The Volokh Conspiracy
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Second Amendment Roundup: Cert denied in rifle and magazine ban cases.
Justice Kavanaugh: “this Court should and presumably will address the AR–15 issue soon.”
After fifteen re-listings, on June 2 the Supreme Court denied cert in Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles, and Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban. I previously discussed these cases here.
Cert denial in Ocean State was more predictable, even though Justices Thomas, Alito, and Gorsuch would have granted the petition, as it sought review of denial of a preliminary injunction. But in Snope (styled Bianchi v. Brown in the 4th Circuit) – which has a final judgment based on a full record –Justices Alito and Gorsuch are listed as having been in the "would have granted" category, with Justice Thomas writing a dissent from denial. The big news is that Justice Kavanaugh issued a statement in Snope concluding that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."
According to Justice Kavanaugh, "Americans today possess an estimated 20 to 30 million AR–15s," which are "legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier." That suggests that AR–15s meet Heller's "common use" test, as then-D.C. Circuit Judge Kavanaugh opined in Heller 2. "If so, then the Fourth Circuit would have erred by holding that Maryland's ban on AR–15s complies with the Second Amendment."
Moreover, Justice Kavanaugh continues, "it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller." Most handguns are semiautomatic, as is the AR–15 rifle, and law-abiding citizens use both for lawful purposes such as self-defense in the home.
Several circuits are considering the issue, including the 1st, 2nd, 3rd, 7th, and 9th, and more cert petitions will likely come before the Court. Further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." That's the basis for Justice Kavanaugh's prediction that the Court will decide the issue in the near future.
Justice Thomas dissented from the denial of certiorari. Contrary to the Fourth Circuit, AR–15s are "arms" under the plain text of the Second Amendment, shifting the burden to Maryland to show that banning them is "consistent with this Nation's historical tradition of firearm regulation." The lower court's "reasoning is dubious at least twice over" by placing too high a burden to show that the Amendment presumptively protects the conduct and by claiming that AR–15s are "dangerous and unusual." In more detail:
The Fourth Circuit erred by requiring the challengers to prove that the Second Amendment protects their right to own AR–15s—or, in the terms of our Second Amendment jurisprudence, that their conduct falls outside the historical exceptions to the right to keep and bear arms. A challenger need only show that "the plain text" of the Second Amendment covers his conduct. Bruen, 597 U. S., at 32. This burden is met if the law at issue "regulates" Americans' "arms-bearing conduct." Rahimi, 602 U. S., at 691. Once the challenger makes this initial showing, it is the government's burden to show that a historic limit on the right to bear arms nevertheless justifies its regulation. The Fourth Circuit placed the burden of producing historical evidence on the wrong party.
Further, the Fourth Circuit "eschewed any inquiry into the commonality of AR–15s and the purposes for which they are used, which it dismissed as an 'ill-conceived popularity test.'" Instead, it invented its own tests of "utility for self-defense," "military origin," "firepower," and "muzzle velocity." But the American people, not the government, decides which arms to use for self-defense. Contrary to the lower court, that does not lead to absurd results, such as individual use of a nuclear warhead, which would never come into common use for self-defense. "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."
Justice Thomas would not wait to decide the issue, which the Court has now avoided for a decade. "And, further percolation is of little value when lower courts in the jurisdictions that ban AR–15s appear bent on distorting this Court's Second Amendment precedents…. I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right."
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In resisting Heller's common-use test, the Fourth Circuit in Bianchi repeated the myth that "approximately 740,000 machineguns [were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May 2021." Not even close. By letter dated May 29, 2025, ATF responded to a Freedom of Information Act request from attorney George L. Lyon showing "the number of MGs [machineguns] added to the NFRTR [National Firearms Registration and Transfer Record]" from the enactment of the National Firearms Act through 1986, when new machineguns were banned from private hands by 18 U.S.C. § 922(o). Excluding machineguns held by government agencies or which are otherwise non-transferable, the total comes to 169,100. The actual number is lower, as the ATF report states that some of these would have been double counted.
