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Assault weapons may be banned without violating the Second Amendment, and this is true even though American citizens own millions of these weapons.

Why? These weapons are not commonly used for self-defense in the home — and banning them is a reasonable response to the plague of mass shootings.


The weapon used in the most recent mass shooting , in Orlando, Fla., was an assault rifle. Assault rifles are generally defined as semi-automatic rifles possessing one or more military-style characteristics (such as flash suppressors, barrel shrouds or silencers) that make these weapons more efficient than other guns for killing or injuring large numbers of people quickly. No wonder they are the weapons of choice for mass murderers.

Legally at least, the prospects for reasonable gun control in Pennsylvania and all states have gotten significantly better recently as a result of decisions by two different Supreme Courts.

The U.S. Supreme Court gave tacit approval to assault weapons bans by effectively upholding such bans in New York and Connecticut. Laws banning assault weapons in those states had been challenged as unconstitutional under the Second Amendment. The Supreme Court's decision not to consider the appeal from Connecticut (the New York plaintiff withdrew its appeal after Justice Scalia's death) means that the Second Circuit's decision upholding the laws will stand.

Seven states and the District of Columbia ban assault weapons. Moreover, I am hopeful other states, including Pennsylvania, will now consider passing such laws given the effective green light from the U.S. Supreme Court.

The Pennsylvania Supreme Court unanimously decided to invalidate as unconstitutional Act 192. Act 192 had the effect of scaring cities and local governments, via threats of expensive lawsuits, away from passing and in several cases into repealing existing gun ordinances.

In Allentown, for example, the city repealed ordinances that required reporting lost or stolen guns within 24 hours of the owner's realization that they were missing as well as one that prohibited carrying guns on city property.

While the enforceability of such local laws regulating firearms is questionable in Pennsylvania, the laws serve an important symbolic purpose with respect to Harrisburg. If enough municipalities and cities pass such laws, then one would hope that Harrisburg would get the message.

This symbolic effect was important enough to the National Rifle Association to cause it to spend time and money to get Act 192 enacted and to spend more time and money to litigate with cities and municipalities to force them to repeal their gun ordinances. I am hopeful that the cities that repealed firearms regulations for fear of Act 192 litigation will reinstate them now that the state Supreme Court has eliminated Act 192.

The U.S. Supreme Court has consistently refused to consider challenges to gun regulations since 2010 when it first established a new constitutional right to keep handguns in the home for self-defense.

The opinions in Heller (2010) and McDonald (2011), which applied the new right to the states, made clear that these decisions did not establish the right to possess any type of weapon anywhere for any purpose. Moreover, these decisions specifically recognized the validity of the government's ability to place restrictions on gun ownership.

The new interpretation of the Second Amendment under Heller is that it protects only the right to keep and bear arms in the home that are commonly used for self-defense in the home.

Assault weapons are unlikely to be used for self-defense because they are much more awkward to handle than a handgun. Assault weapons are rifles and difficult to keep on your person and difficult to use in a small space. The very characteristics that make these rifles effective offense weapons severely inhibit their use for self-defense.

Heller identified self-defense is the core right protected by the Second Amendment. As a result, weapons that are less related to the purpose of self-defense are more easily regulated. This is one reason that banning assault weapons is constitutional.

Another reason is because such bans are a reasonable government response to the problem of mass shootings. Now we just need the political will to stand up to the NRA and pass reasonable gun laws.


George A. Nation III is a professor of law and business at Lehigh University and is of counsel to Maloney, Danyi, O'Donnell & Tranter in Bethlehem.