Earlier today I wrote about the semi-auto ban that’s slated for a vote in the Hawaii Senate tomorrow, but that’s not the only state where lawmakers are considering legislation that would prohibit the sale and manufacture of the vast majority of semi-automatic long guns on the market. In Rhode Island, H 5436 and SB 359, which are almost identical to the bill introduced in Hawaii, are the top priorities of gun control activists this session. 

Though the legislation would curtail the ability to purchase (and possess, for those not grandfathered in) commonly-owned firearms, retired attorney Michael Kraemer dubiously contends that the bills don’t implicate the Second Amendment at all. 

The gun lobby, of course, claims that such legislation infringes on the rights established by the Second Amendment. That claim has no basis in law. While the Supreme Court has not ruled on the issue, every U.S. Circuit Court of Appeals which has been presented with a legal challenge to assault weapons legislation has held such bans to meet constitutional muster. 

Yes, by either ignoring existing Supreme Court precedent, the plain text of the Second Amendment, common sense, or all of the above. The Fourth Circuit Court of Appeals, for example, maintains that semi-automatic rifles are “like” machine guns, and therefore fall outside the scope of the Second Amendment. As the en banc court wrote in its decision in Snope:

The assault weapons at issue fall outside the ambit of protection offered by theSecond Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.

The Second Amendment doesn’t just protect the right of self-defense, but the right to use firearms for all kinds of lawful activity. And the Supreme Court has held that in order for arms to fall outside the scope of the Second Amendment they must be both “unusual” and “dangerous”. There are millions of semi-automatic rifles and shotguns in the hands of responsible gun owners, so they’re hardly unusual. And they’re used in a small fraction of violent crimes compared to handguns, which the Supreme Court has already determined are protected by the Constitution. 

So yes, despite Kramaer’s claims, bans on semi-automatic firearms do definitely implicate our Second Amendment rights. 

The gun lobby argues that since semi-automatic weapons were not banned in 1791 when the Second Amendment was enacted, they cannot be banned in 2025. By this logic, the Second Amendment would protect the right to own flame throwers, sawed-off shotguns, machine guns and Stinger missiles, none of which were banned in 1791. Fortunately, that is not the law.

Whether one supports an assault weapons ban or supports the private ownership of semi-automatic weapons as a matter of policy, the Second Amendment is not the issue.

Again, Kraemer is either woefully misinformed or intentionally trying to mislead his readers. In Caetano the Supreme Court explicitly stated that the Second Amendment does not just protect those arms that were around in 1791. There is no federal ban on flamethrowers, so whether or not they’d be protected by the Second Amendment is something the courts haven’t considered, but there’s a very strong case to be made that things like sawed-off shotguns and machine guns are, in fact, protected by the text of the Second Amendment and the national tradition of gun ownership 

Stinger missiles, which would have little use as a self-defense weapon or for any other lawful purpose if owned by an individual, are another matter, but it’s utterly absurd to lump them in with arms that are commonly owned for a variety of lawful activities like hunting, competitive and recreational shooting, and yes, self-defense. 

Instead of pretending that our right to keep and bear arms isn’t implicated when lawmakers are trying to make commonly owned arms illegal to keep and bear, Kraemer would have been better off stating what I suspect is his real position: the Second Amendment doesn’t matter, at least when it comes to semi-autos. He’d still be wrong, of course, but at least he wouldn’t be gaslighting his audience on the issue.