On June 30, the Supreme Court granted cert in two cases involving prohibitions on semiautomatic rifles. In Viramontes v. Cook County, arising out of the 7th Circuit, the petition posed the issue as: “Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.” That was consolidated with Grant v. Rovella, which concerns Connecticut’s ban upheld by the 2nd Circuit. The statement of the question in Viramontes will apply to both cases.
The Viramontes petition begins with the following statement:
Last term, this Court denied certiorari in Snope v. Brown, a case raising the constitutionality of Maryland’s ban on the AR-15 platform rifle. 145 S. Ct. 1534 (2025) (Mem.) In his statement respecting denial, Justice Kavanaugh pointed out that there is a “strong argument that AR-15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment” and that it is “analytically difficult to distinguish the AR-15[] … from the handguns at issue in Heller.” Id. at 1534 (Kavanaugh, J., statement respecting denial). Justice Kavanaugh noted that there were several other cases pending in the Courts of Appeals raising the same issue, including this one, and stated that “this Court should and presumably will address the AR-15 issue soon, in the next Term or two.” Id.
So now the Court will deliver on Justice Kavanaugh’s prediction. Recent statements by the Court suggest a favorable atmosphere to have the issue revolved. As Justice Kagan wrote for a unanimous Court in Smith & Wesson v. Mexico, semiautomatic rifles “are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country….)” And don’t forget Justice Sotomayor stating in Garland v. Cargill that AR-15s are “commonly available, semiautomatic rifles.” Such statements buttress the validity of the title of my latest book, America’s Rifle: The Case for the AR-15.
Without belaboring the point, for much ink will now be spilled in this issue before the Court, since it was first announced in 2008, lower courts have been resisting the Heller test that the Second Amendment protects “arms in common use at the time for lawful purposes like self-defense.” In Viramontes, the 7th Circuit summarily rejected the appeal based on its previous 2023 Bevis opinion, which stated that “‘common use’ is a slippery concept” and changed the subject to machine guns. In Grant, the 2nd Circuit wrote, “The cases do not hold that the Second Amendment necessarily protects all weapons in common use,” for what if “the W54 nuclear warhead” became in common use before it could be banned?
Such comments belittle the Supreme Court’s continuing references to the common use test. In resolving Viramontes and Grant, it’s unlikely the Court will appreciate absurd examples that detract from its precedents.
