House Judiciary Committee chairman Rep. Jerry Nadler (D-N.Y.) admitted Wednesday that the purpose of a renewed congressional effort to pass a federal assault weapons ban is to outlaw rifles that are in “common use.” Though his admission may seem obvious, a committee Republican quickly pointed out that Nadler’s statement shows how the bill flagrantly violates Supreme Court precedent on the Second Amendment.
The judiciary committee held a markup hearing on Wednesday for H.R. 1808, the Assault Weapons Ban Act of 2021. The legislation would ban AR-15 rifles and other so-called “assault weapons,” as well as high-capacity magazines. It comes after a spate of high profile mass shootings in recent weeks, including at a supermarket in Buffalo, New York; an elementary school in Uvalde, Texas’ and a Fourth of July parade in Highland Park, Illinois.
Prompted by these shootings, Congress passed bipartisan legislation that incentivizes states to enact “red flag” laws to take guns away from dangerous people, strengthens background checks for gun buyers under the age of 21, and funds mental health resources. But President Joe Biden and other Democrats believe these measures did not go far enough and have pushed to renew the 1994 federal assault weapons ban that expired in 2004.
“As we have learned all too well in recent years, assault weapons—especially when combined with high-capacity magazines—are the weapon of choice for mass shootings,” Nadler said in his opening remarks Wednesday. “These military-style weapons are designed to kill the most people in the shortest amount of time.”
Judiciary committee Republicans are staunchly opposed to the bill and sat in front of signs that read, “Shall Not Be Infringed” during the hearing. They say banning AR-15 rifles would violate the Second Amendment by making it illegal to own one of the most popular rifles in America. More than 4.5 million AR- and AK-style rifles were legally purchased by American civilians since 2020, according to an estimate from the National Shooting Sports Foundation.
At one point, Rep. Dan Bishop (R-N.C.) challenged Democrats on whether their proposal would ban firearms that are in “common use” in America.
“Would anyone on the other side dispute that this bill would ban weapons that are in common use to the United States today?” Bishop asked, offering to yield to any Democrat who would answer that question.
Nadler answered, “That’s the point of the bill.”
“To clarify, Mr. Chairman, you’re saying it is the point of the bill to ban weapons that are in common use in the United States today?” Bishop followed up.
“Yes, the problem is they are in common use,” Nadler said.
In District of Columbia v. Heller, the Supreme Court established the “common use” test to determine whether particular firearms are protected by the Second Amendment. The question the court uses to evaluate weapons bans is whether the targeted firearms are in “‘common use’ … for lawful purposes like self-defense.'”
Gun rights activists argue that since AR-15 rifles are commonly owned by lawful gun owners, laws that would ban them fail the Supreme Court’s test. Bishop made that argument during Wednesday’s hearing.
“I wonder whether the chairman knows, I think the chairman does know, that there are more than 20 million AR-15s in the United States. That’s in ‘common use,’ and in fact the chairman of course know that because the chairman readily conceded, in fact, the chairman said it is the purpose of the majority’s bill to ban weapons that are in common use in the Untied States,” Bishop said.
“That flies in the face, that is an absolute confrontation with the United States Supreme Court,” he added.