So called “assault weapons,” i.e., Colt AR-15s and similar lightweight semi-automatic rifles, have long been the target of gun control legislation. As I have explained, the United States Supreme Court’s 2008 decision in District of Columbia v. Heller should have put a stop to such laws:
In Heller, the Supreme Court found that Americans have a constitutional right to keep and bear weapons that are “in common use” and are “typically possessed by law-abiding citizens for lawful purposes.” In truth, that finding ought to have been sufficient to rule out assault weapons bans. AR-15s and similar rifles account for approximately 20 percent of all firearms sold in America. Americans currently own more than 24 million of them. They are, moreover, rarely used by criminals. Most of the almost 18,000 homicides in 2022 were committed with handguns. Only 3% were committed with a rifle of any kind. By any conceivable standard, therefore, AR-15 style rifles satisfy the criteria established in Heller, i.e., they are in common use by law-abiding citizens for lawful purposes.
Instead, however, the states that already had such bans continued to enforce them, other states enacted new bans, and—in open defiance of the Supreme Court—many federal courts, including many federal courts of appeals, upheld those plainly unconstitutional bans.
For years, the Supreme Court seemed surprisingly reluctant to bring the states and wayward lower courts to heel. It declined an opportunity to so in 2024, despite being urged to do so in a friend of the court brief filed by the John Locke Foundation, the Independence Institute, and the International Law Enforcement Association & Trainers Association. It did so again last year, though in that instance there were clear indications that the court was running out of patience. In a statement appended to the latter decision, Justice Kavanaugh noted:
Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.
And in a dissent, Justice Thomas said:
I would not wait to decide whether the government can ban the most popular rifle in America. That question is of critical importance to tens of millions of law-abiding AR–15 owners throughout the country.
Last month, Justice Kavanaugh’s prediction came true. On June 30, the Supreme Court agreed to hear a consolidation of two cases: Viramontes v. Cook County, which is on appeal from a 7th Circuit decision upholding Illinois’ assault weapons ban, and Grant v. Rovella, which is on appeal from a 2nd Circuit decision upholding Connecticut’s ban. It seems all but certain that the court will reverse those decisions next term and do so in a way that makes it clear that state laws banning AR-15s and similar semi-automatic rifles violate the Second Amendment.
In more good news, rather than wait for the Supreme Court to make that clarification, last week the 3rd Circuit struck down New Jersey’s assault weapons ban. Instead of flaunting the Supreme Court’s Second Amendment precedents as so many other circuits had done, the 3rd Circuit found that “the many millions of semi-automatic rifles in circulation for lawful purposes are plainly in common use,” and it held that “New Jersey’s complete prohibition on the possession of semi-automatic rifles runs afoul of the Second Amendment’s protections.”
For more information see:
Locke to Supreme Court: “Give the Fourth Circuit a Well-Deserved Bench Slap”
Fourth Circuit Continues to Defy Supreme Court over Maryland’s Assault Weapons Ban
Why won’t the Supreme Court enforce its Second Amendment precedents?
