Bloomberg Op-Ed: The 2A Allows a Ban on the AR-15 

Maybe you’ve seen Noah Feldman’s piece in Bloomberg this week, entitled, “The Second Amendment Allows a Ban on the AR-15: Ordinary People Don’t Carry Semiautomatic Rifles for Self-defense.“

Basically, Feldman argues that under current law, the Second Amendment only protects those weapons that aren’t “unusual” and are widely used by law-abiding citizens for personal protection.

Specifically, Feldman writes:

Whether that includes AR-15s is a question the Supreme Court has not yet resolved, although the justices have recently been asked to weigh in. A key question today — though not when the Bill of Rights was ratified — is whether a weapon is ordinarily used for self-defense. That could be what allows legislators to limit the sale of so-called assault rifles, as they did in the 1990s.

While the number of times each year a modern sporting rifle (MSR) is used in self-defense is unknown, the reality is it doesn’t matter.

Per the landmark 2008 Heller decision, it’s rather clear that the 2A protects those weapons “in common use for lawful purposes” (emphasis added). Note. “purposes” is plural. Self-defense is just one example Justice Scalia pointed to when he penned Heller. Hunting, target shooting, and competition are also lawful purposes — or reasons for owning an MSR.

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The map in this article about AR15 ownership kind of proves that gun banners end up making these guns more popular.

37.5% of California gun owners say they own or have owned an AR15. 37.8% in New York.

But in Montana, where there is little risk of a ban, it's just 26.8%. A… https://t.co/G5CgMMvi6Q pic.twitter.com/fZpAmXhRso

— Kostas Moros (@MorosKostas) May 15, 2023

So, even if it’s conceded that MSRs may not be the go-to choice for everyday self-defense, that’s not enough to justify a ban. Nevertheless, Feldman calls for one:

The one good thing — maybe the only good thing — that can be said about the modern rule is that it excludes grenades and tanks. Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.

Notably, he doesn’t argue that they’re not in common use. Because they are. As the NSSF has reported, there are over 24 million MSRs in civilian hands. To put that in perspective, there are more MSRs out there than there are Ford F-Series on the road.

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But look, there is another point to be made regarding a critical aspect of the 2A, the security of the free state and MSRs. That is, AR-15s might not be your first choice for daily self-defense when everything’s calm and life’s going smoothly. Even with their modular nature, they may be a bit much when you’re venturing out into the public square to pick up groceries.

But imagine a situation where things aren’t so peaceful, like during chaotic times (e.g. George Floyd riots) or even under a foreign invasion (e.g. Russia gets froggy). That’s when an AR-15 can really make a difference.

When law and order aren’t guaranteed or there’s an existential risk to personal safety, having a reliable, accurate, larger-capacity firearm like an AR-15 could be a game-changer. And if we ever found ourselves facing a tyrannical government – not that we ever want to see that happen – an AR-15 could play a vital role in maintaining personal freedoms.

So, it’s a mistake for Feldman to think about AR-15 ownership only in terms of the current rather stable climate, when things are relatively peaceful. We’ve got to consider the bigger picture, including times when having an AR-15 might be a necessity rather than a choice.

Final Thoughts: A congressional ban on MSRs? That’s no small task, given that millions of Americans possess them for a myriad of lawful purposes, ranging from hunting to sport shooting, all the way to safeguarding the Republic from tyranny.

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