January 30, 2013

RANDY BARNETT: Gun Control Fails Rationality Test.

So, when considering the constitutionality of bans on so-called military-style assault weapons, or restrictions on the capacity of magazines, senators should begin by asking whether the weapons being banned are in common use by civilians. When it comes to so-called assault weapons, like the AR-15, or 30-round magazines, the answer is clearly “yes.” Millions of such weapons and magazines are in private hands.

That should settle the matter, but senators can go a step further and ask whether these or other measures are actually rational — to articulate the end they are seeking to accomplish, then assesses whether the means adopted actually match up with the purported end. Would they actually have prevented a mass shooting or ameliorated real crimes?

This heightened “rationality review” could help ensure that the reason being articulated is the real reason for the law.

For example, “assault weapons” are a made-up category of weapons that is based solely on cosmetic features that make them look like the fully automatic weapons used by the military. Banning them leaves other rifles that are functionally identical in their lethality and rate of fire completely legal. Moreover, far more powerful hunting rifles are left untouched by the law, as are shotguns. This is simply irrational and therefore unconstitutional.

The same can be said for New York’s law limiting handguns to seven rounds, while allowing both active and retired police officers to keep their handguns that hold up to 15 rounds. If retired cops need 15 rounds to effectively protect themselves and others, then so do other citizens. Arbitrarily discriminating among Americans in this way is irrational and unconstitutional.

Yes. Likewise the proposals to tax ammunition, which would punish target shooters — who shoot a lot — to a vastly greater degree than criminals, who only shoot when committing a crime.