Considering it’s been 18 years since the Supreme Court ruled D.C.’s handgun ban and storage requirements violated the Second Amendment, you’d think any arguments or debate about what the majority held in Heller would have been settled long ago.
And maybe they would be, if we didn’t have a group of critics (and gun control supporters) who are seemingly willfully ignorant about the majority’s opinion.
Take law professor Rory Little, who recently wrote a preview of the Court’s coming term and included this bit about the Viramontes/Grant lawsuits challenging “assault weapon bans.”
The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently. Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns). I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”
As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” and the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791. Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis). This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011. Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.
This is a really bad argument, and one that’s already been addressed and foreclosed by the Supreme Court. In fact, Justice Scalia shot down Little’s theory in Heller itself when he said, ““Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.”
Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Eight years later, the Supreme Court reiterated this position in Caetano when it chided the Supreme Judicial Court of Massachusetts for upholding a ban on stun guns on the grounds that they were not in common use at the time of the Second Amendment’s enactment, and therefore are “unusual” arms unprotected by the Second Amendment.
Yes, the Second Amendment protects those arms that are in common use for lawful purposes today, not just in 1791. If that were not the case, then D.C.’s handgun ban might well have survived scrutiny, because pistols weren’t nearly as common as muskets at the time of the Founding, and those that did exist look far different than the semi-automatic pistols or revolvers that are sold today.
Little is a law professor, and if he is unaware of this language then I truly hope he’s not teaching any classes that have anything to do with the Second Amendment. If he is, I think his students are probably entitled to a refund of their tuition.
I suspect that Little is educated enough to know that his argument is bogus. So why bother making it? There’s a cottage industry of academics, attorneys, and even judges who seem intent on misreading and intentionally misinterpreting the Supreme Court’s Second Amendment jurisprudence until fiction takes the place of facts. Second Amendment attorney Pete Patterson wrote about this phenomenon at SCOTUSBlog just a few days ago, though he focused on a slightly different argument than the one made by Little.
Patterson says that a number of lower courts are getting the “text, history, and tradition” test all wrong. As Justice Alito spelled out in Wolford, if the plain text of the Second Amendment is implicated by a modern gun law, then that law is presumptively unconstitutional and it’s up to the government to defend that law by proving it’s a part of the national tradition of gun ownership and regulation.
Instead of adhering to that test, though, many courts ignore step one of the test so the government doesn’t have to look at history for justification.
In the recent case of United States v. Berger, a U.S. Court of Appeals for the 3rd Circuit panel… reached the conclusion that a challenge to a conviction under the National Firearms Act, which mandates that individuals register with the government and (at the relevant time) pay taxes on certain categories of firearms, failed at “Bruen’s step one” and that this challenge therefore did not even present a Second Amendment case. This conclusion is startling. But it reflects a mode of analysis that is proliferating throughout the federal circuits. In Rocky Mountain Gun Owners v. Polis, the U.S. Court of Appeals for the 10th Circuit held that a challenge to a Colorado ban on firearm purchases by 18-20-year-olds failed at Bruen step one. And in Beckwith v. Frey, the U.S. Court of Appeals for the 1st Circuit similarly rejected at Bruen’s first step a challenge to a Maine law subjecting firearm purchases to a 72-hour cooling-off period.
Patterson says those courts pointed to a line in Heller that “nothing in our opinion should be taken to cast doubt on… laws imposing conditions and qualifications on the commercial sale of arms.”
The courts cited by Patterson simply declared that the challenged provisions imposed conditions or qualifications on the commercial sale of arms, and therefore the Second Amendment doesn’t come into play. That rationale can’t be squared with what Alito said in Wolford, according to Patterson.
As Justice Amy Coney Barrett explained in her Wolford concurrence, “the answer is and always has been no” to the question “whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain-text stage of the inquiry.” Surely the court itself was not doing such smuggling in Heller. Indeed, the fact that this passage is part of a discussion of historical limits on the scope of the right indicates that the regulations discussed do implicate the plain text; otherwise, there would be no need to include them in a list of historical limitations on the scope of the right.
As Patterson concludes, even “presumptively lawful regulatory measures” do not “provide a ‘get out of history free’ card allowing the federal or state government to avoid meeting its burden under Bruen’s second step.” Perhaps that error isn’t quite as obvious as claiming that firearms that came onto the market in the 1960s aren’t protected by the Second Amendment, but it’s still a pretty fundamental error… and one that only seems to be made when it can be used to uphold a gun control law facing legal challenge.
Chicago and Connecticut’s reply briefs in Viramontes and Grant are due in about a month, and they’ll be accompanied by a flood of amicus briefs trying to defend the bans on commonly owned semi-automatic firearms. Get ready to see a lot of these same arguments in the weeks ahead, and a thorough debunking of these claims when oral arguments take place on December 2.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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