Heller After Ten Years*

40 Campbell L. Rev. 461 (2018)

FEBRUARY 2, 2018

Wallace:            Moderator, E. Gregory Wallace
Rostron:            Panelist, Allen Rostron
Kopel:                Panelist, David Kopel
Lowy:                 Panelist, Jonathan Lowy

Wallace:  In our discussion time, I have three or four questions here.  First, assault weapons bans are typically upheld because judges think assault weapons are exceptionally more dangerous than other firearms.  The question I have is, To what extent is the accurate knowledge of how semiautomatic assault weapons operate—to what extent is that an essential prerequisite to proper constitutional decision-making on assault weapons bans?  In other words, if the courts are wrong about how assault weapons operate, are their legal conclusions about the constitutionality of such bans less credible?

A second question is, What is the proper test for determining whether possession of a particular type of firearm is constitutionally protected?  Is it a categorical test?  Is it an interest-balancing test?  We heard those terms talked about in the earlier panels today.  Should the constitutionality of an assault weapons ban be analyzed with an interest-balancing approach or a categorical approach?

And then, finally, how relevant is the existence of alternative weapons choices to the constitutionality of assault weapons bans?

So those are some questions that I have for the panel.  If we don’t get to those in the presentation, we can come back to them in our discussion.  We’re going to start with Professor Rostron, then Mr. Kopel, then Mr. Lowy, in that order.  We appreciate you being here today with us and helping enlighten us on this great topic.

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