SCOTUS Refuses ‘Assault Weapon’ Case
Good. It gives the court time to build the courage to overturn gun bans for the right reason.
Several weeks ago, the Supreme Court refused to review the U.S. Court of Appeals for the Fourth Circuit’s decision upholding Maryland’s “assault weapon” ban. However, it may hear challenges to one or more statewide bans soon.
In defeating the Romans in the Battles of Heraclea and Asculum in 280 and 279 BC, King Pyrrhus of Epirus lost so many men that he said another victory would leave his army in ruins.
Second Amendment supporters could have a Pyrrhic victory if—as some of them shortsightedly hope—the Supreme Court overturns statewide “assault weapon” and magazine bans on the basis of its opinion, in District of Columbia v. Heller (2008), that the only arms the amendment guarantees the right to keep and bear are those “in common use.”
Then-Justice Stephen Breyer, a Second Amendment opponent, explained the problem in his dissent in Heller:
On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.
Bearing in mind that the Second Amendment guarantees the right to keep and bear arms for the same reason other amendments in the Bill of Rights guarantee other rights and freedoms—to prevent tyranny—“tomorrow” is important, because, as I wrote for TheFederalist.com in 2018:
[F]irearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. . . . Sometime this century, the government will be equipped with offensive and defensive handheld arms, and even more futuristic arms, that will render firearms as obsolete for defense against tyranny as bows and arrows are today.
When tomorrow comes, Congress and the states could render “the people” unable to defeat tyranny by prohibiting them from owning futuristic weapons as soon as they’re introduced—before they’re “in common use.” The same would apply to equipment with which to protect against futuristic weapons, because, as Heller pointed out in one of its better moments, the Framers understood the term “arms” to mean “weapons of offence, or armour of defence.”
Examples of arms unheard of only a few years ago are the Army’s Next Generation Squad Weapon Fire Control rifle scope, which has an integrated laser rangefinder and ballistic calculator, and indicates on the scope’s reticle where to aim at targets beyond battlesight zero distance; small weaponized drones; and weapons designed to defeat such drones.
The Buck Rogers Ray Guns and Star Trek Phasers of science fiction TV shows are not far behind, and they may be followed by wearable force field devices that deflect those weapons’ energy beams, and firearm bullets as well.
The origin of Heller’s “common use” nonsense
The Second Amendment guarantees the right to keep and bear “Arms,” and no statesman during the founding era, who had anything to say about the subject, said anything about limiting “the people,” or even the “well regulated militia,” to “common” arms. As examples, James Madison (who introduced the Bill of Rights in the House of Representatives) and Alexander Hamilton wrote about the militia’s ability to defeat tyranny in The Federalist, #s 46 and 29, respectively. Not a word about “common” arms.
Fast forward to 1939, when the Supreme Court dealt with the case of U.S. v. Miller, in which two fellows, convicted of having a short-barreled shotgun without complying with the National Firearms Act’s registration and $200 tax requirements, claimed that the requirements violated the Second Amendment.
The government’s lawyer, in his written brief to the court, claimed the term “Arms,” as used in the Second Amendment, refers “only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals.”
So, instead of ruling on the NFA’s registration and tax requirements, the court focused on whether the shotgun is an “Arm” as that term is used in the Second Amendment.
Americans owned shotguns with short barrels (blunderbusses) without restriction when the Second Amendment was adopted, but that fact was inconvenient for what the court wanted to do. So, the court invoked the doctrine of stare decisis, in which courts base their decisions upon what they or other courts have said previously.
(Only when doing so results in an outcome they like. If the doctrine were rigidly followed, Brown v. Board of Education (1954) would not have overturned portions of Plessy v. Ferguson (1896), and Dobbs v. Jackson Women’s Health Organization (2022) would not have overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).)
In Miller, the Supreme Court found what it wanted in the Tennessee Supreme Court’s decision in Aymette v. The State (1840), which considered whether the state’s law prohibiting the concealed carrying of a Bowie knife or “Arkansas Toothpick” (a long dagger) violated the Tennessee constitution’s right to arms provision, which stated, “That the free white men of this State, have a right to keep and bear arms for their common defence.” Mr. Aymette had been convicted of carrying a Bowie knife concealed.
Ruling against Mr. Aymette, the Tennessee court said:
[T]he arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.
So, in Miller, the U.S. Supreme Court, citing Aymette, said that the Second Amendment protects the right to keep and bear arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” such as those that are “ordinary military equipment” and others the use of which “could contribute to the common defense.” And it further observed that in the founding era, “[W]hen called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (Emphasis added.)
Fast forward to 2007, when, in Parker v. District of Columbia, the U.S. Court of Appeals for the District of Columbia Circuit struck down the District’s handgun ban. If the court had cared about what the Framers intended the Second Amendment to mean, it could have said something like “handguns existed and were not banned when the Second Amendment was adopted, and they are used for the same defensive purposes today as in the founding era, therefore they cannot be banned today.”
But, instead, just as Miller relied upon Aymette, Parker relied upon Miller, saying:
The Miller Court . . . . observed that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be “of the kind in common use at the time.” There can be no question that most handguns (those in common use) fit that description then and now.
It also said:
The modern handgun—and for that matter the rifle and long-barreled shotgun—is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s standards. . . .
Once it is determined—as we have done—that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.
The District appealed its loss to the Supreme Court, where the case became known as District of Columbia v. Heller (linked above).
In his amicus brief in Heller, U.S. Solicitor General Paul Clement agreed that the Second Amendment protects a private right to keep and bear arms, but he complained:
The (appellate) court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. . . .
The court of appeals concluded that, “[o]nce it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.” Such a categorical approach would cast doubt on the constitutionality of the current federal machinegun ban. . . .
And because automatic rifles like the M16 are now standard-issue military weapons for rank-and-file soldiers, the court’s reference to the “lineal descendant[s]” of the weapons used in Founding-era militia operations on its face would cover machineguns and other firearms that represent vast technological improvements over the “Arms” available in 1791.
Clement was wrong on this point: The appellate court did not say that to be within the scope of the right to arms, weapons have to be lineal descendants of weapons “used in Founding-era militia operations.” Rather, as noted above, it referred to “founding-era weapon(s)” in general, and during the founding era, Americans—members of the militia and not—had the same (or better) weapons as those that were standard among the military.
However, Clement was correct that M16s and other automatic rifles are lineal descendants of “‘Arms’ available in 1791” and “the Second Amendment categorically precludes any ban on a category of ‘Arms’ that can be traced back to the Founding era.”
During oral arguments before the Supreme Court, Clement repeated his concern about “machineguns,” saying, “I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is.”
Chief Justice John Roberts countered that Heller wasn’t about automatic firearms, and that should have been the end of it. But, when all was said and done, the court’s majority opinion, written by Justice Antonin Scalia, adopted Parker’s focus on Miller’s “common use” verbiage, all but ignoring Miller’s endorsement of the right to “ordinary military equipment,” which today would include M16s. It did so, to endorse the 1986 federal ban on new automatic firearms and overturn D.C.’s handgun ban on the same basis. In essence, Heller said handguns are common, so they can’t be banned, and M16s aren’t common, so they can be banned.
M16s aren’t “common”?
During oral arguments in Heller, Walter Dellinger, representing the District of Columbia, and Justice Scalia had the following exchange:
Dellinger: “The number of (privately-owned) machine guns, I believe, is in excess of a hundred thousand that are out there now.”
Scalia: “How many people in the United States?”
Dellinger: “Well, there are 300 million.”
Scalia: “I don’t think it’s common.”
However, as Clement pointed out in his brief and during oral arguments (linked above), “automatic rifles like the M16 are now standard-issue military weapons for rank-and-file soldiers” and “the standard issue armament for the National Guard.”
The latter is important, because under 10 USC 246, the Guard is the “organized” component of the Militia of the United States. Arguably, it’s somewhat akin to the “well regulated Militia” mentioned in the Second Amendment when under the command of state governors.
(However, the Guard is also akin to a “select militia,” which the Framers opposed. Also, it can be federalized by the president at will (Perpich v. Dept. of Defense, 1990), at which point it’s part of the U.S. Army, and the Framers were even more leery of a standing army.)
When Justice Scalia said automatic firearms were not common, he meant “among the people,” including the militia’s “unorganized” component (able-bodied males ages 17-44 who are not in the military or Guard). What he didn’t say, because it would have undercut his goal of validating the 1986 automatic firearm ban, is that automatic firearms are uncommon outside the military only because they’re heavily restricted under federal and many states’ laws, the point made by Justice Breyer in his dissent.
Reasons the court might stick with “common use” today
Three justices who were part of the majority in Heller, thus agreed with its “common use” standard, are still on the court: Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito.
In response to the court’s refusal to review the Fourth Circuit’s decision in Snope v. Brown, Justices Thomas and Brett Kavanaugh deferred to Heller’s “common use” standard. Justice Thomas, quoting Heller in the Bruen opinion, which he authored, wrote:
“[W]eapons ‘in common use’ today for self-defense” and other lawful purposes remain fully protected. And, AR-15s appear to fit neatly within that category of protected arms. Tens of millions of Americans own AR-15s, and the “overwhelming majority” of them “do so for lawful purposes, including self-defense and target shooting.”
Justice Kavanaugh, “respecting” the court’s refusal to take Snope, wrote:
Americans today possess an estimated 20 to 30 million AR-15s. And AR-15s are legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR-15s are something of an outlier. . . . Given that millions of Americans own AR-15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR-15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller.
When Justice Kavanaugh was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, he dissented from that court’s decision upholding the District’s “assault weapon” ban in Heller v. District of Columbia (“Heller II,” 2011). Citing my declaration to the court, he wrote:
The AR-15 is the most popular semiautomatic rifle; since 1986, about two million semi-automatic AR-15 rifles have been manufactured. (Declaration of Firearms Researcher Mark Overstreet). In 2007, the AR-15 alone accounted for 5.5 percent of firearms and 14.4 percent of rifles produced in the United States for the domestic market. . . .
The Supreme Court’s statement in Staples (v. United States, 1994) that semiautomatic rifles are traditionally and widely accepted as lawful possessions further demonstrates that such guns are protected under the Heller history- and tradition-based test.
Also, several weeks ago, in Smith & Wesson v. Mexico, the Supreme Court, in a unanimous opinion written by Justice Elena Kagan, observed that “AR-15 rifles, AK-47 rifles, and .50 caliber sniper rifles. . . . [a]re both widely legal and bought by many ordinary consumers. (The AR-15 is the most popular rifle in the country.)”
(Contrary to what Second Amendment gadflies are claiming on Twitter/X, that observation doesn’t guarantee that the court will eventually overturn “assault weapon” and magazine bans. It might, but where the court is concerned, it’s always a mistake to count chickens before they hatch. Consider the example of Bondi v. Vanderstok (2025), in which all justices except Thomas and Alito decided that unassembled firearm parts and things that can be modified into firearm parts are firearms.)
Take a victory however you can get it
It would be best if the court disavowed Heller’s flawed “common use” test and overturned the bans on the grounds that in the founding era, Americans—members of the militia and not—owned muskets and rifles identical, equivalent, or superior to those that were standard-issue among military personnel, thus of the type most effective for the tyranny-fighting purpose for which the Second Amendment was adopted and, today, the rifles of which the same can be said are AR-15s, the M16s from which AR-15s are derived, and those of similar type.
But overturning the bans on any basis would immediately make it legal to acquire and possess AR-15s and other semi-automatic versions of automatic service rifles, for the one-third of Americans who live in states where bans are currently imposed. That would be an immediate and definite victory. Whether such a victory would eventually prove to be Pyrrhic would remain to be seen.
Copyright © Mark Overstreet 2025