Assault Weapons Bans are an ASSAULT on the Second Amendment By Nicolas Pleshe

Table of Contents
Intro.............................................................................................................................................................. 2 The Ordinance............................................................................................................................................. 4 Facts and Procedural Posture ...................................................................................................................... 5 Background of the Second Amendment...................................................................................................... 6 Analysis ......................................................................................................................................................... 8

I.

It is incorrect to apply a heightened standard of scrutiny such as strict or intermediate to Second Amendment laws; instead gun laws should be reviewed using text, history, and tradition analysis

II. Modern Sporting Rifles (MSR) are of common use among law abiding citizens for lawful purposes. III. Modern Sporting Rifles (MSR) are not dangerous and Unusual Weapons. Conclusion ................................................................................................................................................. 15 Appendix A: Rifles Made by the Top MSR Manufactures .............................................................. 20 Appendix B: Rifles Exported by the Top MSR Manufacturers ....................................................... 21 Appendix C: Murder Victims by Weapon from 2006 - 2010........................................................... 22

Intro A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.1 The Second Amendment of the United States Constitution was ratified in 1791, but what is surprising is that it was over two centuries before the U.S. Supreme Court had its first in depth analysis of the scope of the Second Amendment. Assault weapons bans are nothing new; however, there has been very little case law challenging these bans for being in violation of the Second Amendment Right to Bear Arms. The term assault weapon is a misunderstood term that is derived from the term assault rifle used by the military to reference fully-automatic rifles.2 Assault weapons is a political term created by politicians and the anti-gun lobby to make a certain class of firearms sound worse than they really are. The type of firearms that are classified as assault weapons are semi-automatic arms that have specific accessories attached to the weapon that were first invented for military application used on most fullyautomatic arms.3 The argument commonly used by legislatures to support assault weapons bans are to protect the public from firearms that have certain military characteristics that allow someone to discharge a large number of rounds in a spray fire fashion while maintaining control of the weapon.4 The AR-15 is the most popular model of firearms classified as assault weapons that is employed for civilian use.5 It looks like an M16/M4 rifle which is the standard service weapon used by our military, but it does not function in the same way.6 The M16/M4 is a select fire rifle that can fire on semi-automatic or three round burst while an AR-15 is strictly semi-automatic.7 Because of the misinformation about assault weapons, the operation of different types of firearms should be compared with that of semi-automatic weapons. A revolver, pump action, or bolt action firearm must be cycled manually by the user for the weapon to chamber a round and fire; for example, a bolt action rifles bolt must be cocked back by the operator each time to chamber a round ready to fire and subsequently squeeze the trigger to fire.8 A semi-automatic firearm can take many forms such as a handgun, rifle, or shotgun. A semi-automatic firearm is a weapon which completes all the tasks necessary for it to fire when the trigger is pulled, which is different from firearms such as revolvers, pump 2|Page

action, or bolt action which must be cycled manually.9 One squeeze of the trigger from a semi-automatic firearm will only fire one round and chamber another round to be ready to fire.10 No matter how long you hold the trigger down it will not fire another round unlike fully-automatic firearms that can fire numerous rounds as long as the trigger is held down and will only stop firing if the trigger is released or all the ammunition in the magazine or belt is exhausted. For a semi-automatic firearm to be able to fire another shot, you would have to release your finger off the trigger and squeeze the trigger a second time. Contrary to the information put out to the public, assault weapons cannot spray fire and shoot rounds more quickly than any other semi-automatic firearms that are not considered assault weapons. Constitutional scholar Eugene Volokh explains the definition of assault weapons concentrates on the features and accessories (pistol grips, folding stocks, etc) associated with the firearm that has little to do with the dangerousness of the weapon.11 The term assault weapon is not the correct term to classify these weapons because the term originated from the military in reference to fully-automatic rifles.12 The National Shooting Sports Foundation (NSSF) calls these weapons modern sporting rifles (MSR) which I believe is a more appropriate term because of their versatility and growing popularity for shooting competitions, hunting, and self-defense.13 Since the term assault weapon is inappropriate, I will call these weapons MSRs for the remainder of this article. In 1994, Congress passed the Violent Crime Control and Law Enforcement Act which included the prohibition of MSRs from civilian use.14 Additionally, the law banned specific models of firearms by name for civilian use such as the AR-15. The ban expired in 2004. Since the expiration of the ban, some states have enacted their own assault weapons bans.15 Once the federal assault weapons ban expired, Cook County amended its 1993 version of an assault weapons ban in 2006 to close the gaps left by the expiration of the federal ban.16 The ordinance added a characteristics based test much like the one imposed in the expired federal ban.17 The ordinance also includes a list of various prohibited models and duplicates of certain firearms.18 The ordinance was challenged in Wilson v. County of Cook by three gun owners who were seeking to block the ban.19

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The legal question is whether MSRs are firearms that are protected by the Second Amendment. To determine if MSRs are protected an analysis must be done to assess the level of dangerousness and unusualness of these weapons in conjunction with determining if these weapons are in common use by law abiding citizens for lawful purposes.20 Additionally, since the Supreme Court did not explicitly articulate a standard to evaluate Second Amendment challenges; the Court needs to adopt a standard for the subordinate courts to follow when evaluating gun restrictions. Wilson v. County of Cook is important because it will expand what types of weapons are protected under the Second Amendment and can clear up some of the Second Amendment questions left from the landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago.21 The Illinois Supreme Court made the correct decision in Wilson to send the case back to the trial court for further review on the Second Amendment question because the Cook Countys Assault Weapons Ban should be struck down based on the historical analysis that MSRs are of common use by the public and are not dangerous and unusual weapons.

The Ordinance The ordinance defined assault weapons as any semi-automatic firearm (handgun, rifle, or shotgun) that had the capabilities to accept a high capacity magazine (detachable or fixed) and has one or more of the following characteristics; a pistol grip without a stock attached,, a folding stock, a collapsible stock, a barrel shroud, a protruding grip that is able to be held by the non-firing hand, a muzzle brake or a muzzle compensator.22 Furthermore, the ordinance defines a high capacity magazine as a magazine that can accept more than 10 rounds of ammunition.23 The ordinance also bans semi-automatic shotguns with the capabilities of accepting a detachable magazine or has a fixed magazine of more than 5 rounds and a semi-automatic pistol that has a detachable magazine outside the pistol grip.24

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Facts & Procedural Posture The plaintiffs filed an action seeking to block the assault weapons ban enacted by the county. The plaintiffs alleged that the ordinance violated the due process clause of the U.S. Constitution because the definition of assault weapon is unconstitutionally vague.25 Additionally, plaintiffs contended that the ordnance infringes on their Second Amendment rights to bear arms and that the ordinance violated the equal protection clause of the U.S. Constitution because the ordinance arbitrarily classifies certain firearms.26 The county filed a motion to dismiss, which was granted. The trial court found that 1) the ordinance was not unconstitutionally vague; 2) the Ordinance did not violate the Second Amendment because it allowed infringement only by the federal government and it had never been incorporated to the states through the Fourteenth Amendment; and 3) plaintiffs failed to state a cause of action for a violation of the equal protection clause.27 The appellate court affirmed the trial courts decision following District of Columbia v. Heller, which held that the Second Amendment did not apply to the states and was subject to police power. The appellate court also found that the trial court correctly denied the plaintiffs vagueness and equal protection challenges.28 The plaintiffs subsequently appealed to the Illinois Supreme Court which denied the petition and directed the appellate court to reconsider its decision based on a recent U.S. Supreme Courts decision in McDonald v. City of Chicago which held for the first time that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment.29 The appellate court again affirmed the trial courts decision holding that the Second Amendment does not extend to assault weapons because the ordinance is substantially related to an important governmental interest.30 Additionally, the appellate court reaffirmed that the ordinance was not unconstitutionally vague and dismissed the equal protection challenge.31 The Illinois Supreme Court granted the plaintiffs appeal and affirmed the due process and equal protection challenges, but reversed the Second Amendment challenge and directed the case back to the trial court to decide the Second Amendment question.32

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Background on the Second Amendment One of the very first cases to shape the Second Amendment came more than a century ago in U.S. v. Cruikshank.33 In this case, the Court held that the Second Amendment was meant not to be infringed by the federal government.34 However, it was subject to police powers of the state.35 This meant that the states and other municipalities had the right through legislative action to restrict gun ownership within their jurisdictions. Sixty-nine years later; the U.S. Supreme Court granted the appeal in U.S. v. Miller. In this case a man was arrested for unlawfully transporting a sawed off shotgun with a barrel of less than 18 inches.36 The Court held that such a weapon was not protected by the Second Amendment because it did not contribute to the common defense or seem to be any type of ordinary military equipment.37 The Court would later define this standard as weapons that are dangerous and unusual.38 The first in depth review of the Second Amendment came in District of Columbia v. Heller in 2008.39 In this case the District of Columbia handgun ban was challenged as being in violation of the Second Amendment. The U.S. Supreme Court held that the right to bear arms was an individual right.40 Furthermore, the Court recognized that the right to self defense was the central component of the Second Amendment; but the Court did recognize sporting activities such as hunting to be a lawful use of the right to bear arms.41 The dissent in Heller contended that the right to bear arms has always been a collective right reserved by the states for militia service.42 Justice Scalia, who wrote for the majority, rejected this notion by looking into the text, history, and tradition of the Second Amendment and the past precedent of the Court.43 The Court struck down the handgun ban because it was a prohibition on an entire class of firearms that have been overwhelmingly chosen by the American public for the lawful purpose of self-defense in the home.44 The Court also noted that this law would be held unconstitutional under any of the standards of scrutiny.45 This case was the most significant case on the Second Amendment because for the first time the Court recognized an individuals right to bear arms in self defense within the home. Furthermore, this case gives some guidance to subordinate courts on a variety of Second Amendment issues.

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After the Supreme Court struck down the handgun ban in Heller, McDonald v. City of Chicago was filed to invalidate Chicagos handgun ban.46 The case made its way all the way up to the U.S. Supreme Court where the Court changed course from its decision in Cruikshank by holding that the Second Amendment applies to the states by incorporation through the due process clause of the Fourteenth Amendment.47 Additionally, the Court reiterated its holding in Heller and subsequently struck down Chicagos handgun ban.48 This case was important because it extended the Second Amendment to apply to the states, which will allow for more challenges to laws restricting the right to bear arms. While Heller and McDonald were huge wins for Second Amendment rights, the Court made sure to emphasize that like all rights this right is not absolute.49 The Court noted that the Second Amendment is not a right that allows the right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.50 There have been restrictions placed on the class of people that were allowed to carry firearms; for example, the possession of firearms is prohibited by felons and the mentally ill.51 Additionally, there have been restrictions for carrying firearms in sensitive places such as schools.52 The Supreme Court in Heller also recognized another limitation on the Second Amendment derived from Miller, which is the prohibition from carrying dangerous and unusual weapons.53 However, the Court did not provide a standard test to determine which firearms would fall into this category. Since Heller and McDonald, many federal circuit courts have adopted a two prong test when determining the constitutionality of a gun law.54 (1) The court looks to whether a provision infringes on a right protected by the Second Amendment and (2) if it does then the court decides if the provision passes muster under the appropriate level of constitutional scrutiny.55 However, the Court in Heller and McDonald did not define a standard of scrutiny that should be applied to firearm bans. Most courts have applied a heightened level of scrutiny such as intermediate when evaluating firearm laws.56 Other courts that have addressed the issue of assault weapons have taken various approaches in reaching their conclusions. In People v. James, a California Court of Appeals held that a specific firearm is not protected by the Second Amendment.57 The court noted that through legislative findings it was determined that because assault weapons have "such a [rapid] rate of fire and capacity for firepower that 7|Page

their function as a legitimate sports or recreation firearm [for law abiding citizens] is far outweighed [by] the danger that they can be used to kill or injure human beings.58 Furthermore, the court concluded that the rifle at issue (.50 Cal BMG) has the capability to destroy and seriously damage essential public and private infrastructures.59 It concluded that these weapons were not typically possessed by law abiding citizens and is weapons of war.60 In response to the decision in Heller, The District of Columbia passed a new weapons law that banned the majority of semi-automatic rifles that they considered assault weapons. The law was challenged in Heller v District of Columbia (Heller II).61 The D.C. Circuit Court of Appeals affirmed the ban on assault weapons and determined that it could not be sure if assault weapons such as the AR-15 or high capacity magazines are of common use; however, the court noted that it need not resolve this issue, but instead applied intermediate scrutiny and the ban would survive this standard.62 The dissenting judge interpreted Heller and McDonald as rejecting the traditional standards of scrutiny that are used in constitutional law and instead used a text, history, and tradition approach to determine which arms are protected.63

Analysis I. It is incorrect to apply a heightened standard of scrutiny such as strict or intermediate to Second Amendment laws; instead gun laws should be reviewed using text, history, and tradition analysis.

Most courts have interpreted Heller and McDonald that the Court rejected a rational basis test and some form of heightened scrutiny such as strict or intermediate scrutiny should apply to gun restrictions.64 These standards of scrutiny weigh an individuals right against the states interest. A fundamental right such as free speech gets strict scrutiny test where the state must show a compelling interest to infringe on the right; under rational relationship the right is not fundamental, therefore any legitimate reason for government action is sufficient to defeat the right.65 Many courts have applied 8|Page

some form of intermediate scrutiny when reviewing gun laws.66 Therefore, the government only has to show that it has a significant interest in regulating assault weapons which is much higher than a legitimate interest in rational basis test67 The courts which have applied this standard of scrutiny have misinterpreted Heller and McDonald. The controlling opinions in Heller and McDonald indicate that gun laws should be examined based on text, history, and tradition. The dissenting opinion in Heller II interprets that the Supreme Court rejected the traditional standards of scrutiny approach relating to gun laws, but instead based their analysis on the text, history, and tradition.68 Upon reading Heller and McDonald, it is clear that the Court applied this type of approach in evaluating the prohibition on handguns. The Court never applied a level of scrutiny or even asked the question if the handgun ban served any important government interest.69 Instead the Court decided that handguns have not been traditionally banned and was of common use by society.70 It is apparent that not only did the Court use a text, history, and tradition analysis to examine gun restrictions, but clearly rejected a form of heightened scrutiny. Justice Breyers dissent in Heller comes to the conclusion that some type of interest balancing that resembles a form of intermediate scrutiny should apply where the government must show that it has a substantial government interest in restricting the Second Amendment.71 Justice Breyers argument for intermediate scrutiny placed gun ownership as not quite a fundamental right, but much more than a privilege. The majority rejected this approach and states that they are unaware of any enumerated constitutional right whose core protection has been subjected to a freestanding interest balancing approach.72 Since the Court rejected Justice Breyers interest balancing approach and did not mention a standard of scrutiny to adopt, it is obvious the Court intended to base Second Amendment analysis on historical justification. Since Heller was the Courts first in depth review on the scope of the Second Amendment, it had the flexibility to shape how gun restrictions would be decided by subordinate courts. In oral arguments in Heller Justice Roberts stated:

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Well, these various phrases under different standards that are proposed, compelling interest, significant interest, narrowly tailored, none of these appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up.73 Since the Court was able to start fresh, it did not feel the need to apply a standard of scrutiny on Second Amendment jurisprudence. What is more revealing is the number of times the Court used language such as historical justifications, longstanding, and traditions.74 This is a clear indication that the Court was adopting a historical standard. It is even more apparent in Heller and McDonald when the controlling opinions explained the intent of the Second Amendment by discussing the ratification of the Amendment and the history immediately following the ratification of the Second Amendment all the way up to the post civil war.75 Many courts have adopted the practice of looking at the legislative findings and intent when reviewing assault weapons bans.76 While it is important to look at the legislative intent of the law, it is not the sole basis for reviewing gun restrictions. Legislative findings cannot be the sole purpose to determine if a weapon is dangerous and unusual. The very essence of the Second Amendment is that a tyrannical government cannot disarm their citizens.77 If upholding a gun law was solely based on legislative findings then the legislature would have the ability to oppress the people by restricting a fundamental right that is enumerated in the U.S. Constitution. The dissent in Heller II suggested the government has more flexibility to regulate firearms with the text, history, and tradition approach then under the standards of scrutiny tests.78 I agree with this assessment, historical justifications make the law clearer and less subjective than the standards of scrutiny tests because the different standards (strict, intermediate, rational basis) is very subjective and would give judges a wide latitude of discretion which would result in mixed results all around the country, depending on the weight that a judge places on the governments interest and the right the government wishes to infringe on. Furthermore, if the highest level of scrutiny would apply to the Second Amendment than many gun restrictions such as the laws that prohibit firearms from sensitive 10 | P a g e

places or certain classes of people may not be upheld. The U.S. Supreme Court has mentioned a variety of laws that would be upheld based on their historical justifications.79 For example, there has been a longstanding tradition that firearms are prohibited from possession by felons or the mentally ill.80 Since historical analysis makes the law more clear, there would more uniform decisions by other judicial jurisdictions regarding various firearms restrictions across the country.

II.

Modern Sporting Rifles (MSR) are of common use among law abiding citizens for lawful purposes.

In Heller, it was held that handguns were in common use by the public for self defense in the home and thus the Court struck down the D.C. handgun ban. Wilson is like Heller because like the handgun, MSRs are of common use by our society. The AR-15 is the most popular weapon in the MSR family. This weapon along with other MSRs is growing in popularity among law abiding citizens and has many features that make them attractive and more efficient for self defense than other firearms. In Heller, Justice Scalia articulated that the American public has overwhelmingly chosen the handgun because of many of the characteristics that make them more efficient for the average citizen.81 Like many people choose the handgun for their features, many people choose a MSR because of its unique characteristics. According to a study by the National Shooting Sports Foundation (NSSF), the top five reasons that people purchase MSRs are for 1) accuracy, 2) reliability, 3) reputation of manufacturer, 4) availability of ammunition, and 5) it has good ergonomics.82 Like the handgun, MSRs have many characteristics that make them attractive for use by the average citizen because they are easy to handle and operate, and can be more effective for defensive situations. Many of the features that are common on a MSR make the weapon more ergonomic, user friendly, and safer than other rifles. For example, the pistol grip can be used so the user can hold the rifle in one hand while dialing 911 with the other just like Justice Scalias example of why a vast majority of public may choose the handgun for self defense.83 Likewise, the removal of a stock or the addition of a folding stock makes the weapon more maneuverable in confined spaces such as the home. Another common 11 | P a g e

feature on a MSR is the collapsible stock. A collapsible stock allows the operator to adjust the stock to the length to best fit the users body type making the weapon more comfortable to use. Furthermore, a collapsible stock makes it safer to use for shooters of different sizes and allows them to maintain better control of the weapon in a defensive position. The barrel shroud is another feature common on MSRs, but really most weapons have some sort of shroud attached.84 Its purpose is so the operator would reduce the risk of being burned by the barrel so it is illogical to ban this feature because the safety of the user is sacrificed. A protruding forward grip on a MSR provides leverage and stability to maintain better control of the weapon which increases the weapons accuracy. A muzzle brake or compensator, which is common among shooting competitions, is designed to counteract the recoil of the weapon which allows a citizen to place more accurate follow up shots while taking a defensive position.85 All these features allow an operator to easier handle the weapon which makes the weapon safer to operate; moreover, these features are what make MSRs very attractive to a law abiding citizen. A high capacity magazine, which Cook County has determined the threshold to be over 10 rounds, is of common use by the public for self defense purposes. The study by the NSSF determined that out of MSR owners who participated in the survey 32% used magazine with a 30 round capacity and 27% used magazines with a 20 round capacity.86 Moreover, any semi-automatic rifle that is capable of accepting a detachable magazine can accept whatever capacity that is made available. The prohibition of these magazines can put a law abiding citizen at a disadvantage against an attacker because it is unlikely attackers will follow the law on a prohibition of high capacity magazines.87 Moreover, it would not be very practical for someone defending self or home to have to keep reloading in a high stress situation such as facing an attacker in their home. It would place a huge burden on self defense when the occupants of the home could be in danger. All these features that make a semi-automatic firearm an assault weapon are nothing more than features designed to make the rifle more effective, user friendly, and safer. Just because there have been advances in firearms technology does not mean those weapons are not protected by the Second 12 | P a g e

Amendment.88 Heller rejected the notion that the Second Amendment only protects the common weapons at the time of its enactment.89 If this was the case, then the Second Amendment would only protect muskets and other weapons from that era. A new type of firearm can be introduced into the market that is far superior to its competition such as the Henry rifle in the Civil War era.90 This lever action rifle was far more effective and produced greater firepower then the common single shot muzzle loaders of that time.91 Because of this technological innovation, lever action firearms gained popularity among civilians and became a very common rifle for self defense, hunting, and recreation.92 Just like the Henry rifle at the time, the MSR has gained popularity because of many of its technological advancements. While there is no convincing source on how common MSRs are compared to other firearms, the Alcohol, Tobacco, and Firearms (ATF) agency releases an Annual Firearms Manufacturer and Export Report which can help gauge the popularity of MSRs. Although the report does not break down MSRs from other firearms, the rifles manufactured from the most common manufactures that specialize in MSRs can help approximate how many MSRs are made for sale compared to other rifles. From 1998 to 2010 there has been 1,372,458 rifles manufactured by the major MSR makers.93 The total number of rifles manufactured by all rifle makers from 1998 to 2010 is 20,417,754. Considering that these MSR manufacturers predominately produce MSRs, it can be assumed that at least 15% of all rifles made within this time period are MSRs. Furthermore, there have been only 31,549 rifles exported from 1998 to 2010 by the top MSR makers; therefore, a little over two percent of MSR made were exported for sale which leaves over a million MSRs for sale in the U.S. for this time period. What is even more convincing is in Staples v. U.S., the Supreme Court has already said that semiautomatic weapons have been traditionally accepted by the public for lawful use.94 The exact weapon at issue in this case was the AR-15. The Court has implied that unlike the semi-automatic rifle, weapons such as machine guns, hand grenades, and sawed off shotguns have been traditionally regulated and fall outside the protections of the Second Amendment.95 Therefore, it would be safe to assume that the AR15, which is the most popular rifle, of the type of weapon Cook County is trying to ban is of common use by the public for lawful purposes. 13 | P a g e

Brian Siebel released a report for the Brady Center to Prevent Gun Violence in support of an assault weapons ban. Siebel claims that MSRs serve no self-defense or sporting purpose and calls these weapons of war that were designed to slaughter people.96 This report often points out that many of the features on MSRs were designed for military application.97 The problem with this argument is virtually all weapons designed for civilian use came from the modification of military-type firearms.98 As shown above, the features on the MSR enhance the safety and operation for use as a defensive weapon.99 These features may have first been designed for military application, but they are also technological advancements in the arms industry to make them safer and more efficient for civilian use.100 Furthermore, these weapons do serve a sporting purpose as these weapons are used for target shooting and are becoming increasingly popular for use among hunters.

III.

Modern Sporting Rifles (MSR) are not dangerous and Unusual Weapons.

It has been a longstanding tradition that dangerous and unusual weapons such as machine guns, grenade launchers, and sawed off shotguns were not protected by the Second Amendment.101 Fullyautomatic weapons have been heavily regulated and are not typically possessed by law abiding citizens.102 In Heller, the Court made clear that the decision should not give uncertainty of the longstanding prohibition on weapons that are dangerous and unusual.103 The MSR is not dangerous and unusual. These weapons can be distinguished from weapons such as machine guns because a machine gun fires at a high rate of fire while holding down the trigger while a MSR only fires one round per trigger squeeze. Moreover, a machine gun has the capability to provide so much more collateral damage because of its high rate of fire and inaccuracy if an individual was to use it for self defense. However, a MSR will provide little collateral damage because it is more accurate, more versatile, and more user friendly. Therefore, the operator will more likely be able to shoot well placed shots in an attacking situation limiting any collateral damage. Wilson is different from People v. James because the .50 Cal BMG can cause much more destruction then a MSR. Because the size of the round fired from a .50 Cal BMG it can produce much 14 | P a g e

more damage to personnel and infrastructures then a round from most MSRs which is usually a 5.56 MM round.104 Additionally, the California 3rd District Court in James said any assault weapons use can be outweighed by the danger that it can be used to injure or kill another human being.105 This is a weak argument because all firearms have the potential to injure or kill a person. MSRs pose no greater threat to harm someone then the weapons that are not banned. They are not more dangerous or unusual then the typical firearms that are allowed. Furthermore, MSRs are less dangerous than many other rifles that are allowed. For example, a bolt action rifle such as the Springfield .30-06 that is equipped with a high powered scope can be more lethal because of the caliber of the round is larger then what is common for MSRs.106 The Brady Center to Prevent Gun Violence and many other critics that support an assault weapons ban argue that these weapons are the preferred weapons by gangs and other criminals.107 Moreover, Cook County claims that MSRs are twenty times more likely to be used in a crime involving firearms in the county.108 I find this claim hard to believe. According to FBI statistics, from 2006 through 2010, 34,544 murders were committed in the U.S. with the use of a handgun, while only 1980 murders were committed by a rifle and 2,185 by a shotgun.109 Out of all the murders committed by firearms in this time span, 72% of them were committed with a handgun. It is very likely that the murder statistics for Cook County follow the same pattern. The FBI report proves that MSRs are not the preferred weapon used by criminals. These statistics are staggering, which brings me to the conclusion that handguns which are protected by the Second Amendment are more dangerous than MSRs because handguns are the weapon of choice by criminals.

Conclusion MSRs are firearms that should be protected under the Second Amendment based on traditional and historical analysis that these weapons are of common use by law abiding citizens for lawful purposes and they are not more dangerous and unusual then other firearms that are protected. Furthermore, to determine if other weapons are protected by the Second Amendment the courts 15 | P a g e

should evaluate whether the weapon is of common use by the public in conjunction with deciding if the weapon is dangerous and unusual. Now that Wilson is making its way through the court system, this case will most likely land in the U.S. Supreme Court where the ban should be held unconstitutional. In Heller, The Supreme Court addressed that they were aware of the problem with gun violence, but noted that the Constitution gave the District of Columbia a variety options such as regulating handguns to combat the problem of gun violence.110 The Court made clear that the Constitution takes certain policy choices off the table such as the complete prohibition of handguns.111 The same can be said about MSRs, Cook County can seek to regulate them to keep them out of the hands of criminals or the mentally ill, but a complete prohibition on these weapons would not pass Constitutional standards.

U.S. Const. amend. II. Assault weapons is used generally to refer to the semi-automatic rifles that share the external appearance of military assault rifles, but are modified so they are incapable of firing on fully-automatic. The assault rifle was first introduced by the Germans in WW2 as a fully-automatic select fire rifle. The MP-44 which was called the storm rifle was considered the first true assault rifle. See Phillip Peterson, Gun Digest: Buyers Guide to Assault Weapons, 21 23 (2008). 3 Wikipedia: the Free Ency., Assault Rifles, http://en.wikipedia.org/wiki/Assault_rifle (accessed Nov 25, 2012). 4 H.R.Rep. No. 103489, at 1820 (1994). 5 The AR 15 rifle stands for Armalite which was the company who first made the rifle. AR does not stand for assault rifle or automatic rifle. The AR 15 is not an assault rifle. Assault rifles are fully automatic machine guns that have been restricted from civilian use since 1934. See Natl. Shooting Sports Found., Modern Sporting Rifle Facts, http://www.nssf.org/MSR/facts.cfm; 18 U.S.C.A. 922 (West). 6 Unlike the M16/M4 rifles, the AR 15 only shoots one round with one pull of the trigger. 7 A select fire rifle is a rifle that has a lever that you can switch from safety to semiautomatic to three round burst or fully-automatic. This is a feature on the modern M16/M4 that is used by our troops. The AR-15 does not have this characteristic; it is strictly a semi-automatic weapon. 8 Marlin, Owners Manual Marlin Bolt Action Rimfire Rifle, 5, available at http://www.marlinfirearms.com/pdfs/manuals/MFC_Bolt_Action_RF.pdf (accessed Nov 25, 2013). 9 Wikipedia the Free Ency., Semi-automatic firearm, http://en.wikipedia.org/wiki/Semi-automatic_firearm (accessed Oct 5, 2012). 10 Id. 11 Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda, 56 UCLA L. Rev. 1443, 1484 (2009). 12 Ency. Britannica, assault rifle, http://www.britannica.com/EBchecked/topic/39165/assault-rifle (accessed Nov 25, 2012); Wikipedia: the Free Ency., Assault Rifle, http://en.wikipedia.org/wiki/Assault_rifle (accessed Nov 25, 2012). 13 Natl. Shooting Sports Found, Modern Sporting Rifle Facts, http://www.nssf.org/MSR/facts.cfm (accessed Oct 15 2012).
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PL 103322, September 13, 1994, 108 Stat 1796 (codified at 18 U.S.C. 921, 922 (1994)). Cal. Penal Code Ann. 30510 (West); Conn. Gen. Stat. Ann. 53-202c (West). 16 Wilson v. County of Cook, 968 N.E.2d 641, 646 (Ill. 2012). 17 Id. 18 A duplicate refers to any firearms that are manufactured that are a replica of a model of a firearm that is on the list the county bans even if they call it by a different name. 19 962 N.E.at 641. 20 Michael S. Obermeier, Scoping Out the Limits of "Arms" Under the Second Amendment, 60 U. Kan. L. Rev. 681, 684 (2012). 21 Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008); McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, (2010) 22 A pistol grip is similar in appearance and function to the grip of a pistol, which protrudes below the action of a gun. This is a safety and utility feature of a gun, often a rifle or shotgun [which] allows the gun to be securely gripped by the user. It also helps the user to manage the recoil. A folding stock is a stock of a gun that can be folded back to allow use of the gun in more confined places, or to allow the gun to be stored more easily. A collapsible stock is a stock that can be lengthened or shortened to fit the user, or to allow the gun to be stored more easily. A barrel shroud is a safety feature [on a rifle] which the barrel of a gun is enclosed in a perforated metal or plastic guard, preventing the user from being burned by a hot barrel. A muzzle brake is a device which attaches to the muzzle of a gun in order to redirect some of the escaping gases back toward the user. This reduces recoil but increases the noise heard by the user. A muzzle compensator is a device which attaches to the muzzle of a gun in order to redirect some of the escaping gases upwards. This reduces the tendency of the guns muzzle to rise upwards (and can also reduce recoil somewhat) when the gun is fired, allowing the user to stay on target. See Learn About Guns, http://www.learnaboutguns.com/2008/04/07/glossary-of-gun-related-terms/ (accessed Nov 30, 2012); Wilson, 968 N.E.2d at 648- 49. 23 Wilson at 648 - 49. 24 Id. 25 Id. at 646. 26 Id. 27 Id. at 646-647. 28 Id. at 647. 29 Wilson v. Cook County, 935 N.E.2d 516 (Ill. 2010); McDonald, 130 S. Ct. at 3050. 30 Wilson v. Cook County, 943 N.E.2d 768, 779 (Ill. App. 1st Dist. 2011) appeal allowed, 949 N.E.2d 1104 (Ill. 2011) and aff'd in part, rev'd in part sub nom. Wilson v. County of Cook, 968 N.E.2d 641 (Ill. 2012). 31 Wilson, 968 N.E.2d at 647. 32 Id. at 658. 33 92 U.S. 542 (1875). 34 Id. at 553. 35 Id. 36 307 U.S. 174, (1939). 37 Id. at 177. 38 Heller, 554 U.S. at 625. 39 Id. at 570. 40 Id. at 595. 41 Id. at 630. 42 Id. at 645 (Breyer J. dissenting). 43 Id. at 576 - 627. 44 Id. at 628 45 Id. at 628 - 29. 46 130 S. Ct. 3020 (2010). 47 Cruikshank, at 553; McDonald, at 3050. 48 McDonald, at 3050. 49 Heller, 554 U.S. at 626.
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Id. 18 U.S.C. 922(g) (2006). 52 Id. 53 Miller, 307 U.S. at 177; Heller, 554 U.S. at 627. 54 Heller II v. Dist. of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701 04 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United States v. Reese, 627 F.3d 792, 800 - 01 (10th Cir.2010); U. S. v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010) 55 Heller II, at 1252 56 Heller II at, 1256; Ezell at 684; Marzzarella at 89. 57 174 Cal. Rptr. 3d 662, 676(Cal. App. 3d Dist. 2009). 58 Id. 59 A .50 BMG is a rifle that has a 50 caliber bullet that has been used for semi automatic or fully-automatic use. Because of the size of the round it can cause much more damage to people and property then a 5.56 bullet common on MSRs. See Wikipedia the Free Ency., .50 BMG, http://en.wikipedia.org/wiki/.50_BMG (accessed Nov 30, 2012). 60 James, 174 Cal.App 4th at 676. 61 Heller II, 670 F.3d 1244. 62 Id. at1262 - 64. 63 Id. at 1261. 64 Heller II at 1256 ; Marzzarella, 614 F.3d at 95 cert. denied, 131 S. Ct. 958 (U.S. 2011); Chester, 628 F.3d at 682; Ezell, 651 F.3d at 702. 65 Joseph Blocher, CATEGORICALISM AND BALANCING IN FIRST AND SECOND AMENDMENT ANALASIS, 84 N.Y. L.R. 375, 382 (2009). 66 U.S. v. Skoien, 614 F.3d 638, 639 -43 (7th Cir. 2010) cert. denied, 131 S. Ct. 1674 (U.S. 2011); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) cert. denied, 131 S. Ct. 805 (U.S. 2010); Heller II, 670 F.3d at 1256 - 58. 67 Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 731 (2007). 68 Heller II, 670 F.3d at 1271 (Kavanaugh J., dissenting). 69 Id. at 1273. 70 Heller, 554 U.S. at 628 - 35. 71 Id. at 689 - 90 (Breyer J., Disenting). 72 Id. at 634. 73 Transcript of Oral Argument, note 5 at 44, Heller, 128 S. Ct. 2738 (No. 07-290) available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/07-290.pdf 74 Heller at 573 - 636; McDonald at 3025 - 49. 75 Heller at 600 - 621; McDonald at 3034 - 48 76 James at 672; Heller II, 670 F.3d at 1259. 77 David Pittman, Heller: A Bulwark Against Tyranny, 8 Appalachian J.L. 201 (2009). 78 Heller II at 1274. 79 Heller, 554 U.S. at 626. 80 Volokh, 56 UCLA L. Rev. at 1482 81 Some of the reasons people may choose the handgun include: it is easier to store for enhanced accessibility in a time of emergency; it can easily be handled by someone who lacks the strength to use a rifle; and the weapon can be held with one hand so the person may call the police with the other.; Heller, 554 U.S.at 629 82 Natl. Shooting Sports Found., Modern Sporting Rifle (MSR): Comprehensive Consumer Rpt 2010 Ownership, Usage, and Attitudes towards Modern Sporting Rifles, 21, http://nssf.org/share/PDF/MSRConsumerReport2010.pdf (accessed Nov 23, 2012) (This Survey was conducted by Sports Marketing Survey and 7, 372 people participated in this survey). 83 Heller at 629. 84 Wikipedia the Free Ency., Barrel Shroud, http://en.wikipedia.org/wiki/Barrel_shroud (accessed Nov 30, 2012); Learn About Guns, http://www.learnaboutguns.com/2008/04/07/glossary-of-gun-related-terms/ (accessed Nov 30, 2012). 85 Patrick Sweeney, Gun Digest Book of the AR-15, Volume II, 184 (2007).
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Natl. Shooting Sports Found., Modern Sporting Rifle (MSR): Comprehensive Consumer Rpt 2010 Ownership, Usage, and Attitudes towards Modern Sporting Rifles, 27 http://nssf.org/share/PDF/MSRConsumerReport2010.pdf (accessed Nov 23, 2012). 87 Dick Anthony HELLER, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees., 2010 WL 5108962 (C.A.D.C.), 30-31 88 Michael P. O'Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. Va. L. Rev. 349, 380 (2009). 89 554 U.S. at 625. 90 O'Shea at 381. 91 Id. 92 Id. 93 ATF, Statistics, http://www.atf.gov/statistics/ (accessed Nov 23 2012) (Using data from the top MSR manufactures: Colt, Armalite, Olympic Arms, Rock River Arms, DPMS Arms, and Bushmaster). 94 Staples v. U.S., 511 U.S. 600, 612 (1994). 95 Id. at 611-12. 96 Brian Siebel, Assault Weapons: Mass Produced Mayhem 1, 22 (Brady Center to Prevent Gun Violence, October 2008) available at http://www.bradycampaign.org/studies/view/58 97 Id. at 1, 16, 22. 98 Volokh, 56 UCLA L. Rev. at 1478. 99 Many of the advancements in arms technology was for military purposes; for example, the first lever action rifles were introduced in the civil war which were far superior to weapons used at the time. Eventually they became common for civilian use. See O'Shea, 111 W. Va. L. Rev. at 381. 100 Volokh, at 1478. 101 Id. at 1482. 102 Id. at 1484. 103 554 U.S. at 627. 104 Natl. Sports Shooting Found., MSR Consumer Report 2010, http://nssf.org/share/PDF/MSRConsumerReport2010.pdf (3/4 of MSR users used 5.56 mm rounds). 105 James at 676. 106 The .30-06 uses a 7.62 MM bullet which is more lethal and powerful then the 5.56 MM round typical in the majority of MSRs. See Globalsecurity.org, 7.62 MM Versus 5.56 MM - Does NATO Need Two Standard Rifle Calibers, http://www.globalsecurity.org/military/library/report/1986/MVT.htm (accessed Nov 25, 2012). 107 Siebal at 22. 108 Wilson, 968 N.E.2d at 656. 109 FBI, Crime in the U.S.: Expanded Homicide Data Table 8, http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl08.xls (accessed Nov 23, 2012). 110 554 U.S. at 636. 111 Id.

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Appendix A:

Rifles Made by the Top MSR Manufacturers

1,600,000

1,400,000

1,200,000

1,000,000

800,000

600,000

400,000

200,000

0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Total Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Rifles Made Made Made Made Made Made Made Made Made Made Made Made Made Made Colt Armalite Bushmaster Olympic Arms Rock River Arms DPMS Total

Note: Data Compiled using ATF statistics available at http://www.atf.gov/statistics/.

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Appendix B:

Rifles Exported by the Top MSR Manufacturers

35,000 30,000 25,000 20,000 15,000 10,000 5,000 0 1999 Colt 2000 2001 2002 2003 Armalite 2004 2005 2006 2007 2008 2009 2010 Total Olympic Arms Bushmaster Rock River Total Rifles Exported

Note: Data Compiled using ATF statistics available at http://www.atf.gov/statistics/.

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Appendix C:
Muder Victims by Weapon 2006 - 2010
2006 80,000 2007 2008 2009 2010 Total

70,000

60,000

50,000

40,000

30,000

20,000

10,000

Note: Data compiled using FBI statistics available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl08.xls.

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