ArticlePDF Available

Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault Weapons, and the Attitudinalist Critique



This Article will show how assault weapons might be protected under Heller as a threshold matter, how Stenberg's guarantee of better methodologies to protect life or health applies just as easily to the assault weapons question, and how the response of Court liberals to an assault weapons case will be an important test of the attitudinalist critique. ... With Heller's explicit protection of handguns and other common self-defense guns, the "sporting use" filter and corresponding distinctions based on appearance cannot be sustained. ... But what happens when the SMUs of common firearms are claimed to produce peculiar externalities that the state wants to combat by banning them? ... Both demand analysis that many people find repugnant - for example, the graphic comparisons of late term abortion procedures or discussions of relative wound ballistics between assault weapons and hunting rifles. ... Subsection 1 will elaborate the parallels between the assault weapons and partial-birth abortion claims, apply the principles developed by the Stenberg majority to the assault weapons claim, and elaborate the attitudinalists' challenge that Stenberg poses for Court liberals. ... Disputed Utility and Legislative Discretion Integral to the outcome in Gonzales is the majority's willingness to credit the legislature's judgment that there is overriding evidence of disutility: the contested statute was grounded on a congressional finding that partial-birth abortion is never the best methodology for preservation of the life or health of the mother. ... Justice Kennedy's suggestion that an as-applied challenge gives the Court a better opportunity to quantify and balance utility and risk is easily applicable to the assault weapons question.t Body]
Electronic copy available at:
Copyright (c) 2009 U.C. Hastings College of the Law
Hastings Law Journal
June, 2009
60 Hastings L.J. 1285
LENGTH: 28544 words
Symposium: Supply Restrictions at the Margins of Heller and the Abortion Analogue: Stenberg Principles, Assault
Weapons, and the Attitudinalist Critique
NAME: Nicholas J. Johnson*
BIO: * Professor of Law, Fordham University School of Law. J.D., Harvard Law School, 1984. This Article benefited
from the comments and insights of Don B. Kates, Che Kates, David Kopel, Marc Arkin, Mane Hajdin, John Frazier,
and Sanford Levinson. Thanks to George Mocsary for excellent research and editing.
... This Article will show how assault weapons might be protected under Heller as a threshold matter, how Stenberg's
guarantee of better methodologies to protect life or health applies just as easily to the assault weapons question, and
how the response of Court liberals to an assault weapons case will be an important test of the attitudinalist critique. ...
With Heller's explicit protection of handguns and other common self-defense guns, the "sporting use" filter and
corresponding distinctions based on appearance cannot be sustained. ... But what happens when the SMUs of common
firearms are claimed to produce peculiar externalities that the state wants to combat by banning them? ... Both demand
analysis that many people find repugnant - for example, the graphic comparisons of late term abortion procedures or
discussions of relative wound ballistics between assault weapons and hunting rifles. ... Subsection 1 will elaborate the
parallels between the assault weapons and partial-birth abortion claims, apply the principles developed by the Stenberg
majority to the assault weapons claim, and elaborate the attitudinalists' challenge that Stenberg poses for Court
liberals. ... Disputed Utility and Legislative Discretion Integral to the outcome in Gonzales is the majority's
willingness to credit the legislature's judgment that there is overriding evidence of disutility: the contested statute was
grounded on a congressional finding that partial-birth abortion is never the best methodology for preservation of the life
or health of the mother. ... Justice Kennedy's suggestion that an as-applied challenge gives the Court a better
opportunity to quantify and balance utility and risk is easily applicable to the assault weapons question.
With close to 300 million guns in the civilian inventory, n1 and confirmation of the right to keep and bear arms in
District of Columbia v. Heller, n2 the United States is well past the point where firearms supply restrictions can be
effective. n3 Nonetheless, proposals for supply restrictions at the margins of the individual right continue. n4 Recent
proposals for renewal of the 1994 Assault Weapons Ban, and the corresponding market response, suggest that people on
both sides of the issue think Heller might not protect assault weapons. n5
Heller established that citizens have a constitutional right to possess guns that are in common use for ordinary
purposes like self-defense. n6 Like any first effort, Heller leaves many issues unsettled. The common-use test might
generate either empirical filters or categories of functionality that could protect guns labeled assault weapons. However,
Heller does not promise that everything nominally protected is always [*1286] protected. n7 There are many different
types of guns, each with distinct utilities to the user and correspondingly distinct externalities that the government
might want to control. As the majority acknowledged and dissenters criticized, Heller provides no obvious standard for
determining whether some guns and some circumstances get more protection than others. n8 The assault weapons
question prompts the search for an appropriate standard. What should happen when a state asserts that assault weapons
must be banned because they impose peculiar externalities and that the ban is constitutional because many other guns
remain available?
Electronic copy available at:
We are not working on a blank slate. It is a common problem that protected rights are exercised in a variety of
ways, employing different methodologies and technologies that raise distinct constitutional questions. We might
employ something like the broad protection granted to alternative methodologies under the First Amendment. n9 It is
not just traditional printing presses, but an endless variety of communications methodologies that are protected. n10
On that principle, all guns satisfying the Heller common-use test might enjoy equally robust protection. n11 The
obvious objection is that guns are different. The gun right poses risks of a different character and magnitude. We need
something that acknowledges that both the right, and the restriction of it, put human life in play. On that count, the
Court's abortion jurisprudence is uniquely-suited for building foundation on which to build a standard for resolving the
assault weapons question.
Over a decade ago I argued that there is a broad analytical intersection between abortion and gun-rights claims. n12
The threshold analogy is apt because both situations pit the right-claimant against substantial competing life-interests. I
illustrated the intersection primarily through the work of abortion rights commentators who repeatedly use self-defense
themes to construct the abortion right. n13 That broad intersection remains. And within it, on the particular question of
[*1287] "partial-birth abortion," there is a compelling analogue to the assault weapons question.
In Stenberg v. Carhart, the Supreme Court engaged an abortion claim that closely tracks the assault weapons
question. n14 Stenberg dealt with a challenge to Nebraska's partial-birth abortion ban. n15 The question was whether a
woman could demand access to a particular abortion methodology known alternately as dilation and extraction ("D&X")
or intact dilation and evacuation ("intact D&E"). n16 The majority decision, advanced by the liberal wing of the Court,
affirmed a woman's right to the abortion methodology best suited to protect life and health, even when lesser but still
safe alternatives are available. n17 This, in principle, is the assault weapons question. Particularly, can the state ban
guns that in some circumstances are the best self-defense options, on the excuse that other guns remain available?
The Court addressed the partial-birth abortion question again in Gonzales v. Carhart, upholding a federal ban on
the same procedure protected in Stenberg. n18 Gonzales was in many ways the conservative's repudiation of Stenberg.
It distinguished but did not overturn Stenberg, which remains an important model for our purposes. n19 The statute in
Gonzales rested on explicit congressional findings that partial-birth abortion "is never medically necessary." n20
Stenberg, in contrast, was grounded on findings that the contested methodology sometimes was the best available
procedure for preserving the life or health of the mother. n21 This "best available methodology" claim is where the
partial-birth abortion / assault weapons comparison is most apt.
Of equal importance, Stenberg, more so than Gonzales, frames the attitudinalist critique n22 that is the subtext of
this Article. [*1288] "Attitudinalism," widely endorsed by political scientists, argues that legal scholars erroneously
focus on what justices say to explain and predict the Court's decisions. n23 Attitudinalists argue that this law talk is
"worse than useless." n24 They say it is not the words and principles articulated in published opinions that dictate
outcomes, but rather the passions n25 that drive Justices' preferences for particular outcomes that control results. n26
Just knowing whether a judge is liberal or conservative, and her general policy preferences and biases, say
attitudinalists, better explains and predicts her votes than anything written in the United States Reports. n27
Stenberg presents a better test of the attitudinalist critique than Gonzales. It pits Court liberals' constitutional
protection of better methodologies to protect life or health in the abortion case against their nascent disparagement of
the parallel gun claim through the series of dissents in Heller - views that prefigure a rejection of arguments that assault
weapons are sometimes the better self-defense tools. n28 While Gonzales juxtaposed with Heller presents for the
conservative wing similar tests of principle, those turn out to be quantitatively lighter burdens. As I show throughout
this Article, conservatives could, on a principled basis, apply Stenberg standards to uphold a claim to better
methodologies in the assault weapons case even after rejecting some of those same principles in Gonzales. So while
both wings of the Court are exposed to the attitudinalist critique, Court conservatives can more easily justify their
position on points of principle.
[*1289] This Article will show how assault weapons might be protected under Heller as a threshold matter, how
Stenberg's guarantee of better methodologies to protect life or health applies just as easily to the assault weapons
question, and how the response of Court liberals to an assault weapons case will be an important test of the
attitudinalist critique. Part I will show how the assault weapons question emerged, and position it in the context of
gun-control politics. Part II will show how assault weapons fit within the category of firearms protected under Heller's
common-use test, and how assault weapons, like all firearms, exhibit special marginal utilities (SMUs) that make them
especially effective in certain categories of self-defense. Part III will show that the principles rendered in Stenberg apply
just as easily, and sometimes more so, to assault weapons, putting the liberal wing of the Court to a test of principle
that is much tougher to overcome than the roughly parallel burden that Gonzales poses for Court conservatives.
I. Assault Weapons and Modern Politics
The first fight is about definitions. Some people still believe the assault weapons debate is about machine guns. n29
This is not surprising given that proponents of the 1994 ban were counting on precisely that confusion. n30 The
calculation was political. Josh Sugarman of the Violence Policy Center argued in 1989 that the public had lost interest
in handgun control. n31 He counseled the anti-gun lobby to switch to the "assault weapon issue," n32 which they did
in 1989 to great success. n33 In Sugarman's words:
Although handguns claim more than 20,000 lives a year, the issue of handgun restriction consistently remains a non-
issue with the vast majority of legislators, the press, and public... . Assault weapons ... are a new topic. The weapons'
menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault
weapons - anything that looks like a machine gun is assumed to be a machine gun - can only increase the chance of
public support for restrictions on these weapons. n34
[*1290] One of the most salient descriptions of this maneuver is actually quoted by Justice Thomas in his Stenberg
dissent. n35 Commenting on the legislative use of technically inaccurate pejoratives to label regulated activity (e.g.,
"partial-birth abortion"), Justice Thomas quotes an analysis of the assault weapons legislation:
Prior to 1989, the term "assault weapon" did not exist in the lexicon of firearms. It is a political term, developed by
anti-gun publicists to expand the category of "assault rifles" so as to allow an attack on as many additional firearms as
possible on the basis of undefined "evil" appearance. n36
Steven Halbrook clarifies that after World War II, "assault rifle" (compare "assault weapon") became a standard military
term to describe a specific type of machine gun:
The official U.S. Department of Defense manual on Communist small arms states: "Assault rifles are short, compact,
selective-fire weapons [i.e., machineguns] that fire a cartridge intermediate in power between submachine-gun and rifle
cartridges. Assault rifles have mild recoil characteristics and, because of this, are capable of delivering effective full
automatic fire at ranges up to 300 meters." The usage became so accepted that the U.S. Supreme Court referred to the
American Armed Forces M-16 selective fire rifle as the "standard assault rifle." n37
Despite its dubious origin, the assault weapon designation is now a fixture in the gun-control debate. So while there
are disagreements about what, if anything, constitutes an assault weapon, n38 I will use the 1994 ban classifications to
talk about them here. Under that legislation, assault weapons are principally semiautomatic n39 rifles, with features like
pistol grips, folding stocks, and bayonet lugs, that feed ammunition through a detachable box magazine (DBM). n40
From a crime-control perspective, the regulation of assault weapons is mainly symbolic. n41 I have demonstrated
previously that supply [*1291] restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work
without a willingness and ability to reduce supply to levels approaching zero n42 - an impossible feat in a country with
300 million guns tightly held by people who think they are uniquely important tools. n43 Internationally, the defiance
ratio in places that have attempted confiscation and registration is 2.6 illegal guns for every legal one. n44 That is just
the average. n45 In many countries defiance is far higher. n46 And none of those countries has as deep and entrenched a
gun culture as the United States. n47 This remainder problem and defiance impulse mean that we are far past the point
where supply restrictions can work.
Moreover, post-Heller, taking the supply to zero is explicitly constitutionally prohibited. This means that
prospective supply restrictions on the roughly 1.5% increase in the civilian inventory that occurs each year n48 - some
fraction of which are assault weapons - are worse than ineffective because they fuel delusions that something important
has happened on the violence policy front. They are worse still where they amount to pandering by people who
understand the problem well enough to know that restrictions just on certain guns will consume our energy, but will
not reduce gun crime. n49 That said, campaigning for assault weapons bans persists. n50
II. Heller's Commonly-Owned Firearms and the Spectrum of Self-Defense Utilities
A. Heller's Common Firearms for Private Self-Defense
Although Heller has been criticized for failing to resolve all of the questions that swirl around the newly clarified
Second Amendment, n51 it does offer a formula for establishing the rough boundaries of protected firearms. n52
Noting that the Court's previous effort in United States v. Miller n53 focused less on who is protected and more on
what weapons are protected by the Second Amendment, the Heller Court highlights the problematic results of Miller's
suggestion that "only those weapons useful in warfare are protected." n54 The Heller majority writes: "We think that
Miller's "ordinary military equipment' language must be read in tandem with what comes after: "Ordinarily when called
for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in
common use at the time[]'... for lawful purposes like self-defense." n55 With this elaboration, the Court defines the
boundaries of constitutionally protected arms.
As a threshold matter, in contrast to the ambiguous implications of Miller, Heller's common-use formula provides
a relatively narrow range of protection that easily excludes the vast majority of military arms. n56 Excluded by
definition are possibilities that, pre-Heller, were snidely advanced to undercut the individual-rights view - for example,
does the Second Amendment mean you can have tactical nuclear weapons and stinger missiles? n57 By definition, any
device that would destroy both the self-defender and the attacker in situations that satisfy the imminent threat
requirement are outside the envelope. So no, you do not have a Second Amendment right to a nuke, a howitzer, or a
stinger, because within the boundaries of private self-defense, they would blow you up too. This does leave room for
dispute about fully-automatic infantry rifles. But as a practical matter that question is essentially settled. The Court
already has said that machine guns might be excluded. n58 They are [*1293] numerically uncommon, n59 have been
regulated as an exceptional category for decades, n60 and introduction of new ones is barred by law. n61
So if machine guns can be restricted, what about assault weapons? Heller suggests criteria for answering at least
part of that question. First, Heller's explicit validation of firearms for self-defense n62 shows that the visceral reaction
some people have to guns that seem built for fighting rather than sport n63 is no longer a sufficient gauge of
legitimacy. Second, Heller's common self-defense criteria suggests at least two obvious ways to qualify: A gun might
be common because it is widely owned - for example, a Remington shotgun with sales in the millions. n64 A gun
might also be common because it is functionally the same as other common guns - for example, a custom-made
shotgun that operates just like the widely-owned Remington.
1. Are Assault Weapons Numerically Common?
Fundamentally, assault weapons are semiautomatic firearms, distinctions among which border on incoherent. n65 As a
type, [*1294] semiautomatics are quite common. n66 The technology is at least a century old in both handguns and
long guns (including rifles and shotguns). n67 For example, the Browning Auto-5 semiautomatic shotgun was
introduced in 1902. n68 The Colt 1911 .45-caliber semiautomatic pistol was adopted as the U.S. military sidearm in
1911. n69 The Remington Model 8 semiautomatic rifle was patented in 1900. n70 Even today, with its magazine
protruding below the breech, the Model 8 is roughly an assault weapon type. n71 These guns and millions of other
semiautomatic rifles, pistols, and shotguns, have circulated in the civilian inventory for generations. n72
Estimating the total number of semiautomatics in the private inventory is difficult. Many were sold before even
nominal record-keeping was required under federal law. n73 Many others were sold by the U.S. government under the
now-century-old Civilian Marksmanship [*1295] Program. n74 Still, it is evident that semiautomatics are widely
owned. n75 In the early debate over the 1994 ban, researchers from the Harvard School of Public Health surveyed
whether people who owned semiautomatic firearms exhibited personal characteristics different from other gun owners.
n76 This study reflected the subtext of the 1994 ban that something about the appearance of assault weapons attracted
worrisome people, and the researchers pressed this point with the argument that owners of semiautomatic guns reported
binge drinking more often than other gun owners. n77 For our purposes, the most significant finding was that sixty
percent of gun owners reported owning some type of semiautomatic firearm. n78 This does not mean they all owned
the archetypal AR-15. n79 However, it does suggest that a clear majority of gun owners have at least one gun that will
fire as fast as they can pull the trigger. So it is just not credible to say that semiautomatic technology is unusual or
There is still the question whether the appearance of particular guns somehow makes a difference. I have argued
elsewhere that the focus on things like pistol grips, ignoring functionality, borders on the absurd. n80 Even ardent gun-
control advocates have called the distinctions "laughable." n81 Groups like the Brady Campaign to Prevent Gun
Violence make perfunctory attempts to sustain these distinctions, n82 and the [*1296] discussion below will address
those efforts. n83 But for now, realize that semiautomatics with military features (e.g., pistol grips and bayonet lugs)
have dominated firearms sales in recent years, with the AR-15 (the archetypal assault weapon) now the best-selling rifle
type in the United States. n84 With Democrats in control of Congress and the White House, it is widely reported that
overall sales of semiautomatic rifles have escalated to record levels. n85
2. Are Assault Weapons Functionally Common?
Deciding whether a gun is functionally common requires some context. All guns have SMUs that make them better or
worse options as self-defense scenarios shift. n86 The two basic categories of civilian firearms, long guns and
handguns, exhibit respective SMUs of superior [*1297] ballistics n87 and concealability. n88 The handgun's
concealability also produces the greatest externalities. n89 Most gun crime is handgun crime. n90
Cutting the categories more finely, both long guns and handguns come in a range of ballistic variations (firing
low, intermediate, or high-powered ammunition) n91 and a variety of repeating technologies. Fully automatic repeaters
(true machine guns) are rare in civilian hands. n92 Semiautomatics, including assault weapons, use part of the energy
from the fired cartridge to reset the firing mechanism. n93 Other sorts of repeating technologies use a combination of
muscle and mechanical power. n94 Some of these technologies are exactly as fast as semiautomatic technology. For
example, double-action revolver technology (in both handguns and some long guns) fires with each pull of the trigger
like a semiautomatic. n95 Manual repeaters - for example, cowboy-style lever actions, pump actions, and bolt actions -
will be slower than semiautomatics by fractions of seconds to multiple seconds, depending in part on the proficiency of
the user. n96 Multi-barrel technology may be [*1298] faster than semiautomatic but typically with fewer shots
available before reloading. n97 Finally, repeating multi-projectile technology (i.e., semiautomatic, pump, or lever-
action shotguns) actually fires more projectiles faster than any of the rifles designated as assault weapons. n98
Granting the assault weapons designation a rational construction, the objection must be to multishot capability.
n99 The DBM ammunition feeding device is central to the designation. n100 For policymakers who seem to have
devised ban lists by searching picture books for guns that looked scary, n101 it is understandable that the DBM, a
visually distinct multishot feature, would stand out. But is it unusual enough to fail Heller's common-use test?
Semiautomatic guns employing the DBM are a century old. n102 Many DBM guns avoid the assault weapons
designation because they do not have pistol grips, adjustable stocks, or bayonet lugs. n103 I criticized early on that
such distinctions are functionally incoherent. n104 For example, under the 1994 ban, the very same DBM gun was
both legal and illegal depending on whether someone dropped it into a different stock. n105 There is no empirical
evidence, and it is hard even to imagine plausible arguments, that features like pistol grips, bayonet lugs, and folding
stocks produce different - let alone special or extraordinary - externalities. n106
[*1299] The better explanation for these distinctions is symbolism. The objection was that assault weapon
features were combat features; assault weapons were illegitimate because they were openly geared for gun fighting. n107
Before Heller, such distinctions could be explained by the formulation that the only legitimate guns were "sporting"
guns. As a matter of policy, self-defense was submerged and even stigmatized. n108 Guns purely for defense against
human aggressors, signaled in the minds of some by bayonet lugs and adjustable stocks, could be marginalized and
outlawed. n109 With Heller's explicit protection of handguns and other common self-defense guns, n110 the "sporting
use" filter and corresponding distinctions based on appearance cannot be sustained. n111 So not only are these
distinctions in appearance functionally irrelevant, post-Heller they are impermissible.
This still leaves the question whether semiautomatics, and particularly semiautomatics that use DBMs, are
functionally distinct. The contention is these guns have exceptional multishot capabilities. n112 This is just wrong.
Multishot utility does not distinguish the assault weapon. The assault weapon is surpassed in this category by a class
of indisputably common guns that fire multiple projectiles per trigger pull and can be continuously reloaded without
disabling the weapon. The category is the ubiquitous shotgun, in either semiautomatic or manual repeating mode. n113
The assault weapon has been identified as a "spray-fire" weapon designed for shooting multiple projectiles without
aiming. n114 This is [*1300] false. n115 The shotgun better fits that description. It is designed to hit moving or
multiple targets with a cloud of projectiles, a stream of spherical "shot." n116 Depending on the loading, the number of
projectiles will range from six large projectiles to hundreds of tiny spheres smaller than a BB. n117 Shotguns do not
require traditional "aiming" and do not even have traditional sights (i.e., a rear sight through which one aligns with the
front sight to ensure a straight line between shooter's eye and the target). n118 Most shotguns have a simple bead at the
front. n119 Shotgunners will comment that they never noticed that the bead was missing, because shotguns fire to, and
impact, a visual swath rather than a precise point of aim. n120 In contrast, a rifle without its sights is relatively
nonfunctional. All common rifles of every configuration shoot a single projectile per cycle in a straight path. n121 No
matter how quickly they cycle, hitting targets reliably requires aiming. n122
Another distinction between assault weapons and the shotgun is that the shotgun ammunition supply can be
"topped off." Most repeating shotguns store ammunition in a tube magazine directly below the barrel. n123 The next
round is moved from the tube into the chamber either [*1301] by recoil energy (for semiautomatics), or manually for
pump or slide actions. n124 While the gun is deployed, the ammunition tube may be continuously refreshed with new
rounds. n125 There is no downtime to reload. n126 So not only are assault weapons unexceptional in multishot utility,
they are demonstrably inferior to the ubiquitous shotgun. n127
Comparisons between assault weapons and other repeating technologies produce similar conclusions. DBM
semiautomatics like the AR-15 are reloaded from the bottom of the breech by replacing the spent magazine with a new
one. n128 In contrast, the top-loading block clip employed by the semiautomatic M1 Garand (and also by one of the
very first semiautomatic rifles, the Mannlicher Model 1886) will achieve roughly the same practical rate of fire in
addition to firing a more powerful cartridge than the typical assault weapon. n129 After all the rounds are fired, the
block clip ejects automatically from the top of the breech, and the shooter inserts a new clip into the open breech. n130
The Garand was the standard World War II battle rifle and surplus Garands have been sold directly to private citizens by
the U.S. government for decades through the Civilian Marksmanship Program. n131
Lever action rifles, familiar emblems of the Old West with typical ammunition capacity from ten to sixteen
rounds, predate semiautomatic technology but are only slightly slower in multishot capability. n132 They also are
continuously reloadable. n133 Revolver technology of the same [*1302] vintage is essentially indistinguishable from
semiautomatic in terms of practical rate of fire (one shot for every trigger pull). n134
So in context, it is difficult to say that assault weapons impose multishot capabilities that are functionally distinct
from many other guns in the inventory of common firearms. Moreover, the entire focus on multishot capacity is
undercut by the fact that all guns are deadly, all guns have distinct SMUs, and those utilities produce their own distinct
externalities. The handgun, which is explicitly protected by Heller, accounts for most gun crime. n135 Assault
weapons, in contrast, are very rarely used in crime. n136 So on this measure as well, the assault weapon is easily
within the boundaries of protected firearms.
B. The Regulatory Paradox: Special Marginal Utilities and Peculiar Externalities
Within the inventory of common firearms, each gun type has distinct utilities at the margin that make it more or less
suitable as self-defense scenarios shift. These differences in SMUs are crucial to the assault weapons distinction, but
they also present a paradox. To satisfy even a threshold rational-basis analysis, the state must show that banned assault
weapons have some identifiable SMUs that produces special externalities when abused. n137 Thus the paradox: if the
distinction is sound - if the ban is rational - it also is an admission of special utility. And that paradox poses a pivotal
constitutional question. As Justice Breyer and others have criticized, Heller does not tell us how to cut such knots.
n138 But Stenberg does.
The controlling question in Stenberg was whether the banned D&X abortion procedure was sometimes the better
methodology for preservation of the life or health of the mother. n139 Because D&X was found to be necessary in rare
cases to preserve the life or health of the mother, the ban was deemed unconstitutional. n140 This section will examine
the parallel assault weapons question: do the SMUs exhibited by assault weapons make them better alternatives than
other common guns in a particular spectrum of self-defense scenarios, where by [*1303] definition the life of the right-
bearer is at stake? Subsection 1 will describe purely objective SMUs - physical measures that can be precisely
calculated. Subsection 2 will summarize "tactical" SMUs - more subjective assessments that rely on human judgments
about the relative effectiveness of different technologies.
1. Objectively Measurable Utility
The typical assault weapon fires an intermediate power cartridge that is less destructive than cartridges employed in
sporting rifles (many of them semiautomatics) used for hunting medium to large game. n141 So on this criteria the
typical assault weapon actually complements the state's interest in reducing firearms externalities. An explicit
comparison is helpful.
Consider first the AR-15. n142 It is the quintessential assault weapon. It exhibits all of the objectionable features
identified in the 1994 ban. n143 It typically fires a lightweight 55 to 62 grain, .223 caliber/5.56MM projectile. n144 In
contrast, most hunting rifles that were broadly exempted from the 1994 ban are ballistically far superior to the AR-15.
n145 Many of them are DBM, semiautomatic repeaters chambered for cartridges like the .30-06 Springfield, n146
which fires bullets three to four times heavier than the .223. n147 Two prominent examples are the Remington 7400
n148 and the Browning BAR, both explicitly excluded from the 1994 ban. n149 Also excluded was the M1 Garand,
n150 the U.S. Army battle rifle used in World War II and featured prominently in the film Saving Private Ryan. n151
In [*1304] appearance the Garand seems closer to the Remington or the Browning. It features a traditional wood stock
and has none of the typical assault weapon features except for an unobtrusive bayonet lug. n152
The .30-06 cartridge, fired by the Remington, the Browning, and the Garand as fast as one can pull the trigger,
propels a 150-grain bullet (nearly three times heavier than the 55-grain projectile typical for the AR-15) at 3100 feet per
second producing muzzle energy of 3200 foot-pounds. n153 At 400 yards it is still traveling at 2058 feet per second,
carrying 1410 foot-pounds of energy. n154 In contrast, the far smaller and lighter .223 fired by the aggressively-styled
AR-15 produces 1282 foot-pounds of energy at the muzzle and 296 foot-pounds at 400 yards. n155 These measures for
the .223 are from a test barrel that is typically six to eight inches longer than the sixteen-inch barrel of the most
aggressively styled "M4 clone" version of the AR-15 (distinguished by the shorter barrel and adjustable stock). n156
As barrel length decreases, so does destructive energy because the pressure in the short barrel is dissipated in the
atmosphere instead of building behind the bullet for a longer time and space. n157
The physics are plain. The 1994 ban outlawed guns that are demonstrably less lethal than millions of government-
approved "sporting" guns and countless actual military rifles that just do not look very dangerous. The ballistic
superiority of many sporting guns is not a function of more recent or more advanced technology; some of the earliest
semiautomatic "sporting" rifles manufactured in America produce more destructive energy than the AR-15. n158
Moreover, many exempt semiautomatic "sporting" rifles are available in cartridges that are ballistically superior even to
the .30-06. For example, the previously-discussed Remington and Browning semiautomatics are available in [*1305]
magnum calibers like the .338 Winchester Magnum, which generates nearly double the ballistic energy of .30-06
(again, firing as fast as one can pull the trigger). n159
True, at some point discussions about muzzle energy become moot. The practical difference between the .30-06 and
the .338 in terms of lethality at usable distances may be negligible. But that is because both calibers are in the same
ballistic category. n160 However, the intermediate cartridges fired by the typical assault weapon are in a lower power
class. n161 They are less lethal across their entire ballistic range. n162 Indeed, as a hunting cartridge, the .223 (the
AR-15 cartridge) is widely considered suitable only for "varmints" (e.g., ground squirrels or prairie dogs). In many
places it is illegal for hunting deer or other medium-to-large game because it tends just to wound rather than cleanly
kill the animal. n163
The ballistic inferiority of the assault weapon is a matter of conscious design. n164 The typical assault weapon
cartridge is explicitly intended to wound rather than kill. n165 So ballistically, not only is the AR-15 not exceptionally
dangerous, its lower lethality actually complements the state interest in controlling negative externalities. And from the
perspective of the gun user, these ballistic characteristics translate into another important utility.
For many older, weaker, or smaller people, the relatively low-powered assault weapon offers an easier learning
curve, less punishing practice, and an ease of use that is unmatched by other choices. The semiautomatic configuration,
whose repeating mechanism uses some of the energy that otherwise would contribute to recoil, makes the gun more
manageable than other technologies firing the same cartridge. n166 [*1306] Comparatively, the substantial recoil from
the shotgun disqualifies it as a defensive tool for many people. n167 The same is true for medium-to-large game
sporting rifles. n168 The recoil from many of these is punishing, bruising, and makes practice, and therefore
proficiency, difficult. n169 Even the M1 Garand, though its recoil is reduced by its semiautomatic design, produces
comparatively much greater recoil because it fires the powerful .30-06 cartridge. n170 The Garand is also relatively
heavy and long, making it generally difficult for smaller people to manipulate. n171
Assault weapons also present ergonomic and operational advantages over alternatives. The typical assault weapon is
easily fixed with optics that enhance aiming and accuracy. n172 The carbine length of the typical [*1307] assault
weapon exploits the long-gun's more stable sighting platform (the shooter stabilizes the gun at four contact points - two
hands, the shoulder pocket, and the cheek weld). n173 The handgun, in contrast, is more difficult to hold steady. Even
with a two-handed hold it enjoys half the contact points of the long gun, and then requires the user to employ open
sights, which means aligning three different planes of sight (rear sight, front sight, and target). n174 This is harder to
do as people age. n175 Moreover, at any age, proficiency with the handgun requires more practice and a higher level of
skill and dexterity. In fact, some double action revolvers have such heavy trigger pulls that many adults cannot operate
them. n176
2. Tactical (Subjective) Special Marginal Utilities
Some assault weapon SMUs are more subjective in the sense that users, both ordinary and expert, will exhibit different
personal preferences for them as self-defense scenarios shift. n177 Among professional trainers of both police and
civilians, the assault weapon is widely recommended as the most versatile and effective self-defense tool. n178
Professional instructors list ruggedness, ergonomics, accuracy, low recoil, versatility, and other tactical advantages that
make the assault weapon a premium self-defense technology. n179 This is especially true for the AR-15, whose
military and law enforcement pedigree means that "the top tactical minds of our generation have figured out the best
ways to use AR-platform guns in all sorts of scenarios." n180 Because the assault weapon typically fires a ballistically
intermediate round, it recoils less [*1308] than high-power or magnum guns. n181 So owners of assault weapons will
tend to practice more and thus should be more capable in emergencies. n182
A separate utility appears in the militia context. As elaborated in Heller, the Second Amendment protects the
armed citizenry from which the militia may be drawn. n183 In emergencies, citizens appearing with their own guns
become a public resource. n184 People will dispute the usefulness of the unorganized militia in modern America, but
with its constitutional pedigree established in Heller, it is an important question whether certain types of guns serve
that interest more than others.
The assault weapon is the quintessential militia rifle. The AR-15, for example, is a semiautomatic rendition of the
U.S. military infantry rifle, with the important difference that it does not have automatic or burst-fire capability. n185
But otherwise, the mechanics and controls are the same and it uses the same magazines and ammunition. n186 In
emergencies where the militia becomes an important resource, civilians who are familiar with or own such guns will be
more useful than others as adjuncts to public security forces.
While the militia utility anticipates a community response to public emergencies, public emergencies also generate
private risks. In other work, I have described private guns held for these occasions as "stormy-day" guns n187 - firearms
held for episodes like those anticipated by the National Governors Association when it complained that the heavy use
of the National Guard in war fighting leaves states vulnerable in an array of public emergencies. n188 The assault
weapon is the model stormy-day gun. Its multishot capability neutralizes the numerical advantage of multiple
aggressors or a mob. n189 The intermediate cartridge operates to [*1309] neutralize both a wounded attacker and his
caretakers. n190 This same feature lessens the burden on innocents when the gun is abused. n191 The appearance of the
assault weapon is distinct enough even at a distance to achieve deterrence by brandishing. n192 Other guns are
decidedly inferior stormy-day options. The handgun, by definition a last-ditch tool limited essentially to contact
distance, would be useful only at distances where it may be too late to fight back. n193 Shotguns and hunting-caliber
rifles are inferior because they recoil harder and thus are harder - and for some, impossible - to use. n194 The rational
actor, thinking about self-defense under a range of circumstances, has sound reasons to count the assault weapon as the
best alternative in the inventory of common firearms.
III. Assault Weapon Bans and the Stenberg Standard
The discussion so far shows that assault weapons fit comfortably within the category of common firearms nominally
protected under Heller n195 and that they exhibit SMUs that are especially important to particular types of people and
in particular categories of self-defense. But what happens when the SMUs of common firearms are claimed to produce
peculiar externalities that the state wants to combat by banning them? The question takes us beyond Heller. But it is
the core of Stenberg. Substituting firearms "technologies" for abortion "methodologies," whether to protect the special
life-saving utilities of assault weapons against a government ban that forces reliance on lesser alternatives, is the
question of principle answered in Stenberg.
At first glance the assertion of broad parallels between abortion and gun rights jurisprudence seems odd. However,
on core principles there is a broad intersection between the two claims. This is evident from the many treatments that
build the abortion right on the self-defense principles that undergird Heller.
More than a decade ago, I showed that the ideas and principles used by the Court and scholars to draw the
unenumerated right to abortion out of the Constitution run remarkably parallel to, and in core cases build directly upon,
arguments and principles supporting a constitutional [*1310] right to arms for self-defense. n196 That article,
Principles and Passions, argued that the "standard position of the left" perversely disparages claims of a right to armed
self-defense under the Second Amendment, but exalts a derivative and relatively weaker unenumerated right to abortion.
n197 As the analysis here will show, the standard position endures and is reflected in the abortion and gun jurispru-
dence of the Court's liberal wing. This, attitudinalists will say, is exactly what we should expect. n198
I will show here how the assault weapons question raises parallel issues of special self-defense utility and how the
Court's treatments of the abortion and gun questions invoke the attitudinalist critique. Section A summarizes the
argument that there are controlling parallels between the abortion and gun rights claims. Section B extends that
argument to the particular parallels between assault weapons and partial-birth abortion as evaluated under Stenberg, and
illustrates the burden of principle Stenberg poses for the liberal wing of the Court. Section C incorporates the Court's
treatment of partial-birth abortion in Gonzales which, in its constriction of Stenberg, poses for Court conservatives a
similar but lesser rendition of the attitudinalist challenge.
A. Self-Defense and the Derivative Right to Abortion
As I highlighted in Principles and Passions, one of the obvious illustrations of the abortion / gun rights parallel is
Donald Regan's effort to situate the abortion right within the spectrum of permissible self-defense scenarios. n199
Regan begins with the model case of self-defense against a willful criminal attacker. n200 After many contortions, he
plots at the far end of the self-defense spectrum several weaker scenarios he says are analogous to the self-defense claim
of a woman who chooses abortion in order to avoid the physical trauma of child birth. n201 Regan's analysis is
particularly important because it shows the relative strengths of the abortion and self-defense claims. The strongest
abortion claim is where the mother risks death or serious injury by continuing the pregnancy. In those narrow
circumstances, abortion is just like the model self-defense case. n202 But in the vast majority of abortions there is no
[*1311] threat to the life of the mother. n203 So under Regan's analysis, most abortion claims are qualitatively weaker
than most self-defense claims.
Regan's arguments have generated a wide following, and were even invoked by Justice (then Judge) Ginsburg in
her own commentary supporting the abortion right. n204 Regan's is one of many essays and articles that I critiqued in
Principles and Passions. n205 A second is Judith Thomson's effort to justify abortion as a matter of moral philosophy.
n206 Cass Sunstein has said that Thomson and Regan provide the strongest justifications for a constitutional right to
abortion. n207
Through a series of self-defense analogies, Thomson argues that, even conceding that the fetus is a person at
conception, with a life-interest equal to the mother's, abortion still can be justified. n208 She posits the case of a
mother trapped in a very small house with a rapidly growing child. n209 The child is growing at such a rate that it
threatens to crush the mother against the walls of the house. n210 Here, she insists, we cannot say that the mother "can
do nothing, that [the mother] cannot attack it to save [her] life." n211 Her analysis rests on a right of self-defense that
she presumes is a universal value so fundamental that it can carry by slim analogy n212 a broad right to abortion. n213
In 1989, Susan Estrich and Kathleen Sullivan argued, among other things, that abortion was at the heart of
constitutionally protected choices because "few decisions can more importantly alter the course of one's life than the
decision to bring a child into the world." n214 The self- [*1312] defense choice presents obviously higher stakes. It is
not the course of one's life, but one's very existence that is at stake.
Estrich and Sullivan presented their arguments explicitly as an appeal to Justice O'Connor, at the time the only
woman on the Court. n215 By 1992, Justice O'Connor stood with the majority in Planned Parenthood of Southeastern
Pennsylvania v. Casey, concluding that the abortion right involves choices "central to personal dignity and autonomy,
[that] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define
one's own concept of existence, of meaning, of the universe, and of the mystery of human life." n216 Liberty, said the
Court, includes more than those rights already guaranteed by the first eight Amendments to the Constitution. n217 The
Court further explained that the
full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out
in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable searches and seizures; and so on. n218
It is fair then to consider the first eight Amendments - including a right to arms now affirmed in Heller - as the
foundation of liberty guaranteed by the Fourteenth Amendment. The abortion right, plainly unenumerated, may be
harder to extract but still can be plausibly inferred. The irony of the standard position is the suggestion that the
Constitution inferentially protects the abortion right, but not the gun right that is rooted explicitly in the text.
Within the broader abortion / gun rights intersection, the comparison between partial-birth abortion and assault
weapons claims is apt, both analytically and politically. From the view of the opposition, both assault weapons and
partial-birth abortion are extreme manifestations of the contested right. n219 Both are contrasted to other less
controversial manifestations of the broader right and those alternatives feed arguments that the right can be respected
without permitting these especially aggressive, unnecessary, or unjustifiable renditions of it. As a quantitative matter,
both represent a fraction of what opponents object [*1313] to. n220 Both present a tragedy of competing interests -
neither the mother nor the self-defender wants to destroy another life-interest and each is pushed by exigency to the
decision. Both are vigorously defended by supporters on the view that the constitutional protection is fragile and that
defeat in this limited context would not end the controversy, but just embolden opponents who oppose the right
absolutely. n221 Both demand analysis that many people find repugnant - for example, the graphic comparisons of late
term abortion procedures or discussions of relative wound ballistics between assault weapons and hunting rifles.
B. A Right to Better Methodologies for Preserving Life and Health: Stenberg, Gonzales, and the Attitudinalist
Dissenting in Heller, Justice Breyer complained that the majority failed to supply a standard of review for future cases.
n222 Ironically, on the discrete question of assault weapons, Justice Breyer's majority opinion in Stenberg provides an
especially apt methodology for administering the competing interests of the right-bearer and the state.
Stenberg involved a challenge to Nebraska's ban on the controversial D&X abortion procedure, described by the
statute as "partial birth abortion." n223 The Court held the statute unconstitutional because it failed to include an
exception where the doctor judged the procedure necessary to protect the life or health of the mother. n224 A very
similar procedure, D&E (which Justice Stevens argued is nearly indistinguishable from D&X) n225 remained legal, as
did the full range of less controversial, earlier-term abortion procedures. n226 So, just like the assault weapons case, the
Court already had recognized the core right (abortion) but now wrestled with the right-bearer's claim to a particular
controversial variation.
Stenberg's protection of methodological variations best suited to saving the life of the right-bearer extends
smoothly to the assault weapons question, and on several points actually applies more easily to the assault weapons
case. This raises for the Stenberg majority the attitudinalist challenge. Is Stenberg advanced on a point of principle? If
so, then it should extend to the demonstrably easier case of assault weapons. Perhaps, though, Stenberg just confirms
the attitudinalist proposition and is a predictable manifestation of the standard position - unprincipled, political, a mere
reflection of tribal allegiances. If so, then [*1314] the assault weapons claim, though stronger, will be denied the
protections Court liberals established for partial-birth abortion. n227
As summarized in the Introduction, the Court treated the partial-birth abortion question again in Gonzales v.
Carhart. n228 This time, Court conservatives were in the majority and they predictably resurrected several of the
arguments from their dissents in Stenberg - arguments that weaken Stenberg and diminish the support the assault
weapons claim draws from it. n229 Gonzales, for example, gives the state more leeway to restrict methodologies
"necessary" to protect the life of the right-bearer, where adequate alternatives are available. n230 This and other
arguments advanced in Gonzales may ultimately expose Court conservatives to the attitudinalist challenge.
Subsection 1 will elaborate the parallels between the assault weapons and partial-birth abortion claims, apply the
principles developed by the Stenberg majority to the assault weapons claim, and elaborate the attitudinalists' challenge
that Stenberg poses for Court liberals. Subsection 2 will focus on the dissenters' criticisms of Stenberg to show how
the parallel assault weapons question avoids those objections and is thus the stronger claim. Subsection 3 will evaluate
how Gonzales, which diminishes Stenberg in key areas, raises the attitudinalist challenge for Court conservatives.
1. Stenberg Principles and the Assault Weapons Intersection
Stenberg protects the right-bearer's access to marginally better methods of abortion where her life or health is at stake.
n231 This right to "better" variations of the broadly protected right to abortion prevails in the face of empirical dispute
over whether the methodology really is better, n232 over empirical objections that it is actually worse (riskier), n233
over objections that it cannot really be distinguished from other available methodologies, n234 and over objections that
the state's interest in regulating the procedure is extraordinarily powerful, because it borders [*1315] on infanticide.
n235 These positions and the principles that support them transfer readily to the assault weapons question.
a. Protecting Best Methodologies for Preservation of Life and Health
The Stenberg majority flatly rejects the assertion that the constitutional right to abortion is adequately respected by the
availability of safe alternatives to the disputed D&X procedure. n236 Writing for the majority, Justice Breyer makes
plain that where the woman's life or health is at stake, she is entitled to the superior abortion procedure. n237 Even
postviability, the government's interest in the life of the fetus must give way to medical judgments that the procedure
is necessary to preserve the life or health of the mother. n238
Stenberg's protection of better methodologies for exercising a core constitutional right speaks squarely to the self-
defender's parallel interest in the best tool for particular categories of self-defense. n239 Indeed, people who cannot
manage the weight or recoil of a heavier, more powerful gun, or the dexterity demands of the handgun, n240 have a
substantially different and stronger claim. For them, the assault weapon may always be the better alternative.
b. The Dispositive Empirical Question: Is the Disputed Methodology Never the Best Option?
The empirical debate over whether D&X is ever the best alternative for saving the life or health of the mother sharpens
the core message of Stenberg: If the state can show that the contested methodology is never the best option for
protecting life or health, then the partial-birth abortion ban is permissible. n241 According to the majority, the State
simply [*1316] failed on the factual showing. n242 On the view of at least some medical experts, D&X "may be the
best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." n243
In the assault weapon context the state would face the equivalent burden of showing that assault weapons are never the
best self-defense option. This is difficult first because of the regulatory paradox (i.e., the claim of special externalities is
also an admission of special utility). n244 Also the claimant's burden is comparatively easier because assault weapon
utility is easier to quantify than partial-birth abortion utility. n245 Partial-birth abortion utility is controversial because
of disputes between doctors that are in part subjective - a function of what methodology particular doctors prefer. n246
Assertions of assault weapon utility - lower recoil, less lethal ammunition - are grounded on less contestable,
objectively measurable physical characteristics. n247
Stenberg's "never the best option" filter also helps define the proper scope of state regulation in a way that
supplements Heller's common-use test. The demand in at least some cases that the disputed methodology be the
superior option means that firearms that are always inferior and which impose special externalities would not be
protected. For example, unreliable, inaccurate guns that are prone to malfunctioning or injuring the user, like the
infamous zip gun n248 or the poorly identified "Saturday Night Special," n249 might be banned on the argument that
they are universally inferior and often used by people who are prohibited from having guns. n250
c. Disputed Utility: Rarity
The State argued in Stenberg that the D&X procedure was not a protected methodology because it was very rarely
used. n251 Only a very small fraction n252 of the million or so abortions per year are D&X procedures. n253 And only
a fraction of that fraction involve a threat to the life of the mother. n254 The majority rejected this argument, ruling
that a burden on a particular methodology "unduly burdens the right to choose abortion itself." n255 Rarity of the
procedure, said Justice Breyer, "is not highly relevant." n256 The deciding focus is those occasions that "could strike
anyone" where D&X is the best methodology. n257 "The State cannot prohibit a person from obtaining treatment
simply by pointing out that most people do not need it." n258
In the gun context, this answers the criticism that stormy days of high assault weapons utility are thankfully rare.
Rarity, Justice Breyer emphasizes, "is not highly relevant." n259 The deciding factor is that assault weapons exhibit
special utilities in particular scenarios, "which could strike anyone." n260 The state cannot deny right-bearers who
require the SMUs of assault weapons on the argument that "most people do not need" them. n261
Realize also that the rarity-parallel gains an extra feature in the assault weapons case because the assault weapon is
not just a stormy-day tool. For smaller, weaker people, strength and dexterity requirements of shotguns or handguns
eliminate them entirely as alternatives. n262 For many of those people, assault weapons might always be better self-
defense tools.
[*1318] The Stenberg Court takes the point a step further, acknowledging that rarity might reflect that D&X truly
has no special utility. n263 Empirically there was strong evidence to support this, n264 but the dispute was resolved in
favor of the right-bearer. n265 So even if there is dispute about stormy-day utility or whether assault weapons are a
better choice for people who cannot be proficient with other guns, Stenberg principles dictate that plausible claims of
SMU trump gun bans. Remember also the state's dilemma. Unless the assault weapon does in fact have some special
utility, the initial decision to ban it is not even rational. n266 But, says Stenberg, once demonstrated, this utility, even
if rarely accessed, trumps the state's countervailing interest. n267
d. Asserted Disutility: The Contested Methodology Imposes Greater Risks than Available Alternatives
One contention in Stenberg was that the D&X procedure actually posed a greater health risk to the mother than
available alternatives. n268 The district court rejected this claim on the evidence, n269 but the argument opens a useful
comparison to the assault weapons question. First of all, no one has shown, and no facts suggest, that the assault
weapon presents a greater risk to the user than other types of firearms. On this point the assault weapons claim is
Some will object that the proper question is whether the assault weapon poses peculiar externalities - risks to the
population at large. But even loosening the analogy to accommodate that question, the argument that the assault
weapon poses greater risks does not survive the factual inquiry. It is indisputable that the handgun inflicts exponential-
ly greater costs than the assault weapon. n270 Also, the typical assault weapon, which by definition fires an
intermediate cartridge, is ballistically inferior to most deer rifles (many of which are semiautomatics), n271 so it
actually complements the state interest in limiting negative externalities.
[*1319] Finally, any argument that the assault weapon imposes special net risks is difficult to sustain because the
utilities and the externalities of all firearms are just different sides of the same coin. The things that make the assault
weapon or any other gun useful for legitimate self-defense become negative externalities where the gun is used for
crime. The assault weapons distinction rests on the implausible assertion that particular features have personalities -
with some features dedicated to good and others committed to evil. The truth, of course, is that guns and their features
function the same way no matter who operates them. So if the assault weapon has a distinct SMU, right-bearers
generally will have an interest in it that Stenberg says we must respect.
e. Disputed Utility: Erring for the Right-Bearer
Acknowledging the deep dispute over the utility of D&X, the Stenberg majority protected the abortion right by
resolving ambiguities against the government. n272 The empirical case for D&X utility was so deeply contested that
the Court did not demand "absolute proof" of SMU. n273 "Unanimity of medical opinion" was not required, and the
Court resolved the "differences of medical opinion" about the utility of D&X in favor of the mother in order to avoid
"unnecessary risk of tragic health consequences." n274 And if it turns out the Court is wrong about the utility of D&X,
said Justice Breyer, then that is a lesser harm because "the exception will simply turn out to have been unnecessary."
The parallel assault weapons claim is clearer and easier to evaluate because much of it is objectively measurable
(i.e., weight, recoil, and lower lethality). These factors weigh in favor of assault weapons protection without resort to
the Stenberg principle of erring for the right-bearer. It is only in the context of the subjective SMUs (which are not
essential to establish the claim) that the assault weapons claim might require Stenberg burden-shifting. And even on
these subjective measures, the assault weapons argument is stronger than the Stenberg abortion claim.
Stenberg recites the deep divisions among experts about the utility of D&X. n276 Even though the American
College of Obstetricians and [*1320] Gynecologists' report "could identify no circumstances under which [D&X]
would be the only option to save the life or preserve the health of the woman," the Court protected the procedure on the
authority of other expert testimony. n277 There is nothing close to this type of dispute about the subjective SMUs of
the assault weapon. Indeed, the assertion of special externalities, and thus special utility, is what prompts assault
weapons regulation in the first place. n278 However, even where the state manages a plausible argument that assault
weapons present more costs than benefits, n279 Stenberg resolves doubt in favor of the right-bearer. n280
f. A Critique of Irrational Distinctions
Justice Breyer argues that the Nebraska statute does not really further the state's asserted interest in the "potentiality" of
human life - that it is not geared to actually save any particular fetus from destruction because it only affects a rare
method of abortion and abortion by other methods is freely available. n281 So the rationale for the partial-birth
abortion ban is illusory because abortion is a broadly protected constitutional right that unquestionably could be
exercised through alternative means. Indeed, Justice Breyer contends that the D&X ban is irrational because the statute
makes it hard to distinguish between D&X and the ostensibly legal D&E procedure. n282 So even the interest in
avoiding destruction of the fetus through a particularly troublesome methodology is not achieved. Justice Stevens's
short concurrence puts the argument bluntly: the Nebraska statute is not rational because there is no reason to believe
that the banned procedure is any "more brutal, more gruesome, or less respectful of "potential life'" than the permitted
procedure. n283
[*1321] Here Justices Stevens and Breyer track almost exactly criticisms that I and others leveled at the 1994 ban.
I argued that banning the AR-15 and exempting the visually-distinct but functionally-equivalent Mini-14 was
incoherent - that distinctions elevating appearance over function were silly. n284 The assault weapons distinction is
incoherent because multiple other guns remain available, all of them are similarly deadly, many of them are objectively
more lethal than the assault weapon, and an entire category of explicitly constitutionally protected guns (handguns)
account for the vast majority of gun crime. n285 Tracking Justice Stevens's Stenberg argument, how does a ban on
semiautomatic guns with pistol grips and folding stocks serve the state interest in limiting firearms externalities when
functionally identical and far more destructive guns are explicitly permitted in the same legislation and are otherwise
constitutionally protected?
Ultimately we know that "assault weapon" is a political designation that breathed life into the waning handgun
prohibition movement and was calculated to avoid the wrath of hunters by exempting millions of more-lethal
semiautomatic "sporting" guns. n286 But this only makes the earlier point another way. Semiautomatic guns are and
long have been a significant fraction of the inventory of civilian firearms. n287 Assault weapons, distinguished
primarily by appearance, n288 are a functionally indistinct and irrational classification.
g. Attitudinalism and the Cringe Factor
All of the Stenberg opinions, particularly the dissents, labor over the particulars of the contested abortion procedures.
n289 Justices Thomas and Kennedy both present the gruesome details almost as if the description alone should settle
things. n290 If the dispute really comes down to this, the attitudinalist claim that passions trump principles is
compelling. n291
[*1322] The Stenberg dissenters argue that even the technical, clinical description of the disputed procedure is
grotesque. n292 Even Justice Breyer [*1323] acknowledges, "our discussion may seem ... horrifying." n293 The
details of the assault weapon ballistics argument will strike some people the same way. Consider, for example, Dr.
Martin Fackler's illustration of the comparatively less lethal characteristics of the assault weapon projectile: "[Assertions
that assault weapon bullets are especially destructive] must cause the thinking individual to ask: ... how is it possible
that twenty-nine children and one teacher out of thirty-five hit in the Stockton schoolyard survived ... ?" n294 Dr.
Fackler's point is that assault weapons fire an intermediate round "designed to limit tissue disruption - to wound rather
than kill." n295 One response is that this large number of people would not have been shot but for the assault weapon.
The rebuttal unfortunately is that the unilaterally armed assailant is at no practical disadvantage for having to top off or
reload any of the other common firearms technologies. n296 Defenseless people are no better off whether their assailant
is using a continuously reloadable shotgun, 100-year-old lever-action rifle, or a revolver that takes seconds to reload.
n297 The broader point is that some may find this whole conversation as repulsive as others find Justices Breyer's and
Stevens's arguments that D&X and D&E are so similarly grotesque that the state cannot rationally discriminate between
the two. n298 One wonders whether principles, constitutional or otherwise, can compete with the passions stirred by
2. The Stenberg Dissents
There are, of course, distinctions between the ideas that ground abortion and gun rights, but mainly those distinctions
show that the abortion right is on more tenuous footing. n299 This subsection elaborates those distinctions by reference
to the dissenters' criticisms of the Stenberg majority.
a. Kennedy in Dissent
i. Government's Countervailing Interest: Promoting Respect for Human Life and the Impulse for Irrational Assault
Weapon Definitions
Justice Kennedy argues that the majority fails to respect Planned Parenthood of Southeastern Pennsylvania v. Casey,
in which the Court validated the state's substantial countervailing interest in "promoting the life of the unborn and ...
ensuring respect for all human life and its potential" n300 and combating things that cause society to become
"insensitive, even disdainful, to life." n301 Justice Kennedy's lament comes closer to capturing the impulse for assault
weapons bans than anything offered in legislative preambles. n302
Although assault weapon classifications make little sense functionally, they do successfully stigmatize fighting
tools. This explains the typical exemptions for functionally identical guns (just as effective for fighting) that by
appearance seem more like sporting tools. I have criticized this elevation of appearance over function as silly, but
Justice Kennedy's "insensitivity to life" theme evokes a symbolism that renders assault weapon distinctions entirely
understandable. A seminar student several years ago gave voice to it. In a deeply emotional reaction to a discussion of
the irrational classifications in the 1994 ban, she said she did [*1325] not want to be part of a society in which people
owned assault weapons. It was irrelevant to her that two guns would kill the same way, that they were identical in
function. It was vital to her that one gun by its appearance seemed clearly "intended" only for fighting! There was
something wrong with a society that allowed such things and something wrong with people who owned them. Her
essential anguish tracked Justice Kennedy's criticism. The appearance of the guns suggests we are insensitive to the
value of life. Ignoring the root political calculations, this is the purest form of the impulse for assault weapons
The answer to this is straightforward. Post-Heller, firearms for self-defense against criminal attackers are at the core
of the Second Amendment right. n303 The sporting-use designation, a key feature of federal importation rules n304
that seeped into general questions of firearms legitimacy, is now just a vestige of the pre-Heller world. So while the
impulse to ban assault weapons is understandably rooted in the symbolism of the sporting-use designation, Heller's
protection of ordinary self-defense guns nullifies the sporting use filter and places self-defense utility at the center of the
constitutional inquiry. n305
Justice Kennedy argues that the state has an interest in declaring critical moral differences between the permitted
D&E and the restricted D&X procedures. n306 The state, he says, need not be indifferent to a procedure that uses the
natural delivery process to kill the fetus. n307 This is a fair analogue to the argument that the state has an interest in
preventing citizens from defending themselves with guns that look like weapons of war, and that "silly" n308
distinctions based on appearance actually reflect important moral judgments.
One answer is that the distinctions used to classify some semiautomatic guns as assault weapons are hardly
perceptible and others are nebulous. For example, one of the things necessary to make a prohibited gun legal under the
1994 ban was swapping internal parts like the foreign-trigger group for domestic ones. n309 And for some people just
the color and constituent materials of the gun (black and synthetic versus [*1326] wood and blued steel) may be the
difference between sporting and menacing. n310 More broadly, in the context of the full inventory of common firearms,
the moral distinction is unsustainable. Is it plausible that guns easily secreted on the person (i.e., handguns, all of
which have pistol grips) are morally superior to rifles with pistol grips? Are high-powered rifles that can produce sure
kills on human targets at hundreds of yards (essentially every deer rifle ever made) morally superior to lower-powered
carbines with adjustable stocks (e.g., the AR-15)? Why are semiautomatic repeaters in intermediate calibers reprehensi-
ble but high-caliber semiautomatic, pump-, or lever-action hunting guns, and multi-projectile shotguns morally benign?
My emotional student's revulsion against the assault weapon is a tenuous platform for building policy. But if
assault weapons bans are to be sustained, it is something like that revulsion that must be elevated to a countervailing
state interest. Compared to the state interest in the partial-birth abortion case - restricting a procedure that borders on
infanticide - it seems quite trivial.
ii. Private Judgments and Public Morality
Justice Kennedy contends that the judgment of the doctor about the necessity of D&X to preserve life or health of the
mother puts a public judgment into private hands - that "it is now Dr. Leroy Carhart who sets abortion policy for the
State of Nebraska, not the legislature or the people." n311 On a question steeped in "morality," Justice Kennedy says it
is wrong to make this an individual subjective decision. n312
Contrast the assault weapons case where the mere assertion by the right-bearer that a particular technology is better
for him (the equivalent of Justice Kennedy's complaint about Dr. Carhart) is only secondary evidence of SMU. For
assault weapons, the primary claim of SMU is objective, based on distinctions in ballistics, recoil, and rate of fire that
are mechanical, repeatable, and precisely measurable.
iii. Rights on the Border of Legitimacy and the State Interest at Its Peak
Justice Kennedy emphasizes that the disputed D&X procedure is effective only when the fetus is nearly or actually
viable, a point where the state's interest in fetal life is nearing its peak and the woman's claim is weakest. n313 He
emphasizes Dr. Carhart's admission that he performs [*1327] D&X abortions even "when he is unsure whether the
fetus is viable" n314 and argues that dispatching the viable fetus through the prohibited D&X procedure borders on
infanticide because the abortion proceeds essentially as a live birth until the fetus is destroyed. n315 He argues
essentially that D&X is categorically different from other abortion procedures.
The assault weapons question avoids this criticism. There is no comparable argument that the assault weapon user
is any different from someone who has used a handgun or other unquestionably constitutionally-protected gun in self-
defense. It is the circumstances, not the gun type, that determine whether the self-defense claim is legitimate. On this
measure, the assault weapons claim is stronger. D&X, and arguably even the less controversial D&E procedure,
produces a qualitatively distinct type of destruction because the fetus has grown to look more human, is perhaps viable
outside the womb, and is destroyed in a fashion where analogies like drawing and quartering seem fair.
A different argument is that the assault weapon in criminal hands generates externalities qualitatively different from
other guns in the civilian inventory. The utility discussion above shows that while every type of gun has its SMUs, the
utility that imposes the highest externalities is the concealability of handguns. n316 Moreover, most assault weapons
are less lethal than deer rifles, and their multishot capability is exceeded by the ubiquitous shotgun. n317 The
complaint about their appearance reflects an uneasiness about making self-defense against fellow citizens a central
component of public policy. But now that Heller has done just that, the objection to "nonsporting," overtly self-
defensive guns is unsustainable.
iv. Incorporating Substantial Countervailing Interests
Justice Kennedy argues that Stenberg violates Casey by establishing a right to partial-birth abortion without any
interference from the state. n318 People will debate this construction, but it highlights an important point. Casey
acknowledged the substantial state interest in potential life throughout pregnancy, declaring that "not all regulations
must be deemed unwarranted." n319
This prompts an instructive comparison with Heller, which broadly affirms the state's interest in regulating
firearms externalities. Heller says [*1328] that most existing gun-control regulations remain valid, that laws
restricting access by felons and minors are not suspect, and that functionally distinct guns like machine guns might not
be protected. n320 That the Court has limited Second Amendment protection to guns in common use for lawful
purposes like self-defense by definition denies citizens access to substantially all of the military arsenal. n321 In this
sense Heller already endorses a broader range of government regulation than Stenberg would tolerate in the abortion
context. Under the logic of Stenberg, essentially every type of abortion procedure is guaranteed if deemed necessary to
save the mother's life. n322 Heller, on the other hand, declares that only a narrow range of common firearms are
guaranteed under the Second Amendment, and that many people by their behavior or their status can be denied even
those. n323
v. De Minimis Special Marginal Utilities
Justice Kennedy contends that the majority is "wrong to limit its inquiry to the relative physical safety of the two
procedures, with the slightest potential difference requiring the invalidation of the law." n324 The majority is
straightforward about this. Alternatives to the D&X procedure were found by the district court actually to be safe and
adequate, respecting at a reasonable level the woman's interest in having a safe procedure. n325 However, the prevailing
argument was that the prohibited procedure was safer than other safe ones. n326 Women are entitled to the better
methodology, even where that means destruction of the entirely innocent postviability fetus through a very problematic
methodology. n327
The argument that the special utilities of assault weapons can be adequately replaced by other constitutionally
protected firearms is essentially the same. Stenberg principles dictate that the state may not ban assault weapons on the
argument that alternate firearms exist, so long as the assault weapon provides an advantage. On this point as well, the
assault weapons claim is comparatively stronger. There is substantial dispute about the special utility of the D&X
procedure, with competing views plagued by subjective judgments. n328 The assault weapons case, in contrast, turns
on verifiable physical characteristics already discussed.
vi. Letting the State Take Sides in Utility Disputes
Justice Kennedy criticizes the majority for ignoring precedent that in other contexts permitted states to take sides on
disputed medical questions. n329 In the assault weapons case, this principle would demand a detailed evaluation and
deference to the state where there is fair disagreement about assault weapons' externalities. The showing would focus on
the objective evidence of functionality. Faked photo-ops and wild assertions about super-destructive assault weapon
bullets would diminish the state's position. n330 And here, the interesting question is whether Justice Kennedy would
defer to credible state findings that assault weapons impose important net externalities. Unwillingness to defer would
expose him to the attitudinalist critique.
b. Thomas in Dissent
i. Highlighting the Partial-Birth Abortion/Assault Weapon Intersection
Justice Thomas argues that the Stenberg majority goes beyond what is required to protect the mother's health. n331 He
contends that the majority fails "to distinguish between cases in which health concerns require a woman to obtain an
abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one
method over another." n332
This highlights the space where the abortion and gun claims intersect and is another illustration of their relative
strength. The Stenberg abortion right is strongest - near absolute - where necessary to preserve the life or health of the
mother. The mother is never required to surrender her life to the state's interest in the life of the fetus. n333 This is pure
abortion as self-defense claim in the style of Judith Thomson and Donald Regan. n334 But this self-defense analogy
only covers the small fraction of abortion claims where the mother's life is at stake. In contrast, essentially every gun
claim to the better methodology for self-defense invokes the principle (controlling in Stenberg) that the state cannot
trump the right-bearer's interest in preserving her own life. So over a far broader range of cases, the gun claim is covered
by the strongest rendition of Stenberg's protection of methodological alternatives. n335
ii. Tolerating Infringements at the Margin
Justice Thomas's criticism that the majority has overridden important state interests to protect a marginal, even
reprehensible, abortion methodology highlights another important distinction that makes assault weapons a stronger
case under Stenberg principles than partial-birth abortion. n336 His first point is that this is not like Planned
Parenthood of Central Missouri v. Danforth, which outlawed a procedure used in 70% of abortions after twelve weeks.
n337 His view of the Court's abortion decisions is that banning a widely used methodology is problematic, but
infringements at the margin can be tolerated. n338
The gun parallel is evident. Under Justice Thomas's view, it would be problematic to ban handguns because they
are so widely used for self-defense. n339 The assault weapon, in contrast, is like the more rarely used abortion
methodologies. In principle, then, Justice Thomas's willingness to tolerate infringements at the margin - on the view
that the core right is intact - should predict his response to an assault weapons ban. Is he trapped by inconsistency if he
votes to strike down an assault weapons ban and rejects the argument that adequate alternative guns are available?
The answer is in the details of his Stenberg dissent. Thomas invokes Danforth to press the point that D&X is not
only rarely used (it is only considered in 5.5% of abortions that occur after fifteen weeks, the vast majority of which are
performed using the D&E alternative), n340 but that "[a] select committee of [the American College of Obstetricians
and Gynecologists] "could identify no circumstances under which this procedure ... would be the only option.'" n341
So, unlike the majority, Justice Thomas concludes from the empirical debate that there is "no basis upon which to state
the claim that [partial-birth abortion] is a safer or even a preferred procedure." n342 In his view, the SMUs of D&X is
zero, and its externalities (flirting with infanticide) are off the scale. n343 In [*1331] contrast, the assault weapon
claim presents strong objective evidence of SMU. His answer, then, to the attitudinalist critique would be that there is
a broad empirical disanalogy favoring the assault weapons claim and disfavoring partial-birth abortion. Even though
they reside in similarly contested space, on this point the greater SMUs of the assault weapon makes the two claims
very different cases. n344
3. Gonzales v. Carhart: Reflecting Back the Standard Position?
In 2007, Court conservatives upheld a federal partial-birth abortion ban that distinguished and diminished Stenberg.
n345 In Gonzales v. Carhart, the Court credited congressional findings that "intact D&E" (i.e., D&X) is never the
better methodology for preserving the life or health of the mother. n346 Gonzales exposes the conservative wing of the
Court to the attitudinalist critique. It reflects one leg of what I will call the "common view" of conservatives (i.e.,
support for gun rights and disparagement of abortion rights). While Heller nominally reflects the other leg, the better
and more instructive test of the attitudinalist proposition would be an assault weapons case invoking the Stenberg
principles that conservatives opposed. n347 However, that case still would not be as open and telling a test of
conservative attitudinalism as Stenberg is for Court liberals.
The reason is in the distinction that has been evident throughout this critique. Gonzales underscores the conclusion
that the common view faces a far lighter burden of principle than the standard position. This is a function of the factual
distinctions between the partial-birth abortion and assault weapons claims. Those distinctions are illustrated broadly by
my original assessment in Principles and Passions, n348 and more particularly here. The discussion below will
elaborate the relative burdens of the standard position and the common view by emphasizing elements of the assault
weapons claim that make the common view easier to sustain as a matter of principle. n349
a. Partial-Birth Abortion as a Transformative Methodology
Writing for the majority, Justice Kennedy suggests partial-birth abortion is an appropriate object of legislative
attention because it is a qualitatively different, indeed transformative, methodology. n350 The D&X procedure is
distinct even from D&E because the relative similarity of D&X to the actual birth process transforms it from a
legitimate abortion procedure into something just short of assault on a human child.
Nothing about the assault weapon, or using assault weapons for self-defense, is similarly transformative. The
assault weapon is a gun, like other guns. It is deadly, like other guns. But it is demonstrably not the most dangerous
gun in the inventory of common firearms. n351 It does not impact targets in a different, somehow more reprehensible
way. Legitimate acts of self-defense are not rendered illegitimate because the defender uses an AR-15 instead of a
handgun. So unlike partial-birth abortion, on this test of legitimacy, the assault weapon survives.
b. Disputed Utility and Legislative Discretion
Integral to the outcome in Gonzales is the majority's willingness to credit the legislature's judgment that there is
overriding evidence of disutility: the contested statute was grounded on a congressional finding that partial-birth
abortion is never the best methodology for preservation of the life or health of the mother. n352 Justice Kennedy
dissented in Stenberg that legislatures should be permitted to take sides in this fashion. n353 Gonzales enforces that
view. Acknowledging the dispute about the utility of D&X, the majority finds the case close enough to defer to
Congress: n354
There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on
women... .
The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents
instruct that the Act can survive this facial attack. The Court has given state and federal [*1333] legislatures wide
discretion to pass legislation in areas where there is medical and scientific uncertainty... .
... .
Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does
in other contexts... .
The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives [for
example, D&E] are available to the prohibited procedure... .
... .
... Considerations of marginal safety, including the balance of risks, are within the legislative competence when the
regulation is rational and in pursuit of legitimate ends. n355
The Court does not entirely credit the congressional assessment. n356 But it does find the state interest sufficient to
trump the essentially de minimis assertions of partial-birth abortion special utility. n357 This explicitly undercuts
Stenberg and, more importantly for our purposes, exposes the Gonzales majority n358 to the attitudinalist critique. So
would the Gonzales majority defer to legislative findings that assault weapons have no SMUs or are never the better
self-defense option? If not, would they simply be indulging the common view of the right? Or can such a decision be
justified as a matter of principle? This dilemma is structurally parallel to that afflicting Court liberals, but quantitative-
ly it is quite different.
First, the deference in Gonzales is in the context of doctors' subjective preferences for competing medical
procedures. n359 In contrast, the assault weapons question is more plainly a matter of measurable physical differences.
In terms of functional utility, there is far less room to establish a parallel empirical disagreement about the assault
weapon. For example, the core measurable utility of intermediate ballistics is indisputable. n360
Still, the emphasis on the wide discretion the Court has permitted legislatures on questions of disputed medical
utility n361 poses for the Gonzales majority a threshold burden of principle in the assessment of subsequent assault
weapons bans. Justices who in Gonzales endorsed [*1334] deference to the legislature on disputed medical questions
must take pains to show that the assault weapons claim is not exposed to the same type of subjective empirical dispute
- that assault weapon SMUs are objectively measurable and that distinct assault weapons features will operate both as
SMUs or externalities purely depending on the user. n362 These distinctions are more than plausible but present a
difference of degree, not substance. Committed attitudinalists still might say it is all just a smokescreen for
conservatives advancing the common view.
c. Dominant Methodologies and Methodological Alternatives
Like Stenberg, Gonzales affirms that a broad ban on dominant methodologies for exercising the protected right would
be unconstitutional. n363 But unlike Stenberg, Gonzales permits limitations on rarely-used methodologies where good
alternatives are available. n364 Extending that principle to the gun case, a sweeping handgun ban should be treated the
same as a sweeping early-term-abortion ban. Both statutes should be struck down because they prohibit the dominant
methodology for exercising the protected right. The assault weapon, however, is like the D&X procedure under
Gonzales - a less common methodology that has substitutes - with an important difference. For some people, the light
recoil from the intermediate cartridge makes the assault weapon always the best self-defense tool. n365 This showing
would remove the "available alternatives" element that justified the infringement on marginal [*1335] methodologies
in Gonzales. n366 It also would provide cover to the conservative wing of the Court in a subsequent assault weapons
case that had to explain why infringement on marginal methodologies was acceptable in the abortion context (Gonzales)
but not in the gun case. As legal distinctions go, it seems fair. Whether it would satisfy the committed attitudinalist is
a tougher question.
d. Rejecting Physicians' Subjective Valuations
Justice Kennedy dissented in Stenberg that the majority turned individual doctors into arbiters of community morality.
n367 Gonzales gives that objection constitutional effect: "The law need not give abortion doctors unfettered choice in
the course of their medical practice, nor should it elevate their status above other physicians in the medical
community." n368 Furthermore, "when standard medical options are available, mere convenience does not suffice to
displace them; and if some procedures have different risks than others, it does not follow that the State is altogether
barred from imposing reasonable regulations." n369 So the preferences of individual doctors will not be dispositive on
the question of methodological utility.
The assault weapons comparison yields two separate points. Throughout the discussion of Stenberg, I have
emphasized that assertions of partial-birth abortion utility were primarily subjective (grounded in the surgical
preferences of particular doctors) while the primary SMUs of the assault weapon were objectively measurable. n370
However, as discussed above, the assault weapon presents a variety of "subjective" SMUs as well. n371 Conceivably,
one or more of those factors might be central to a particular aspect of a future assault weapons dispute. In a case like
that, Justice Kennedy's treatment of subjective SMU claims would invite an attitudinalist challenge.
e. Disputed Utility and Facial Attacks
Justice Kennedy explains that the questionable utility of partial-birth abortion, supplemented by the congressional
finding that it is never the best alternative, makes the statute particularly unsuited to facial attack. n372 The problem is
better suited to an as-applied challenge:
The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to
preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.
The considerations we have discussed support our further determination that these facial attacks should not have been
entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied
challenge. n373
This view imposes a substantial burden of principle on Court conservatives. It is not at all clear that the quantitative
differences between the partial-birth abortion and assault weapons claims dictate a different outcome on the facial
challenge question. So a subsequent facial attack on assault weapons legislation would be telling. Justice Kennedy's
suggestion that an as-applied challenge gives the Court a better opportunity to quantify and balance utility and risk is
easily applicable to the assault weapons question. But broadly speaking this is always the case. So there still is room
to answer that the facial challenge comparison really is not close, as shown by comparing the respective claims of
special utility. n374
Evaluation of assault weapons under the abortion standard for facial challenges is complicated by the Court's failure
to articulate a precise standard. The Gonzales majority explains, "What [the facial challenge] burden consists of in the
specific context of abortion statutes has been a subject of some question. We need not resolve that debate." n375 Justice
Kennedy acknowledges two possible views: that a facial challenge to an abortion statute "must show that no set of
circumstances exists under which the Act would be valid," n376 or that the legislation would be "unconstitutional in a
large fraction of relevant cases." n377
So a facial challenge in the equivalent assault weapons case might require a showing that no set of circumstances
exists under which the ban would be valid. This is an extremely demanding standard that, taken literally, seems to
credit almost any scenario the government can articulate. So even though assault weapons claimants might make
powerful arguments that a facial challenge to an assault weapons ban is a far stronger case, a facial challenge sustained
by conservatives still would [*1337] invite the strong attitudinalist challenge of unprincipled capitulation to the
conservative common view.
On the second, weaker standard, Justice Kennedy argues in Gonzales that respondents failed to demonstrate that the
ban would be unconstitutional in a large fraction of relevant cases. n378 On that measure the assault weapons claim is
dramatically stronger, and this underscores a distinction I have made throughout. The strongest arguments in favor of
abortion (i.e., abortion as self-defense) n379 only cover a very narrow slice of all abortions (because most pregnancies
do not threaten the life of the mother). n380 In contrast, nearly every assault weapons claim can fairly assert the right-
bearer's entitlement to the SMUs necessary to defend life against wrongful aggressors. Here, the assault weapons claim
is sufficiently distinct and compelling that the Court might consider the assault weapons question facially, without the
criticism of unprincipled capitulation to the common view.
One can on a principled basis elevate the state's interest above the individual's interest on questions of self-defense and
abortion. One can on a principled basis subordinate the state's interest in both. One can on a principled basis elevate the
gun right but not the abortion right (because the competing life-interest in the abortion context is entirely innocent and
in only a fraction of cases is the mother's life at stake, while the right-bearer's life is always at stake in the self-defense
case). But a principled argument has yet to be made for elevating the abortion right but subordinating the gun right.
Attitudinalists tell us it is folly to expect adherence to principle on such matters. If and when an assault weapons case
reaches the Supreme Court, it will be an important test of whether the attitudinalists are correct.
Legal Topics:
For related research and practice materials, see the following legal topics:
Criminal Law & ProcedureCriminal OffensesHomicideCriminal AbortionPenaltiesCriminal Law & ProcedureCriminal
OffensesWeaponsGeneral OverviewCriminal Law & ProcedureDefensesSelf-Defense
n1. See Nicholas J. Johnson, Imagining Gun Control in America: Understanding the Remainder Problem,
43 Wake Forest L. Rev. 837, 843 n.21 (2008) (citing Graduate Inst. of Int'l Studies, Small Arms Survey 2007:
Guns and the City 47 tbl.2.3 (2007) [hereinafter Small Arms Survey]).
n2. 128 S. Ct. 2783, 2791-92 (2008).
n3. See Johnson, supra note 1, at 838-39.
n4. See id.
n5. Indications that the Obama administration favors renewal of the 1994 ban, 18 U.S.C. § 922 (2006),
have fueled a buying panic that has pushed assault weapon sales to record levels. Alex Roth & Betsy McKay,
Fear and Greed Have Sales of Guns and Ammo Shooting Up, Wall St. J., Apr. 16, 2009, at A1, available at ml; The "Obama Effect" Brings a Run on Guns and
Ammo, Time, Apr. 27, 2009, at 27.
n6. 128 S. Ct. at 2817-18.
n7. See id. at 2817.
n8. Id. at 2816-17; id. at 2846 (Breyer, J., dissenting).
n9. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981).
n10. See id. ("Motion pictures, programs broadcast by radio and television, and live entertainment, such as
musical and dramatic works fall within the First Amendment guarantee.").
n11. See Heller, 128 S. Ct. at 2817. Some will criticize this distinction as more practical and political than
constitutional. Ideally, we might all agree that constitutional rights must be equally protected, and rhetorically
the Court has affirmed this idea. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 484 (1982) ("We know of no principled basis on which to create a
hierarchy of constitutional values ... .").
n12. Nicholas J. Johnson, Principles and Passions; The Intersection of Abortion and Gun Rights, 50
Rutgers L. Rev. 97, 98-99 (1997). Core arguments from that article are summarized in the text of this Article.
See infra notes 196-221 and accompanying text.
n13. Johnson, supra note 12, at 99.
n14. 530 U.S. 914, 920-23 (2000).
n15. Id. at 921-22.
n16. See id. at 929-30. The Nebraska statute contrasted the illegal D&X procedure with the legal D&E
procedure. Id. at 923-29. Subsequently, in Gonzales v. Carhart, 127 S. Ct. 1610, 1621 (2007), the term "intact
D&E" was used synonymously with D&X.
n17. Stenberg, 530 U.S. at 937-38.
n18. Gonzales, 127 S. Ct. at 1619.
n19. See id.
n20. Id. at 1638 (emphasis added). While the Court did not entirely defer to those findings, its standards
for evaluating those findings make Gonzales a more complicated comparison than Stenberg. See id. at 1638-39.
n21. Stenberg, 530 U.S. at 937-38.
n22. See, e.g., Theodore W. Ruger et al., The Supreme Court Forecasting Project: Legal and Political
Science Approaches to Predicting Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150, 1152-55 (2004).
Michael Dorf summarizes and brings a degree of skepticism to the attitudinalist model:
Political scientists who study the Supreme Court do not take legal doctrine very seriously. According to the
leading view of the political scientists - the "attitudinal model" - the attitudes of individual Justices are a better
predictor of how the Court will resolve contested cases than is the sort of reasoning one finds in briefs and
opinions... .
... .
... The political scientist employs Occam's razor to dispense with the metaphysical nonsense of law as a
category independent of values, ideology and preferences, at least in the sorts of hard cases that reach the
Supreme Court. Most spectacularly, she can point to the results of a recent experiment - the "Supreme Court
Forecasting Project" - in which a cousin of the attitudinal model was matched against a battery of legal experts,
each of whom was asked to predict the outcomes of then-pending cases in their respective fields of expertise:
The statistical model correctly predicted the outcome in seventy-five percent of the cases, while the human team
was right in only fifty-nine percent. Thus, armed with her statistics and regression analyses, the political
scientist can dismiss most talk of "law" as worse than useless.
Michael C. Dorf, Whose Ox is Being Gored? When Attitudinalism Meets Federalism, 21 St. John's J. Legal
Comment. 497, 498-500 (2007) (footnotes omitted).
n23. Ruger et al., supra note 22, at 1154.
n24. Dorf, supra note 22, at 500.
n25. I use "passions" here roughly in the sense that James Madison employed to describe the political
interests and connections that generate factions: "By a faction, I understand a number of citizens, whether
amounting to a majority or minority of the whole, who are united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens." The Federalist No. 10, at 130 (James Madison)
(E. H. Scott ed., 1898) (emphasis added).
n26. Dorf, supra note 22, at 499-500. This criticism was at the core of my first elaboration of the "standard
position" more than a decade ago. See Johnson, supra note 12, at 99-100.
n27. See Dorf, supra note 22, at 512-13.
n28. See District of Columbia v. Heller, 128 S. Ct. 2783, 2863-64 (2008) (Breyer, J., dissenting).
n29. For example, every year in my Gun Control seminar, I conduct a survey on the first day of class. I
have always gotten at least one response reflecting the belief that assault weapons are machine guns.
n30. Violence Policy Ctr., Assault Weapons and Accessories in America (1988), available at
studies/awacont.htm (follow "Conclusion" hyperlink).
n31. Id.
n32. Id.
n33. See Bruce H. Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal and Economic
Analysis of Strict Liability for the Manufacture and Sale of "Assault Weapons," Stan. L. & Pol'y Rev., Winter
1997, at 41, 43.
n34. Violence Policy Ctr., supra note 30.
n35. Stenberg v. Carhart, 530 U.S. 914, 1001 n.16 (2000) (Thomas, J., dissenting).
n36. Id. (quoting Kobayashi & Olson, supra note 33, at 43).
n37. Steven P. Halbrook, Firearms Law Deskbook: Federal and State Criminal Practice 671 (2008-2009
ed.) (alteration in original) (footnote omitted) (quoting Harold E. Johnson, U.S. Army Foreign Sci. & Tech.
Ctr., Small Arms Identification and Operations Guide - Eurasian Communist Countries 105 (1980)).
n38. See, e.g., David B. Kopel, Rational Basis Analysis of "Assault Weapon" Prohibition, 20 J. Contemp.
L. 381, 386-87 (1994).
n39. This means they fire one shot with each pull of the trigger. See Merriam-Webster Online Dictionary, (last visited June 10, 2009) ("Able to fire repeatedly
but requiring release and another pressure of the trigger for each successive shot.").
n40. David Kopel provides a detailed description, along with photographs, of the types of guns defined as
assault weapons under the 1994 ban. See David B. Kopel, "Assault Weapons," in Guns: Who Should Have
them? 159, 159-74, 192-203 (David B. Kopel ed., 1995).
n41. See Jacob Sullum, Ban Aid: The Real Point of the "Assault Weapon" Law, Reason Online, May 9,
2003, ("In 1996 Washington Post columnist Charles
Krauthammer, who favors banning gun possession by civilians, conceded that the arguments advanced by
supporters of the "assault weapon' ban were "laughable.' The "only real justification' for the law, he said, "is not
to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate
n42. Johnson, supra note 1, at 842. It is undeniable that a sealed room with no guns in it will have no gun
crime. That simple idea, extrapolated to society at large, is the impulse for the view that supply restrictions are
the answer to gun crime in America. Id. at 844.
n43. See id. at 839.
n44. Id. at 853 (citing Small Arms Survey, supra note 1, at 55).
n45. Id.
n46. See id. at 853-56.
n47. Id. at 855-56.
n48. Id. at 848 n.44 (citing Comm. to Improve Research Info. & Data on Firearms, Nat'l Research
Council, Firearms and Violence: A Critical Review 73 (Charles F. Wellford et al. eds., 2004)).
n49. See, e.g., Sullum, supra note 41. Furthermore, guns used in crime are, by a wide margin, handguns.
See Bureau of Justice Statistics, U.S. Dep't of Justice, Homicide Trends in the United States, available at m; see also District of Columbia v. Heller, 128 S.
Ct. 2783, 2856-57 (2008) (Breyer, J., dissenting) (citing statistics suggesting that handguns "appear to be a
very popular weapon among criminals"). Handguns are explicitly constitutionally protected under Heller. See id.
at 2821-22 (majority opinion).
n50. The push for renewal of the 1994 ban by the Obama administration has been resisted by the Senate
and House leadership. See J. Taylor Rushing, Reid Joins Pelosi in Opposing Ban Revival,, Feb.
26, 2009, ban-
n51. Much of this criticism is captured by Justice Breyer's dissent. See Heller, 128 S. Ct. at 2869-70
(Breyer, J., dissenting).
n52. Id. at 2816-17 (majority opinion).
n53. 307 U.S. 174 (1939).
n54. Heller, 128 S. Ct. at 2815.
n55. Id. at 2815 (first, second, and third alterations in original) (quoting United States v. Miller, 307 U.S.
174, 179 (1939)).
n56. See id. at 2817 (referencing the "historical tradition of prohibiting the carrying of "dangerous and
unusual weapons'").
n57. See, e.g., Michael C. Dorf, Federal Court of Appeals Says the Second Amendment Places Limits on
Gun Control Legislation,, Oct. 31, 2001, 20011031.html.
n58. Heller, 128 S. Ct. at 2817.
n59. In 1995 there were over 240,000 automatic weapons registered with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF). Marianne W. Zawitz, U.S. Dep't of Justice, Guns Used in Crime 4 (1995),
available at About half are owned by civilians and the other
half by police departments and other governmental agencies. Gary Kleck, Targeting Guns: Firearms and Their
Control 108 (1997).
n60. See, e.g., Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449 (codified as
amended in scattered sections of 18 and 26 U.S.C.).
n61. 18 U.S.C. § 922(o) (2006).
n62. Heller, 128 S. Ct. at 2822.
n63. A 1994 open letter critical of the Second Amendment published in several national periodicals is a
perfect example. See Albert W. Alschular et al., Does the 2nd Amendment Mean We Must Tolerate This?, Am.
Lawyer, June 1994, at 96. The graphic backdrop of the letter is an INTRATEC "TEC-9." The TEC-9 is an ugly,
menacing-looking gun. The letter suggests that by appearance alone, without any critique of relative functionali-
ty, thoughtful people should all agree that the TEC-9 is illegitimate. See id. But ironically, from a functional
viewpoint, it is an absurdly sub-optimal gun. Though it is a handgun, it sacrifices the concealability that is the
main SMU of the handgun. Though it is a semiautomatic, it fires not even the intermediate rifle round, but a
pistol round that has less range and less inherent accuracy., Intratec TEC-9, http:// (last visited June 10, 2009). It is generally unreliable, with feeding
problems being the main difficulty. Id. Because it is extremely heavy for a handgun, it is difficult to fire
accurately and difficult even to hold in firing position. Id. Demonstration of it compared to most other guns
leaves observers wondering what rationale produced the distinction that labels the shotgun legitimate but
stigmatizes the TEC-9. See id.
n64. Layne Simpson, Remington's Magnificent Five, Shooting Times, May 2000, available at http://; Gary Engberg, America's Shotgun,, http:// /articleType/ArticleView/articleId/1151/Americas -
Shotgun.aspx (last visited June 10, 2009).
n65. The California Attorney General's chief firearms expert reflected this in his argument for either banning
all semiautomatics or banning none of them. See Kopel, supra note 38, at 403; see also Nicholas J. Johnson,
Shots Across No Man's Land: A Response to Handgun Control, Inc.'s Richard Aborn, 22 Fordham Urb. L.J.
441, 445 (1995) (explaining that criminals can switch from banned guns to acceptable guns that still accept
thirty-round-plus magazines and actually have deadlier higher-velocity rifle cartridges but simply lack pistol
grips and bayonet lugs - aesthetic features targeted by weapons bans).
n66. See infra text accompanying note 78 (noting that 60% of gun owners have some sort of semiautomatic
n67. See infra notes 68-72 and accompanying text. Many early semiautomatic firearms are now classified
by the (ATF) as curios and relics. Special rules allow these guns to be sold and shipped directly between
licensed collectors. See 18 U.S.C. §§921-931 (2006); 27 C.F.R. § 478.118 (2008) (regulations issued under 18
U.S.C. §§921-931).
n68., Auto-5 Semi-Automatic Shotgun,
dategun/detail.asp?id=13 (last visited June 10, 2009).
n69. The Gun Digest: 1944 First Annual Edition 60 (Charles Richmond Jacobs et al. eds., 1944)
[hereinafter Gun Digest First Ed.] ("The development of the automatic pistol between 1895 and 1911, and its
adoption as the standard sidearm of most governments, have determined the general type of most of the pistol
cartridges in present use.").
n70. Guns & Ammo, G&A Guide, Remington Model 8, Satellite/
IMO_GA/Guide_C/Remington+Model+8 (last visited June 10, 2009). Remington bought the patent from
designer John Browning, and marketed the gun beginning in 1906., Firearm Model History,
Remington Model 8, centerfire/model_8.asp (last
visited June 10, 2009). Semiautomatic rifles date to at least an 1885 design by Ferdinand Ritter von
Mannlicher. See Austro-Hungarian Army, Ferdinand Ritter von Mannlicher, http://www.austro-hungarian- (last visited June 10, 2009) ("His first semi-automatic rifle design appeared in
1885 ... .").
n71. See supra note 40 and accompanying text. Winchester produced the earliest automatic .22 put out in
this country, the Model of 1903. Charles T. Haven, Our Small Arms and Their Makers, in Gun Digest First
Ed., supra note 69, at 7. Heavier automatics (read: semiautomatics) for hunting purposes were brought out in
1905 and 1907 and since, in typical deer hunting cartridges. Id. Automatic and repeating shotguns were also
brought out before the First World War. Id. The Winchester 1907, like the typical assault weapon, accommo-
dates a detachable box magazine. See Phil Davis, Winchester 1907 Self Loader: 100 Year Old "Evil Assault
Rifle," GunNews, June 2007, phildavis/winchester1907selfloader.html. It
fires a 351 Winchester cartridge that at 180 grains is more than three times heavier than the typical 55 grain .223
round of the AR-15 from available fifteen-round magazines. Id.
n72. NRA Inst. for Legislative Action, Semi-Automatic Firearms and the "Assault Weapon" Issue (2005), The National Rifle Association's Institute for
Legislative Action calculates the number of semiautomatics as fifteen percent of the total privately-owned
firearms inventory. Id.
n73. See generally David Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective,
17 Cumb. L. Rev. 585, 589-95 (1986) (describing federal regulatory and record-keeping requirements before the
1968 Gun Control Act).
n74. See Nicholas J. Johnson, Testing the States' Rights Second Amendment for Content: A Showdown
Between Federal Environmental Closure of Firing Ranges and Protective State Legislation, 38 Ind. L. Rev. 689,
715-16 (2005) (describing the Civilian Marksmanship Program "for selling surplus U.S. military arms and
ammunition to civilians").
n75. See David Hemenway & Elizabeth Richardson, Characteristics of Automatic or Semiautomatic
Firearm Ownership in the United States, 87 Am. J. Pub. Health 286, 287 (1997); NRA Inst. for Legislative
Action, supra note 72.
n76. See, e.g., Hemenway & Richardson, supra note 75, at 286.
n77. Id. at 287.
n78. Id.
n79. See infra note 143 and accompanying text; see also Michael Bane, The World's Most Versatile Rifle,
Outdoor Life, Aug. 2007, at 58-59 ("The AR has matured into one of the most versatile, accurate and easy-to-
shoot platforms in the world.").
n80. Johnson, supra note 65.
n81. See, e.g., Sullum, supra note 41.
n82. See Brady Campaign to Prevent Gun Violence, The Top 10 NRA Myths About Assault Weapons, (last visited June 10, 2009). The Brady
Center's commentary on assault weapons makes the argument that
The military features of semiautomatic assault weapons are designed to enhance their capacity to shoot multiple
targets very rapidly. For example, assault weapons are typically equipped with large-capacity ammunition
magazines that allow the shooter to fire 20, 50, or even more than 100 rounds without having to reload. Pistol
grips on assault rifles and shotguns help stabilize the weapon during rapid fire and allow the shooter to spray-
fire from the hip position. Barrel shrouds on assault pistols protect the shooter's hands from the heat generated
by firing many rounds in rapid succession... . Far from being simply "cosmetic," these features all contribute to
the unique function of any assault weapon to deliver extraordinary firepower. They are uniquely military
features, with no sporting purpose whatsoever.
... .
... [These weapons] "are not generally recognized as particularly suitable for or readily adaptable to sporting
purposes" and instead "are attractive to certain criminals."
... .
The firepower of assault weapons makes them especially desired by violent criminals and especially lethal in
their hands.
Id. (footnote omitted) (quoting Dep't of Treasury, Study on the Sporting Suitability of Modified Semiautomat-
ic Assault Rifles 38 (1998)).
n83. See infra Part II.A.2.
n84. See Chuck Karwan, America's Rifle: The AR-15 Has Weathered a 50 Year History of Controversy,
Survived a Federal Ban and Fought in Everything from Steaming Jungles to Sandboxes. Now It's the Single
Most Popular Centerfire Rifle in the U.S. Who Would've Guessed, Combat Tactics, Guns & Ammo, Feb.
2009, at 24; Jeff Knox, The Year of the AR and FUD, Shotgun News, Mar. 17, 2008, at 9 ("The AR-15 is the
fastest selling firearm in the country and it appears that everyone in the industry is anxious to get in on the
rush."). Citations to Shotgun News and similar publications may raise eyebrows. However, for industry news
these are standard publications. Serious studies, like the congressionally-mandated evaluation of the impact of
the 1994 ban, cite Shotgun News extensively on the point of sales and pricing. See Jeffrey A. Roth et al., The
Urban Inst., Impact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of 1994
passim (1997).
n85. See, e.g., Judson Berger, Obama Driving Surge in Gun Sales, Firearms Groups Say,,
Jan. 16, 2009, 16/firearms-associations-claim-obama-drove-surge-
gun-sales/ ("End-of-the-year statistics show background checks for firearms purchases rose sharply in the last
three months of 2008."); Nolan Findley, Obama is Stimulating Gun Sales, Detroit News, Feb. 8, 2009; Jacqui
Seibel, Obama Election Triggers Run on Gun Sales in State, Milwaukee J. Sentinel, Nov. 14, 2008, available
at 34501994.html.
n86. See Johnson, supra note 65, at 446-48.
n87. For a detailed discussion of comparative ballistics, see infra notes 142-71 and accompanying text.
Long guns, with their longer barrels, stronger chambers (accommodating larger cartridges and thus larger powder
charges), and design facilitating large-muscle-group support of the gun, are generally more effective at distances
where the handgun is nearly irrelevant. Carbine vs. Shotgun vs. Pistol for Home Defense, Monster Hunter
Nation, carbine-vs-shotgun-vs-pistol-for-home-defense/ (last
visited June 10, 2009). The late Lieutenant Colonel Jeff Cooper, founder of Gunsite Training Center and
vociferous advocate for major calibers in defensive handguns, famously said that for self-defense he would rather
have a hatchet than a 9mm at intimate range. R.K. Campbell, The Army Pistol (Apr. 22, 2005), http:// RKCampbell_ArmyPistol.htm.
n88. See Kopel, supra note 38, at 404.
n89. See id. at 386.
n90. See supra note 49.
n91., Winchester Lever Action Rifles,
WinLever-info.html (last visited June 10, 2009);, Rifle Cartridge Selection, http:// htm (last visited June 10, 2009). There is no distinct number for either
velocity or energy, but generally rifle cartridges that fire a 150 grain projectile close to 3000 feet per second
would be considered high power. Also "High Power" is the title of a very popular type of rifle competition. But
to provide examples, a .30-06 Springfield or a .300 Winchester Magnum would be considered high power. The
7.62 x 39 (the cartridge most often used in the SS and AK-47 variants) and the 5.56 x 45 (very similar, but not
identical, to the .223 Remington and used in most AR-15 type rifles) would be considered intermediate
cartridges. Publicola, Coming to Terms with Gun Control, 28/
coming_to_terms_with_gun _control.html (last visited June 10, 2009).
n92. See supra note 59.
n93. See Kopel, supra note 40, at 164 ("The energy created by the explosion of gunpowder ... is used to
reload the next cartridge into the firing chamber.").
n94. See Gun Digest 2009: The World's Greatest Gun Book (Ken Ramage ed., 63rd ed. 2008) (illustrating
guns of all types including lever actions, bolt actions, pump actions, revolver actions and semiautomatics
n95. See Kopel, supra note 40, at 164.
n96. Steve Lee, Magnum Marlin: My .44 Caliber Friend,
lee_marlin44.htm (last visited June 10, 2009). For aimed-fire at distance, the bolt action is generally superior in
accuracy and ballistics. Chuck Hawks, The Bolt Action, bolt_action.htm (last
visited June 10, 2009). In the military context, the scoped bolt action rifle of the sniper is, by on one measure,
far more deadly than repeating rifles like the M-16: "According to figures released by the Department of
Defense, the average number of rounds expended in Vietnam to kill one enemy solder [sic] with the M-16 was
50,000. The average number of rounds expended by U.S. military snipers to kill one enemy soldier was 1.3
rounds." Rod Powers, Army Sniper School: One Shot One Kill,
sniperschool.htm (last visited June 10, 2009).
n97. Kopel, supra note 40, at 164-65.
n98. Id. at 164-67. Some forms of rifle and pistol ammunition have attempted to copy this multi-projectile
functionality. Id. Duplex loads in rifles and pistols (two projectiles in the same case) double the round count of
each trigger pull. Id. The shotgun, in contrast, multiplies it many times depending on the size of shot used in
the cartridge. Id. Semiautomatic shotguns also have been classified as assault weapons where they are fitted with
pistol grips and folding stocks. Id.
n99. See Roth, supra note 84, at 1 ("Among other characteristics, ban proponents cited the capacity of these
weapons, most of which had been originally designed for military use, to fire many bullets rapidly.").
Supported by a grant from the National Institute of Justice, this study was mandated by the 1994 ban to assess
its impacts. Id. at 8.
n100. See Kopel, supra note 40, at 165 ("Most semi-automatic firearms (both banned and nonbanned) store
their ammunition in detachable boxes called "magazines.'").
n101. See, e.g., Kopel, supra note 38, at 403 (describing how state assault weapons categories seemed to be
constructed by legislators flipping through catalogues to identify menacing-looking guns).
n102. See supra note 71 (describing early Winchester semiautomatics).
n103. See Kopel, supra note 38, at 171-73.
n104. See Johnson, supra note 65, at 441-43.
n105. Halbrook, supra note 37, at 701 ("Ruger is subjected to its own quandary - the exempted Mini-14 is
listed as "w/o folding stock,' yet that rifle with a folding stock does not have a second feature which makes it
otherwise prohibited under the generic definitions below.").
n106. The 1997 assault weapons study mandated by the 1994 Act concludes, "We were unable to detect any
reduction to date in two types of gun murders that are thought to be closely associated with assault
weapons ... ." Roth, supra note 84, at 2. The focus on accoutrements might be understood as rooted in the
"sporting use" importation standard under the Gun Control Act of 1968, which is an interesting story of public
and private motivations. See Nicholas J. Johnson, A Second Amendment Moment: The Constitutional Politics
of Gun Control, 71 Brook. L. Rev. 715, 771-73 (2005) (describing the trade protectionism of the New England
gun manufacturers as an impulse for the sporting-use filter in the 1968 Gun Control Act).
n107. See, e.g., Brady Campaign to Prevent Gun Violence, supra note 82 (claiming that guns with assault
weapon features have only military application).
n108. The Brady organization urged that the only legitimate use of firearms was "sporting purposes." See
Press Release, Brady Campaign to Prevent Gun Violence, Tiger Woods' "Gun-Toting Spectator" Confirms
Weapons Problems at Sports Venues (Feb. 2, 1999), available at http://
n109. Supra note 101.
n110. District of Columbia v. Heller, 128 S. Ct. 2783, 2717-22 (2008).
n111. Kopel argues that even pre-Heller, the assault weapons distinction could not pass a seriously
administered rational-basis test. Kopel, supra note 38, at 417.
n112. See, e.g., Cal. Penal Code § 12275.5 (West 2008) ("The Legislature has restricted the assault
weapons ... based upon finding that each firearm has such a high rate of fire and capacity for firepower that its
function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be
used to kill and injure human beings.").
n113. Kopel, supra note 40, at 164-67.
n114. See, e.g., Brady Campaign to Prevent Gun Violence, Assault Weapons Threaten Our Safety And
Security, (last visited June 10, 2009)
("Pistol grips on assault rifles and shotguns help stabilize the weapon during rapid fire and allow the shooter to
spray-fire from the hip position."); Legal Community Against Violence, Banning Assault Weapons - A Legal
Primer for State and Local Action 1 (reprint 2005), available at
Banning_ Assault_Weapons_A_Legal_Primer _8.05_entire.pdf ("Key assault weapon features include ... pistol
grips ... facilitating spray firing from the hip."); Violence Policy Ctr., Bullet Hoses: Semiautomatic Assault
Weapons - What Are They? What's So Bad About Them? (2003), available at
hosecont.htm (follow "Ten Key Points about What Assault Weapons Are and Why They Are So Deadly"
hyperlink) (""Spray-firing' from the hip, a widely recognized technique for the use of assault weapons in certain
combat situations, has no place in civil society."). To justify the claim, the publication includes photographs of
military personnel firing machine guns in this manner. Id. (follow "The Gun Industry's Lies" hyperlink).
n115. See Kopel, supra note 38, at 388 ("Although gun prohibition advocates sometimes use the catch-
phrase "spray-fire,' a semiautomatic firearm, unlike a machine gun, cannot "spray fire,' because the shooter must
press the trigger for each shot.").
n116. W. W. Greener, The Gun and Its Development 351-73 (Cassell & Co., Ltd. 9th ed. 1910) (1881).
n117. See Kopel, supra note 40, at 164-67.
n118. Greener, supra note 116, at 434-68.
n119. Id.
n120. Id. at 351-52.
n121. See Philip B. Sharpe, The Rifle in America (Odysseus 1995) (1938).
n122. See id.
n123. See, e.g., O.F. Mossberg & Sons, Inc., Owners Manual for 500(R), 835(R) and 590(R) Model
Pump Action Shotguns 6, available at mossberg_500.pdf. Many
shotguns are semiautomatic, though typically these have been excluded from assault weapon designation. See
Kopel, supra note 40, at 164-65. A greater number are pump action, which typically have also been excluded
from assault weapon designation. Id. Guns of each type have been made with detachable magazines. See, IZHMASH Saiga-12 Shotguns, (last visited June 10, 2009). A few
shotguns have been made using revolver technology. See Halbrook, supra note 37, at 538-39. In a curious
exercise of logic, though understandable symbolically, the ATF reclassified one of these revolver style guns -
the menacingly-named Streetsweeper - as a class III destructive device (the same regulatory category as machine
guns). Id. The irony is that the gun does not exhibit the continuous reloading capacity that is the tactical virtue
of the ordinary repeating shotgun. Id.
n124. See Mossberg, supra note 123.
n125. Id.
n126. Id.
n127. Shotguns do exhibit the ballistic disadvantage that the projectiles are round and fired from an
unrifled barrel, are thus less aerodynamic than the spinning rifle projectile, and therefore lose velocity more
quickly. See Greener, supra note 116, at 351-404. So, depending upon size, shotgun projectiles will have lost
most of their energy within 100 to 200 yards. Id. However, within its range, the shotgun firing various loads
inflicts far more destruction on soft targets than the typical assault weapon. Id.
n128. See, e.g., Bushmaster Firearms, Inc., Operating and Safety Instruction Manual for All Bushmaster
XM15 Models 39 (2009), available at manual_bushmaster.pdf.
n129. See U.S. Army, Department of the Army Field Manual: Fm 23-5 (1965), available at http://; see also Austro-Hungarian Army, supra note 70 (describing the
Mannlicher's block clip feeding device).
n130. See U.S. Army, supra note 129.
n131. The Civilian Marksmanship Program website gives a detailed history of the military use of the M1
Garand and the current requirements for purchasing one through the Civilian Marskmanship Program. See
Civilian Marksmanship Program Sales, Eligibility Requirements, eligibility.htm (last
visited June 10, 2009); Civilian Marksmanship Program Sales, M1 Garand Sales,
m1garand.htm (last visited June 10, 2009).
n132. See, e.g., Lee, supra note 96. For aimed fire there are nominal distinctions in speed. See supra note
40 and accompanying text.
n133. See, e.g., U.S. Repeating Arms Co., Inc., Winchester Rifles and Shotguns, Winchester Model 94
Lever Action Rifle Owner's Manual - Top-Tang Safety Version 17-18, available at http:// fa_94_om_s.pdf.
n134. See, e.g., Sturm, Ruger & Co., Inc., Instruction Manual for Ruger(R) GP100(R) Double Action
Revolver 14.
n135. Supra notes 89-90 and accompanying text.
n136. Roth, supra note 84, at 2.
n137. See Kopel, supra note 38, at 384-85.
n138. District of Columbia v. Heller, 128 S. Ct. 2783, 2864 (2008) (Breyer, J., dissenting) (while seeming
to believe it cuts the other way, Justice Breyer acknowledges the paradox: "The very attributes that make
handguns particularly useful for self-defense are also what make them particularly dangerous.").
n139. Stenberg v. Carhart, 530 U.S. 914, 929-30 (2000).
n140. Id. at 938.
n141. See Kopel, supra note 40, at 168-69.
n142. Halbrook explains that the AR-15 designation is a misnomer, and that a more accurate label might be
AR-15A2 Sporter II. Halbrook, supra note 37, at 700-01. However, the term "AR-15" is so commonly used that
I will employ that designation.
n143. See Kopel, supra note 40, at 190-93.
n144. Id. at 168.
n145. Id. at 168-69.
n146. The cartridge is designated .30-06 because it is a .30 caliber adopted by the U.S. military in 1906 for
the Springfield bolt-action infantry rifle. Craig Boddington, .30-06: Over 95 Years Old, It Remains America's
Favorite Hunting Cartridge, Petersen's Hunting, guns_loads/30_06_springfield/
(last visited June 10, 2009). "The powerful .30-06 rifle cartridge developed by the United States Government
during the year 1906 ... . is one of the best military rifle cartridges in use in the world today... . Accurate
shooting can be done with it in a rifle at over 1,000 yards." Charles T. Haven, Military Small Arms of World
War II, in Gun Digest First Ed., supra note 69, at 55. It is perennially one of the most popular hunting
cartridges in the United States. Charles Petty, What's Really Selling?, Shooting Industry, Feb. 2006, at 21.
n147. See infra notes 153-55 and accompanying text.
n148. Simpson, supra note 64 at 62, 63 ("[The 1950 series] was initially offered only in .30-06 ... .").
n149. See Kopel, supra note 40, at 209.
n150. Id. at 204-09.
n151. The Internet Movie Firearms Database, Saving Private Ryan, index.php/
Saving_Private_Ryan (last visited June 10, 2009). It is ironic that the Garand was exempted under the ban, see
Dave Kopel, Bait-"n'-Switch: Gun-prohibition lobbyists are after much more than AK-47s, Nat'l Rev. Online,
Sept. 13, 2004, .asp, since it is not merely a
military-style weapon, but rather the real thing. See The Patton Soc'y, The M1 Garand Rifle, http://www.pat- (last visited June 10, 2009). It is an actual government-issued infantry rifle - a military
weapon that General George S. Patton, Jr. called the "greatest battle implement ever devised." Id.
n152. The United States Civilian Marksmanship Program web site offers multiple illustrations and a
detailed description of the Garand. See supra note 131; see also The Patton Soc'y, supra note 151.
n153. Average Centerfire Rifle Cartridge Ballistics and Prices [hereinafter Ballistics and Prices], in Gun
Digest 2007: The World's Greatest Gun Book 229, 232 (Ken Ramage ed., 61st ed. 2006); see also Haven, supra
note 69, at 55 ("The powerful .30-06 rifle cartridge developed by the United States Government during the year
1906 ... . is one of the best military rifle cartridges in use in the world today... . Accurate shooting can be done
with it in a rifle at over 1,000 yards.").
n154. Ballistics and Prices, supra note 153.
n155. Id. at 229.
n156. Id.
n157. See Greener, supra note 116, at 566.
n158. The Remington Model 8 (first sold in 1906) chambered in .35 Remington fires a 200-grain bullet
and produces 1921 foot-pounds of energy at the muzzle. Ballistics and Prices, supra note 153, at 233;, supra note 70. Compare the 1282 foot-pounds of muzzle energy from the AR-15 firing the .
223. See Ballistics and Prices, supra note 153, at 229.
n159. See supra note 153.
n160. Ballistics and Prices, supra note 153, at 231-33.
n161. Id. at 229.
n162. See Kopel, supra note 40, at 168-70.
n163. See, e.g., Conn. Dep't of Envtl. Prot., Connecticut Hunting and Trapping Guide 4, 9-13 (2009),
available at _files/fg2009.pdf (requiring .243 minimum
caliber for deer hunting: "Legal Firearms: 12, 16, or 20 gauge breech loading shotgun loaded with single soft
alloy projectile ammunition. Rifled or smoothbore barrels allowed. Shotgun must not be capable of holding
more than 3 shells. Centerfire rifle 6mm (.243 caliber) or larger, or muzzleloader (.45 caliber minimum).").
n164. Kopel, supra note 40, at 169 ("The great irony ... is that [assault weapons] are the only rifles that
have ever been designed not to kill. The semi-automatic rifles use the same ammunition as battlefield weapons
such as the M16, which deliberately use intermediate-power ammunition intended to wound rather than to kill.
The theory is that wounding an enemy soldier uses up more of his side's resources (to haul him off the
battlefield and then care for him) than does killing an enemy.").
n165. Id.
n166. See, e.g.,, Women and Shotguns, Good Form and Shotgun Recoil, http:// (last visited June 10, 2009) ("Semi-
automatic shotguns - or autoloaders as they're also known - are prized for their low felt recoil compared with
over/unders. A semi-automatic uses some of the expanding gases from the fired shell to cycle the next one into
the chamber. So rather than you absorbing the full force of the shot, a semi-automatic puts that energy to good
n167. See id. Expert gun fitters address part of the problem, but for people who cannot afford or do not
even know about such services, "an ill-fitting shotgun heightens felt recoil. If you're unable to properly press the
shotgun against your shoulder and face, the felt recoil could hurt like crazy." Id. at 2; see also Diane Campbell,
Shotgun Training Tips for Female and Smaller Officers,, July 6, 2007, http:// training-tips-for-female-and-
smaller-officers/ ("Let's face it. Many officers, particularly female and smaller officers, may be just plain afraid
of shotguns. Whether real or imagined, the shotgun has a reputation for being painful. Often this reputation
comes from poor training, too heavy a load or just incorrect handling. This really is a shame, since the shotgun
is such a versatile use-of-force tool for law enforcement as well as home defense.").
n168. Chuck Hawks, Remington Managed-Recoil Cartridges,
rem_managed_recoil.htm (last visited June 10, 2009) [hereinafter Hawks, Remington] ("Although many will
not admit it, most hunters find cartridges on the order of the .270, 7mm Magnum, .308, and .30-06 somewhat
intimidating to shoot. And very few shooters are really comfortable shooting a .300 Magnum."); see also Chuck
Hawks, The Powerful .300 Magnums, 300magnum.htm (last visited June 10,
2009) ("The .300 Magnums are generally regarded as suitable for game from the size of deer and antelope to the
largest thin-skinned game worldwide... . The main drawback to any of the .300 Magnums is recoil, which is
more than most shooters can handle... . Many professional guides in North America are suspicious of customers
who show up with .300 Mag. rifles until they prove they can shoot their formidable rifles accurately.").
n169. See supra note 168.
n170. See supra note 153 and accompanying text.
n171. See, e.g., All Things Considered, Book Explores History of the American Rifle (NPR radio
broadcast Dec. 21, 2008) (transcript available at story.php?
storyId=98578531). The difference is illustrated anecdotally in this interview with Alexander Rose, author of
American Rifle: A Biography. The interviewer, a young woman, fires an M1 Garand and then an AR-15. She
comments unenthusiastically that the Garand is "heavy." Id. There is no on-air comment about the recoil but
people who have fired the Garand can imagine that interesting things did not make it on air. The Garand hurts
to shoot. Her comment about the AR-15 puts things in perspective. "It's a scary looking black thing," she says.
Id. Then after firing it, "That was easy. It does not kick back at you." Id. This last comment was obviously in
contrast to the heavy-recoiling Garand. This difference is the essence of controllability. As a self-defense gun,
the Garand (and many more powerful, heavier hunting guns) by many estimates would be too much gun for a
woman of average strength and build, and perhaps many others. See id. The AR-15 in contrast would not.
n172. See Hawks, Remington, supra note 168. While many sporting long guns also employ optics, those
guns typically are heavier, longer, more powerful, and thus more punishing to practice with. Id. Shotguns
similarly can be fitted with optics, but present similar disadvantages in terms of recoil, weight, and length. Id.
n173. See Hal W. Hendrick et al., Human Factors Issues in Handgun Safety and Forensics (2007).
n174. See id.
n175. See, e.g., Donald L. MacDaniel, Pistol Shooter's Rx for Tired Eyes, Am. Rifleman, May 1984, at
37; Robert B. Pomeranz, Aging Eyes and Iron Sights, Am. Rifleman, Sept. 1995, at 34.
n176. For example, a nineteen-year-old student of mine, who had aspirations to join the state police, found
it impossible to complete the double action trigger pull on a Smith and Wesson Model 28 "Highway
Patrolman" revolver double action. He was 5'9" and weighed 140 pounds. He was an athlete and a very good
runner, but he did not have the hand strength to fire the gun without first cocking it into single action mode.
n177. Preference for the AR-15, for example, has been driven by popular firearms trainer Clint Smith's
development of the "Urban Rifle" doctrine. Tiger McKee, Simplify for Success: The Basic AR Fighting Rifle,
Guns Mag., Combat Special Edition 2009, at 44, 46.
n178. See, e.g., Bane, supra note 79, at 58-61 ("The numbers are staggering. AR-platform guns are
approaching handgun-level sales ... . Ergonomics, coupled with ease of operation, light weight and the
negligible recoil from the 5.56 cartridge, make AR-platform guns a blast to shoot. As an instructor, ... now I
use an AR[] [for totally new shooters.] ... The more I've worked with the carbine, the more I've found myself
"defaulting' to the AR for a self-defense role."). Bane says the only reason he needs a handgun is to get to his
rifle. Id. Over the past twenty years, I have taken scores of novices to the shooting range. Without exception,
they find the low-powered semi-automatic rifle easier to shoot than the handgun.
n179. Id.
n180. Id. at 60.
n181. See Halbrook, supra note 37; Kopel, supra note 40, at 168-69.
n182. See supra Part II.B.1 for discussion of intermediate ballistics.
n183. District of Columbia v. Heller, 128 S. Ct. 2783, 2815 ("The traditional militia was formed from a
pool of men bringing arms "in common use at the time' for lawful purposes like self-defense.").
n184. See, e.g., Kopel, supra note 40, at 194-95 (describing situations where armed citizens helped restore
public order after disasters).
n185. Id. at 163; see also, Home of the Black Rifle, (last visited June
10, 2009). Some variations of the M16 fire three rounds per trigger pull. For a discussion of this "burst"
capability, see Military Analysis Network, Fed'n of Am. Scientists, M16A2 5.56mm Semiautomatic Rifle,
M4/M4A1, (last visited June 10, 2006).
n186. See Bushmaster, supra note 128.
n187. Johnson, supra note 1, at 861-63. Others have used the term "Katrina Rifle" to connote the same
thing. See David Kenik, Katrina Rifle, in Guns & Ammo: Book of the AR-15, Feb. 2009, at 86.
n188. See, e.g., Robert Pear, Bush Policies Are Weakening National Guard, Governors Say, N.Y. Times,
Feb. 27, 2006, available at /politics/27govs.html ("Governors of both
parties said Sunday that Bush administration policies were stripping the National Guard of equipment and
personnel needed to respond to hurricanes, floods, tornadoes, forest fires and other emergencies.").
n189. Kopel, supra note 40, at 175.
n190. Id. at 168.
n191. See supra note 164 and accompanying text.
n192. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-
Defense with a Gun, 86 J. Crim. L. & Criminology 150, tbl.3 at 185 (1995) (indicating that the vast majority
of civilian defensive gun uses are brandishing scenarios where the gun is not fired).
n193. See FBI, U.S. Dep't of Justice, Law Enforcement Officers Killed and Assaulted 2004, at 6 (2005),
available at KA04.pdf (indicating that confrontations with
handguns occur at very close distances where few shots are fired and the person involved often misses).
n194. See supra notes 167-71 and accompanying text.
n195. See 128 S. Ct. 2783, 2717-22 (2008).
n196. See Johnson, supra note 12, at 115; see also Nicholas J. Johnson, Self-Defense?, 2 J.L. Econ. &
Pol'y 187, 199 (2006).
n197. Johnson, supra note 12, at 99-100.
n198. See Dorf, supra note 22, at 498-99.
n199. Johnson, supra note 12, at 102-09 (critiquing Donald H. Regan, Rewriting Roe v. Wade, 77 Mich.
L. Rev. 1569 (1979)).
n200. Regan, supra note 199, at 1611.
n201. Id. at 1611-13.
n202. Id. at 1613-16.
n203. See Stenberg v. Carhart, 530 U.S. 914, 1020 (2000) (Thomas, J., dissenting); Lilo T. Strauss et al.,
Abortion Surveillance - United States, 2002, MMWR Surveillance Summaries, Nov. 2005, at 6, available at 1.htm.
n204. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63
N.C. L. Rev. 375, 383 n.61 (1985) (citing Regan, supra note 199).
n205. Johnson, supra note 12, at 102-09.
n206. See id. at 110-15 (critiquing Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47
(1971)). Thomson's article preceded Regan's by nearly eight years. My colleagues in the social sciences who
witnessed the impact of her essay suggest that all similar arguments are derivative of Thomson's. For example,
Mane Hajdin, a Lecturer in Philosophy at Santa Clara University, expressed such a view to me in conversation.
My ordering of the articles here reflects the position of Regan's article within the law review genre.
n207. Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography,
Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 31 n.120 (1992).
n208. Thomson, supra note 206, at 48-50.
n209. Id. at 52.
n210. Id.
n211. Id.
n212. The analogy is slim because only a fraction of abortion cases present a threat to the life of the
mother. See supra note 203 and accompanying text.
n213. Johnson, supra note 12, at 110-15.
n214. Susan R. Estrich & Kathleen M. Sullivan, Abortion Politics: Writing for an Audience of One, 138
U. Pa. L. Rev. 119, 127 (1989).
n215. Id. at 122-23.
n216. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
n217. Id. at 847.
n218. Id. at 848 (emphasis added) (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J.,
n219. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 983 (2000) (Thomas, J., dissenting) ("From reading
the majority's sanitized description, one would think that this case involves state regulation of a widely accepted
routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion
during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical
staff who perform it."); supra note 63.
n220. See, e.g., supra notes 72, 203 and accompanying text.
n221. See Johnson, supra note 12, at 170-74.
n222. 128 S. Ct. 2783, 2869 (2008) (Breyer, J., dissenting).
n223. 530 U.S. at 921-22.
n224. Id. at 937-38.
n225. Id. at 946-47 (Stevens, J., concurring).
n226. Id. at 938 (majority opinion).
n227. Justice Breyer, for example, seems stuck with his commitment in Stenberg to robust protection of
even marginally better methods for exercising the contested right, where the life or health of the right-bearer is
on the line. But his dissent in Heller emphatically rejects this same essential argument and advances instead the
view that certain types of guns pose externalities (gun crime) that justify banning the entire category (handguns,
seemingly regardless of their defensive utility), and not to worry because any individual right to arms is
respected by allowing citizens to have some type of gun. See 128 S. Ct. at 2863-66 (Breyer, J., dissenting).
n228. 127 S. Ct. 1610, 1619 (2007).
n229. Stenberg, 530 U.S. at 958-59 (Kennedy, J., dissenting).
n230. 127 S. Ct. at 1638.
n231. 530 U.S. at 929-30.
n232. Id. at 933-37.
n233. Id. at 933-35.
n234. Id. at 946-47 (Stevens, J., concurring).
n235. Id. at 958-59 (Kennedy, J., dissenting) ("The fetus, in many cases, dies just as a human adult or
child would: It bleeds to death as it is torn limb from limb... . Dr. Carhart ... testified [that] he knows of a
physician who removed the arm of a fetus only to have the fetus go on to be born "as a living child with one
arm.'" (citation omitted) (quoting Brief for Ass'n of American Physicians & Surgeons et al. as Amicus Curiae,
Stenberg, 530 U.S. 914 (No. 99-830))).
n236. Id. at 931-32 (majority opinion). Compare District of Columbia v. Heller, 128 S. Ct. 2783, 2860
(2008) (Breyer, J., dissenting) (concluding that dispute about the utility of the Washington, D.C. handgun ban
required deference to the legislature "because legislators, not judges, have primary responsibility for drawing
policy conclusions from empirical fact"), with Stenberg, 530 U.S. at 970 (Kennedy, J., dissenting) ("The Court
fails to acknowledge substantial authority allowing the State to take sides in a medical debate, even when
fundamental liberty interests are at stake and even when leading members of the profession disagree with the
conclusions drawn by the legislature.").
n237. Stenberg, 530 U.S. at 930-31.
n238. Id.
n239. See discussion supra Part II.B.2.
n240. See supra notes 170-76 and accompanying text. As discussed above, in the category of long guns,
the recoil and weight of the shotgun and many so-called "sporting rifles" exempted from the 1994 ban make
them impractical for many smaller or weaker people. See supra notes 170-71 and accompanying text.
n241. 530 U.S. at 937-38.
n242. Id. at 932 ("The State fails to demonstrate that banning D&X without a health exception may not
create significant health risks for women, because the record shows that significant medical authority supports
the proposition that in some circumstances, D&X would be the safest procedure."). But see District of
Columbia v. Heller, 128 S. Ct. 2387, 2852-53, 2860 (Breyer, J., dissenting) (urging deference to the
n243. Stenberg, 530 U.S. at 932 (quoting Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1126 (D. Neb.
n244. See supra Part II.B.
n245. See supra Part II.B.1.
n246. Stenberg, 530 U.S. at 964 (Kennedy, J., dissenting) (contending that by insisting on an exception to
the ban where the individual doctor makes a judgment that partial-birth abortion is necessary, the majority
"awards each physician a veto power over the State's judgment that the procedures should not be performed").
n247. See supra Part II.B.1.
n248. Zip Gun,, gun (last
visited June 10, 2009) (defining "zip gun" as "a crude weapon made usually in someones [sic] basement or
n249. See Dave Kopel, Second Amendment Project, Warren Burger and the Second Amendment, http:// (last visited June 10, 2009) ("So called "Saturday Night Specials' are
small, inexpensive, low-calibre handguns, disdained by most criminals ... .").
n250. The second point may be difficult to show empirically. Also, some will object that this critique
ignores the special utility of affordability - that it is not criminals but poor people who gravitate to these guns.
Compare odd and idiosyncratic guns like those disguised as writing instruments, canes, or umbrellas that the
ATF historically attempted to regulate more closely. See Halbrook, supra note 37, at 529.
n251. 530 U.S. at 933.
n252. The Stenberg Court noted that there is "no reliable data on the number of D&X abortions performed
annually. Estimates have ranged between 640 and 5,000 per year." Id. at 929.
n253. Strauss et al., supra note 203, at 1.
n254. Id.
n255. Stenberg, 530 U.S. at 930.
n256. Id. at 934 ("Certain of the arguments are beside the point. The D&X procedure's relative rarity
(argument (1)) is not highly relevant.").
n257. Id.
n258. Id.
n259. See id.
n260. See id. The comparative numbers for self-defense of course are contested. Compare Kleck & Gertz,
supra note 192, at 164 (finding that up to 2.5 million Americans use guns defensively each year), with Philip J.
Cook et al., The Gun Debate's New Mythical Number: How Many Defensive Uses Per Year?, 16 J. Pol'y
Analysis & Mgmt. 463, 465 (1997) (estimating 1.5 million defensive gun users). In most defensive gun uses,
the gun is not actually discharged. Kleck, supra note 59, at 162. This suggests that the appearance of the gun
has substantial deterrent value. If this is right, the appearance of the assault weapon - its nonsporting features -
should have higher deterrent value than others.
n261. See Stenberg, 530 U.S. at 934.
n262. See supra Part II.B.1.
n263. 530 U.S. at 934.
n264. See id. at 935.
n265. Id. at 938.
n266. See supra text accompanying note 137.
n267. See supra text accompanying note 241.
n268. 530 U.S. at 935.
n269. Id. at 932.
n270. See District of Columbia v. Heller, 128 S. Ct. 2783, 2856-59 (2008) (Breyer, J., dissenting)
(discussing extent of handgun violence); Christopher S. Koper et al., Univ. of Pa., An Updated Assessment of
the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, at 3 (2004),
available at 004.pdf (noting that assault weapons were
used in only a small fraction (2-8%) of gun crimes before the 1995 ban).
n271. Ballistically it is difficult to sustain the argument that the assault weapon imposes more risk than a
"sporting" long gun, say in the .300 Magnum category, or one of the "approved semiautomatics" from the last
ban, like the M1 Garand. See supra Part II.A.2.
n272. 530 U.S. at 937-38.
n273. Id. at 936-37.
n274. Id. at 937 ("We cannot say that the presence of a different view by itself proves the contrary."). In the
assault weapons context, there are analogies, but they cut against the state claim, either that assault weapons are
a special enough threat that the state can impair the right in that limited case, or that assault weapons have no
special utility in selected strands of self-defense.
n275. Id. (emphasis added). Justice Breyer offers this as if the abortion procedures do not really present a
problem. He really is saying that stepping on the constitutional right is more of a problem, and the primary
one, and that we will err in favor of the individual and protect the optimal methodology, even where the state
and many citizens find the procedure gruesome, even criminal.
n276. Id.
n277. Id. at 934 (quoting Am. Coll. of Obstetricians & Gynecologists Executive Bd., Statement on Intact
Dilation and Extraction (Jan. 12, 1997)).
n278. See generally Part II.B (explaining the regulatory paradox).
n279. This claim requires the difficult showing that a gun's features are not neutral - that somehow they are
only accessible to criminals. The Brady Campaign to Prevent Gun Violence attempts this argument, suggesting
that assault weapons have some special capacity for shooting from the hip - something criminals especially need
to do. See Brady Campaign to Prevent Gun Violence, supra note 82. David Hemenway makes a similar effort in
a survey that questions whether owners of semiautomatic firearms exhibit peculiar personality traits. See
Hemenway & Richardson, supra note 76, at 286. He found that 60% of gun owners had at least one automatic
or semiautomatic firearm, and that those people reported more frequent binge drinking. Id. at 287.
n280. See 530 U.S. at 937-38.
n281. Id. at 930.
n282. Id. at 938-39 ("We do not understand how one could distinguish, using [the statutory] language,
between D&E ... and D&X ... .").
n283. Id. at 946-47 (Stevens, J., concurring). Compare id. (describing as "irrational" the notion that the
state furthers any legitimate interest by banning one abortion method but not the other), with Gonzales v.
Carhart, 127 S. Ct. 1610, 1647 (2007) (Ginsburg, J., dissenting) ("The law saves not a single fetus from
destruction, for it targets only a method of performing abortion."). These arguments parallel the broad claim that
there is no distinction between the good guns and the bad guns in assault weapons legislation, and thus the
distinctions based on appearance are irrational.
Justice Stevens also captures the essence of the armed self-defense decision in his summary of the personal
right of the woman "to make this difficult and extremely personal decision." Stenberg, 530 U.S. at 946
(Stevens, J., concurring). The self-defense claim is stronger of course because the competing life interest is
totally innocent in the abortion context and predominantly culpable in the self-defense context. Also, the gun
case is stronger because it is death or severe bodily harm in the balance for the armed self-defender. In the
abortion context, this is rarely the case. See supra notes 251-54 and accompanying text.
n284. Johnson, supra note 65, at 442, 445.
n285. See District of Columbia v. Heller, 128 S. Ct. 2783, 2855-56 (2008) (Breyer, J., dissenting).
n286. See supra Parts I, II.A.2; see also Kopel, supra note 40, at 164-70 (comparing exempt recreational
firearms and assault weapons).
n287. See supra Part II.A.1.
n288. See, e.g., Kopel, supra note 40, at 171-74.
n289. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 958-60 (2000) (Kennedy, J., dissenting).
n290. See id. at 961 ("In light of the description of the D&X procedure, it should go without saying that
Nebraska's ban on partial birth abortion furthers purposes States are entitled to pursue."); id. at 983-89
(Thomas, J., dissenting).
n291. One obvious explanation for the split in Stenberg is that, compared to the majority, the dissenters
place a generally higher relative value on the fetus. Justice Kennedy, for example, emphasizes testimony that
D&X in some renditions is a hair's breadth away from infanticide. Id. at 958-59 (Kennedy, J., dissenting). The
life interest of the fetus is difficult to define. Stenberg discusses the state's interest in the "potentiality of human
life." Id. at 930 (majority opinion). This reflects that the fetus is not a separate person, but is substantially more
than nothing (some grieve over its loss). It is more than just the idea of a life that might emerge. Whatever label
we apply to it, it has happened, it exists. But how far apart are these valuations and what else do they tell us?
Only in context do we approach an answer. Compare, then, Justice Breyer's majority opinion in Stenberg and
his dissent in Heller. Together they are a textbook illustration of the standard position and perhaps illuminate
core convictions that attitudinalists say really control these questions.
One explanation for the standard position is the relative valuation of life-interests. Both the abortion right
and the gun right threaten and ultimately consume competing life-interests: the gun right through criminal
homicides and legitimate self-defense shootings; the abortion right through destroyed fetuses. One way to arrive
at the standard position is to value the fetus as some fraction of a life-in-being. So 1.3 million fetuses destroyed
each year are weighted less than 13,000 gun homicides. See Johnson, supra note 1, at 843; Alexi A. Wright &
Ingrid T. Katz, Roe versus Reality - Abortion and Women's Health, 355 New Eng. J. Med. 1, 2 (2006). On that
measure, the standard position values the fetus at about .01 of a life-in-being.
One might adopt the standard position on the view that the externalities of the gun right weigh more
heavily than those of the abortion right. But this is empirically problematic. It rests on the highly contested
assumption that firearms impose net social costs while the abortion right only causes opponents and participants
some existential angst. It means ignoring evidence that guns are used widely for self-defense and that
communities where trustworthy people are armed experience less crime. See, e.g., John R. Lott Jr., More Guns,
Less Crime: Understanding Crime and Gun-Control Laws 51 (1998); Kleck & Gertz, supra note 192, at 185.
And that requires erring against the right-claimant on a deeply contested empirical question - precisely the
opposite of what Stenberg commands. See supra Part III.B.1.e.
Another explanation is that the costs of the abortion right are private and predictable, while the externalities
of the gun right spin out at random. But this really collapses back into the fetus valuation question. If we were
balancing a life-in-being rather than a fetus, it would not be a privacy issue at all. It would be just like the gun
question, where it is no excuse that gun violence occurs in private or between family members. The only
difference in the abortion case is that the fetus depends on the mother in a unique way, and in a contest between
the two, that dependency lowers the valuation of the fetus.
There is another superficially different explanation that, again, reduces to the valuation question. It
emphasizes the mother's autonomy and equality in a world where men and women are both responsible for the
pregnancy but women disproportionately bear the burden of caring for the unwanted child. See Ginsburg, supra
note 204, at 382-83. This transforms the question into a contest between the man and woman who created the
fetus. Equality means that the woman should have an equivalent chance to avoid the burden of the unwanted
child. It is interesting to compare this argument with the militia-centric version of the Second Amendment that
is advanced, for example, by Justice Stevens's dissent in Heller. See District of Columbia v. Heller, 128 S. Ct.
2783, 2824-26 (2008) (Stevens, J., dissenting). Formal militia participation historically has been, and continues
to be, explicitly gender-discriminatory. See, e.g., 10 U.S.C. § 311 (2006) (identifying militia members as able
bodied males ages eighteen to forty-five, and female members of the national guard). This seems to be an equal
or plainer violation of the equality argument. This reduces to the valuation argument because any value attached
to the fetus is secondary to the woman's equality claim.
It is then difficult to escape the assessment that the standard position depends on a comparatively low
valuation of the fetus. Is it principle or passion that explains this valuation?
n292. See, e.g., 530 U.S. at 983-89 (2000) (Thomas, J., dissenting).
n293. Id. at 923 (majority opinion).
n294. See Kopel, supra note 40, at 169-70 (alteration in original).
n295. Id. at 170.
n296. In 1997, at Pearl High School in Pearl, Mississippi, a sixteen-year-old shot nine classmates using a
stolen single-shot deer rifle that "had to be reloaded after every shot." Wayne Laugesen, A Principal and His
Gun, Boulder Wkly., Oct. 15, 1999, available at othwr/principal&gun.htm.
n297. Some of the worst outcomes of human violence are the result of extreme imbalances in access to
weapons technology. See, e.g., Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies 76
(1999) (describing massacres of native peoples by European invaders with guns). See generally Jay Simkin et
al., Lethal Laws (1994) (arguing that government-imposed gun control has resulted in genocides). Smaller-scale
examples are shootings like the Virginia Tech massacre. See Christine Hauser & Anahad O'Connor, Virginia
Tech Shooting Leaves 33 Dead, N.Y. Times, Apr. 16, 2007, available at /
us/16cnd-shooting.html?_r=1&scp=1&sq= virginia%20tech%20massacre&st=cse.
n298. I have long held the view that people react viscerally to the gun question and rarely change their
position absent some cathartic event. I have viewed this mainly as a cultural phenomenon. The work of
cognitive psychologists tracking the seats of different capabilities and emotions in the brain suggests another
possibility - that it might be hard-wiring as much as culture that guides how we approach the gun question.
Particularly interesting is the recognition that in our "reptile brain," the cerebellum controls more basic and
automatic functions. See generally Daniel J. Levitin, This is Your Brain on Music: The Science of a Human
Obsession (2007), for a fascinating study of these general ideas. Could it be that the revulsion and fear that
people experience viewing just a picture of a firearm keys into some hard-wired survival instinct? Or that the
fascination others have with firearms reflects a different version of the same thing? Perhaps thinking about
private weapons is a largely hard-wired response to perceived danger. See id.
n299. See Johnson, supra note 12.
n300. Stenberg v. Carhart, 530 U.S. 914, 957 (2000) (Kennedy, J., dissenting).
n301. Id. at 961.
n302. It is almost too easy to criticize assault weapons bans for the absurd focus on pistol grips, bayonet
lugs, and flash hiders that are irrelevant to function. Representative Carolyn McCarthy, sponsor of a House bill
to renew the 1994 ban, was embarrassed on national television when asked by Tucker Carlson to explain what a
barrel shroud was and why her bill proposed to ban them. See Tucker (MSNBC television broadcast Apr. 18,
2007), available at watch?v=ospNRk2uM3U. Pressed, she admitted that she did not
know what a barrel shroud was: her guess was the sling or carrying strap. Id. Representative McCarthy ran for
Congress after losing a loved one to the gunfire of a madman who shot people randomly on a Long Island
Railroad train. Peter Marks, Train Shooting Victim Speaks for First Time Since Injury, N.Y. Times, Dec. 15,
1993, available at http:// on/train-shooting-victim-speaks-for-first-time-
Almost any reaction to that kind of trauma is understandable. But it is not just Representative McCarthy
who presses the view that oddly-defined assault weapons are illegitimate. See, e.g., Press Release, Violence
Policy Ctr., U.S. Can Act Immediately to Halt Import of AK-47 Assault Rifles Fueling Gun Violence on U.S./
Mexico Border, VPC Tells Congress (Mar. 18, 2009), available at
n303. See District of Columbia v. Heller, 128 S. Ct. 2783, 2821-22 (2008).
n304. See 18 U.S.C. § 922(r) (2006).
n305. The 1994 ban was grounded partly in the pre-Heller focus on "sporting use" to define legitimacy. See
Johnson, supra note 106, at 771-72. Post-Heller, with its explicit protection of arms ordinarily used for self-
defense, the sporting-use designation recedes to the margins.
n306. Stenberg, 530 U.S. at 964 (Kennedy, J., dissenting).
n307. Id.
n308. See Johnson, supra note 65, at 445.
n309. Domestic parts were manufactured for precisely this purpose. See, AK-47 Trigger
Group, (last visited June 10, 2009) ("Drop-in replacement
for factory trigger ... . Made in the U.S.A. to keep your gun in compliance with U.S. Code Title 18 Section
922(r) part-source requirements. Kit counts as three, U.S.-made parts - trigger, disconnector, and hammer.
Single and double hook models available.").
n310. See Alex Roth et al., New Calls for Assault-Gun Ban, Wall St. J., Mar. 13, 2009, http:// (recounting the label "black guns" applied to assault
n311. Stenberg, 530 U.S. at 965 (Kennedy, J., dissenting).
n312. Id. at 964-65.
n313. See id. at 968.
n314. Id. at 958.
n315. Id. at 959-60.
n316. District of Columbia v. Heller, 128 S. Ct. 2387, 2856-57 (Breyer, J., dissenting).
n317. See Kopel, supra note 40, at 164-67.
n318. See Stenberg, 530 U.S. at 960-61 (Kennedy, J., dissenting); see also id. at 1012 (Thomas, J.,
dissenting) (levying essentially the same criticism that by ceding authority to the physician to apply the health
exception, the majority mandates "unfettered abortion on demand").
n319. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992) (plurality opinion).
n320. 128 S. Ct. at 2816-17.
n321. Id. at 2817.
n322. See Stenberg, 530 U.S. at 961 (Kennedy, J., dissenting).
n323. 128 S. Ct. at 2816-17.
n324. Stenberg, 530 U.S. at 967 (Kennedy, J., dissenting). Justice Thomas similarly argues that the
Stenberg health exception for procedures that have "any comparative health benefits" demands too little. Id. at
1012 (Thomas, J., dissenting).
n325. Id. at 914, 915 (majority opinion).
n326. Id. at 928-29.
n327. See id.
n328. Id. at 926-29.
n329. Id. at 971-72 (Kennedy, J., dissenting).
n330. Johnson, supra note 106, at 792 n.427.
n331. 530 U.S. at 1010 (Thomas, J., dissenting).
n332. Id.
n333. See supra Part III.A.
n334. See supra Part III.A; see also Johnson, supra note 196, at 102-15 (critiquing the positions advanced
by Regan and Thomson).
n335. Compare Stenberg, 530 U.S. at 980 (Thomas, J., dissenting) (making several other discrete points
that highlight the intersection, by summarizing the basic case that the abortion right is not supported in the text
of the Constitution), with Johnson, supra note 12, at 138-60 (weighing the textual claims for the abortion and
gun rights), and Johnson, supra note 74, at 709-11 (showing the right to arms in 44 state constitutions). For
Justice Thomas' discussion of the "partial-birth abortion" term that tracks the criticisms that the legislature
created the term "assault rifle" and the category in conflict with conventional meaning, see Stenberg, 530 U.S.
at 1014 (Thomas, J., dissenting). His summary of Casey, which he claims is undercut by Stenberg, includes a
description of Casey's validation of a twenty-four-hour waiting period. Id. This is a style of legislative proposal
common in both the gun and abortion context. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
879-80 (1992) (describing exception to the waiting period where the life or health of the mother was at stake).
n336. Stenberg, 530 U.S. at 1014 (Thomas, J., dissenting).
n337. See 428 U.S. 52, 75-76 (1976).
n338. Stenberg, 530 U.S. at 1014 (Thomas, J., dissenting).
n339. See, e.g., Kleck, supra note 192, at 185.
n340. Stenberg, 530 U.S. at 1015 (Thomas, J., dissenting).
n341. Id.
n342. Id. at 1016.
n343. Id. at 1020.
n344. Kopel, supra note 38. The assault weapon presents SMUs in terms of ballistics and recoil that can be
measured to decimal places. See supra Part II. The assault weapon's lower lethality actually complements the
state interest in reducing externalities. See supra Part II. The significance of this reduced lethality (and the
arguable irrationality of a restriction that fails to account for it) should be understood in contrast to the advanced
lethality of guns expressly identified as legitimate (e.g., most medium to large game hunting rifles in a variety
of repeating technologies). See supra Part II.
n345. See Gonzales v. Carhart, 127 S. Ct. 1610, 1619 (2007).
n346. Id. at 1644.
n347. See supra Part III.B.2.a-b (discussing dissents of Justices Kennedy and Thomas, criticizing the
adequacy of a peppercorn of SMUs and protection of methodologies rarely necessary to protect life or health).
n348. Johnson, supra note 12.
n349. I do not claim that this would satisfy the attidudinalist who might always dismiss articulated
principles as just byplay or "worse than useless" bunk. See Dorf, supra note 22, at 500.
n350. See Gonzales, 127 S. Ct. at 1634-35 ("Partial-birth abortion, as defined by the Act, differs from a
standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the
Act's anatomical landmarks."); see also Stenberg v. Carhart, 530 U.S. 914, 1006-07 (2000) (Thomas, J.,
dissenting) ("The [American Medical Association] has recognized that this procedure is "ethically different from
other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed
outside the womb. The "partial birth" gives the fetus an autonomy which separates it from the right of the
woman to choose treatments for her own body.'" (quoting Brief for Ass'n of American Physicians & Surgeons
et al., supra note 235)).
n351. See Kopel, supra note 40, at 164-67.
n352. 127 S. Ct. at 1624.
n353. See 530 U.S. at 971-72 (Kennedy, J., dissenting).
n354. Gonzales, 127 S. Ct. at 1637 ("On the one hand, the Attorney General urges us to uphold the Act on
the basis of the congressional findings alone. Although we review congressional fact-finding under a deferential
standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains
an independent constitutional duty to review factual findings where constitutional rights are at stake." (citation
n355. Id. at 1636-38 (citations omitted).
n356. Id. at 1637-38.
n357. Id. at 1638-39.
n358. The Gonzales majority was made up of the same five Justices who voted in the Heller majority.
n359. See supra Part III.B.2.b (noting that the entire utility is grounded in conflicting testimony by
medical experts about the usefulness of D&X to the abortion doctor).
n360. See, e.g., Kopel, supra note 40, at 168-69.
n361. See Gonzales, 127 S. Ct. at 1636.
n362. See supra note 138 and accompanying text (discussing the regulatory paradox).
n363. See Gonzales, 127 S. Ct. at 1637.
n364. Id.
The instant cases, then, are different from Planned Parenthood of Central Mo. v. Danforth, in which the Court
invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court
found the ban in Danforth to be "an unreasonable or arbitrary regulation designed to inhibit, and having the
effect of inhibiting, the vast majority of abortions after the first 12 weeks." Here the Act allows, among other
means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the
abortion right.
Id. (citation omitted) (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 79 (1976)).
n365. David Kopel puts the point in human terms:
One evening, a gang brawl broke out in the street next to the northwest Denver home of a young woman named
Sharon Deatherage. A police car happened upon the scene, and sped away without taking any action, never to
return. As a result of this experience, the young woman, who lived alone, decided that she would have to take
measures to protect herself because she could not rely on the Denver City government for protection. Because of
an injury to her wrist, she was unable to use a handgun. At the suggestion of a firearms instructor, she bought
an M-1 carbine, which is a relatively small, low-powered semiautomatic rifle, and which has been commercially
available for nearly half a century. Not long after she bought the weapon, the City of Denver turned Ms.
Deatherage into a criminal by declaring her M-1 carbine and its attached 30-round ammunition magazine an
illegal "assault weapon."
Kopel, supra note 38, at 381 (footnote omitted). As the example illustrates, someone who wants a gun for self-
defense but is physically unable to use a handgun must choose another suitable gun. The M-1 carbine assault
rifle is perhaps the lowest-recoiling gun firing a cartridge still suitable for self-defense, making it and other low-
recoil assault weapons the best available option for self-defense. Id.
n366. 127 S. Ct. at 1636.
n367. See 530 U.S. 914, 964 (2000) (Kennedy, J., dissenting).
n368. 127 S. Ct. at 1636.
n369. Id. at 1638.
n370. See discussion supra Part II.B.1.
n371. See discussion supra Part II.B.2.
n372. Gonzales, 127 S. Ct. at 1624, 1636.
n373. Id. at 1638.
The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained.
This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined
instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be
used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a
facial attack.
Id. at 1638-39 (citation omitted).
n374. This comparison pits the strong argument, that partial-birth abortion is never the best alternative,
against the assault weapon's objectively measurable SMUs and assault weapons bans' irrational attribution of
dangerous qualities to features that only affect appearance.
n375. 127 S. Ct. at 1639 (citation omitted).
n376. Id.
n377. Id.
n378. Id. ("We note that the statute here applies to all instances in which the doctor proposes to use the
prohibited procedure, not merely those in which the woman suffers from medical complications.").
n379. See supra Part III.A.
n380. See Jeani Chang et al., Pregnancy-Related Mortality Surveillance - United States, 1991-1999,
MMWR Surveillance Summaries, Feb. 2003, at 1, available at
********** Print Completed **********
Time of Request: Monday, October 26, 2009 17:14:01 EST
Print Number: 1842:184990952
Number of Lines: 1856
Number of Pages:
140 W 62ND ST
NEW YORK, NY 10023-7407
District of Columbia v. Heller could prove a turning point not in the law governing the right to keep and bear arms, but governing the right to serve in the military. Heller's reasoning, notwithstanding the Court's efforts to constrain its analysis from reaching a right to serve, should lead to a reconsideration of military service as a broadly-held and long-recognized constitutional right. Because of the political meaning of military service and the changes that have altered the role and make-up of the military in the United States, the Second Amendment ought to be read, in the wake of Heller, as protecting American citizens' right to military service. This Essay furthers that argument by exploring two critical contexts in which Heller was written: the link between full citizenship and military service and the demographic, technological, and geopolitical changes that have remade the U.S. military since its colonial origins. Today's Second Amendment, like today's military, must protect far more than it once did. All qualified citizens-regardless of gender or sexual orientation-hold the right to military service.
Full-text available
This Article focuses on the case of the Second Amendment right to bear arms and gun control to examine whether the Constitution has fostered a pathological rights culture of rights without responsibilities and regulation. We offer some preliminary thoughts about “ordered gun liberty” – the indvidual right to bear arms in relation to responsibilities, virtues, and regulation. This article addresses a conundrum concerning this right: there is no individual right that cries out more for governmental encouragement of responsibility concerning its exercise and for governmental regulation to promote safety and to protect from harm, and yet there is no individual right whose defenders more strenuously reject such governmental promotion of responsibility and regulation. We argue that, notwithstanding the rhetoric of rights absolutism, ordered gun liberty supports a “reasonable right to bear arms” that also recognizes the proper role of regulation. We highlight several dimensions of responsibility talk in the discourse concerning the individual right to bear arms, including in District of Columbia v. Heller itself. We address the myth of strict scrutiny for Second Amendment rights, pointing out the wide latitude that protecting an individual right to bear arms, like other rights, leaves for government to encourage responsible exercise of the right. We argue that a form of intermediate scrutiny analogous to that of Moore v. East Cleveland under the Due Process Clause is a strong candidate for the appropriate framework for thinking about rights and responsibilities under Heller for gun control regulation, as is the undue burden standard of Planned Parenthood v. Casey. As a practical example of appropriate regulation, we discuss regulations to protect children from guns in the home – a context in which Second Amendment rights intersect with fundamental parental liberty, family privacy, children’s own rights and needs, and governmental authority to protect children from harm or evils and further their healthy development. We argue that, notwithstanding the NRA’s rejectoin of them, safe storage, or Child Access Prevention laws, are a reasonable regulation aimed at preventing unnecessary injury and loss of life and do not unduly burden Second Amendment rights or fundamental parental liberty or religious liberty. While the NRA advocates exhortation and education over regulation, we counter that, in light of the developmental differences between children and adults – pointed out in the Supreme Court’s jurisprudence – supplementing gun education (focused on avoiding guns) with actual regulations requiring adults to take steps to keep children safe is likely to be more effective. We also argue that the privacy of the home is not unduly burdened by medical practice aimed at taking a public health approach to ameliorating risks to children by encouraging responsible gun storage.
This Comment describes how 3D printers will render current firearm regulations obsolete by allowing individuals to easily produce firearms—production that, when exercised by law-abiding citizens, may be protected under the Supreme Court’s decision in District of Columbia v. Heller. The regulatory system will be undermined in two phases. First, printers will be able to produce the only regulated piece of a firearm, the frame. Second, the printing of complete guns may be realized as 3D print technology advances or firearm design evolves. These developments, which could cause substantial changes in how both criminals and legitimate consumers obtain firearms, could lead to outright prohibition of personal manufacture or specific bans on weapons made by 3D printers. District of Columbia v. Heller, the Supreme Court’s 2008 decision interpreting the Second Amendment as protecting an individual right to possess firearms, could be interpreted to constrain this particular regulatory response. Specifically, Heller may create a right for individuals to make their own weapons to be used in self-defense and may protect certain processes and materials involved in making firearms. Part I introduces 3D printers and explains which gun components they can already produce. Part II explains how firearms are presumptively distributed under federal regulations, describes the structure of the firearm industry, and discusses theories on how consumers and criminals actually obtain guns. Part III explains how 3D printers may change the way firearms are acquired, undermining or even rendering obsolete the current regulatory system. Part IV, after outlining the constitutional right to bear arms, interprets Heller as supporting an individual right for law-abiding citizens to make their own self-defense weapons, and explains why this interest is legitimate. Part IV also analyzes the extent to which Heller may extend Second Amendment protection to weapons made by additive manufacturing. The Conclusion summarizes and stresses the importance of 3D printers remaining unrestricted, irrespective of their influence on self-defense. Cite as: 42 Golden Gate U. L. Rev. 447 (2012).
This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be approached but not fully resolved under the common use standard. These laws pose challenges of taxonomy n5 that invite embellishment and manipulation of the common use standard.
Full-text available
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.
Full-text available
This Essay reports the results of an interdisciplinary project comparing political science and legal approaches to forecasting Supreme Court decisions. For every argued case during the 2002 Term, we obtained predictions of the outcome prior to oral argument using two methods-one a statistical model that relies on general case characteristics, and the other a set of independent predictions by legal specialists. The basic result is that the statistical model did better than the legal experts in forecasting the outcomes of the Term's cases: The model predicted 75 % of the Court's affirm/reverse results correctly, while the experts collectively got 59. 1 % right. These results are notable, given that the statistical model disregards information about the specific law or facts of the cases. The model's relative success was due in large part to its ability to predict more accurately the important votes of the moderate Justices (Kennedy and O'Connor) at the center of the current Court. The legal experts, by contrast, did best at predicting the votes of the more ideologically extreme justices, but had difficulty predicting the centrist justices. The relative success of the two methods also varied by issue area, with the statistical model doing particularly well in forecasting "economic activity" cases, while the experts did comparatively better in the "judicial power" cases. In addition to reporting the results in detail, the Essay explains the differing methods of prediction used and explores the implications of the findings for assessing and understanding Supreme Court decision making.
Full-text available
Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has as deep and entrenched a gun culture as the U.S. This remainder problem and defiance impulse mean that we are far past the point where supply restrictions can work. Now that the Supreme Court has ruled in D.C.v. Heller that the Second Amendment prohibits general disarmament, the temptation is to view Heller as the central obstacle to effective gun control. This is a mistake born of our failure to confront the incoherence of pre-Heller supply-side controls. This article elaborates the supply-side ideal as the foundation of our most ambitious gun control proposals, explains the remainder problem and the defiance impulse as both cultural and physical phenomena that block supply-side rules, and evaluates a series of familiar gun-control proposals in the context of these structural barriers in order to identify which can work and which cannot.
Written by two certified human factors/ergonomics professionals and a criminalist and firearms expert, all of whom have testified as expert witnesses, Human Factors in Handgun Safety and Forensics draws on their formidable collective knowledge and professional experience to present the first scientifically based volume in the field. This seminal work identifies numerous human factors in handgun design, training, and related human behavior in unintentional and inadvertent shooting incidents. The book provides an overview of handgun use in general but focuses on firearm handling in unintentional and inadvertent shootings. It describes the discipline of human factors and ergonomics and includes available statistics on shootings, examines their limitations, and reviews actual cases to determine human causes in unintentional and inadvertent shootings. It provides a history of firearms and details the components and mechanics of handguns and ammunition to reveal safety problems in current designs. It explains the fundamentals of shooting and how violation of those principles can result in unintentional or inadvertent shootings. The authors stress the importance of firearms safety training. They evaluate various safety training programs (including those from the National Rifle Association), investigate inconsistencies in basic safety rules, and make suggestions to improve safety training. The importance of instructor training is also emphasized. The book concludes with a summary and application of the previous topics to forensic and investigative settings and gives advice for human factors/ergonomics professionals as expert witnesses. The book comes with an accompanying DVD with hundreds of color photos to support the topics covered in the text.
The abstract for this document is available on CSA Illumina.To view the Abstract, click the Abstract button above the document title.
This study examined ownership patterns of automatic/ semiautomatic firearms in the United States. Data were derived from a national random-digit-dialing telephone survey of 800 gun owners. Sixty percent of gun owners reported owning an automatic or semiautomatic firearm. In comparison with other gun owners, owners of automatics or semiautomatics were more likely to be male, live in the South, own a gun for protection, and have a gun for work. They were also more likely to report binge drinking. Owners of automatic or semiautomatic firearms differ from other gun owners in several respects, including frequency of binge drinking.