Why Gov. Northam's Proposed Gun Ban Is Unconstitutional

Virginia Governor Ralph Northam and his Democrat legislature want to ban semi-automatic rifles like the AR-15.

He contends that his proposed ban is "constitutional".

NRA-ILA has an article which clearly states why such a ban is unconstitutional.

It reads in part:

In a Wednesday meeting with reporters, Northam offered a veiled threat to sanctuary jurisdictions that have promised to not enforce unconstitutional gun laws stating, “If we have constitutional laws on the books and law enforcement officers are not enforcing those laws on the books then there are going to be some consequences…” The governor went on to say “Any law that we pass in Richmond and the 8 pieces of legislation that I put on the table back in July - they’re constitutional, so that’s not going to be an issue.” 

Northam’s allies in Richmond have proposed firearm confiscation legislation that would prohibit the sale and possession of commonly-owned semi-automatic firearms like the AR-15. The governor has stated that he intends to push legislation that would ban such firearms but grandfather possession by gun owners who register their firearms with the government. 

Banning commonly-owned semi-automatic firearms under either proposal is unconstitutional. The U.S. Supreme Court has made clear that governments cannot ban these firearms as they are “in common use” for lawful purposes. 

Taken alone, Justice Antonin Scalia’s opinion in Heller is enough to dispose of Northam’s comments. In the decision, Justice Scalia made clear that the types of firearms protected by the Second Amendment include those “in common use at the time” for “lawful purposes like self-defense.” 

The firearms industry has estimated that Americans own more than 17.5 million semi-automatic rifles. The AR-15 is the most popular rifle in the U.S. and therefore indisputably “in common use” and protected by the Second Amendment. 

Further, in the 1994 case Staples v. United States, the Supreme Court determined that semi-automatic rifles were common. The case concerned the criminal intent requirement for a conviction for possession of an unregistered machine gun. The subject of the case had argued that he was unaware that the AR-15 in his possession had been modified for automatic fire and was not simply a legal semi-automatic AR-15. In the majority opinion, Justice Clarence Thomas made clear that the mere possession of a converted AR-15 is not enough to infer intent sufficient for conviction, as some firearms are “so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation.” Justice Thomas went on to write that most categories of guns, including semi-automatic rifles, “traditionally have been widely accepted as lawful possessions.”

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