Among the dozens of amicus briefs filed in defense of "assault weapon" bans last week, there are a few that stand out, either because of the ludicrous nature of their arguments or who's making them.
In the case of the brief filed on behalf of 189 Democrats in Congress, it's both the "who" and "what" that makes the brief notable. While not every Democrat on Capitol Hill lent their support to the brief (Ilhan Omar and Alexandria Ocasio Cortez are absent, for example), a substantial majority of Democrat House and Senate members did (including John Fetterman, for anyone who mistakenly thinks he's a moderate when it comes to Second Amendment issues). Their argument is simple, but it's also glaringly incomplete.
The basic premise of the brief is that "lawmakers have broad authority to address gun violence, subject to the Second Amendment’s limits." Fair enough, I suppose. But the obvious question then becomes, what are those limits?
Although the Second Amendment imposes constitutional limits on firearms regulation, within those limits, decisions about whether and how to regulate assault weapons properly belong to federal, state, and local lawmakers.
This is a repeated theme in the brief. They even state that judges are responsible for interpreting and enforcing those limits. But they fail to identify what those limits would actually prohibit Congress from doing.
On pages 4 and 5, they point out that Heller recognized an individual right that isn't unlimited. They also cite Bruen and Rahimi for the proposition that modern regulations need not be identical to historical restrictions, arguing that legislatures retain regulatory authority, particularly when confronting new technologies or changing public-safety concerns.
But they broadly ignore Heller's actual holding that D.C. couldn't ban handguns commonly possessed for lawful self-defense or require firearms to be stored in such a way that made them inaccessible for use in self-defense.
That's a pretty big omission, given that Viramontes and Grant are all about whether commonly possessed semi-automatic rifles can be prohibited.
On page 17, the Democrats do acknowledge that "the enshrinement of a right takes certain policy choices 'off the table.'” Yet again, though, they decline to state what those policies might be.
If the government can prohibit the possession of some of the most popular rifles in America, what firearms are beyond the reach of legislators who want to ban them? Handguns? Shotguns? Every semiautomatic firearm? The lawmakers offer no answers, just repeated assurances that constitutional limits exist somewhere out there, even as they urge the justices not to enforce one of the most consequential limits identified by the Supreme Court: the protection of arms in common use for lawful purposes.
Imagine 189 members of Congress telling the Supreme Court that the First Amendment absolutely limits the government's ability to censor speech, but that lawmakers should still be free to ban political commentary they consider dangerous. And when asked what speech the government can't prohibit, they simply repeat that the First Amendment has limits on government power, without ever saying what those limits are.
If these Democrats want to assert that there are limits on Congress's power to regulate firearms, I'm in full agreement. But when they argue that those limits don't include a ban on the most popular rifles in the country, they've lost me. And I'd like to know what, exactly, these lawmakers believe is off-limits thanks to the Second Amendment.
They repeatedly acknowledge that constitutional boundaries exist, but never identify where those boundaries lie. That's a glaring omission from 189 members of Congress asking the Supreme Court to uphold restrictions on a fundamental civil right. If they believe the Second Amendment actually constrains their authority, they ought to be able to tell the American people what they think it prevents them from doing. And if they can't or won't tell us, the most logical conclusion is that they don't really believe the Second Amendment places any meaningful limits on their power at all.
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