JURIST Guest Columnist Nicholas Johnson of the Fordham University School of Law examines the parallels between gun and abortion rights within the context of the proposed assault weapons ban legislation…

In my previous piece for JURIST, I demonstrated the inadequacy of the current constitutional analysis used by courts when evaluating restrictions on gun ownership. In two earlier separate assessments in the Rutgers Law Review and the Hastings Law Journal, I have demonstrated the parallels between abortion rights claims and the right to armed self-defense that highlight how both situations pit the right-claimant against substantial competing life-interests.

Within the abortion/gun rights paradigm, there is a particularly salient comparison between the issues raised by a ban on the AR-15 rifle and the analysis in Stenberg v. Carhart overturning Nebraska’s “partial birth abortion” ban. (Stenberg was weakened by Court conservatives in Gonzales v. Carhart, but the intriguing question is rooted in Justice Stephen Breyer’s opinion).

The comparison between the banned dilation and extraction (D&X) abortion procedure in Stenberg and the AR-15 ban discussed in Heller v. District of Columbia (Heller II) is fitting, both analytically and politically. From the view of the opposition, both “assault weapons” and “partial-birth abortions” (both loaded political terms to which supporters of the rights object) are extreme manifestations of the contested right. As a quantitative matter, both manifestations represent a fraction of what opponents of the associated right object to. Relatedly, both are contrasted to other, less-controversial manifestations of the broader right and those alternatives feed arguments that the right can be respected without permitting especially aggressive, unnecessary or unjustifiable renditions. Both are vigorously defended by supporters on the basis that constitutional protections are fragile and that defeat in a limited context would not end controversy but simply embolden opponents who absolutely oppose the contested right. Both prompt analysis that many people find repugnant — e.g., graphic depictions of late-term abortion procedures or discussions of firearms’ comparative lethality.

Moreover, abortion rights commentators have repeatedly and aggressively used self-defense themes to construct or sustain the abortion right (e.g., Judith Thomson’s classic self-defense analogy equates the fetus to a rapidly growing trespasser who threatens to crush the mother against the walls of her own house). Both rights also present a tragedy of competing interests; neither the mother nor the armed self-defender wishes to destroy another “life interest” but is pushed to by exigency.

In Stenberg, Breyer wrote to affirm a woman’s right to the abortion methodology best suited to protect life and health, even when lesser but still-safe alternatives are available. This, in principle, is the same question presented by a ban on the AR-15: can the state ban commonly owned guns that in some circumstances represent the best available self-defense option on the rationale that other, less-effective guns remain available? Throughout the Stenberg decision, court liberals answer the parallel abortion question in ways that seem to render substantive principles that transfer readily to the gun context. Here are some examples:

Availability of Alternatives

Breyer flatly rejects the assertion that the constitutional right to abortion is adequately respected by the availability of safe alternatives to the disputed D&X procedure. Where a woman’s life or health is at stake, says Breyer, she is entitled to the superior abortion procedure. Even post-viability, the state’s interest in the fetus must give way to judgments that the procedure is necessary to preserve the life or health of the mother. This protection of better methodologies for exercising a core constitutional right speaks squarely to the armed self-defender’s parallel interest in the best commonly owned firearms for particular categories of self-defense. These categories might vary by the nature of the threat or the status of the victim.

Thus, for people who cannot manage the weight or recoil of a heavier, more powerful shotgun, or the hand strength and dexterity demands of the handgun, the AR-15 (or the more prosaic M-1 carbine) may always be the better alternative. (For those unfamiliar with the technology being discussed, operating the slide on a semi-automatic or pulling the double-action trigger on a revolver are more difficult than operating the charging handle on a carbine like the AR-15 or M-1, and long guns braced by two hands and a shoulder are easier to shoot accurately than handguns, which are typically braced only by one or two hands.)

Rarity

The state argued in Stenberg that the D&X procedure was not a protected methodology because it was very rarely used. Rarity of the procedure, said Breyer, “is not highly relevant.” The deciding focus is those occasions that “could strike anyone” where D&X is the best methodology. “The State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it.” In the gun context, this answers the criticism that circumstances where the AR-15 would be optimal may be rare — e.g., disorder following a natural disaster, a rural self-defender facing multiple attackers. Under Breyer’s “rarity” analysis, the deciding factor is that the AR-15 has special utilities in particular scenarios.

Thus, the state cannot deny right-bearers who might require the distinct utilities of the AR-15 on the argument that “most people do not need” them. Breyer takes the point a step further, acknowledging that rarity might reflect that D&X truly has no special utility. Empirically there was strong evidence to support this, but the Court resolved to err in favor of the right-bearer. Extending that presumption to the gun context, even if there is a dispute as to whether the AR-15 is a better choice for people who cannot be proficient with other guns, Stenberg principles dictate that plausible claims that the AR-15 is sometimes optimal should trump gun bans.

Is the Disputed Methodology Never the Best Option?

The empirical debate over whether D&X is ever the best alternative for saving the life or health of the mother sharpens the core message of Stenberg: if the state can show that the contested methodology is never the best option for protecting life or health, then the partial-birth abortion ban is permissible. The Second Amendment claimant’s burden is comparatively easier because firearms utility is easier to quantify. Partial-birth abortion utility is controversial because of disputes between doctors that are in part subjective — a function of what method particular doctors prefer. Assertions of AR-15 utility — lower recoil and intermediate ballistics (less lethal than standard deer rifles) — are grounded on objectively measurable physical characteristics.

Dismissing Irrational Distinctions

Breyer claimed that the Nebraska statute banning D&X abortions did not really further the state’s asserted interest in the “potentiality” of human life. Specifically, Breyer argued that the Nebraska statute was not actually aimed at saving any particular fetus from destruction because the statute’s scope only affected a rare abortion procedure while other abortion methods remained freely available. Thus, the rationale for banning partial-birth abortion was illusory because abortion is a broadly protected constitutional right that unquestionably could be exercised through alternative means. Justice John Paul Stevens’ concurrence put the point more bluntly, arguing that the Nebraska statute was not even rational because there is no reason to believe that the banned procedure was any “more brutal, more gruesome, or less respectful of potential life'” than the permitted procedures.

Here, Stevens and Breyer echo almost exactly Circuit Judge Brett Kavanaugh’s dissent in Heller II. Kavanaugh argued that it was incoherent for the District of Columbia to ban semi-automatic rifles but not semi-automatic handguns that accounted for the bulk of gun crime. His assessment tracks criticisms that I and others leveled at aspects of the Violent Crime Control and Law Enforcement Act of 1994 — e.g., that banning the AR-15 and exempting a large residual category of visually distinct but functionally indistinguishable guns was incoherent as a crime-control or safety measure; that the “assault weapons” distinction is incoherent because other types of similarly deadly guns remain readily available; and the core category of explicitly constitutionally protected guns (handguns) account for the vast majority of gun crime. Tracking Stevens’ Stenberg argument, how does a ban on semi-automatic rifles with pistol grips and folding stocks serve the state interest in limiting firearms externalities when functionally identical and far more destructive guns are explicitly permitted in the same legislation and are otherwise constitutionally protected?

My recent testimony [PDF] before the Senate Judiciary Committee expanded this point with a comparison between the “assault weapons” defined in the Assault Weapons Ban of 2013, sponsored by US Sen. Dianne Feinstein, and the US Army study of the combat shotgun, which shows that even on the criteria of multishot capability the guns on the ban list are inferior to tens of millions of “good guns” that the Feinstein bill would anoint as acceptable and lawful to own. The comparison shows that not only is the rhetoric used to define the assault weapon technically dubious (e.g., spray fire weapons designed to shoot from the hip without aiming), but these descriptions actually more accurately capture a broad category of guns on the good gun list. It is a textbook irrational distinction.

Common Use, Levels of Scrutiny, Undue Burden

Those filters capture the basic range of analytical options the Court might deploy in evaluating an assault weapons case. But, ultimately, the question may turn on practical politics.

When Heller first came down, Cass Sunstein speculated that the Court was in some sense just affirming a US norm that most people think you should be able to have a handgun in the home for self-defense. Polling shows that people in the US are more divided on the question of assault weapons. This is exacerbated by the difficulty of defining precisely what “assault weapons” are (consider the AR-15 described above) and the erroneous impression that many have that they are machine guns or otherwise exceptional compared to other repeating technology. If that picture remains murky and Sunstien’s assessment is correct, I query whether the Court would even take an assault weapons case — no matter how much the lower courts have mangled or defied its guidance in Heller.

Nicholas Johnson is a Professor of Law at Fordham University School of Law. His principal subjects are contracts, environmental law, and gun control/gun rights. He has published extensively on firearms law and the Second Amendment, including its intersection with abortion law.

Suggested citation: Nicholas Johnson, Assault Weapons Ban Part II: The Intersection of Gun and Abortion Rights, JURIST – Forum, Apr. 4, 2013, http://jurist.org/forum/2013/04/nicholas-johnson-gun-rights.php