Policy Memo
Topline
Legislative Testimony Hearing on HF 3433 and HF 3402 Minnesota House Committee on Public Safety, Finance, and Policy Amy E. Swearer Senior Legal Fellow, Edwin Meese III Institute for the Rule of Law Advancing American Freedom Foundation Chairwoman Mo
Chairwoman Moller and members of the Committee,
My name is Amy Swearer, and I am a Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.1 My areas of scholarship and expertise include, among other things, the Second Amendment, firearms policy, and overcriminalization. I have testified numerous times on firearms policy at both the state and federal level, analyzing an array of proposed gun control measures.2
Today, this Committee is considering two proposals that would severely infringe upon the rights of countless law-abiding and peaceable Minnesotans, while failing to meaningfully increase public safety. HF 3433 seeks to ban future civilian sales and transfers of semiautomatic firearms with certain features arbitrarily deemed to turn the gun into an “assault weapon.” The tens of thousands of Minnesotans who currently possess these weapons would, under threat of felony conviction, be forced into a draconian registration scheme that, in effect, would render them the last generation of lawful possessors of these firearms in Minnesota. HF 3402, meanwhile, would outright ban the possession of magazines capable of holding more than 10 rounds, even though such magazines have long been factory standard in many of the most popular firearm models on the civilian market.
Ordinary lawful Minnesotan gun owners are remarkably law-abiding and have done nothing to deserve this level of scapegoating. These bills threaten to turn countless peaceable Minnesotans into felons. Instead, Minnesota should focus on utilizing the tools already at its disposal to keep guns out of the hands of the small subset of repeat violent offenders responsible for the majority of gun violence in this state. Better yet, Minnesota’s public officials should focus on rescinding its many soft-on-crime policies that allow far too many violent offenders to terrorize local communities with near impunity.
The Supreme Court has never reviewed a challenge to laws criminalizing the civilian possession of so-called assault weapons, including the federal prohibition on new sales of such weapons between 1994 and 2004. The Court is, however, almost certain to take up such a case in the next few terms.3 It is difficult to see how the Supreme Court (or any court) could uphold these types of prohibitions while also remaining faithful to District of Columbia v. Heller,4 McDonald v. Chicago,5 and New York State Rifle & Pistol Association v. Bruen.6
In Heller, the Court reasoned that the Second Amendment’s protection “extends, prima facie, to all instruments that constitute bearable arms,” and are not limited only to the specific types of arms in existence at the time of ratification. While “dangerous and unusual” arms may fall outside the Amendment’s scope, it certainly protects small arms that, like handguns, are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense. More recently, in Bruen, the Supreme Court explained that judicial analyses of Second Amendment challenges must be based on text, history, and tradition, and not on any interest-balancing tests that allow courts to determine whether the government has a sufficiently compelling reason for the regulation. Bruen didn’t specifically delve into what types of arms are protected, but the case is nonetheless instructive about how courts must go about discerning the answer to that question: When the law regulates conduct that is protected by the plain language of the amendment, the government must demonstrate that the law is consistent with the nation’s historical tradition of firearms regulation.
Under the Bruen test, the government doesn’t have to show a historical doppelganger for its modern law, but at the very least, it needs to provide evidence of historical laws that were relevantly similar both in how they burden the right to keep and bear arms, and in the reason for why the laws burden that right. Additionally, the historical tradition must be formed by more than a handful of late-in-time historical outliers. Neither HF 3433 nor HF 3402 is consistent with this Second Amendment jurisprudence, which requires the government to demonstrate a longstanding national tradition of not only banning the civilian possession of semiautomatic rifles like the AR-15, but banning them because they are a type of weapon that is so inherently dangerous and unusual that it’s not commonly possessed by law-abiding citizens for lawful purposes.
Semiautomatic rifles—with or without the features HF 3433 seeks to ban—are the exact type of bearable small arms protected by the Second Amendment for civilian possession and use. There is no serious doubt that they constitute a firearm that is commonly possessed by law-abiding citizens for lawful purposes, including self-defense. Even as early as 1994, the Supreme Court recognized in Staples v. United States that semiautomatic rifles with these features “traditionally have been accepted as lawful possessions.”7 Thirty years later, even the dissenting Justices in Garland v. Cargill affirmed that semiautomatic rifles are “commonly available” to ordinary citizens.8
Today, tens of millions of ordinary and peaceable Americans—including, at minimum, tens of thousands of Minnesotans—own these firearms for precisely the same reasons that police departments in Minnesota and around the nation routinely issue them to their peace officers: in short, they are incredibly useful tools against criminal threats that commonly arise in a civilian context.9 The features banned by HF 3433 do not render a semiautomatic rifle uniquely dangerous or ill-suited for lawful civilian purposes, particularly when compared to their “non- assault” or “featureless” counterparts. Indeed, as explained below, this fact is underscored by the exemption HF 3433 would make for law enforcement officers, who anticipate using them against the same ordinary criminal threats faced by civilians.
Importantly, there is no evidence of a national historic tradition of banning civilians from acquiring or possessing semiautomatic rifles, either generally or when combined with the presence of features like those specified in HF 3433. Semiautomatic rifles like the AR-15 or AK- 47 are hardly new inventions. The first successful semiautomatic rifle design was produced nearly 150 years ago, in the 1880s.10 Subsequent models achieved widespread commercial success by the earliest years of the 20th century.11
And yet, restrictions on semiautomatic rifles are a strikingly recent phenomenon—the first attempt to meaningfully regulate their civilian possession did not occur until 1989, when California passed a law that is, compared to HF 3433, quite narrow and moderate. The federal government in 1994 imposed a 10-year ban on the civilian purchase of certain semiautomatic weapons, but that law did not involve the type of stringent registration requirements of HR 3433. Congress ultimately allowed the statute to “sunset” in 2004. Almost forty years after California first restricted civilian possession of certain semiautomatic rifles, the majority of states and the federal government continue to allow ordinary Americans to freely purchase and possess these firearms. In other words, laws like that proposed by HR 3433 are not just historical outliers, but modern outliers, as well. This is particularly true when compared to the civilian possession of fully automatic machine guns and “select-fire” assault rifles, which has been heavily regulated for nearly a century.
HF 3402’s proposed limit on magazine capacity fairs no better under Heller, McDonald, and Bruen. Magazines capable of holding more than 10 rounds are even more commonly possessed by civilians today than are semiautomatic rifles.12 The Founding generation was quite familiar with multi-shot firearms, and trends in firearm manufacturing toward increased ammunition capacity were already well underway by the time the Second Amendment was ratified.13 Rifles with magazines capable of holding more than 10 rounds of ammunition first achieved mass- market success in the years following the Civil War, and handguns with such magazines first became popular on the civilian market nearly a century ago.14 Advancements in magazine technology ensured that, by the 1960s and 1970s, the most popular firearms on the civilian market came with factory standard magazines capable of holding more than 10 rounds.15
As with bans on semiautomatic rifles, restrictions on magazine capacity for civilians are both historical and modern outliers. Far from being rooted in some historical tradition of regulation, the first laws even remotely resembling modern bans on large-capacity magazines did not arise until the 1930s—and two of the three were repealed within decades.16 Even today, magazine capacity limits exist in only a minority of states, most of which did not impose those limitations until well into the 21st century.17
The features HF 3433 defines to distinguish “assault-style” weapons from their “non-assault” counterparts have no bearing whatsoever on the gun’s lethality, functionality, or concealment. Like all “assault weapon” bans, HF 3433 does not purport to regulate certain firearms based on their caliber, muzzle velocity, or rate of fire. Instead, it regulates based on the presence of features like pistol grips, barrel shrouds, and foregrips that actually increase the lawful user’s safety, accuracy, and ease of handling.18 Far from turning these guns into “weapons of war” that “have no place outside of battlefield”—as their proponents often assert—the banned features make the guns even better suited for lawful civilian use. That is precisely why they’re commonly issued to peace officers who, by definition, are not engaged in offensive warfare, and who respond to the same criminal threats faced by civilians on suburban streets.
Consider, for instance, the University of Minnesota Police Department, which has, for more than a quarter-century, armed its officers with semiautomatic “assault-style” rifles. UMPD readily admits that these rifles are not for offensive warfare against enemy combatants, but “to ensure officers are equally or better equipped for potential shoot-outs” with ordinary common criminals.19 In over 25 years, no UMPD officer has ever had to fire one of these rifles in the line of duty, much less fire 30 rounds in quick succession at a criminal threat. And yet, the Department defends the continued issuance of these rifles because of potential threats that officers could face in a civilian context where the rifles are “an extra advantage to [officers] instead of a handgun”—threats like “armed burglaries,” situations where a criminal is wearing body armor, or other scenarios where the rifles give officers a tactical advantage.20 Why is it that, in these common scenarios of criminal victimization, law enforcement officers “must win in all situations” and be armed with tactically advantageous semiautomatic rifles, but civilians must be kept to a lesser level of preparedness against those same criminal threats?
Not only are the semiautomatic rifles and standard capacity magazines singled out by these bills constitutionally protected for possession and use by ordinary law-abiding Americans, but their role in criminal activity is far less significant than gun control advocates contend. According to federal data, handguns are by far the weapon of choice for both homicides and non-fatal firearm crimes.21 On average, rifles of any kind are known to have been used in only 3 to 4 percent of homicides in any given year, without any clarity on how many rifles were “assault-style” compared to their “non-assault” or “featureless” counterparts.22 Additionally, virtually all of the crimes committed with “assault-style” weapons could just as easily be carried out with “non- assault” versions of the same gun, or with alternative types of firearms—including mass public shootings.
It is unclear how much magazine capacity limits would impact the ability of criminals to carry out most crimes, even if the state could guarantee that enforcement of the new statute would be immediate and total. Most gun crimes are not targeted shooting attempts, but rather robberies and aggravated assaults in which the perpetrator brandishes but does not fire the gun.23 The type of crime most likely to require a perpetrator to fire more than 10 rounds is a multiple-victim homicide, but only a small percentage of homicides involve more than one victim.24
The official analysis of the 1994 federal law prohibiting the sale of magazines capable of holding more than 10 rounds found that “banned…magazines were used in only a modest fraction of gun crimes before the law.”25 Later analyses of the ban’s effect found that the proportion of all multiple-victim homicides actually increased slightly during the first half of the federal ban, before stabilizing at around 4.5 percent between 2000 and 2008, when the most recently report appears to have been published.26
Magazine capacity limitations are unlikely to meaningfully lower casualty rates even in mass public shootings, which are by far the least common type of firearm violence in the United States. Analyses of mass public shootings demonstrate that most perpetrators do not actually use magazines capable of holding more than 10 rounds, and typically do not fire at fast enough rates for casualty counts to be meaningfully attributed to magazine capacity.27 Moreover, perpetrators of mass public shootings can (and routinely do) easily sidestep magazine capacity limitations by bringing several firearms and extra loaded magazines, easily replacing empty magazines within seconds.28 High casualty counts regularly occur in mass public shootings involving only “limited capacity” magazines.29
This reality plays out in Minnesota’s own crime data. Consider the state’s Uniform Crime Report for 2024, which is the most recent data available online. Minnesota recorded 170 criminal homicides. Only three of those criminal homicides involved the known use of a rifle, compared to 60 that were known to involve the use of a handgun.30
Minnesota has experienced very few actual or attempted mass public shootings, as that term is typically defined in criminological settings to indicate “a single attack in a public place” resulting in some minimum number of victims other than the shooter, and excluding violence facilitated for the purpose of furthering some other criminal goal. Only three obvious candidates for analysis emerge: the Red Lake school shooting in 2005 (9 dead and 9 injured), the 2012 Minneapolis workplace shooting (6 dead and 2 injured), and the 2025 shooting at Annunciation Church (2 dead, 27 wounded).
Only one of these incidents—the 2025 shooting at Annunciation Church—involved the use of semiautomatic weapon that would be arguably prohibited under HF 3433. The two deadliest shootings involved the use of relatively low-caliber handguns, and, in the case of the Red Lake shooting, a pump-action shotgun. Meanwhile, the Annunciation gunman’s use of an “assault- style” semiautomatic rifle—as opposed to a featureless semiautomatic rifle—played virtually no role in the fatalities or injuries sustained by victims. As discussed previously, the features banned by HF 3433 benefit operators of the rifle by helping to increase accuracy and ease of handling. The reality, however, is that the Annunciation gunman was firing blindly through stained glass windows and walls at victims he could not see, and was not attempting to target individual victims with precision in the first place.
There is no evidence that magazine capacity limits would have meaningfully affected the carnage of any of these three shootings. Both the Red Lake and Minneapolis workplace gunman appear to have used handguns that come with a factory-standard 15-round magazine. However, magazine capacity did not appear to play a significant role in either gunman’s ability to carry out his massacre. All involved the use of multiple magazines, and two of the three involved the pre- planned use of multiple firearms. The Red Lake gunman fired a total of 59 rounds from three different guns, 45 of which were fired from at least two different guns at the school and during a nine-minute span.31 Unlike the Red Lake gunman, the Minneapolis workplace gunman was immediately confronted by resistance in the form of two victims who struggled with him over the gun. The sad reality is, however, that the gunman fired nine shots during that struggle, which were sufficient to overcome efforts by his victims to subdue him.32 It is difficult to see how a 10- round magazine capacity limit would have affected the outcome of a struggle in which only nine rounds were sufficient to overcome victim resistance.
The Annunciation gunman fired 116 rounds from his rifle, but even then, he still had to switch out magazines at least four times, and had an additional six loaded rifle magazines that went unused before he committed suicide.33 There is no reason to believe that limiting his magazine capacity to 10 rounds would have resulted in any difference in the number of rounds he ultimately fired, or that forcing him to spread 116 rounds across 12 loaded magazines instead of four would have meaningfully altered the outcome.
It does not appear that Minnesota tracks offender information on multiple-victim shootings, or at least it does not make such information public. But a review of publicly available reports compiled by Gun Violence Archive, which tracks incidents in which four or more people other than the gunman are shot under any circumstances, demonstrates that Minnesota’s primary problem is not lawful gun owners. According to Gun Violence Archive queries, Minnesota experienced 19 “mass shootings” between January 1, 2024, and February 22, 2026.34 Only one of these—the Annunciation Church shooting—constituted an act of truly indiscriminate violence intended to kill large numbers of people in a public place. Few of them clearly involved the use of an “assault-style” weapon. Most of them clearly revolved around gang- or drug-related disputes and involve perpetrators who were either already prohibited from owning firearms, or who could have (and should have) been prevented from committing their crimes by the enforcement of existing laws.
Far from demonstrating why ordinary, law-abiding Minnesotan gun owners should have their right to keep and bear arms further restricted, these incidents demonstrate the abject failure of state and local officials to properly enforce existing laws, to the detriment of the very law- abiding gun owners the state now seeks to punish.
Consider the following incidents recorded as mass shootings by the database:
was apparently intended to target a specific victim and had drug-related motivations.40 At the time of the shooting, the perpetrator had an open criminal case from January 2025, in which he was charged with possessing 41 grams of fentanyl.41 He was, apparently, not detained pending trial. He was arrested again in February 2025 and charged with selling fentanyl and illegally possessing a machinegun, but was nonetheless granted conditional release after posting $100,000 bond.42 • On June 1, 2025, a gang-related shooting targeting a birthday party in a public park turned into a chaotic shootout that killed one person and injured another five. The shootout ultimately involved an unknown number of shooters using at least nine different firearms to fire more than 130 rounds between all weapons.43 Of the four 23-year-old suspects since charged for their roles in the shootout, one had multiple prior felony convictions, another was on probation in Hennepin County for illegally possessing a firearm, and a third was somehow also still out on probation despite four previous felony convictions in the prior four years—including several weapons offenses.44 • On April 29, 2025, a felon in illegal possession of a handgun murdered four men in a targeted gang-related attack, shooting all four victims in the head at close range as they sat pinned in a vehicle.45 • On November 11, 2024, a man with a history of schizophrenia-induced violent behaviors fatally shot four family members in two different locations before killing himself. The perpetrator had managed to get a permit to purchase a firearm just two months prior, despite a recent history of significant mental health problems.46 He had been placed on a temporary mental health hold in July after he admitted to officers that he was suicidal and had held a knife to his wife’s throat. The incident report includes evidence that the perpetrator told officers he believed “the Russians had control of his mind” and that he had stated multiples times that he had an explicit desire and plan to fatally shoot himself and his family members over political paranoia.47
When the Gun Violence Archive data is filtered for non-mass shootings incidents in Minnesota over the past few years that were otherwise known to involve the use of “assault-style” weapons covered by HF 3433, the result is the same: virtually all of them involve perpetrators who were already prohibited from owning firearms (many of whom should still have been in police custody), or occurred in situations where the “assault-style” features did not play a significant role in the perpetrator’s ability to carry out the criminal assault.
Relevant examples include:
leg, and tried to burn the family’s home down. The man’s mental health had clearly been deteriorating over previous days, and he had numerous other firearms in the home.54
Additionally, some of these incidents were ultimately ended by law enforcement officers relying on their own department-issued “assault weapons” to swiftly and efficiently end the threat to themselves and the public, ironically demonstrating just how useful these firearms are against ordinary criminal threats in a civilian context.
There is perhaps no better example of this than a September 7, 2024, encounter between Minneapolis police officers and a man who, for inexplicable reasons, began repeatedly firing his rifle in his apartment and the surrounding hallways in the middle of the night. When officers confronted the gunman, he was crouched in a stairwell and holding the rifle, which he refused to put down.55 The officer who finally shot the gunman did so with his own “assault-style” rifle, which proved remarkably efficient and effective at ending a criminal threat in an urban, civilian environment. And, far from being some ultra-lethal weapon, the rifle round in that instance was not even lethal to the gunman, despite striking him directly in the jaw.
Another example is an April 10, 2024, incident in Minnetonka, where officers attempting to serve a warrant at a home encountered a completely unrelated individual who opened fire on them with a rifle. During the ensuing shootout, three of the four officers who ultimately returned fire did so with their own equivalent patrol rifles.56 Body camera footage shows those officers racing back to their squad cars after the suspect fired two rounds at them to ensure that they could engage him with a firearm that did not leave them at a disadvantage. One officer clearly grabbed multiple full-size magazines for the rifle—an amount of firepower upon which neither he nor any of his fellow officers ultimately had to rely.57 Minnesota is rightly willing to concede the utility of these firearms and standard capacity magazines for peace officers when they face ordinary criminal threats. It should acknowledge their utility for civilians facing those exact same threats, as well.
Minnesota has nothing to gain from its endeavor to strip ordinary and peaceable citizens of their right to keep and bear many of the nation’s most commonly possessed semiautomatic firearms and standard capacity magazines. The lawful gun owners who already possess these weapons rarely constitute a threat to public safety. To the limited extent that otherwise lawful gun owners are responsible for violent gun crimes, those crimes are rarely facilitated by the use of “assault- style” weapons or standard capacity magazines, and those crimes could be just as easily have been carried out with their “non-assault” counterparts or limited capacity magazines. To save lives, Minnesota does not need to scapegoat ordinary peaceable gun owners, further restrict their rights, or threaten them with felony weapons offenses. The state need only do a better job of protecting Minnesotans from the small subset of violent repeat offenders that currently prey upon them. It can start by re-evaluating the soft-on-crime policies that refuse to hold these offenders accountable, and that offer them a revolving door right out of jail every time they are detained for another serious offense.