Supreme Court Poised to Strike “Assault Weapon” Bans

With good reason, AR-15 style rifles remain America’s most popular firearm.  

While most Americans probably remain unaware, that very popularity protects it against infringement under the Second Amendment.  

In welcome recent news, the United States Supreme Court now appears poised to do just that in its next term.  

By agreeing to review state and local prohibitions on AR-15 platform rifles, the Court possesses the perfect opportunity to reaffirm a Second Amendment principle that should’ve been clear all along:  Government cannot ban an entire class of firearms that tens of millions of law-abiding Americans own for self-defense and other lawful purposes.  

The constitutional question for the Court to resolve is surprisingly straightforward.  The Second Amendment obviously protects the right of the people to keep and bear “Arms,” which the Supreme Court has already defined to include firearms “typically possessed by law-abiding citizens for lawful purposes.”  

That principle wasn’t some afterthought or passing dicta — it was central to the Court’s landmark Second Amendment jurisprudence.  

In District of Columbia v. Heller (2008), the late Justice Antonin Scalia wrote for the majority that the Second Amendment protects weapons “in common use at the time,” contrasting “dangerous and unusual weapons.”  He explained that historical tradition permits restrictions only on weapons that fall outside ordinary civilian ownership, specifically emphasizing that the Amendment protects those arms “typically possessed by law-abiding citizens for lawful purposes.”  

Fourteen years later, Justice Clarence Thomas amplified and clarified that pivotal concept in New York State Rifle & Pistol Association v. Bruen (2022).  

Rejecting amorphous “balancing tests” that courts have employed to uphold countless infringements on the Bill of Rights over the decades, Justice Thomas wrote for the majority that “the Second Amendment protects the possession and use of weapons that are ‘in common use at the time.'”  Rather than allowing judges to weigh constitutional rights against specious policy preferences, the Court thus required governments going forward to demonstrate that firearm regulations are consistent with America’s historical tradition of firearm regulation.  

That “common use” standard is especially significant in the context of AR-15 rifles because the factual record is overwhelming. 

Specifically, estimates consistently place civilian ownership of AR-15 style rifles at well over 20 million nationwide.  They are used every single day across the U.S. for home defense, target shooting, recreational competition, predator control, ranch work and hunting.  Indeed, in a prior opinion respecting denial of certiorari review in another case, Justice Brett Kavanaugh had observed that Americans possess an estimated 20 to 30 million AR-15s, and that they are legal in the overwhelming majority of states.  That naturally suggests an upcoming legal conclusion that they’re thus “in common use” under the operative question in Heller.  

Obviously, that reality presents Second Amendment restrictionists with a constitutional problem of their own making. 

Namely, gun control advocates spent years insisting that AR-15s are excessively common in America, while arguing that they must therefore be prohibited.  Supreme Court precedent, however, points in the opposite direction:  Widespread lawful ownership offers a defining characteristic separating constitutionally protected arms from those that may historically be prohibited.  

Indeed, the label “assault weapon” itself illustrates the weakness of restrictionists’ argument.  It’s a political term rather than a technical one, typically applied to semiautomatic rifles based on cosmetic features rather than differences in fundamental operation.  An AR-15 fires one round per trigger pull, but so do countless other semiautomatic firearms and even pistols.  It’s not some sort of “machine gun,” and federal law has long restricted automatic weapons.  

Second Amendment opponents will predictably argue that public safety concerns justify prohibitions on these firearms.  The opposite, however, is actually true.  Specifically, firearms are used far more often to deter crime than to commit murder, and it’s not even close.  

In any event, constitutional rights simply aren’t contingent upon shifting political opinions about what government officials believe is in our best interest.  First Amendment speech protections don’t disappear because politicians believe that someone might be offended, nor does the Fourth Amendment vanish because wholesale warrantless searches might improve public safety.  

Bruen rejected that sort of biased interest-balancing, because constitutional guarantees shouldn’t be subject to arbitrary cost-benefit analysis.  Governments must instead demonstrate that proposed restrictions are grounded in this nation’s historical tradition of firearm regulation, and broad prohibitions on the nation’s most popular rifle plainly fail that test.  

The Court thus possesses an opportunity to provide much-needed clarity after years of resistance by lower courts that have struggled to reconcile modern “assault weapon” bans with Heller and Bruen.  The answer shouldn’t be difficult.  America’s most popular rifle is popular because millions of responsible, law-abiding citizens have freely chosen it for lawful purposes.  

Under the Supreme Court’s own precedents, that widespread ownership is not a constitutional defect, as gun control advocates assert.  It’s precisely why the Second Amendment protects it against infringement.

Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom.

Reposted with permission from cfif.org by Timothy H. Lee.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.