What would the Founding Fathers say about assault weapons?

The U.S. Court of Appeals for the 4th Circuit has struck down Maryland’s law regulating assault weapons, creating a split with the 2nd Circuit, which upheld similar laws in New York and Connecticut. That split could, and probably should, lead the U.S. Supreme Court to take up and decide the issue. It’s time therefore to ask: How should the justices treat the question? In particular, what does the right to bear arms, created to preserve a “well-regulated militia,” say about assault weapons today?

The key issue in the 4th Circuit’s opinion last week was: Does the Second Amendment even apply to assault weapons? When the 2nd Circuit addressed the issue in October, it assumed without deciding that the amendment applied. To its credit, the 4th Circuit addressed the issue head on, and said the answer was yes, it did apply.

On the surface, this seems like it might be the right answer. In the 2008 Heller opinion, the Supreme Court said that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Currently, there are some 7 million assault weapons in the U.S., including more than 4 million AR-15 rifles, according to the 2nd Circuit. Most people don’t use them to commit crimes. Taken statistically, these weapons must be “typically possessed . for lawful purposes.”

But deeper analysis of the Heller case suggests this interpretation may be too quick. Heller was itself interpreting a 1939 decision, U.S. v. Miller. The court then analyzed the Second Amendment’s explanation that the purpose of the amendment was related to the need for a “well-regulated militia.” In an opinion by Justice James McReynolds, a libertarian generally agreed to be the nastiest justice ever, the court said that “ordinarily when called for service,” militiamen “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

The Heller opinion, written by Justice Antonin Scalia, suggested that the way to understand the reach of the Second Amendment was to begin by considering what kinds of weapons were used in the militias that the text of the amendment mentions.

Scalia went on to say that “in the colonial and revolutionary war era, small-arms weapons used by militiamen and weapons used in defense of person and home were one and the same.” This, said Scalia, yielded “the original understanding of the Second Amendment”: It protects weapons possessed by law- abiding people for lawful purposes.

So what should this self-professed originalism have to say about assault weapons?

A true originalist could say that literally only 18th- century weapons are protected. Because that would presumably limit the amendment’s reach to flintlock muskets, it would be like saying the amendment is obsolete. That kind of originalism isn’t very convincing, and the court won’t adopt it here.

Another angle would be to say that the amendment covers all weapons that a militia would use today. That would surely include assault weapons.

The problem is, this originalism would prove much too much. Modern militias would also have rocket-propelled grenades, vehicle-mounted machine guns and no doubt some armed drones. The court won’t want to include these in the right to bear arms. So that originalism is out, too.

That leaves the view that there’s something special about weapons that can be used both for self-defense and for militias. According to Scalia, those are the weapons that the people who ratified the Second Amendment had in mind.

Today, that includes handguns. But it doesn’t include assault rifles. They’re great for military purposes, and no doubt fun to shoot on the range. But they aren’t useful for self-defense, almost by definition.

It emerges that a careful, responsible originalist wouldn’t apply Second Amendment protection to weapons that aren’t simultaneously for self-protection and for hypothetical militias.

In his dissent in the 4th Circuit case, Judge Robert King came close. “Let’s be real,” he wrote. “The assault weapons banned byMaryland are exceptionally lethal weapons of war.” He said he was “far from convinced” that the Second Amendment applied.

But King then followed the 2nd Circuit in saying that the case should’ve been decided by applying what’s called intermediate scrutiny, so that the regulations would survive provided they were supported by an important interest that was substantially related to them.

This view may be right — but it’s unlikely to win in the Supreme Court, where the justices like to treat fundamental rights as, well, fundamental. Better not to enter the thicket of balancing tests at all. If the Second Amendment is to be read through the lens of originalism, it should be originalism that makes sense.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.