Despite enjoying a recent resurgence in deep-blue states, “assault weapon” ban proponents are starting to confront the political and legal constraints to the policy’s continued expansion.
On Wednesday, the Colorado House of Representatives voted to kill a long-awaited proposal to ban the sale of dozens of semi-automatic rifles, pistols, and shotguns with certain targetted features, such as a pistol grip or telescoping stock, in its first committee hearing. Three Democrats joined the four Republicans on the committee in voting to reject the bill, as well as a proposed amendment to limit the ban to just bump stocks.
That an assault weapon ban failed to even make it out of committee in a legislative chamber where Democrats have a supermajority speaks to the tricky politics gun-control advocates still face for gun bans, even in states with trifecta Democratic control. The fact that bills to raise the minimum age to purchase firearms, impose a three-day waiting period, expand who can file a red flag petition, and impose civil liability on the gun industry all easily cleared the Colorado General Assembly this session highlights how much more difficult going after popular guns, such as the AR-15, really is.
A hardware ban is simply a different animal, politically speaking. That fact alone could do a lot to limit the ban’s potential to reach more than a handful of the most progressive-leaning states.
Assault weapon ban proponents have enjoyed several successes in recent years. The policy began to show its first signs of resurgence with Delaware’s adoption in the summer of 2022, followed by Illinois’ adoption of its own semi-auto rifle and magazine ban this January. The two laws marked the first new states to pass bans in over 20 years. And now, upon Governor Jay Inslee’s signature, Washington will soon be the third.
But despite that success, proponents have also had to deal with some humbling attempts. In addition to the policy’s rejection in Colorado, an assault weapon ban failed to make it to a floor vote in triple-blue New Mexico this past session. And that was despite the ban being a signature goal of the state’s Democratic Governor, Michelle Lujan Grisham.
Likewise, newly minted Democratic trifectas in Michigan and Minnesota that have each made gun control a signature policy priority have both entirely avoided pushing hard for an assault weapon bill thus far.
In many ways, the policy’s recent stumbles and spurts of success mirror those of a policy preferred by advocates on the other side of the gun issue: permitless gun-carry. Though permitless carry has had spectacular success in states across the country over the last two decades and has now been adopted by 27 states, its backers are beginning to run out of easy pick-up states. Even in the few remaining conservative-leaning states that have yet to adopt the policy, including Lousiana and the Carolinas, it faces a hard road to make it into law.
But permitless carry advocates have an advantage that those pushing assault weapons bans do not: time. Gun-rights advocates have the luxury of simply being able to bide their time until the political winds shift enough to tip the balance of power in various states in a favorable direction for successful adoption. By contrast, those looking to ban AR-15s are facing serious legal challenges.
In its decision in New York State Rifle & Pistol Association v. Bruen, the Supreme Court established that any modern law implicating the Second Amendment’s text must comport with the nation’s historical tradition of firearms regulation to survive constitutional scrutiny. While nothing is guaranteed, it seems that standard casts doubt on the viability of gun bans aimed at commonly-owned semi-automatic rifles and other firearms.
Bolstering that point is the fact that Justice Brett Kavanaugh explicitly found assault weapon bans unconstitutional in an earlier dissenting opinion during his tenure as a D.C. Circuit Court judge. His analysis relied on a text, history, and tradition test nearly identical to the current standard articulated in Bruen, so his conclusion could ultimately foreshadow how the majority on the Supreme Court might view a similar case. Additionally, The Court has already cast some doubt on assault weapons bans by granting, vacating, and remanding a Fourth Circuit holding that Maryland’s ban is constitutional as one of its first acts after Bruen.
While a major ruling on the merits of an assault weapon ban hasn’t yet been delivered at the higher levels of the federal court system, a decision is expected imminently in at least two separate federal cases involving California and Maryland’s semi-auto gun bans. Depending on how those decisions come down, the hopes of assault weapon ban advocates for further expansion could be dashed just as they’ve regained some steam.
The track record for state-level assault weapon bans in 2023 has been decidedly mixed. Four safely-blue states have heard proposals for assault weapons bans thus far, yet advocates were only successful in getting two across the finish line. They will undoubtedly push for more, but as the current political and legal landscape stands, they may be running out of time and space to do so.