States Are Banning Assault Weapons. Courts Could Stop Them

What was supposed to be a summer party among friends in Mukilteo, Washington in July 2016 turned to bloodshed. A 19-year-old man brought an AR-15-style rifle and fatally shot his ex-girlfriend and two other teenagers. For the last seven years since the incident, Strom Peterson, the Washington State lawmaker who represents Mukilteo, has kept introducing a bill to ban assault weapons. Every year, the measure has failed—but this time might be different.

Peterson’s proposal, which would ban the sale and manufacture of all AR-15 and AK-47 rifles and many other popular semi-automatic weapons, had never even made it out of a chamber committee until January. Now, the bill has passed the house and a senate committee, and could soon face a vote on the senate floor. “I do feel good about it,” Peterson says. “The Senate might be tougher, but the momentum is there.”

With Congress unlikely to pass significant gun control measures at the federal level, most legislative action around assault weapon bans is occurring in state houses. Washington State and Colorado are considering bills to ban assault weapons. Delaware banned the manufacture, sale, transfer, receipt and possession of assault weapons in June 2022. Illinois adopted a ban on the sale, manufacturing, or delivery of assault weapons in January. The lawmakers behind these bills don’t need to look back seven years for tragedies to add urgency to the effort: just this week, a shooter armed with an AR-15 style rifle killed three children and three adults at an elementary school in Nashville.

But despite the growing gun control sentiment in states, many of these new laws could be vulnerable to getting overturned if they’re challenged in court, legal experts say.

Last summer, the Supreme Court ruled in New York State Rifle & Pistol Association Inc. v. Bruen that the Constitution protects an individual’s right to carry a concealed handgun for protection outside the home. While the case dealt with concealed carry laws, the ruling created a general test to be applied to gun restrictions, which includes evaluating whether a measure would be “consistent with this nation’s historical tradition” and would be similar to regulations in place during the time the Constitution was written.

Judges could take a literal interpretation of this ruling, to note that there was no ban on assault weapons in 1791 (even though those guns didn’t exist at that time). “I’m hoping that this isn’t true, but [the Supreme Court ruling] seems to say: we don’t care how many people die; all we care about is looking back to 1791 and seeing, was there an existing regulation in place in 1791? If there wasn’t, you can’t regulate it today,” says John Donahue, a law professor at Stanford University and expert on gun policy.

A broader interpretation of the Bruen test might consider restrictions on other dangerous weapons at the time. “Judges can look throughout history every time a new weapon has become mass produced or readily available to the population and used in crime or violent behavior; legislatures have regulated them,” says Adam Skaggs, chief counsel at Giffords Law Center to Prevent Gun Violence. “We can analogize and say: once assault weapons become widely available to civilians, they started being used in mass shootings.”

Legal experts say they expect conflicting rulings going forward as state laws are challenged and appealed. “A judge could very reasonably come out either way. The Supreme Court doesn’t provide a lot of guidance on how this reasoning by analogy to history should work,” says Andrew Willinger, executive director of the Duke Center for Firearms Law.

Lower courts in Illinois and Delaware so far have denied preliminary injunctions against the assault weapons bans in those states. In the Illinois case, a district court judge drew parallels to restrictions on weapons in the late 1700s like bowie knives to argue that states can now regulate assault rifles. “Responding to the growing prevalence and danger posed by Bowie knives, states quickly enacted laws regulating them,” the judge wrote, pointing to laws in Alabama that placed an expensive tax on these knives and banned concealed carry as well as a law in Georgia that made it illegal to sell these knives. The judge also drew parallels to restrictions placed on clubs and other blunt weapons and noted that “states continued to regulate particularly dangerous weapons from the 18th century through the late 19th and early 20th centuries.”

David Kopel, a gun rights advocate and adjunct scholar at the Cato Institute notes that while the Illinois verdict highlights one way to evaluate a ban on assault weapons, the court’s reliance on the bowie knives analogy may be strained because historically many U.S. jurisdictions did not have an outright ban on these weapons, but rather restrictions tied to particular circumstances. Those restrictions included concealed carry, or selling to a minor without parental consent—but many of the current assault weapons bans go further.

Further complicating matters, state laws have often used inconsistent definitions of what counts as an assault weapon. “The proponents of bans have never stuck with any consistent definition of an assault weapon,” Kopel says. “It’s always been this very amorphous thing and the category expands or contracts to ban as many guns as they can depending on the political circumstances of the year.”

Polling suggests that most Americans support restrictions on assault weapons. A June 2022 Morning Consult survey found that 86% of Democrats and 47% of Republicans supported an assault weapons ban. It’s a trend that’s reflected in Washington State, too: more than 60% of residents in Washington support a statewide ban on assault weapons, according to a 2022 poll sponsored by The Seattle Times, KING 5, the University of Washington’s Center for an Informed Public, and Washington State University’s Murrow College of Communication.

For Washington state rep. Peterson, every incident of gun violence in the country has strengthened his resolve. “Not only is the political will there, but also a deeper understanding of what these weapons continue to do not only in Parkland or Uvalde, but what that does to every school in the country, every student in Washington state,” Peterson says. “People are done, and we’re finally hearing that message. I’ve been saying that for a while. But it hasn’t always gotten through to us. And I think this is just the year it’s gotten through to us.”