The Fourth Circuit court of appeals, sitting en banc, recently heard oral arguments in Bianchi v. Brown, a challenge to Maryland’s ban on so-called “assault weapons.” During the arguments, judges repeatedly interjected the phrase “M16s and the like” and asserted “the AR-15 is the M16.” These were references to the test used previously in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc) to decide that semiautomatic-only AR-15 rifles are “like” military machine guns, and therefore may be banned because they not “arms” protected by the Second Amendment.[1]
Post-Bruen, lower courts that previously had upheld gun bans under other rationales have shifted to the Kolbe rationale. The Seventh Circuit, for example, declared that the banned rifles are “almost the same” as machine guns “exclusively or predominately useful in military service.” See Bevis v. City of Naperville, 85 F.4th 1175, 1194-97 (7th Cir. 2023).
While Justice Scalia’s majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), leaves unanswered many questions about the proper standards for resolving constitutional challenges to gun laws, it has much to say about what types of arms are protected by the Second Amendment. Protected arms are those that are “bearable,” id. at 582, and “in common use at the time for lawful purposes like self-defense,” id. at 624, see id. at 627 (internal quotations omitted). This includes dual-use arms having both civilian and military utility. Id. at 624-25.
Kolbe rejects Heller’s common-use test, 849 F.3d at 135-36 & n.10, and instead seizes upon other language in Heller that “weapons that are most useful in military service—M-16 rifles and the like—may be banned,” 554 U.S. at 627. Because the civilian AR-15 rifle is “like” the military M16, Kolbe says, laws banning such rifles do not violate the Second Amendment.
The Heller sentence reads in its entirety: “It may be objected that if weapons most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.” Id.
Assuming the premise of the hypothetical, the obvious question is why certain military weapons can be banned. Small arms such as handguns and long guns have never been nicely separated into distinct categories of “military firearms” designed for the battlefield and “civilian firearms” designed for self-defense, hunting, or target shooting. Historically, popular civilian firearms were designed for or used by the military—the iconic Browning 1911 handgun, Henry lever-action rifles, and Remington 870 shotguns, to name just a few.[2] Civilians have been buying and using “weapons of war” since musket days, with little if any significant differences between military and civilian versions of these firearms. Justice Scalia explained that such dual-use arms are protected by the Second Amendment, see id. at 624-25, so he must be referring to something else here.
The most plausible reading of Heller’s somewhat awkward description of weapons “most useful in military service” is that these are advanced weapons used exclusively (or predominantly) by the military in modern warfare. This meaning is confirmed by the subsequent description two sentences later of such weapons as “sophisticated arms that are highly unusual in society at large.” Id. at 627. These are arms most useful in military service—uniquely military arms having only military applications.
Placing sophisticated military arms outside the Second Amendment’s protection is a modern non-originalist gloss on the historical tradition of protecting civilian arms useful both in war and at home. It represents Heller’s recognition that the evolution of military weaponry (“modern developments,” id.) has produced certain small arms far more advanced than everyday weapons available in the civilian market.
If civilian possession of the military M16 can be banned, it likely is because the M16 is a machine gun. Justice Scalia viewed any reading of United States v. Miller to protect machine guns as “startling,” lest the National Firearms Act restrictions on machine guns be held unconstitutional. Id. at 624. Machine guns are both “most useful in warfare” and “sophisticated arms highly unusual in society at large.” Id.[3]
As for “the like,” there are a number of sophisticated individually-served arms used exclusively by the military that fall into this category: larger machine guns such as the M249 SAW, grenade launchers, anti-tank weapons such as FGM-148 Javelin, flame throwers, and Stinger MANPADS (man-portable air-defense system). No serious argument can be made that civilians have a Second Amendment right to possess and use these weapons.
All of this is lost on the Fourth Circuit, which misconstrues “M-16 rifles and the like” as analogical, not categorical. It severs “M-16 rifles and the like” from the words that immediately precede it. Set off by em dashes, “M-16 rifles and the like” illustrates or amplifies the broad category of small arms “most useful in military service.” The Fourth Circuit reduces “the like” to a singular rifle-to-rifle comparison with the M16.
The military M16 fires in both in automatic and semiautomatic mode. While it mostly is used in semiautomatic mode, there are some combat applications that require automatic (machine gun) fire. The AR-15 fires only in semiautomatic mode, one round for each pull of the trigger. While the AR-15 can be used in war, it lacks the automatic fire capability useful in those combat applications. That is why the military does not use the AR-15. In fact, no modern military in the world uses a semiautomatic-only rifle as its standard service rifle.[4]
The incoherence of the Fourth Circuit’s test is highlighted by a single question: How can the AR-15 be most useful in military service when it is not used in military service at all? In Heller, “M-16 rifles and the like” describes weapons “most useful in military service,” but the Fourth Circuit’s test depends entirely upon wrenching the phrase from its context and applying it to non-military weapons which, by definition, are not “most useful” in military service.
The Fourth Circuit’s test leads to preposterous claims. To make the comparison work, the Fourth Circuit asserts pseudofacts about the AR-15’s rate of fire. At the Bianchi oral argument, one judge declared that the semiautomatic-only AR-15 can fire “300 rounds per minute,” a claim first made in Kolbe and recently repeated in the Seventh Circuit’s decision in Bevis.[5]
The “300 rounds per minute” rate is plainly false, as anyone who actually has fired the AR-15 knows. To fire 300 rounds per minute, the user would have to pull the trigger five times per second for an entire minute. That would take a superhuman trigger finger, especially when pulling against the several pounds of force required to press a trigger.
According to the U.S. military, the mechanical (“cyclic”) rate-of-fire for the M16 in automatic (machine gun) mode is 700-to-900 rounds per minute. That’s 12-to-15 rounds per second. By contrast, the mechanical rate-of-fire for the semiautomatic-only AR-15 is only one round for each trigger pull. The average user can fire 2-to-3 rounds per second at most, some five times slower than the M16’s automatic rate. Yet, both Kolbe and Bevis claim the difference is only “slight.”
The Fourth Circuit’s “M-16 rifles and the like” test has no support in Heller’s text or in actual facts about how the AR-15 operates. It is an obvious manipulation of both to reach a pre-determined result. We deserve better from our judges.
[1] The court in Bianchi had upheld Maryland’s ban, based on its earlier decision in Kolbe, but the Supreme Court vacated the judgment and remanded the case for consideration in light of New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
[2] See E. Gregory Wallace, “Assault Weapon” Myths, 43 So. Ill. U. L.J. 193, 200-03 (2018).
[3] Federal law bans civilian possession or transfer of any machine gun that was not lawfully possessed before May 19, 1986. 18 U.S.C. § 922(o); 27 CFR § 479.105. The ATF stated in a February 2016 letter, that there were 175,977 are civilian transferrable pre-1986 machine guns as of that date.
[4] For a fuller discussion of this point, see Wallace, supra at 205-10.
[5] Kolbe claims that the AR-15 can fire 300-to-500 rounds per minute. 849 F.3d at 125. That figure came from an unsourced claim by a gun-control advocate in 1991. Wallace, supra at 214-22.