By David Deming

There is late news from the US Supreme Court. Last June 30, the Court granted certiorari in Viramontes v. Cook County and Grant v. Higgins, consolidating challenges to gun bans in Connecticut and Cook County, Illinois. After years of frustration and denials, the Supreme Court has finally agreed to review and decide if state and local bans on semi-automatic rifles, such as the AR-15, are constitutional.

Many of us can remember a time when the federal courts altogether ignored the Second Amendment and would not concede that it guaranteed any individual right whatsoever. That changed in District of Columbia v. Heller (2008), when the Supreme Court unambiguously concluded that there is an individual right to “keep and bear arms,” and that this right is not established but protected by the Second Amendment. Subsequent cases have clarified and strengthened Second Amendment case law. In McDonald v. City of Chicago (2010), the Court held that the Second Amendment restrains not only the federal government, but also state and local governments.

In Caetano v. Massachusetts (2016), the Court declared that the Second Amendment refers to all modern arms (including stun guns), not just weapons in existence in 1791 when the Bill of Rights was ratified. In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court ruled that under the Second Amendment there is a right to carry a handgun in public for self-defense. In Bruen, the Supreme Court also did away with interest-balancing tests and established a history and tradition standard for evaluation of Second Amendment claims. Under Bruen, any restriction on gun rights must be consistent with our nation’s historical tradition of firearm regulation. Because the US has almost no history of firearm regulation prior to the National Firearms Act of 1934, the unavoidable implication is that almost all gun control laws will eventually be found to be unconstitutional.

Unfortunately, inferior courts, including US District and Appeals Courts, have largely failed to follow Supreme Court guidance or precedent. In Bianchi v. Brown (2024), the Fourth Circuit Court of Appeals upheld Maryland’s ban on AR-15s and other semi-automatic rifles on the grounds that “they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” In Bevis v. Naperville (2023), the Seventh Circuit Court of Appeals concluded that “assault weapons and high-capacity magazines” are not protected by the Second Amendment because they “are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense.”

This is utter nonsense. There is no objective definition of what is meant by “military style,” nor is the semi-automatic AR-15 even in use by any military force anywhere in the world. Armed forces use select-fire weapons capable of fully automatic operation. If this sort of reasoning had been applied during the late eighteenth century, citizens would not have been able to own either muskets or rifles and unable to fulfill their obligation of militia service. Furthermore, the Second Amendment is not limited to arms useful for “self-defense.” Indeed, a plausible reading of the militia clause implies that only military weapons are protected! And there are several circumstances in which the AR-15 and other semi-automatic rifles are ideally suited for self-defense. In 2017, a homeowner in Broken Arrow, Oklahoma, used an AR-15 to decisively stop three home invaders. The shooting was ruled a justifiable act of self-defense.

The fact that arms bans remain in effect in several states and municipalities tells us that the Supreme Court has yet to provide clear and unambiguous guidance on specifically what types of weapons fall under the umbrella of the Second Amendment. In Heller the court ruled that the Second Amendment protects weapons that are “in common use,” for lawful purposes, while precluding “dangerous and unusual weapons.” From this, inferior courts, as described above, have concocted the fiction that only weapons in common use for self-defense are protected, not those suitable for sporting activities or militia service. But Heller never concluded that the only weapons protected by the Second Amendment were those useful for self-defense. In Caetano, Justice Alito emphasized that the phrase “dangerous and unusual” from the text of Heller is a conjunctive test. For an arms ban to be constitutional, a weapon must be both “dangerous” and “unusual,” not just “dangerous.” It should therefore be beyond cavil that any ban on AR-15s is unconstitutional. Not only are they in common use, the AR-15 is the single most popular centerfire rifle sold and possessed in the US. Approximately 20-30 million AR-15s are in civilian hands.

And what are we to make of the term “dangerous” in Heller’s proscription? All guns are obviously dangerous. Kitchen knives are dangerous. Common objects and tools of all types can be dangerous. Baseball bats (which we provide to small children without hesitation) and hammers can be used to murder. So can bricks, sticks, stones, and hands and feet. FBI Uniform Crime Report statistics indicate that every year more murders are committed by means of “hands, fists, and feet,” than rifles of all types, including AR-15s. For the term “dangerous” to have intelligible validity there must be context. “Dangerous” can only mean the danger inherent in a weapon of mass destruction such as a nuclear bomb or poison gas, not an ordinary firearm.

Sometimes I read the comment on social media that all gun laws are unconstitutional under the Second Amendment. I disagree. Anyone who makes this assertion has not considered the consequences. If all gun laws are unconstitutional, the concomitant but absurd implication is that prisoners in jail will be allowed to have weapons. Even from the founding era of the US, it has been common practice to disarm violent felons and people with severe mental illnesses. In these exceptional instances a person must be afforded due process of law before losing their rights. And I do not believe that the Second Amendment covers weapons of mass destruction that really are “dangerous” and would ordinarily never be owned by an individual. I have no problem with ordinary people possessing machine guns, mortars, hand grenades, or any small arm routinely issued to an infantryman, but individuals should not be in possession of nuclear weapons.

Eventually I do believe that the Supreme Court will rule the National Firearms Act of 1934 to be unconstitutional, and we will have the right again to own machine guns, as we did prior to 1986. The Supreme Court is not there yet, but overturning bans on AR-15s in common use is an important step on the path.