The Assault Weapons Ban: Legal Challenges and Legislative Issues
CRS Report for Congress
The Assault Weapons Ban:
Legal Challenges and Legislative Issues
Se ptembe r 10, 2003
American Law Division
Congressional Research Service ˜ The Library of Congress
The A ssault W eapons Ban:
Legal Challenges and Legislative Issues
The s emiautomatic assaul t weapons ban o f 1994 establishes a comprehensive
regulatory scheme prohibiting t he manufact ure, transfer, o r possession of
semiautomatic assaul t weapons, as well as t he possession or transfer of large capacity
ammunition feeding devices . The Act i dentifies prohibited weapons ei t h e r b y s p e c i f i c
m ake or m odel , or b y t h e p resence o f s peci fi c charact eri s t i cs, varyi n g accordi n g t o
whet her t he weapon is a rifle, pistol, or shotgun. The Act contains several ex emptions
to t h e gen eral prohibition on s emiautom atic assault weapons and l arge capacity
ammunition f eed i n g devices, such as speci fically identifyi ng roughly 650 types or
models of firearms that are not covered under t he ban, and further providing that the
provisions of the b an do not apply t o t he possession or transfer of any we a p o n or
feedi n g d evi ce t hat w as ot herwi s e l aw fully possessed o n t he date of enactment.
Additionally, t he ban was authoriz ed for a period of ten years, and i s s lated t o ex pire
on September 13, 2004.
Several constitutional challenges have been lodged agai nst t he provisions of the
assault weapons ban, a l l o f which have been rejected by reviewing courts. In
particular, i t has been determined that the Act does not violate t he Ninth Amendment,
does not constitute a Bill of Attainder, and i s not unconstitutionally vague. More
substantively, courts have held that semiautomatic assault weapons can substantially
affect interstate commerce, obviatin g a ny concerns raised by the S upreme C ourt’s
deci si on i n United States v. L opez that the ban operates i n violation of t he Commerce
C l a u se. Additionally, courts have considered argu m ent s m ai nt ai ni ng t h at t h e b a n
violates the Equal P rotection C lause s ince it prohibits weapons that are t he functional
equivalents o f weapons ex empted from t he Act and because the p rohibition o f o ther
weapons based upon an amalgam o f i ndependent characteristics s erves n o l egitimate
governmental purpose. Such challenges ha ve been rejected upon a d etermination t hat
Congress may rationally distinguish bet ween firearms commonly used i n t he
commission of violent crimes and those s u ited for sporting purposes, i rrespective o f
thei r functional s imilarity, and that Congress could l ogical l y co n c l u de that a
confl u ence of dangerous charact eri s t i cs o n a fi rearm coul d i ncrease t he l i k e l i h o o d
that such a firearm would b e u sed for dangerous purposes.
Despi t e j udi ci al val i d at i o n o f t he ban, a l ack of accord rem ai n s b et ween t hose
who v i ew t he ban as an essent i al p art o f federal effort s t o reduce fi rearm v i o l ence and
those who maintain that the d ifference b etween banned and ex empted weapons
largel y hinges on cosmetic distinctions with little bearing on functionality. As such,
initial p roposals t o reauthorize t he ban p ri or to its ex pirat i o n h av e not progressed
legi slativel y, raising questi o ns regarding t he future scope of federal firearm l aws.
In troduction ..................................................1
The Gun Control Act of 1968 ....................................1
A.Restrictions onSales .....................................2
B.Restrictions onInterstateTransfers ..........................3
The 1994 Assault W eapons Ban ..................................4
A. Banned W eapons and Devices .............................4
B. Ex empt W eapons and Devices .............................6
C. Treatment of Assault W eapons Under 1 8 U.S.C. §925(d)(3) ......6
Legal C hallenges to the Assault W eapons Ban .......................7
A. CommerceClause .......................................8
Legi slative Activity in the 108th Congress ..........................11
The Assault W eapons Ban: Legal
Challenges and Legislative Issues
This report p rovides an overview o f t he provisions of the Assault W eapons Ban
of 1994, which establishes a scheme prohibiting, subject to cer t a i n ex ceptions, t he
manufacture, transfer, o r posse s s i o n o f semiautomatic assault weapons, and the
transfer or possession of large capacity ammunition feeding devices . In addition t o
providing an overview o f t he ban and its relat i o n t o federal fi rearm l aws, t h i s report
al so discusses t h e disposition of l egal challenges to the ban, as wel l as l egislative
proposals t o ex t end and modify the b an beyond September 13, 2004, when the b an
i s current l y sl at ed t o ex pi re.
The Gun Control Act of 1968
Congress enacted the Gun Control Act of 1968 (GCA) t o “keep firearms out of
the hands of those not legally entitled t o possess them beca u s e of age, criminal
background or incompetency, and to assist law enforcement authorities i n t he states
and t heir subdivisions in combating t he increasing p revalence o f crime in the United
S t at es,”1 establishing a comprehensive scheme regulat i n g t he manufact ure, sale,2
transfer , and possession of firearms and ammunition. Section 922(g) of the GCA
delineates nine classes o f i ndividuals who are prohibited from s hipping, t ransporting,
possessing, or r ecei v i ng fi rearms or ammunition i n i nterstat e commerce. The
individuals targeted by this provision include: (1) persons convicted of a crime
punishable by a t erm o f imprisonment ex ceed ing one year; (2) fugitives from j ustice;
(3) i ndividuals who are unlawful u sers or addicts o f any controlled s u b s t a n c e ; (4)
persons legally determined to be mentally defective, or who have been committed t o
a m ental i nstitution; (5) aliens illegally or unlawfully in the United S tates, as well as
those who have been admitted pursuant t o a nonimmigrant visa; (6) individuals who
have been discharged dishonorably from t he Armed Forces; ( 7 ) p e r s o n s who h ave
renounced Unit e d S t a t e s c itizenship; (8) individuals subject to a pertinent court order;
and, finally, (9) persons who h ave b een convicted of a misdemeanor domestic3
1 S.Rept. 90-1097 (1968).
2 See 18 U.S.C. §922.
3 18 U.S.C. §922(g)(1)-(9).The GCA, as enacted and amended, contains a public interest
exception f or all but one of the aforementioned disqualification categories. Specifica l l y,
except f or 18 U.S.C. §922(g)(9) (relating t o persons convicted of a mi sdemeanor domestic
vi olence offense), 18 U.S.C. §925(a)(1) exempts from prohibition “any f i r earm or
A. Restrictions on Sales.
In order t o effectuate the general prohibitions outlined above, t h e G C A also
i m poses si gn i fi cant requi rem ent s o n t he t ransfer of fi rearm s . P ursuant t o t he Act , any
person who i s engaged in the business o f i m p o r ting, manufacturing, or dealing i n
f i rearm s m u st possess a Federal Fi rearm s Li cense (FFL) i ssued by t h e A t t o r n e y
General.4 The possession of a FFL grants an individual t he ability to ship, t ransport,
and recei ve fi rearm s i n i n t erst at e and forei gn com m erce, whi l e al so i m posi n g s everal
requirements o n t he licensee d esigned t o ensure t hat a firearm i s not transferred t o an
individual d isqualified from possession under t he Act. Fo r ex ample, a licensee m ust
verify the i dentity of a t ransferee by ex amining a government iss u ed identification
document b earing a photograph of the t ransferee, such as a d river’s license; 5 conduct
a b ackground check on the t ransferee u sing the National Instant Criminal
Background Check System (NIC S); 6 maintain records of t he acquisition and
disposition of firearms; 7 report m ultiple sales t o t he Secret ary; 8 respond to an official
re q u e s t for i nformation contained i n t he licensee’s records within 24 hours o f
recei pt ; 9 and comply with all o ther relevant state and local regu lations. 10
Federal l aw does not impose licensing re quirements on all sellers of firearms,
however. The GCA contains a s pecific ex emption fo r any p erson who makes
“occasi onal s al es, ex changes, o r purchases of fi re a r m s f o r t he enhancem ent o f a
personal collection o r for a hobby, o r who sells all o r p art o f h is personal collection
of firearms.”11 Such private s ellers are p rohib ited from knowingl y t ransferring a
ammunition i mported f or, s old or s hipped t o, or issued for t he use of, the United States or
any department or agency t hereof or any State or any departme n t , a ge n c y, or political
subdivi sion thereof.” T he practical effect of this exception i s t o allow f or the possession of
firearms in an official capacity, i rrespective of crimi nal r ecord.
4 18 U.S.C. §922(a); §923. An indivi dual i s “enga ged i n t he business” of dealing i n f irearms
if he or she “devotes time, attention and labor to dealing i n f irearms as a r egular course of
trade or business with the principal obj ective of livelihood and profit t hrough t he repetitive
purc hase a nd resale of firearms .” 18 U.S.C. §922(a)(21)(C). It should be noted that the
Homeland Security Act of 2002 transferred t he Bureau of Al cohol, T obacco, a nd Firearms
to the Department of J ustice from t he Department of the T reasury. P.L. 107-296, T itle XI,th nd
Subtitle B, §1111, 116 Stat. 2274, 107 Cong., 2 Sess. (Nov. 25, 2002).
5 18 U.S.C. §922(t)(1)(c).
6 18 U.S.C. §922(t).
1118 U.S.C. §921(a)(21)(C).
firearm t o a disqualified i ndividual, but are not required t o conduct Brady
background checks o r m aintain o ffi cial records o f t ransactions. 12
B. Restrictions on Inte rsta te Transfers.
In addition t o t h e aforementioned re quirements imposed upon the s ale o f
fi rearm s by l i censed and unl i c e n s e d i ndi vi dual s general l y, federal l aw al s o p l aces
sign ificant limitations on the actual i nterstate t ransfer o f weapons. 13 These p rovisions
are o f p art i cul ar i n t erest i n anal yz i n g i nt e r n e t - based fi rearm s al es, gi v en t h e
inherently interstate quality of such activity and t he percei ved potential for abuse i n
the i nternet s ale contex t.
While the possession of a FFL grants a deal er the a b ility to sell and ship
fi rearm s i n i n t erst at e or forei gn com m erce, t h e G C A pl aces several rest ri ct i ons on t h e
m anner i n w hi ch a t ransfer m ay occur. S p eci fi cal l y, w hi l e a l i censee m ay m ake an
over-the-counter sale of a s hotgu n o r rifle to any qual i f i e d i ndividual, the licensee
m ay not m ake such a s al e o f a handgun t o a resi d ent o f a st at e o t h er t h an t h a t i n
whi ch t he deal er’s l i censed p rem i s es i s l o cat ed. 14 Relatedly, a licensee i s prohibited
from s hi ppi ng fi rearm s di rect l y t o consum ers i n o t h er s t a t e s . In s t ead, a l i censee
making a firearm s ale t o a non-resident must t ransfer t h e weapon t o a l i censee i n t he
destination s tate, from whom the t ransferee m ay obtain t he firearm after passing the
required NIC S check. 15
S ubstantial restrictions are a l s o p laced on firearm t ransfers between non-
licensees. S pecifically, whereas a licensee m ay transfer a rifle or shotgu n t o a non-
resident non-licensee i n an over-the-count er sale, t he GCA s pecifically bars a non-
licensee from directly selling a firearm t o any person who does n o t res i d e in the
transferring non-licensee’s s tate.16 In s t e a d , a non-licensee wishing to transfer a
firearm t o a non-licensee i n another s tate must ship the firearm t o a licensed d ealer
in the t ransferee’s s tate.
1218 U.S.C. §922(d); §922(t).
13Regarding t he mailing of f irearms , 18 U.S.C. §1715 prohibits the s hipment of any firearm
other t han a shotgun or r ifle vi a t he United States Postal Servi ce, except f or firearms shipped
for official law enforcement purposes. Firear ms , i ncluding handguns, may be shipped by
common carrier upon disclosure and s ub j e c t t o t h e r estrictions discussed above. See 18
U.S.C. §922(a)(2)(A); §922(3); 27 C.F.R. §178.31.
1418 U.S.C. §922(b)(3).
1518 U.S.C. §922(b)(3); §922(t).
1618 U.S.C. §922(a)(3); §922(a)(5); §922(b)(3).
The 1994 Assaul t Weapons Ban
Responding to what it perceived as t he “growing menace to our society”17 posed
by cert ai n cl asses o f fi rearm s , C ongress enact ed, as p art o f t he Vi ol ent C ri m e C ont rol
and Law Enforcement Act of 1994, the P ublic Safety and R ecreational Firearms Use
Protection Act (referred to as the “assault weapons ban”), establishing a ten year
prohibition on t he manufact ure, transfer, or pos s e s s i o n of semiautomatic assault
weapons, as well as t he possession or transfer of large capacity ammunition feeding
devices.18 As is discussed i n great er detail below, the Act contains several
ex emptions, i ncluding a “grandfather claus e” allowing for t he possession and t ransfer
of semiautomatic assault weapons and l arge capacity ammunition feeding d evices
that were otherwise l awfully possessed o n t he date of enactment. The provisions of
the assault weapons ban are slated to ex pire on September 13, 2004.
Generally speaking, an “assault weapon” is a military styl e weapon capable of
providing either semia utomatic (firearm d ischarges one round, then loads a new
round, each time the t rigger i s pulled until the m aga z ine i s ex h austed) o r fully
automatic fire by means o f a selector switch (continuous discharge o f rounds while
trigger i s d epressed until all rounds are d ischarged).19 As noted in the House R eport
accom p anyi ng t h e Act , s em i aut om at i c fi rearm s , i ncl udi ng sem i aut om at i c assaul t
weapons, are “produced with semiautomatic fire capability only. ”20
A. Banned W eapons and Devices.
Codified at 18 U.S.C. §922(v), t he Act s tates t hat “[ i ] t shall b e unlawful for a
person to man u facture, transfer, o r possess a s emiautomatic assault weapon.”
17H.Rept. 103-489, at 13, 103rd Cong., 2nd Sess. (May 2, 1994). T he House Report f u r t h e r
stated that “evidence continues t o mount that these s emiautomatic assault weapons are t he
weapons of choice among drug dealers, criminal ga ngs, hate gr oups, a nd me ntally deranged
persons bent on ma ss murder.” Id. at 13. T he House Report also noted testimony from t he
Di rector of the Burea u o f Alcohol, T obacco and Firearms “that t he percentage of
semi automatic assault weapons among guns traced because of their use in crimes” i ncreased
from 5.9 percent i n 1990 to 8.1 percent i n 1993. Id. a t 13. A 2001Bu r eau of J ustice
Statistics r eport s urveyi ng 203,000 state and fe deral prisoners in 1997 found that roughly
2% of offenders who were a rmed during t he commi ssion of the offenses for which they were
incarcerated used, carried, or possessed a semi automatic or fully automatic assault weapon.
See Caroline Wolf Harlow, Ph.D., “Firearm Use by Offenders,” Bureau of J ustice Statistics
Special Report, Nove mber, 2001 [http://www.oj p.usdoj .gov/bj s /pub/pdf/fuo.pdf].
18P.L. 103-322, T itle XI, Subtitle A, 108 Stat. 1996, 103rd Cong., 2nd Sess. (September 13,
1994). It i s i nteresting t o note t hat t he assaul t weapons ban marks only t he second time t hat
Congress has prohibited t he ma nufacture of s p ecific f irearms. T he Undetectable Firearms
Act of 1998, P.L. 100-649, 102 Stat. 3816 (November 10, 1988), banned t he ma nufacture,
importation, possession, transf e r , or r eceipt of firearms which are undetectable by metal
detectors at s ecurity checkpoints in airports, gove rnme nt buildings , prisons, c ourthouses and
similar public places. 18 U.S.C. §922(p).
19Since 1934, the National Firearms Act has regulated t raffic i n, and possession of, machine
guns and other automa tic weapons. 26 U.S.C. §§5801-5872.
20H.Rept. 103-489, at 18.
W eapons banned under t he Act are identified either by specific m ake o r m odel
(i ncl udi ng copi es or dupl i cat es t h ereof, i n any cal i b er), or by speci fi c charact eri s t i cs,
varyi n g accordi n g t o whet h er t h e weap o n i s a ri fl e, p i s t o l , or shot gun. R egardi n g
particular makes and models banned under t he Act, the definition of “semiautomatic
assault weapon,” codified at 18 U.S.C. §921(a )(30), i dentifies 1 9 m odels, i ncluding
all m odels of Norinco, Mitchell, and Poly Technolo g i e s Avtomat Kalashnikovs
(“AK’s”), Action Arms Israeli M ilitary Indus tries UZI and Galil, the Beretta Ar70,
the C olt AR-15, the Fabrique National F N / FA L, FN/LAR, and FNC, as well as
revolving cylinder s hotguns.
Regarding weapons with specific characteristic s t hat fall under t he Act,
semiautomatic rifles that have the ability to accept a detachable magaz i ne in addition
to possessing at least t wo of the following fi ve features are b anned: (1) a folding o r
telescoping stock; (2) a pistol gri p t h a t protrudes conspicuously beneath t he action
of the weapon; (3) a bayonet m ount; (4) a flash suppressor o r t hreaded barrel capable
of accepting s uch a suppressor; or (5) a grenade l auncher. 21 Semiautomatic pistols are
banned i f t hey h ave t he ability to accept a detachable magaz i ne and at l east t wo of the
following five feat ures : (1) an ammunition m agaz ine t hat attaches to the pistol
out si de of t h e p i s t o l gri p; (2) a t h readed barrel capabl e of accept i n g a barrel ex t ender,
flash s uppressor , f o rward h andgrip, or silencer; (3) a s hroud that partially or
completely covers the b arrel and that permits the s hooter to hold t he firearm with the
nont r i gger h and without being burned; (4) a manufactured weight of 50 ounces or
more when unloaded; or (5) qualify as a semiautomatic version o f a n a u t omatic
firearm.22 Fi nally, s emiautomatic shotguns are banned i f t hey possess any t wo of the
following four charact eristics: (1) a folding t elescope or stock; (2) a pistol grip; (3)
a fix ed magaz i ne capacity in ex cess o f five rounds; o r (4) th e ability to accept a
det achabl e m agaz i ne. 23
The Act also imposes restrictions on large capacity ammunition feeding devices .
Codified at 18 U.S. C . §922(w)(1), the Act prohibits the t ransfer and possession of
such devices, which are defi n ed as an y m agaz ine, belt, drum feed strip or similar
device manufactured after t he date of en actment of the Violent Crime Control and
Law E nforcement Act of 1994 that has t he capacity (or t hat can be readily restored
or converted to accept) more than 10 rounds of ammunition. 24 Restri ct ed large
capacity ammunition feeding devices manufact ured after t he date of enactment of the
Act m ust b ear a s eri al num ber t hat “cl earl y shows” t h at t h ey were m anufact ured aft er
such date, 25 as well as other m arkings p rescribed b y regulation. 26
2118 U.S.C. §921(a)(30)(B).
2218 U.S.C. §921(a)(30)(C).
2318 U.S.C. §921(a)(30)(D).
2418 U.S.C. §921(a)(31)(A). T his definition does not include an attached tubular de vice
designed to accept and capable of operating only with .22 caliber rimf ire ammunition.
2518 U.S.C. §923(i).
26Id. ATF has i ssued regulations requiring that large capacity ammunition f eeding devices
manufactured or imported under t he Act be i dentified with a s erial number, and domestically
B. Exempt Weapons and Devices.
The Act contai n s several ex emptions to the general prohibition on t he
manufacture, transfer, and possession of semiautomatic a s s a u l t weapons and t he
transfer or possession of large capacity ammunition feeding d evice. As noted above,
the Act applies only t o covered weapons an d d evices manufactured after S eptember
13, 1994. Accordingl y, the Act does not prohibit t he pos s e s s i o n o r transfer of any
semiautomatic assault weapon or large capacity ammunition feeding device t hat was
otherwise l awfully possessed o n t he date of enactment.27 A dditionally, i n an
Appendix t o S ubtitle A of t he Act, Congress ex em pted roughly 650 types or m odels
of firearms, such as various models of Brownings, Remingt ons, and Berettas, deemed
mainly suitable for target practice, ma tch competition, hunting, and s imilar s porting
purposes. 28 It is important to note t hat t he list of ex empted firearms in Appendix A
is not ex haustive. Rather, t he Act p rovi des t hat absence from t he list s hall not be
construed t o m ean that the weapon is banned (unless i t i s o therwise prohibited, either
b y specific i dentification, or by the p resence o f t he qualifyi ng characteristics
discussed above). 29 The A ct al so ex em pt s any fi rear m t hat i s: (1) m anually operated
by bolt, pump, lever or s lide action; (2) an antique or permanently inoperable; (3) a
semiautomatic rifle t hat cannot accept a detachable magaz i ne that holds more than
five rounds of ammunition; or (5) a semiaut omatic shotgu n t hat cannot hold m ore
than f i v e rounds of ammunition i n a fix ed or detachable magazine.30 The Act al so
allows the m anufacture, t r a n s f e r, and possession of assault weapons and l arge
capacity ammunition feeding devices for l aw en fo rcement purposes, and for
authorized testing or ex perimentation purposes. Ot h er ex em ptions incl ude transfer
f o r purposes of federal s ecurity pursuan t t o t he Atomic Energy Act, as well as
possession by a retired law enforcement o ffi cer who i s not otherwise p rohibited from
recei vi ng t h e weapon or devi ce.31
C. Treatment of Assault Weapons Under 1 8 U.S.C. §925(d)(3).
18 U.S.C. §925(d)(3) p rovides that t he Attorney General 32 shall authoriz e a
firearm or ammunition t o be imported or brought into the United S tates i f i t does not
manufactured devi ces are r equired t o bear the name, city, and state of t he manufacturer.
Imported devices must bear the name of t he ma n u f acturer and t he country of origin, and,
since J uly 5, 199 5 , must bear the name, city, and state of t he importer. Finally, devices
ma nufactured after S e p t e mber 13, 1994, must be ma rked “REST RICT ED LAW
ENFORCEMENT /GOV ERNM ENT USE ONLY,” or, in the case of devices ma nufactured
or imported f or export s ince J u ly 5, 1995, “FOR EX PORT ONLY.” 2 7 C.F.R. §178.92
2718 U.S.C. §922(v)(2); §922(w)(2).
28See H.Rept. 103-489 at 20.
2918 U.S.C. §922(v)(3). It should a lso be noted that no weapon can be remove d from t he list
of exempted weapons so long as the a ssault weapons ban i s i n e ffect.
3018 U.S.C. §922(v)(3)(B)-(D).
3118 U.S.C. §922(v)(4); §922(w)(3).
32See n. 4, supra.
meet the d ef i n i t i on of a firearm under t he NFA, and i s “generally recogn iz ed as
particularly suitable for or readily adaptable t o s porting purposes, ex cluding surplus
military rifles.” Prior t o t he implementa tion o f t he assault weapons ban i n 1994, the
ATF i dentified s everal semiautomatic assault rifles t hat i t det ermined did not meet
the s porting s uitability standard delineat ed in §925(d)(3), and, on J u ly 6, 1989, ATF
p r ohibited t he importation of t hose rifles.33 Subsequent to this decision, domestic
manufact ure o f s emiautomatic assault weapons increased, and foreign m anufacturers
“circumve n t e d the s trictures o f t he Bu sh ban b y reconfiguring t heir weapons and
shipping them out under d ifferent model num bers,” as well as by attempting t o give
the weapons a s porting appearance. 34 W h ile the enactment of the assault weapons ban
addressed t hese developm ents to a certain degree, the ATF determined in 1997 that
certain semiautomatic assault rifles t hat were b arred under t he 1989 ruling and/or the
assault weapon s b an o f 1994 had b een modified to remove all o f t heir military
features other t h a n t h e ability to accept a detachable, l arge capacity magaz i ne.
Accordingl y, on April 6 , 1998, the ATF prohi bited t he importation o f 5 6 s uch rifles,
ruling t hat t hey were unsuitable for sporting purposes.
Legal Chal l e nges t o t he Assaul t Weapons Ban
The assault weapons ban h as been challenged unsuccessfully as being v iolative
of several different constitutional provisions. W hile argum e n t s t hat t he Act
constitutes an impermissible Bi l l of Attainder, 35 is unconstitutionally vague,36 and
contrary to the Ninth Amendment 37 have been dismissed readily, challenges relating
t o t h e C om m erce C l ause and t h e E q u a l P rot ect i o n C l ause h ave recei ved m ore
m easured consi d erat i on.
33See Bureau of Al cohol, T obacco, a nd Firearms , “ Federal Firearms Reference Guide,” AT F
P 5300.4(01-00) at 125-25 (2000).
34See Dailard, “The Role of Ammunition i n a Balanced Pr ogram of Gun Control: A Critique
of the M oynihan Bullet Bills,” 20 J our. of Legis. 19, 33 (1994).
35See Navegar, I nc. v. United States , 192 F.3d 1050, 1066-68 (D.C. Cir. 1999), r ehearing en
banc deni e d , 2 0 0 F.3d 868 (D.C. Cir. 200), cert. denied, 531 U.S. 816 (2000) (assault
weapons ban does not constitute Bill of Attainder as i t does not impose a l egislative
punishme nt, does not exhibi t a purely punitive purpose, a n d d o e s not manifest a
congressional i ntent t o punish specific i ndivi duals, but rather specifies conduct from which
indivi duals must refrain in order t o avoid punishment).
36See United States v. Starr , 945 F.Supp. 257, 259 (M.D.Ga. 1996), aff’d 144 F.3d 56 (11 th
Ci r. 1998) (statute is n o t u n c o n s titutionally vague where it defines a criminal offense
sufficiently to enable ordinary person to understand what conduct i s prohibited, and “court
has no difficulty” f inding that an ordinary pe rson would c onclude tha t provisions of Act
applied t o f irearms possessed by defendant).
37See San Di ego Gun Ri ghts Committee v . Reno , 98 F.3d 1121, 1125 (9th Cir. 1996) (Ninth
Amendment has not been interpreted t o s ecure independently any constitutional r ights f or
the purpose of establishing a constitutional violation and thus does not encompass “a r ight
to bear arms independent of the Second Amendment.”).
A. Commerce Clause.
The v alidity of the assault weapons ban h as b e e n c h a l lenged on the b asis that
i t vi ol at es t h e t enet s o f t he C o m m erce C l ause, as del i n eat ed i n t h e S uprem e C ourt ’s
deci si on in United States v. L opez.38 S p eci fi cal l y at i ssue i n Lopez was w het h e r a
federal s tatute prohibiting t he mere possession o f a firearm o n s chool grounds
ex ceeded congressi onal aut hori t y.39 In ex plaining the j udicially enforceable limits of
the C ommerce C lause, the C ourt delineat ed three cat egories o f activity that come
within its am bit.40 Fi rst, Congress possesses t he authority to regulate the use of the
channels o f i nterstate commerce.41 Second, Congress may regulate t he
instrumentalities of i nterstat e commerce, or persons or things in interstate
com m erce. 42 Fi nally, C ongress may also regulat e activities which have a s ubstantial
relation t o, and effect on, interstate commerce.43
In applyi ng these s tandards t o t he case b efore it, the S upreme C ourt d etermined
that the s tatute at issue, 18 U.S.C. §922(q ) , w a s n e i t her a regu lation o f t he
instrumentalities o r c h a n n e l s o f i n t e rs t a t e co m m e rce, m a k i n g t h e d et erm i n at i o n o f the
case hinge on the “substan t i a l e ffects” test. 44 In conducting its analys is under t his
category, the C our t d et er m i ned t hat §922(q) was a criminal statute which, b y its
terms, had no connection with commerce or any sort of economic enterprise, and did
not play an essential role i n a larger regulatory scheme. 45 The S upreme C ourt also
found it sign ificant t h a t t here was n o j urisdictional element in the s tatute which
would ensure t hat f i r e arm possession aff ect ed interstate commerce i n a particular
38514 U.S. 549 (1995).
40Id. at 557
41Id. at 558.
42Id. at 558.
43Id. at 558.
44Id. at 559.
45Id. at 561.
46Id. at 561-562. In Lopez , t he Supreme Court a dj usted t he j udiciary’ s t raditional a pproach
to Commerce Clause analysis, maintaini ng that while the history of Commerce Clause
j urisprudence r epresented an expansive i nterpretation of f ederal Commerce Clause power,
the j udiciary maintained t he ability to enforce limits on that power. In addition t o its
consideration of t he issues discussed above, the Cour t a l s o r e j ected the argument t hat
possession of a gun in the s chool envi ronment i mpacted the economy by c ontributing t o t he
costs associated with vi olent crime, curtailing t he willingness of i ndivi du a l s t o t ravel t o
areas seen as unsafe, or by posing a threat to the education of t he citizenry, t hus comprising
the quality of the nation’s workf orce. Id. a t 563-564. T he Court went on t o note t hat i f s uch
remote connections to economic effects w e r e a c cepted as r elevant, it would be almost
impossible t o i dentify “any activity by an indivi dual t hat Congress is without authority to
regulate.” Id. at 565.
Courts addressing the impact of Lopez on the validity of the assault w e a pons
ban have readily determined that the Act meet s minimum constitutional requirements
under t he Commerce C lause. In Navegar , I n c . v . United States,47 for i nstance, the
Court o f Appeals for the District o f C olum bia addressed t he question o f whether the
assault w e apons ban fell within one of the t hree categories o f activity identified i n
Lopez .TheNavegar court det ermined that it was not required t o analyze the first or
second Lopez cat egori es, “because t h e A ct readi l y fal l s wi t h i n cat egory 3 as a
regu l ation of activities having a substantial effect on interstate commerce.”48 In
addressing this prong of the Lopez decision, the court analyz ed i ndividually the Act’s
prohibitions on manufacture, transfer, and possession.
Regarding the manufacturing p rohibition, the court d eclared that “[t]he Supreme
Court h as repeatedly held that the m anufacture o f goods which m ay ultimately never
leave t he stat e can still be activity which substantially affect s i nterstat e commerce.”49
R egardi n g t h e t ransfer prohi bi t i on, t h e court l i k ewi s e d et erm i n ed t h at “S uprem e
Court p recedent m akes clear that the t rans fer o f goods, even as p art o f an i ntrastate
transaction, can be an activity which substantially affect s i nterstat e commerce.”50
Based upon these m ax ims, t he court d eclared that “it i s not eve n a r guable t hat t he
manufacture and transfer of ‘semiautoma tic assault weapons’ for a n ational m arket
cannot be regu lated as activity substantially affecting i nterstate commerce.”51
Turning t o t he possession prohibition, the court s tated t hat t he decision in Lopez
“does raise a question o f whether mere possession of a ‘semia utomatic assault
weapon’ can substantially affect interstate commerce. For t hat reason, it is necessary
to ex amine t h e p u r p o s es behind the Act to determine whether it was aimed at
regulating activities which substantially affect interstate co mmerce.”52 Analyz ing
congressional h earings on the Act, t he court d et erm i n ed t h at t h e b an on possessi on
was “conceived t o control and restrict theinterstatecommercein‘semiautomatic
assault weapons,’” and that the “ban o n po ssession is a m easure i ntended t o reduce
the d emand” for s uch weapons. 53 The court went o n t o d eclare t h a t t he ban o n
possessi on was “necessary t o al l o w l aw enforcem ent t o e ffect i v el y regul at e t he
manufacture and transfers where the p roduct comes to rest, i n t he possession of the
47192 F.3d 1050 (D.C. Cir. 1999), r ehearing en banc denied, 200 F.3d 868 (D.C. Cir. 200),
cert. denied, 531 U.S. 816 (2000). See also, Olympic Arms v . M agaw, 9 1 F.Supp.2d 1061th
(E.D. M ich. 2000), affirmed by Olympic Arms v. Buckles, 301 F.3d 384 (6 Cir. 2002).
48Id. a t 1055.
49Id. a t 1057-58 (citing United States v.Darby , 312 U.S. 100, 118-19 (1941); NLRB v. Jones
& Laughlin Steel, 301 U.S. 1, 37 (1937)).
50Id. at 1058 (citing Lopez , 514 U.S. at 560-61 (citing Wi ckard v. Filburn, 317 U.S. 111,
51Id. a t1058.
52Id. a t 1058.
53Id. a t 1058.
recei ver.” 54 Based upon these factors, the court held t hat t he “purpose o f t he ban o n
possession has an ‘evident commercial n ex us.’”55
B. Equal P rotection.
It has also b een argu ed that the assault weapons ban v iola tes t he Equal
Protection C lause i n t hat i t p rohibits weapons that are t he functional equivalents o f
weapons protected under t he Act, and b ecause the prohibition of other semiautomatic
assault weapons based upon their characteristics s erves n o l egitimate governmental
Determining t he level o f s crutiny t o be applied under t he Equal P rotection
Clause hinges upon an analys is of whether a law n egatively impacts a suspect class
or a fundamental righ t. If t h e r e i s s uch an impact, t he law i s s ubjected to strict
scrutiny, requiring the government to prove that the l aw i s necessary to satisfy a
co m p elling governmental interest. 56 In i n st ances where a l aw does not affect a
suspect class o r a fundamental righ t, the c ourt engages in “rational b asis” review,
requiring only t hat t he law b e rationally related t o t he asserted gover n mental
Applyi ng these s tandards, the C ourt o f Appeals for the S ix th Circui t h as held
that the p rovisions o f t h e a s s a ult weapons ban d o not violate t he Equal P rotection
Clause. In Ol ympi c A rms v. B uckl es , 58 the court b egan its analys is by noting t hat t he
district court h ad held that the p laintiff’s e qual p rotection claim was non-cogn iz able,
gi ven t hat t he “Equal P rotection C lause p rotect s against inappropriate cl assifications
of pe ople, rather than things .” 59 W h ile acknowledging t hat such a conclusion has
been reached i n several cases, t he court not ed t h at ot her rul i n gs have hel d t h at si nce
persons may h a v e an i nterest i n t hings, thei r cl assi fi cat i o n m ay be chal l enged on
equal p rotection grounds. 60 R at h er t h an address t hi s d i s pari t y, t he court d ecl ared t h at
it was not required t o d ecide the s cope of equal protection i n order to resolve t he cas e
before it, based upon its determination t hat “even i f w e were to assume that equal
protection analysis i s appropriate here, we would h ave t o c onclude that the s emi-
automatic assault weapons ban m eets all equal p rotection requirements.”61
The court first addressed t h e a r gu ment “t hat variations in the s peci ficity of
weapon descriptions and l ack of common characteristics i n t h e l i s t o f weapons
54Id. a t 1059.
55Id. at 1059 (citing Lopez , 514 U.S. at 580 (K ennedy, J ., concurring)).
56See, e.g., City of Cleburne v. Cleburne Living Center , 473 U.S. 432, 439-40 (1985).
57See, e.g., Heller v . Doe, 509 U.S. 312, 319 (1993).
58301 F.3d 384 (6th Cir. 2002).
59Id. a t 388. See Olympic Arms v. Magaw, 91 F.Supp.2d 1061 (E.D. M ich. 2000).
60Id. a t 388.
61Id. a t 388.
outlawed d estroy the constitutional l egitimacy of the 1994 Act.” 62 The court pointed
to several factors i n d eclaring t hat t his argum ent l acked m eri t . In part i cul ar, t he court
found it sign ificant t hat t he list o f p r o h i b ited firearms was d eveloped t o t arget
weapons commonly u sed i n t he commission of vi olent crimes. Additionally, t he court
found that the p rohibition o n copies or dupli cates of listed firearms was i ncorporated
i n order t o p revent manufacturers from circumventing t he terms of t he Act “ b y
simply changi ng the n ame o f t he specified weapons.” Fi nally, t he court noted that the
list o f ex empted weapons was b ased on the d et ermination t hat t hey were p articularly
suited t o s porting purposes . Viewing thes e distinctions together, t he court h eld t hat
it was “entirel y rational for Congress ...to c hoos e to ban those weapons commonly
used for criminal purposes and t o ex empt t hose w eap ons commonly used for
recreat i onal purposes. T he fact t h at m any of t h e p rot ect ed weapo n s a r e s om ewhat
similar i n f unction t o t hose t hat are banned does not destroy t he rationality of the
The cour t t h e n t u rned t o t he argu ment that prohibiting certain weapons based
upon their possession of two of any q u alifyi ng characteristics was irrational, gi ven
that the Act allows a weapon to possess one such feature, and t he individual features
do not operate in t a n d em with one another. In rejecting t his argument, the court
ex pl ai ned t hat each of t h e charact eri s t i cs s p e c i f i ed i n t h e A ct served t o m ake t h e
weapon “potentially more dangerous,” and were not commonly p resent on weapons
design ed solely for s porting purposes. 64 Accordingl y, the court s tated t hat “Congress
could eas ily have determined that the greater the number o f d angerous add-ons on a
semi-automatic weapon, t he greater likelihood that the weapon may be used for
dangerous purposes.”65 Based upon these factors, the court h eld t hat t he plaintiffs had
“failed t o m eet the h eavy burden require d t o s how that the 1994 Act v iolates equal
Legislative Activity i n the 108th Congr ess
The assault weapons ban will ex pi r e on September 13, 2004, absent
congressional action. Three bills aimed at repealing t he ex piration dat e and making
substantive changes to the p rovisions of the Act have been introduced, one in the
House, and t wo in the S enate. Senator Diane Feinstein h as forwarded a proposal, S .
1034, that would s trike t he e x piration d ate and impose a b an on the importation o f
large capacity ammunition feeding devices , s ubject to the s am e ex ceptions currently
provided for in the Act.
62Id. a t 389.
63Id. at 389. T he court f urther stated: A classification does not fail because it “‘is not made
with mathematical nicety or because in practice i t r esults in some equality.’” Id. a t 389-90
(quoting Dandridge v. Willia ms , 397 U.S. 471, 485 (1970) (quoting Lindsley v . Natural
Carbonic Gas , 220 U.S. 61 (1911)).
64Id. a t 390.
65Id. a t 390.
66Id. a t 390.
R epresent at i v e C ar o l yn McC art hy and S enat or Frank Laut enberg have
introduced identical bills (H.R. 2038 and S . 1431 respectively) that would likewise
eliminat e t he ban’s ex piration dat e a n d i m pose res trictions on the importation of
large capacity ammunition feeding devices . However, t hese meas ures would m ake
additional s ignificant changes to the Act , s uch as: (1) m aking numerous additions to
the list of s peci fically prohibited firearms (including the M 1 C arbine and t he Sturm,
Ruger M ini-14); (2) making the charact eristic-bas ed prohibitions more restrictive;
(3) removing the ex emption for any s emiautomatic r i f l e t h a t cannot accept a
detachable magazine that holds more than five rounds of ammunition; (4) requiring
that semiautomatic assault weapons not prohibited u n d er the Act may only b e
t ransferred t hrough a l i censed d eal er or a s t at e or l o cal l aw enforcem ent agency; (5)
prohibiting t he transfer of any assault weapon with a l arge capaci t y ammunition
feeding device; and (6) prohibiting t he transfer to, or possession by, any juvenile of
any s emiautomatic assault weapon or large capaci t y ammunition feeding device,
without ex ception. 67
None of these p roposals h ave been the focus of any legislative action, and,
furthermore, it is important to note t h a t c o mments m ade b y s ome congressional
leaders h ave cast doubt on t h e v i t a lity of attempts to reauthorize the Act. In
part i cul ar, i t h as been report ed t hat H ouse M aj ori t y Leader Tom D eLay has s t at ed
that it is unlikely t hat a proposal for renewal will come up for a vote, a n d H o u s e
Mino r i ty Leader Nancy P elosi h as been quoted as sayi ng “[ i] t won’t b e s omething
that we would b e whipping.” 68
As has b een shown, the assault weapons ban establishes a complex regulatory
scheme design ed to prohibit t he manufacture, transfer or possession of semiautomatic
assault weapons and t he transfer or possessi on of large capacity ammunition feeding
devices . At t he same time, however, t he Act contai ns several ex emptions designed
t o ensure access t o fi rearm s t h at have been det erm i n ed t o be sui t abl e f o r s p ort i n g
purposes, and to enable the possession and transfer o f s emiautomatic assault weapons
and l arge capacity ammunition feeding devices that were lawfully possessed on t he
date of the ban’s enactment.
W h ile the p rovisions of the assault weapons ban h ave b een a s ignificant s ource
of controversy, reviewing courts have r e j ect ed al l challenges to the validity of the
Act, determining t hat i t comports with minimum constitutional requirem e n t s.
Irrespective o f j udicial a ffirmance, there remains little political accord on the Act. As
such, i nitial efforts t o ensure t he reauthorization of t he ban prior to its ex piration on
September 13, 2004, have garnered s c a n t l egislative attention, raising questions
regarding t he future scope of federal firearm l aws.
67As in the origi nal Act, t hese proposals provi de a “gr andfather clause” for f irearms
prohibited under t heir provisions, s o l ong as they are otherwise lawfully possessed on t he
date of enactment.
68J a me s G. Lakely, “Democrats Shunning Gun Control; Pelosi Won’t ‘ Whip’ Assa ult-
Weapons Ban Reauthorization,” T he Washington T imes, M ay 31, 2003.