Editor’s Note: Page Pate, a CNN legal analyst, is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.
In the wake of the mass murder at Marjory Stoneman Douglas High School in Parkland, Florida, students across the country have been extraordinarily vocal about the urgent need for common sense gun control. Their anger and frustration is not surprising. Indeed, there have already been 12 school shootings in this country this year, including the one at Central Michigan University on Friday, in which two people were killed after a gunman opened fire.
A recent CNN poll suggests that 70% of Americans generally support tougher gun laws. Perhaps people are finally tired of hearing about kids (and adults) being killed with military style assault weapons while they are in school or enjoying an outdoor concert. And now some corporations have joined the call for reasonable limits on the types of guns they sell, and to whom they sell them. In addition, several major companies have recently severed ties with the National Rifle Association.
Dick’s Sporting Goods made headlines when it announced that it will immediately stop selling “assault-style rifles” and high-capacity magazines, and will not sell any firearm to someone under the age of 21. The company also issued a set of recommendations to address the problem of gun violence in this country.
The very first recommendation is to “Ban assault-style firearms.” These firearms are the semi-automatic, military-style rifles that were used in several of the recent mass shootings. They are also the type of guns lawfully possessed by many people in this country for legitimate purposes like target shooting and self-protection.
Now, putting aside the difficult question of whether there is the political will to actually ban these guns, would such a ban be constitutional given the 2nd Amendment right to “keep and bear arms?”
The 2nd Amendment is not long. It reads “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
That’s it. There is nothing in the text of this amendment about what types of guns people can have, how long someone may have to wait before buying one, or whether certain people shouldn’t be allowed to have guns at all.
It was only 10 years ago that the 2nd Amendment was interpreted to protect an individual’s right to possess a firearm for personal reasons. In District of Columbia v. Heller, a narrow conservative majority of the Supreme Court held, for the first time, that the 2nd Amendment protects a person’s right to own a firearm for purely personal reasons like self-defense. Before Heller, most courts considered 2nd Amendment protections to be limited to the possession of firearms in connection with the need for militia service.
The late Justice Antonin Scalia wrote the majority opinion in Heller. In recognizing a personal constitutional right to possess a firearm in one’s home for self-defense, he made clear that this right was not unlimited. He identified several types of restrictions that would be completely consistent with the right to keep and bear arms.
For example, Justice Scalia noted that the 2nd Amendment does not prohibit government from restricting felons or the “mentally ill” from having guns. He also acknowledged that laws designed to limit the possession of firearms in “sensitive places such as schools and government buildings” would be constitutional.
But what about laws that would ban an entire class of firearms? Can the government prevent everyone from possessing a particular type of firearm?
In the Heller case, Scalia suggested that there would be no constitutional problem with banning the possession of “dangerous and unusual” firearms. According to the Supreme Court’s opinion in Heller, the 2nd Amendment only guarantees the right of a person to possess guns that are commonly used by law-abiding citizens for lawful purposes.
Of course, virtually none of the firearms sold today were available in 1789, and there were certainly no semi-automatic assault rifles like the one used in Parkland.
But the question is not whether such weapons were in common use two centuries ago, but whether they are commonly used by law-abiding people for lawful purposes today.
The NRA estimates that there are between 8.5 million and 15 million assault rifles owned by people living in the United States.
That number suggests that assault rifles are quite common. But that doesn’t mean a government can’t ban them. In fact, some cities and states already have. And while those laws have been challenged, none have been reversed by the Supreme Court.
Since Heller, the Supreme Court has rejected a number of cases challenging various restrictions on firearms. One dealt directly with a city’s decision to prohibit someone from owning a semi-automatic rifle. Despite the clear constitutional issue presented by that case, the court passed on it.
Although that doesn’t mean that the court would necessarily uphold the restriction, it does suggest that there were not enough votes to overturn the lower court’s decision that upheld the law.
There is enough room under the 2nd Amendment to prevent people from possessing certain types of firearms. Even Justice Scalia recognized that laws restricting the possession of certain guns – machine guns and short-barreled shotguns, for example – would be constitutionally permissible. And Justice Scalia acknowledged that “weapons most useful in military service” may not be protected. Assault-style rifles may certainly fall into that category.
While banning semi-automatic assault rifles won’t end all gun violence, it may save a few lives without significantly interfering with the rights of gun owners to use other firearms for recreation and self-protection. And that’s something we can all live with.