Why Semi-Auto Bans Are Unconstitutional

So, the short answer to the question of why semi-auto bans are unconstitutional is pretty simple. “What part of ‘shall not be infringed’ is unclear?”

But the truth of the matter is that a lot of people who don’t read pro-Second Amendment media aren’t likely to accept that argument, unfortunately. Life would be simpler if they did, but alas.

Yet the truth of the matter is that semi-auto bans, such as those currently being attempted in Illinois, are unconstitutional, and there’s an argument beyond just quoting the Second Amendment.

In fact, if you look at the jurisprudence, it’s pretty damn clear.

On April 30, Sen. Adam Schiff (D-California) introduced the so-called “Assault Weapons Ban of 2025.” Picking up where his predecessor Dianne Feinstein left off, Schiff’s legislation would ban commonly owned semi-automatic firearms, such as the AR-15.

A week earlier, Illinois state Sen. Celina Villanueva, also a Democrat, filed SB2652, the so-called “Responsible Gun Manufacturing Act.” A companion House bill, HB4045 was filed a few days later. These bills would ban the ubiquitous Glock semi-automatic handguns.

Semi-automatic gun bans are bad policy, as demonstrated for all during the 1994-2004 Clinton “assault weapons” ban. However, these recent gun ban efforts are notable because they are directly athwart U.S. Supreme Court precedent on the Second Amendment.

In District of Columbia v. Heller (2008), opinion author Justice Antonin 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.”

If after Heller there was any remaining doubt as to what Justice Scalia meant in his opinion, as it pertained to semi-automatic rifles, the justice settled it in 2015. That year, Justice Scalia joined Justice Clarence 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.

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 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.” Justices David Souter and Ruth Bader Ginsburg signed onto Thomas’s opinion.

Now, I’m not a huge fan of the “commonly owned” argument, in part because that’s not remotely defined in any firm and concrete way, which means there will be a debate over every gun on the planet as to whether it’s commonly owned enough to qualify.

Plus, if some new gun technology comes out that changes everything, Congress can theoretically ban it before it’s completely rolled out to the public, thus preventing there being any chance of it becoming commonly owned. That’s part of the reason we’re unlikely to have a lot of arms that would be beneficial in the case of a foreign invasion, such as rocket launchers. They’re not commonly owned, so we can’t own them, which just sounds like an idiotic, circular argument.

Yet for semi-autos, these have already been looked at by the Supreme Court. We already know they’re considered commonly owned firearms. Glocks, while not expressly defined by the Court as such, will also meet this criterion simply because it’s the most popular handgun model in the country.

Under existing jurisprudence, it’s pretty clear that no semi-auto ban is going to pass constitutional muster, even without Bruen.

Throw Bruen into the mix, and now the waters become even less murky. 

There’s absolutely no way these measures should survive legal challenge. No way at all.

Not, that is, if the courts do their jobs correctly.

Unfortunately, I’m just not that confident that they will.