The Supreme Court has received dozens of amicus briefs in support of the plaintiffs who are hoping to undo the bans on so-called assault weapons in Cook County, Illinois and the State of Connecticut, including one filed by the Department of Justice that urges the justices to recognize that the arms in question are in “common use” for lawful purposes.
This isn’t the first time the DOJ has taken on a semi-auto ban. Assistant Attorney General Harmeet Dhillon previously participated in oral arguments before the Seventh Circuit Court of Appeals to buttress the position of plaintiffs challenging the ban on “assault weapons” imposed by the state of Illinois, and the amicus brief submitted late last week echoes her earlier arguments.
Most of the brief is centered around the debate over what, exactly, constitutes “common use.” The DOJ rightfully points out that the vast majority of states do not impose bans on so-called assault weapons, the AR-15 has been described by the Supreme Court as “the most popular rifle” in the country, and statistics back up SCOTUS’s assertion. The brief notes the latest findings by William English in the 2026 National Firearms Survey that one in four gun owners own an AR-style rifle, with about 28-million semi-automatic long guns in circulation.
That the Second Amendment protects semiautomatic rifles such as AR-15s follows a fortiori from Heller’s holding that it protects semiautomatic handguns. While both semiautomatic rifles and semiautomatic handguns are in common use among law-abiding citizens, “semiautomatic handguns are more dangerous as a class than semi-automatic rifles”—and are chosen far more often by “ ‘armed criminals’ ”—because they “can be concealed.” Heller II, 670 F.3d at 1286 (Kavanaugh, J., dissenting) (citation omitted). Interpreting the Second Amendment to provide less protection to semiautomatic rifles than to semiautomatic handguns “would strain logic and common sense.”
Multiple appellate courts have done so, however, and the DOJ’s brief does a great job of rebutting and refuting the rationale deployed by judges in the Second, Fourth, and Seventh Circuits.
Some judges have claimed that AR-15 rifles may be banned because they’re supposedly of limited “usefulness for self-defense.” Not so, says the DOJ.
AR-15s are highly useful for self-defense, both in their capacity for deterrence and in their lethality. Moreover, while Americans own AR-15s for many reasons, self-defense is among the most common. Surveys have found, for example, that around 60%-65% of survey respondents have cited self-defense as a major reason for owning an AR-15 or another AR-style rifle. A court may not override the judgment of the American people based on its own view that the AR-15’s features “limitits usefulness for self-defense.”
The DOJ also points out that self-defense is just one of the lawful purposes of AR-style rifles, and the Supreme Court has never stated that it is the only lawful purpose that matters.
For instance, the Second Amendment protects the right to possess arms so that they are available for the common defense—i.e., for “repelling invasions,” “suppressing insurrections,” and “resist[ing] tyranny.” The prefatory clause indicates that the founders codified the right precisely because it would promote “the security of a free State” by enabling armed common defense. The founding generation understood that the individual right to keep and bear arms “helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” It also believed that widespread arms ownership “offers a strong moral check against the usurpation and arbitrary power of rulers.”
I’m sure the anti-gunners are aghast at DOJ’s recognition that the Second Amendment exists, at least in part, to serve as check on tyranny. Honestly, I’m pleasantly surprised to see that acknowledgement, which the Supreme Court has seemed to minimize in its previous decisions in Second Amendment cases.
The DOJ also takes issue with the reasoning of some courts that AR-15s and other semi-automatic long guns can be banned because of their military characteristics; a view the Justice Department describes as “profoundly anachronistic.”
The founders would have been astonished at the claim that legislatures may ban arms in common use if those arms can also be used for military purposes. At the founding, militiamen “were expected to appear bearing arms supplied by themselves and of the kind in common use.” So “small-arms weapons used by militiamen and weapons used in defense of person and home were one and the same.”
… The theory also defies common sense. It is true thatAR-15 rifles were originally developed for the military. So were many other technologies, including the wristwatch, duct tape, and the Internet. And so were “most popular civilian firearms.” For example, the Glock 17, “the most popular handgun in the world,” “was designed for the Austrian military and police.” That is unsurprising. “The very functions that make a weapon useful for military purposes,” such as “lethality, accuracy, durability, and maneuverability,” “make a weapon useful for lawful self-defense, too.” “So in choosing a firearm for that purpose, civilians naturally gravitate toward weapons that have already proved capable of repelling attackers.” On top of that, it is unclear what the term “military grade” covers, or why it would cover AR-15s. The U.S.military today does not use AR-15s. Neither, as far as we are aware, does any other military in the world.
You can read the DOJ’s entire brief here. It’s a great rebuttal to the warped logic and misreading of history that some lower courts have engaged in, and I suspect that we’ll see it cited by the majority of the justices when the Viramontes and Grant cases are decided next term.
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