COUNTERPOINT: THE CASE LAW
AGAINST BANNING
“ASSAULT WEAPONS”
By
Prof. Anthony Michael Sabino
Perspective: The Case for an Assault Weapons Ban In the Wake of NY’s Mass Shooting, (New York Law Journal, 8 August 2025, p. 5, cl. 1), advocates for nationwide legislation prohibiting particular firearms, and relies predominantly upon “research,…empirical evidence,” and various statistics in classifying certain implements as “belong[ing] on the battlefield.” Respectfully, the writing is remarkably light on case citations, generalizes the current state of federal circuit opinions (again, without specifics), and, lastly, quotes a single Supreme Court case in a highly selective manner, while, oddly enough, failing to identify that well-known landmark by its name.
Again with respect, the article fails to acknowledge, let alone distinguish, a number of federal court decisions which render the proposed ban problematic at best, and unconstitutional at worst. Without disparaging the authors’ unquestioned right to voice a sincere viewpoint, see, i.e., National Rifle Association of America v. Vullo, 602 U.S. ___ (No. 22-842) (May 30, 2024), this counterpoint asserts that it is of vital importance to advance the debate by means of expositing equally viable case law, and by name and including appellate status to date.
Consider, for instance, Barnett v. Raoul, 756 F.Supp.3d 564 (S.D. Ill. November 8, 2024), appeal pending (No. 24-3060) (7th Cir.), concerning Illinois’s recent attempt to ban certain classes of firearms for reason of their supposed lethality or even their cosmetic appearance.
In a comprehensive 168-page opinion, District Judge Stephen P. McGlynn determined that the AR-15 is an item an ordinary person would keep at home for self-defense, is commonly available, is owned by millions of Americans, and arguably has been the most popular rifle in the Nation for decades. The trial court further declared that it is “clearly apparent…that law-abiding citizens choose semiautomatic AR- and AK-type rifles…for self-defense.”
Therefore, that portion of the “Protect Illinois Communities Act” (“PICA”) which prohibits citizens of the Prairie State from owning such firearms violated the Second Amendment. Clearly then, it would be wasted effort to pattern new federal legislation upon such a failed model.
Notably, District Judge McGlynn thoroughly rebuffed the government’s allegation that the semi-automatic rifle is exclusively or predominantly useful in military service. First, the trial court emphasized that the civilian AR-15 lacks the automatic fire capability essential to the modern warfighter.
Second, the district judge described in great detail how the arms of our warfighters are “subject to exact standards of military specificity and rigorous quality-insurance inspections,” and are regulated by “vastly different procurement and quality assurance standards.” These preconditions, “by definition,” are wholly inapplicable to civilian firearms (emphasis in the original).
Barnett decreed that it is beyond peradventure that the AR-15 “has never been used by any military force on the planet” (emphasis in the original), notwithstanding any external similarities to its far more robust military progenitor. To conflate the M-16 with the AR-15 would be as grievous a mistake as equating military Humvees and regulation battle dress uniforms to their far meeker civilian counterparts.
District Judge McGlynn summarily disabused the government’s argument that semi-automatic rifles must be banned for reason of their alleged “lethality.” The court’s comprehensive analysis proclaims that the Second Amendment does not delimit the self-defense options of the “elderly, disabled, or small-statured” to an unwieldy pump-action shotgun, when they can deploy the AR-15 “more easily, safely, and securely.”
Probably the most powerful and relevant conclusion reached in Barnett is that the criminal acts implicating such firearms are “clearly outliers;” even then, “such tragedies are not an excuse to restrict the rights guaranteed…by the Second Amendment” (emphasis in the original). Even the most horrific crimes misusing such firearms constitute “the exception, not the rule” (emphasis in the original), especially when one considers that the “vast majority of AR-15 semiautomatic rifles purchased…are confined to individuals’ homes or firearms ranges.”
We can also learn much from the experience gained in California, a jurisdiction which holds a well-deserved reputation for being inhospitable to the Second Amendment, and the possession of certain classes of firearms in particular. For even in that venue, a recent decision by a San Diego federal court should give pause to lawmakers rushing to promulgate reactionary legislation.
In Miller v. Bonta, 699 F.Supp.3d 956 (S.D. Cal. October 19, 2023), appeal held in abeyance, 2024 WL 1929016 (9th Cir. January 26, 2024), Senior District Judge Roger T. Benitez found that significant portions of California’s Assault Weapons Control Act were unconstitutional, for reason that the CAWCA purported to outlaw “fairly ordinary, popular, modern semi-automatic firearms…. [which are] ubiquitous as Ford F-series pickup trucks.”
Miller powerfully reminds us that in NYSRPA v. Bruen, 597 U.S. ___ (2022), the Supreme Court comprehensively jettisoned any of the “interest balancing” or “means-end scrutiny” tests previously utilized by some jurists to justify disregarding the text of the Second Amendment. Judge Benitez rightly proclaimed that the enshrinement of the Right to Keep and Bear Arms at the time of the Founding placed that freedom beyond “the hands of government,” while at the same time prohibited courts from considering whether the liberty so assured is “really worth insisting upon.”
Accordingly, California’s lawmakers were barred from elevating the government’s interest in crime prevention above the rights of “law-abiding citizens who wanted these firearms for self-defense.” The Second Amendment’s guarantee, declared Judge Benitez, is fully binding upon the States, and delimits legislative power to restrict firearms ownership as a means of “devis[ing] solutions to social problems.”
Miller furthermore demonstrated unswerving fidelity to Bruen’s “history and tradition” test for scrutinizing modern firearms regulation. See also Rhode v. Bonta, ___ F.4th ___ (No. 24-542) (9th Cir. July 24, 2025) (California’s ammunition background check regime does not survive scrutiny under the two-step Bruen analysis, and is therefore unconstitutional). The district court archly noted that the Golden State’s so-called “’assault weapon’ prohibition has no historical pedigree,” and was “extreme” in outlawing various classes of firearms merely for reason of their outward “looks or attributes.”
Judge Benitez also demolished any assertion that California’s Assault Weapons Control Act could pass constitutional muster because it did not outlaw all firearms. Invoking District of Columbia v. Heller, 554 U.S. 570 (2008), Judge Benitez responded that “it is no constitutional answer for government to say that it is permissible to ban some guns as long as other guns are allowed.” Equating the Right to Keep and Bear Arms to First Amendment freedoms, Miller rightly concluded that “[i]t is not permissible for a state to ban some books simply because there are other books to read, or to close synagogues because churches and mosques are open.”
We acknowledge that Miller originated on the far-off West Coast. Nevertheless, its legal reasoning, and its adherence to Bruen, Heller, and other landmarks, should prove influential as we seek answers in the wake of the recent tragedy visited upon us here in New York. At the end of the day, we should all take heed of Judge Benitez’s pithy declaration that “[g]uns for self-defense are needed a lot because crime happens a lot.”
Closer to home, a federal district judge in New Jersey conceded, albeit with marked reluctance, that the Garden State’s categorical prohibition of the popular AR-15 was similarly unconstitutional. Association of New Jersey Rifle & Pistol Clubs, Inc. v. Platkin, 742 F.Supp.3d 421 (D.N.J. 2024), appeal docketed, No. 24-2450 (3d Cir. August 9, 2024) (“ANJRPC”). To be sure, the Third Circuit Court of Appeals has yet to decide the fate of ANJRPC. But prudence dictates that we give some modicum of consideration to what the courts of our neighboring state have already decreed regarding this vital constitutional issue.
Certainly, we do not shy away from the recent Second Circuit decision in National Association for Gun Rights v. Lamont, ___ F.4th ___ (No. 23-1162) (August 22, 2025), which stands in exquisite counterpoise to all of the foregoing. With utmost respect for that thoughtful opinion, we must nevertheless view it in its proper context; the panel’s holding was strictly delimited to denying the plaintiffs the “extraordinary remedy” of a preliminary injunction against the enforcement of Connecticut’s prohibitions against certain categories of firearms.
In doing so, the appellate court opined that a firearm’s popularity and common usage does not impede judicial review of the implement’s “potentially unusually dangerous character.” Equating certain present-day arms with their military forebears, for reason that they share the “same basic structure and operation,” the Second Circuit ruled that the former’s “dangerous and unusual” characteristics render them susceptible to prohibition.
Yet notwithstanding the above findings, the august tribunal was most circumspect, candidly and correctly acknowledging that “Supreme Court authority has not settled the precise scope of the Second Amendment’s protections.” We respectfully submit that aspect of NAGR should be our northern star as we debate the matter.
In conclusion, all rational beings seek to avert a repetition of the recent tragedy at 345 Park Avenue. The legal profession, as the guardians of the rule of law and the foremost defenders of the freedoms we all share, shall play an important role in that process.
It is vital that we do so by not rushing to embrace reactionary proposals which may ultimately prove to be constitutionally infirm. Rather, our actions should be shaped by restraint, prudence, common sense, and careful deliberation upon the entirety of the relevant case law now available, even that which some might strongly disagree with.
We have no doubt whatsoever that the United States Supreme Court shall issue further pronouncements, and soon, further defining the “precise scope of the Second Amendment’s protections.” Let that wisdom guide us towards action consonant with our system of ordered liberty.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com.
FINAL COUNTERPOINT ASSAULT WEAPONS 3 Nov 25 v.1
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