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Document Type

Article

Media Type

text

Abstract

“Assault weapons” and “large-capacity magazines” have been the target of recent legislation, such as the Protect Illinois Communities Act. Weapons bans of this nature have traditionally been upheld by the lower courts; however, the U.S. Supreme Court has refined the test for constitutionality under the Second Amendment in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). Bruen has laid out a two-step test in which the first step asks whether the conduct, namely the possession of a specifically banned arm, is within the scope of the plain text of the Second Amendment. To determine whether an arm falls within the scope, it must be a bearable arm commonly used for the purpose of self-defense. If the conduct is within the scope of the plain text, then the conduct is presumptively protected. The burden then falls upon the government to prove that there is a historical tradition in the United States of regulating the protected conduct. The Court has specifically denoted one historical tradition for arms ban cases, recognizing that there is a historical tradition of banning “dangerous and unusual” weapons.

The category of “assault weapons,” however, is a fundamentally ineffective classification of arms due to the overly broad definition. An “assault weapon” includes firearms with a wide range of distinct features that will require a separate analysis for each arm. Some of the features and firearms commonly banned under these acts will be protected under the plain text of the Second Amendment without a historical analogue to permit regulation. However, a separate swath of firearms banned under the definition of “assault weapon” will fall outside the scope of the Second Amendment. Therefore, each weapon or feature must be evaluated separately to determine if the arms ban is constitutional.

First Page

135

Last Page

171

Publication Date

Fall 2024

Department

College of Law

Included in

Law Commons

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