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Note - How Can You Ban What Doesn’t Exist? Redefining the “Assault Weapon”


The term “assault weapon” has become synonymous with one of the most contentious political debates of our time. As gun politics stands today, there remains little room for compromise and a narrative mired in heavy emotion and staunch traditional principles. But as the debate swirls and deadlocks, the United States continues to experience a trend of violence unique amongst all other developed democratic societies. Yet neither this characteristically American mass violence, nor the continuous political efforts to restrict or expand Second Amendment rights are recent phenomena. Our country has been deeply entrenched in the “assault weapon” debate for more than half of the twenty-first century, and as the natures of societal violence, warfare, and the firearms market at large change, the understanding of the term “assault weapon” does so as well. This Note examines those different understandings of an “assault weapon” and how those conflicting understandings have shaped legislation and, consequently, the resistance to legislation attempting to restrict the controversial weapon. Competing understandings of an “assault weapon” have led to a patchwork system of state-to-state assault weapon bans and a federal ban which not only lacked the political support to avoid expiration in 2004, but also had little overall effect during the decade it was in force. Mass shootings are a pervasive and continuous threat to the fabric of American society and the problem must be addressed explicitly. The right to keep and bear arms will continue to stand protected within our Constitution. But if legislators and voters alike do not recognize the necessity of balancing the interests of life and liberty against those of gun ownership, we will implicitly accept that the Second Amendment is to be protected at the expense of innocent lives. This Note proposes a legislative approach to an assault weapons ban that would consider the prevalence of semi-automatic AR-15 rifles in mass shootings as well as the mechanics of the rifle that make it particularly lethal. There is a time and place for weapons of certain qualities. Our gun laws must reflect a respect for the distinction between modern warfare and an orderly civilian society.