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If Congress, W.H. wanted to ban assault weapons, could they?

In the wake of recent mass shootings, the White House (under pressure from gun control advocates) has said it generally supports a federal assault weapons ban, though Congress is not moving in that direction. But if Congress were to act, would an assault weapons ban be constitutional?

Assault weapons bans have mostly been adjudicated in state courts thus far, where judges have generally been inclined to uphold them, according to Professor Adam Winkler of the UCLA School of Law. A federal ban, however, were it to end up before the Supreme Court, would most likely be evaluated in terms of the Second Amendment without much regard to state precedent, Winkler said.

The federal courts have not given much previous guidance on whether a federal assault weapons ban would pass Second Amendment muster, but Winkler says he suspects one would be upheld by the Supreme Court.

“In the Heller case, the courts said a handgun ban is not constitutional because handguns are in ‘common use,’” which is a common standard in jurisprudence, Winkler said. “A shoulder-launched missile is not in common use for self-defense; a machine gun is not in common use. The assault rifle is a slightly more difficult question. … I suspect [the court] would uphold such a ban, especially after such high-profile shootings. And I suspect that many judges, like many other people, would believe you don’t need an assault weapon for self-defense.”

In June 2010, the Supreme Court’s ruling in McDonald v. Chicago extended to states the decision in District of Columbia v. Heller, which held that a D.C. ban on owning handguns violated the Second Amendment. The decision in McDonald struck down Chicago and Oak Park’s handgun bans by incorporating the Second Amendment through the 14th. Since the invalidation of handgun bans, both pro- and anti-gun advocates have turned their attention to assault weapons bans.

And in Heller, Scalia, writing for the majority, seems to indicate that restrictions on certain types of weapons remain constitutional.

“The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” Scalia wrote. But he also said a 1939 Supreme Court case, United States v. Miller, allows for limitations on the right to bear arms, “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

“We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns,” Scalia writes.

A follow-up to Heller, Heller v. District of Columbia (known as “Heller II”) challenged laws prohibiting large-capacity ammunition magazines and assault weapons. In October 2011, the D.C. Circuit Court ruled 2-1 to uphold those bans as constitutional, remanding certain registration requirements back to the lower court for further review. Judge Douglas Ginsburg, delivering the opinion of the court, used the logic of the first Heller to conclude some restrictions on the Second Amendment are constitutional. He says these restrictions must pass an “intermediate scrutiny test” — and the court found the assault weapons ban in question did.

“To pass muster under intermediate scrutiny the District must show [registration requirements] are ‘substantially related to an important governmental objective,’” and the means must be a “close fit” with the ends, Ginsburg writes.

Also working its way through the courts is Wilson v. Cook County, which challenges a Cook County, Ill., assault weapons ban. An Illinois appellate court was ordered by the Illinois Supreme Court to reconsider the case in light of the McDonald ruling.

In a unanimous February 2011 opinion, the appellate court upheld the ordinance. The court cited Heller II's interpretation of Scalia’s Heller I opinion to find some restrictions on arms are constitutional. The court also rejected the plaintiffs’ challenge that banning “assault weapons” was overbroad.

This April, however, the Illinois Supreme Court sent the case back to trial court, saying more facts needed to be presented before the ordinance could be scrutinized under any standard.

“We note that unlike Heller II, the County has not had an opportunity to present evidence to justify the nexus between the ordinance and the governmental interest it seeks to protect,” Justice Mary Jane Theis wrote for the seven-member panel.

As for the 1994 federal assault weapons ban, which Congress allowed to sunset in 2004, there were no substantial challenges to it under the Second Amendment.

“In the 1990s, the NRA was determined to avoid a Supreme Court ruling on the Second Amendment and refused to bring Second Amendment challenges,” Winkler said. “At the time, they were convinced the Supreme Court would be hostile to the Second Amendment.”

In Navegar v. U.S., the law was challenged under the Commerce Clause and Bill of Attainder Clause, but the U.S. Court of Appeals for the D.C. Circuit in Oct. 1999 upheld it 3-0.

In August 2002, an appeals court upheld the law 3-0 again. This time, in Olympic Arms v. Buckles, the ban was (unfruitfully) challenged under the Fifth Amendment equal protection clause.

Though the assault weapons ban never made it before the Supreme Court, the Brady Handgun Violence Prevention Act, which was passed the same year, was challenged in Printz v. United States. A provision of the act required state officers to perform background checks on individuals seeking to buy handguns. The court ruled 5-4 that that aspect of the law was unconstitutional because the government cannot compel states to enact or enforce a federal program -- though the law, including other parts of the background check provision, remained in place and is still in place today. In his concurrent opinion, Justice Clarence Thomas briefly discussed the Second Amendment, lamenting the fact that no arguments were presented on Second Amendment grounds so the court could not examine the law’s constitutionality under it.

As for the NRA, “of course, that’s all changed now,” Winkler said, and an assault weapons ban would most likely be challenged on Second Amendment grounds.

The next court battle in gun control litigation, Winkler said, will not be a hypothetical assault weapons ban but, rather, concealed carry legislation. Court watchers should keep an eye on Woollard v. Sheridan, Winkler said, in which a Maryland district court invalidated in March the state’s requirement of a “good and substantial reason” for a concealed weapon permit. The ruling was stayed pending appeal Aug. 1 by the 4th Circuit Court, which is expected to hear it in October.

Another case of note in the area of unusual or exotic weapons: Maloney v. Cuomo. As part of a three-judge panel on the 2nd Circuit Court of Appeals, now-Supreme Court Justice Sonia Sotomayor heard the case, brought by a man challenging a New York ban on owning nunchuks. The per curiam opinion found no merit in Maloney’s argument that the Second Amendment protected his right to own the martial arts-associated fighting sticks. The case was part of a testy exchange during Sotomayor’s confirmation hearings. The case was appealed to the Supreme Court, but the justice sent it back to a New York federal court in light of the McDonald ruling. The case remains pending.

CORRECTION: A previous version of this story misstated what was ruled unconstitutional in Printz v. U.S. Only the aspect of the law requiring states to perform background checks was struck down.