AR-15s, the more ordinary Americans embrace the gun as a symbol of freedom.
The points the Post made on the AR-15’s popularity were so germane to the constitutional status of the weapon that they will likely end up in legal briefs challenging attempts to ban that category of guns.
In District of Columbia v. Heller (2008), for example, the high court considered whether Washington, D.C. could ban handguns, the type of firearm most often misused to commit violent crime. The court’s answer was a resounding “no.”
“It is no answer to say,” the court wrote, “that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” The majority opinion continued:
It is enough to note … that the American people have considered the handgun the quintessential self-defense weapon. … Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
In so ruling, the court explicitly recognized that criminals also use handguns for their own illicit purposes but nevertheless held the adoption of handguns by the law-abiding population was the decisive factor. “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution,” the majority opinion stated. It also noted the District had other constitutional means for addressing that problem of violent crime. “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” the court emphasized. “These include the absolute prohibition of handguns held and used for self-defense in the home.”
The follow-up to Heller in the Supreme Court, McDonald v. Chicago (2010), reinforced the principle that it was the handgun’s popularity for self-defense that secured its constitutional protection. The Second Amendment “applies to handguns because they are the most preferred firearm in the nation to keep and use for protection of one’s home and family,“ the court wrote (internal quotation marks and citations omitted).
Justice Clarence Thomas, who was in the majority of both cases, would in 2015 dissent from the Supreme Court’s decision not to hear a case that concerned a municipal ban on AR-15s and similar semiautomatic long guns. Joining his opinion was the author of Heller himself, Justice Antonin Scalia. The dissent explained why such a ban is unconstitutional:
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons [internal quotation marks and citations omitted].
Thomas in 2022 then wrote the majority opinion in the Supreme Court case New York State Rifle & Pistol Association v. Bruen. That opinion reasserted the “common use” test for determining which firearms are protected by the Second Amendment. It also established an explicit standard of review for Second Amendment cases, holding that a gun control law must be “consistent with the Nation’s historical tradition of firearm regulation” to survive such a challenge.
Now, even as The Washington Post insists the AR-15 must be banned, its own reporting documents why the Second Amendment does not permit this. It also shows that the American people categorically reject the paper’s assertion that “[n]o one needs an AR-15”.
When it comes to “common use,” the paper’s own investigation revealed that “roughly 16 million people” own some “20 million” AR-15s” in the United States. Or, as the authors noted even more dramatically, “1 in 20 U.S. adults owns at least one AR-15.”
Again and again, the Post’s writers went out of their way to underscore the immense popularity of the AR-15. It was described as “iconic,” “revered, and “truly mainstream.” It was said to hold a “dominant place in the United States’ marketplace” and to be an “off-the-shelf best-seller.” One story even noted the gun has penetrated so deeply into the culture that it’s used to sell other products (like coffee); youth sports teams raffle off the guns to raise money; and businesses give them away as premiums, even as banks once gave away toasters. Moreover, the authors admitted, the AR-15 only gets more popular with every high-profile attempt to ban it. Even the Post’s attempt to condemn the AR-15 could not help but highlight the gun’s virtues, describing it as rugged, highly effective, user friendly, and massively embraced by the gun-owning public.
And if that weren’t enough help on the constitutional question, the Post even commissioned a poll of AR-15 owners for the series, which reinforced the point that “[s]elf-defense was the most popular reason for owning an AR-15.” Thus, the series itself establishes the prerequisites for an airtight constitutional defense of the AR-15: It is massively popular among the law-abiding public, particularly for the paradigmatic constitutional purpose of defensive use.
On the other hand, the articles could not make a convincing case the gun was disproportionately used in violent crime (it’s not, no matter what kind of crime is being described). One of the pieces even admitted that “handguns are involved in the bulk of U.S. gun homicides — responsible for 90 percent of deaths in cases where details are available, compared to less than 5 percent for rifles [of any sort, including non-semiautomatic], the FBI says.”
Instead, the articles focused on the AR-15’s use in mass shootings, even though such crimes represent only a tiny fraction of firearm related deaths in America (with most such deaths coming from suicide, followed by feuds between crime-involved individuals or gangs). Even on this point the Posts’ writers strained to incriminate the gun, as here, too, the handgun has been the most commonly used weapon. The worst the Post could say in this regard is that since 2012, 10 of the 17 mass shootings with the highest number of fatalities involved AR-15s. But even so, the Post acknowledged that more than half of those 10 incidents involved other types of firearms as well.
When all was said and done, the Post had very little of substance to argue against the AR-15.
The number one item in the Post’s indictment was the appeal and popularity of the gun itself. As anti-gun Congressman Jerry Nadler (D-NY) infamously admitted at a hearing on a bill to ban AR-15s and similar guns, the “problem” with such firearms is that they are “in common use” and banning these popular arms is the “point of the bill.”
Of course, to any person who hates guns, a popular gun must be particularly objectionable. But as already discussed, that logic works in reverse when it comes to the question of whether the Constitution permits a ban on the item, as does lecturing the American people –who have obviously made up their own minds to the contrary– that they don’t “need” such a gun.
The other arguments the Post made against the AR-15 were its military pedigree and the character of the wounds it inflicts. The Post even emphasized the latter point with an extremely tasteless and exploitative article that detailed the wounds of two minors killed in criminal attacks committed with AR-15s.
These points, however, could be made against virtually any firearm.
The idea of distinguishing military versus civilian firearms is largely a construct of anti-gun activism. For most of American history, private and military guns have been one and the same. The Second Amendment, of course, was the product of an era in which “the people” were expected to be able to muster with their personally owned arms and use them to take on any military force, foreign or domestic, that might threaten American liberty. The guns the Minute Men carried were just as sophisticated in their day as those of the Redcoats. Consequently, the technology of basic shoulder arms and handguns has historically flowed freely back and forth in America between the military and civilian realms.
Since 1934 – with the advent of federal restrictions on “machineguns” and “short barreled” long guns – anti-gun activists have tried to demonize certain guns as more suitable for criminal or military use than for law-abiding citizens. In the case of machine guns, there is at least a bona fide technical distinction, as they alone fire “automatically,” i.e., the firing cycle will continue as long as the trigger is activated and the ammunition supply is maintained. But AR-15s are NOT machine guns and fire one shot per activation of the trigger, just as with any other repeating firearm.
Make no mistake, if the “military” qualities of AR-15s could be the rationale for banning them, then common handguns, bolt action hunting rifles, and shotguns would be similarly at risk, for all have their analogs in military armories. And these analogs are if anything even more identical than the semiautomatic AR-15 is to the automatic M16 or M4 used by America’s soldiers, sailors, airmen, and Marines.
The Post also made much of military and police themes in the advertising of AR-15s, as if this somehow established that such guns could only appeal to homicidal maniacs. But it’s hardly surprising, much less blameworthy, that people who want a gun to protect themselves and their families from lethal encounters choose designs that have proven themselves under the rigorous uses of soldiers and law enforcement officers. Criminals, after all, are not looking for a fair fight. If a police department chooses a particular gun to protect the public from the local criminal element, it only makes sense the public would consider that gun for the same purpose. Banning such guns would only put the law on the side of violent criminals willing to ignore the rules.
The WAPO stories also emphasized what sort of wounds the AR-15 produces as an argument for banning the guns. What the stories don’t mention, however, is that equal tissue damage, or far worse, can be inflicted by any number of common firearm designs, particularly shotguns and larger-caliber hunting rifles. Ludicrously, the Post described full metal jacket handgun bullets as moving “straight and smooth through human targets,” as if over-penetration and its consequent risk to bystanders is somehow to be preferred to firearm projectiles that expand or fragment and pose a much lower risk of over-penetration. But that assertion itself is wildly oversimplified and highly dependent on the ammunition used and the caliber of the firearms at issue.
The Post’s misleading focus on “lethality” is once again an argument for banning all guns. If lethality could be the bases for banning a common and popular firearm design, then no gun is safe.
But banning guns — particularly the AR-15 — is not about problem solving or crime control, it is about ideology and the exertion of power. That is why firearm prohibitionists like those at the Post and the politicians for whom they act as proxies will never stop with just this or that type of “especially dangerous” gun. They will simply be emboldened by the banning of one category to move on to the next. Unlike Goldilocks and her purloined porridge, gun control advocates will never find a firearm that is “just right” for their tastes.
That is why the NRA opposes ANY attempt to ban ANY firearm used by law-abiding Americans for legitimate purposes. And it’s also likely why the Supreme Court had the wisdom to interpret the Second Amendment with reference to how firearms are used by ordinary Americans, rather than criminals.
As for The Washington Post’s recent efforts, we can at least commend them for recognizing the AR-15 as a true American icon and for reinforcing its status as a quintessential self-defense firearm. That means its prohibition is not just unwise and unjustified but is “off the table” from a constitutional standpoint.
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