Last Wednesday, a married couple walked into a facility for the developmentally disabled and murdered more than a dozen people. That was just days after another man killed three people in a women’s health clinic in Colorado. Both incidents appear to be religiously motivated terrorism. Both crimes were committed with assault weapons.
Nevertheless, on Monday, Justice Clarence Thomas handed down an opinion arguing that America needs to allow greater access to assault rifles. The opinion concerned a Highland Park, Illinois, ordinance which “bans manufacturing, selling, giving, lending, acquiring, or possessing” certain kinds of assault rifles. Though the full Court decided not to hear a challenge to an appeals court decision upholding this ordinance, Thomas wanted to take the case and hold that the ordinance violates the Second Amendment. Only Justice Antonin Scalia joined Thomas’s opinion.
Had Thomas’s view prevailed, it could have set off a cycle that gradually made virtually any restrictions on the types of firearms owned by civilians unconstitutional. Noting that assault rifles owned by a large number of gun owners, and that the “overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Thomas claims that nothing else is necessary to hold that these guns are constitutionally protected.
This is not a frivolous argument, at least under existing precedent. Though the Court’s landmark opinion in District of Columbia v. Heller does permit bans on “dangerous and unusual” weapons, it also does contain language suggesting that a weapon gains more constitutional protection as it enters more common use. Taken to its logical end, however, Thomas’s rule could lead to absurd results.
Suppose, for example, that an unusually conservative Congress is elected in 2016, and that Congress repeals the ban on machine guns. All that would be necessary under Thomas’s rule to render such a ban permanently unconstitutional would be for a large number of gun owners to obtain machine guns and not use them in the commission of a crime. The NRA and gun manufacturers, moreover, would have an obvious interest in ensuring that these guns become commonly held as quickly as possible — as they would be in a literal arms race to distribute the guns widely before Congress can reinstate the ban.