NRA-ILA: Justice Scalia Made Clear the Second Amendment and Heller Prohibit ‘Assault Weapon’ Bans

(Editor’s Note: The following is an article from the National Rifle Association Institute for Legislative Action.  It’s an important one because it carefully dispels the myth, perpetuated by anti-gunners, that former Supreme Court Justice Antonin Scalia thought bans on so-called “assault weapons” comported with the 2A.  NOT TRUE!  While the high court never took up a case on the constitutionality of black rifle prohibitions during Scalia’s tenure, there is ample evidence to indicate that Scalia would’ve regarded them as an infringement on one’s right to keep and bear arms. Kudos to NRA-ILA for setting the record straight.)

On July 9, Sen. Chris Murphy (D-Conn.) offered the following ham-handed statement in an attempted attack on President Donald Trump’s U.S. Supreme Court nominee, D.C. Circuit Judge Brett Kavanaugh.

Brett Kavanaugh is a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even late Justice Scalia.

Murphy’s comment gives the false impression that Former U.S. Supreme Court Justice Antonin Scalia, who authored of the majority opinion in the landmark 2008 District of Columbia v. Heller case that recognized the Second Amendment protects an individual right to keep and bear arms, did not consider bans on commonly-owned semi-automatic firearms (termed “assault weapons” by gun control advocates) to be unconstitutional.

Unfortunately, Murphy is not the only individual to peddle this falsehood. Murphy’s fallacious claim was parroted by Rep. Ted Deutch (D-Fla.), who tweeted, “Even Justice Scalia knew the 2nd Amendment has limits. It doesn’t guarantee access to every weapon, he said, and assault weapons can be banned.” In bemoaning Kavanaugh’s 2011 dissent in Heller II, where he concluded that D.C.’s semi-auto ban is unconstitutional, Brady Campaign Co-President Avery Gardiner contended that Kavanaugh’s view is “inconsistent w/ Scalia’s Heller opinion.”

Political operatives and partisan hacks aside, this deceit has infected those who should know better. Earlier this year, U.S. District Court for the District of Massachusetts Judge William G. Young distorted Scalia’s views in his opinion in Workman v. Healy, which rejected a Second Amendment challenge to Massachusetts’ ban on commonly-owned semi-automatic firearms. Young found that the banned firearms “are not within the scope of the personal right to ‘bear arms’ under the Second Amendment.” Suggesting that Justice Scalia would endorse such an outcome, Young concluded his opinion by writing, “Justice Scalia would be proud.”

SEE ALSO: No, Judge Young, Justice Scalia Would Be Rolling in His Grave After Your AR Ban Decision

Taken alone, Justice Scalia’s Heller opinion is enough to dispel this deception. In it, Justice Scalia made clear that the types of firearms protected by the Second Amendment include those “in common use at the time” for “lawful purposes like self-defense.” The AR-15, which is the favorite target of so-called “assault weapon” ban legislation, is the most popular rifle in America and therefore undoubtedly “in common use” and protected by the Second Amendment. Gun control advocates seem to agree that such semi-automatic rifles are common, considering they routinely complain about the “proliferation” of these firearms.

Further, in the 1994 case Staples v. United States, the Supreme Court determined that semi-automatic rifles were common. The case concerned the mens rea requirement for a conviction for possession of an unregistered machine gun. The subject of the case had argued that he was unaware that the AR-15 in his possession had been modified for automatic fire and was not simply a legal semi-automatic AR-15. In the majority opinion, Justice Clarence Thomas made clear that the mere possession of a converted AR-15 is not enough to infer a mens rea sufficient for conviction, as some firearms are, “so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation.” Justice Thomas went on to write that most categories of guns, including semi-automatic rifles, “traditionally have been widely accepted as lawful possessions.”

If after Heller there was any remaining doubt as to where Justice Scalia stood on this matter, he settled the matter in 2015. That year, Justice Scalia joined Justice Thomas in a dissent from the denial of certiorari in Friedman v. Highland Park, a case concerning a local ban on commonly-owned semi-automatic firearms.

In the dissent, Justice Thomas lamented that despite the Supreme Court’s holdings in Heller and McDonald v. Chicago, “several Courts of Appeals… have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes,” which he made clear was “noncompliance with our Second Amendment precedents.”

Justice Thomas went on to explain,

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.

***Shop for an AR-15 on GunsAmerica***

About the author: S.H. Blannelberry is the News Editor of GunsAmerica.

{ 21 comments… add one }
  • James Macklin November 13, 2020, 8:45 am

    The Second Amendment roots are in the Declaration of Independence, where it states The People have a right and duty to control the government.
    Self-defense, hunting, and collecting are TENTH AMENDMENT RIGHTS that no Founder thought were controversial.
    The 2938 MILLER CASE was not decided, rather it was remanded. But the SCOTUS did say that military arms were protect ASFAR AS THEY KNEW.
    Atomic weapons and bioweapons are not included since the are not individual arms.

  • Rich Kvies May 17, 2019, 5:57 am

    If people were sincere about tackling the problem of firearms used against another, they need to make themselves aware of the data that is readily available. Each year, the FBI compiles a comprehensive report of all crimes committed in the U.S. including what firearms were used in the commission of homicides (a person killing another). In 2017, a total of 10,982 homicides were reported using a firearm in the U.S. Of these, 7,032 handguns were used, while 403 rifles of all varieties (some of which are labeled AR’s) were used. Knives and blunt instruments account for 1591 and 407 respectively. Those maintaining this campaign against AR’s has nothing to do with reducing deaths, as the statistics point out. They are either in pursuit of another agenda or are like Quixote and Sancho fighting windmills.

    • Sam March 20, 2020, 11:54 am

      Big gap between 10,992 and 7,435. Am I missing a type of firearm?

  • Mark Hummel July 24, 2018, 12:30 am

    The United States of America’s Legislative and Judicial Branches are not upholding their Oath’s to uphold the Constitution. They are clearly in dereliction of their duties. Justice Scalia and many other Justice’s, Legislatures across the United States are Interpreting then Legislating the American Citizens Constitutional Rights away. This is due in part to their corruption, in part to their dereliction of Duty and in part to their lack of Service to our Country. They are the true Traitor’s amongst us.

    Our Constitution was Framed by Men who were God Fearing and Patriotic. Those that are interpreting the Constitution at Present Day neither have the intellect or the intelligence to do so. The Constitution was written to prevent the abuses of power that is clearly being seen among the Judicial and Legislative Branches of Government. This is called sovereignty, the Authority of a State to Govern itself or another State. The Judicial Branch of Government is not Sovereign, neither is the Legislative Branch Sovereign. This is the reason for the separation of Powers.

    History has clearly shown that when Freedom is removed, Tyranny takes Reign. Clearly it is simple to prove Justice Scalia’s interpretation incorrect as it serves the purpose of Tyranny and not the purpose of Freedom.

  • Theodore Probst July 23, 2018, 3:17 pm

    Yeah, Right, TELL THAT TO STATES LIKE NY, CT AND KALIFORNIA. NY even went on to say in their reply to the court challenge to the s.a.f.e. act law, that “it is a ban going forward “! And what did the courts do about it, ANSWER= NOTHING!

  • MJ July 21, 2018, 11:46 am

    It’s the left who coined the word assault weapon. But isn’t anything used to attack anyone or anything considered an assault weapon?

    What is truly under assault is the Second Amendment by those who swore to uphold it. Those politicians are either adversaries of the Constitution or ignorant of what it stands for. Those who elected them are equally to blame but we have an equally inept educational system which doesn’t help.

    We need Constitutionallsts on the Supreme Court plain and simple.
    Otherwise our rights will be turned into prevleges granted by those who elevate themselves above us.

    • Don November 13, 2020, 11:48 am

      Well said!!

  • Don Wayne July 21, 2018, 9:42 am

    Unadulterated Idiocy!!!!

  • Don Wayne July 21, 2018, 9:41 am

    Unadulterated Idiocy

  • Sly July 21, 2018, 1:15 am

    Democracy and the Constitution is under attack by Trump and Putin, In the next year Putin will be in the White House and there won’t be a Constitution. Trump is Russia’s puppet. Soon the ownership of guns will be outlawed the same as Hitler in order to protect the Traitor Trump. Be ready to fight for Democracy and the Constitution if you still believe in America and not Russia. Putin and Russia has its way with Trump. Find the Truth it might help America

    • Theodore Probst July 23, 2018, 3:20 pm

      REALLY ? The ones that keep screaming for bans are solidly in the Democratic side ! LIKE SCHUMER, PELOSI, FIENSTEIN,DURBIN ECT. SO, HOW ARE YOU BLAMING THIS CRAP ON TRUMP ?

    • Don November 13, 2020, 11:49 am

      Did you bump your head?

  • Robert churchill July 20, 2018, 5:52 pm

    If the Supreme Court is truly Supreme then why do we allow our elected officials and lower courts to go against our constitution? We don’t send our soldiers to war with AR-15s so how can it be an assault weapon? I live in a state where we have a senator who is a Hillary clone but if I have my way she will be voted out open your eyes people. I live in a blue state but I will never stop voting red I am not a socialist.

  • mike July 20, 2018, 12:44 pm

    Of COURSE that’s the TRUTH. ONE of the reasons he was MURDERED!!! The other reason was because The WHORE of BABBLE-ON SOLD HIS SEAT ON THE BENCH TO O’COMMIE!!! THAT’S WHY he held out his “Endorsement” for so long. Until he NAILED down the appointment!! Why do you think Kennedy is resigning???? BECAUSE HE WAS NEXT!!!!

  • William Tiewater July 20, 2018, 9:57 am

    I can not believe that the people of the united states would give up another one of our rights as outlined in the Bill Of Rights. Those rights were paid for by the blood of our citizens. Ben Franklin best stated it “those that would give up some of our rights for a little safety deserve neither”
    The production of guns are bring more jobs and capital back to the American Market place,is giving our country growth and a strong economy. I am near the end of my life, but i can see the liberals slowly chipping away the things that made our country a world leader.

    • Z July 21, 2018, 9:25 pm

      Except for the fact that there is no national ban on the AR-15. So exactly what other right do you think people gave up?

      • Sam March 20, 2020, 1:00 pm

        Well, let’s see. Bush had cages set up far away from his campaign stop for protesters. Freedom of the press only applies to members of permitted news(?) organizations. (B)e free in their persons and papers. (Terry stop and frisk.) Inequality of justice. A white man won the Irish Sweepstakes, and was ordered to bring the money to the US, where it could be taxed. He refused, and was jailed for contempt of court. After one year he was released, as it was ‘determined’ that he was not going to comply, and keeping him incarcerated was not going to produce the desired result. A black man,on trial for kidnapping his daughter during his week-end with her, was ordered to produce the child so the court could question her. He maintained he brought the girl home as required. He was jailed for contempt, for not producing the girl. Either he or his ex wife did something awful to the girl (yes, I know at least one woman like that), And the kid can never be produced. He is still in jail, after 30 years. Read my book.

  • ~ Occams July 16, 2018, 7:00 pm

    NOTES FOR THE COMING FIGHT:“A law repugnant to the Constitution is void. An act of Congress repugnant to the Constitution cannot become a law. The Constitution supersedes all other laws and the individual’s rights shall be liberally enforced in favor of him, the clearly intended and expressly designated beneficiary.” –Marbury v. Madison, 5 U.S. 137 (1803)“An unconstitutional law is void and is as no law. An offense created by it is not crime. A conviction under it is not merely erroneous but is illegal and void and cannot be used as a legal cause of imprisonment.” – Ex parte Siebold, 100 U.S. 371 (1879)“An unconstitutional act is not law. It confers no rights; it imposes no duties; affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed.” – Norton v. Shelby County, 118 U.S. 425 (1886)“Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” –Miranda v. Arizona, 384 U.S. 436 (1966)“The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.“Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” – 16 American Jurisprudence 2d, Sec. 177“No one is bound to obey an unconstitutional law, and no courts are bound to enforce it. The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. AN UNCONSTITUTIONAL LAW, in legal contemplation, IS AS INOPERATIVE AS IF IT HAD NEVER BEEN PASSED.“ – 16 American Jurisprudence 2d, Sec. 256

    • Sean Carberry July 20, 2018, 7:13 am

      Try getting a liberal law maker to buy that.

      • Sam March 20, 2020, 1:52 pm

        Right. But all we have done for over 150 years is to stand here and say’they are not supposed to do that’. For that matter, when did driving become a ‘privilege’. Don’t remember Grandpa needing a license to ride his horse to town. Try to do that now, without trespassing on private property, and learn what trespassing on public property means. We had to fight two wars to convince the King that all property did not belong to him, but to the people. Now. all the property, and all the rights, belong to the various princes in OUR government.

  • ~ Occams July 16, 2018, 6:57 pm

    NOTES FOR THE COMING FIGHT:

    “A law repugnant to the Constitution is void. An act of Congress repugnant to the Constitution cannot become a law. The Constitution supersedes all other laws and the individual’s rights shall be liberally enforced in favor of him, the clearly intended and expressly designated beneficiary.” –Marbury v. Madison, 5 U.S. 137 (1803)

    “An unconstitutional law is void and is as no law. An offense created by it is not crime. A conviction under it is not merely erroneous but isillegal and void and cannot be used as a legal cause of imprisonment.” – Ex parte Siebold, 100 U.S. 371 (1879)

    “An unconstitutional act is not law. It confers no rights; it imposes no duties; affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed.” – Norton v. Shelby County, 118 U.S. 425 (1886)

    “Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” –Miranda v. Arizona, 384 U.S. 436 (1966)

    “The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

    “Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” – 16 American Jurisprudence 2d, Sec. 177

    “No one is bound to obey an unconstitutional law, and no courts are bound to enforce it. The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. AN UNCONSTITUTIONAL LAW, in legal contemplation, IS AS INOPERATIVE AS IF IT HAD NEVER BEEN PASSED.“ – 16 American Jurisprudence 2d, Sec. 256

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