Article by:
Allen Rostron*

40 Campbell L. Rev. 301 (2018)

INTRODUCTION

In early 2016, a satirical news website reported that President Barack Obama had found an ingenious way to resolve America’s problems with guns.1 A new law would require all firearms to be a bright shade of pink.  “Not only will all newly produced guns be forced to be sold only in pink, but registered guns will also have to be sent in to a special gun control bureau where they will be painted the mandatory shade of pink.”2 According to the satirical story, the National Rifle Association planned to challenge the new law as a violation of constitutional rights, but President Obama insisted that “the [C]onstitution does not state that Americans have the right [to] choose the color of their gun.”3

The story was a joke, of course; a joke based on the idea that firearms would lose their macho appeal for many gun enthusiasts if they were a color that made them look less manly and intimidating.4While the notion of actually enacting a pink gun law is outlandish, it is not silly to consider what impact the aesthetic or stylistic characteristics of firearms have on how they are used and perceived, as well as how they should be treated by law.  Does it matter what a gun looks like?  Is the style or appearance of a gun ever a legitimate consideration in determining what legal regulations or restrictions should be imposed on it?  Does the Second Amendment give people a right to have guns that look a certain way?

These questions are particularly acute for assault weapons, a category of firearms that has been a subject of intense cultural, political, and legal controversy over the past several decades.  Critics of assault weapon bans complain that these laws irrationally draw distinctions among firearms based on cosmetic features, prohibiting guns that have a frighteningly militaristic appearance but not other guns that function the same but look less alarming.5  Gun control advocates have responded by arguing that these laws are not just about appearances and that the banned weapons do in fact have substantive characteristics that make them more dangerous or more likely to be misused than other firearms.6

In this Article, I will take an unconventional approach to this debate and argue that even if the controversy over assault weapons ultimately does boil down to concerns about how certain guns look, those concerns are not meaningless.  Appearances matter, at least in some ways and in some contexts.  If the military style of assault weapons emboldens some disturbed individuals and increases the likelihood that they will commit crimes, especially the sort of public mass shootings that have horrified the nation time and time again in recent years, that is a legitimate and reasonable concern.  If the widespread presence of these guns and the increasingly common practice of carrying them openly in public settings causes real and significant distress for a lot of people, that is a phenomenon worthy of at least some consideration in thinking about how these weapons should be treated by legislators and by courts.  Appearances are not everything, but they also are not nothing.

Part I of this Article provides some basic information about different types of firearms and what constitutes an assault weapon.  Part II discusses legal restrictions that have been put on assault weapons by legislatures, including the now-expired federal assault weapon ban and the assault weapon bans that remain in effect in some states.  Part III looks at how courts have dealt with the issue, particularly the string of decisions by federal appellate courts in recent years that have upheld state or local assault weapon bans.  Part IV considers whether the military look of assault weapons has any relevance to legislative or judicial decision-making about them, and it challenges the notion that the intimidating appearance of these weapons should be a wholly irrelevant consideration.

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