It takes a magical Jedi mind trick even to suggest that the AR-15, the most popular sporting rifle in the U.S., is not in “common use.” After all, some 40 million of these weapons are in private hands.
The Truth About Guns made this point persuasively in a powerful op-ed published on Monday. The Second Amendment advocacy group detailed how this “common use” standard must apply to state and local bans in deciding the pending U.S. Supreme Court case on this volatile issue.
All eyes will be on SCOTUS in coming months
On June 30, the high court agreed to hear the consolidated cases of Viramontes v. Cook County and Grant v. Higgins. Both ask whether the Second and Fourteenth Amendments establish a law-abiding citizen’s right to own an AR-15 or similar semi-automatic rifle.
Deciding factors, besides the Constitution itself, will be precedents that justices have already created. Enter New York State Rifle & Pistol Ass’n v. Bruen and District of Columbia v. Heller.
The Supreme Court’s 2022 Bruen ruling established the “history and tradition” test for determining if modern gun control passes Second Amendment muster.
Fourteen years earlier, justices in Heller clarified that individuals have the right to own firearms apart from any militia obligations. The majority determined that weapons in “common use at the time” are protected by the Second Amendment.
AR-15s in common use is obvious, but case’s outcome is far from certain
The Court in its decision admitted that “the right secured by the Second Amendment is not unlimited.” There can and will be restrictions, but where are the lines drawn?
It further noted that prohibitions on specific weapons are “fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Consider what would qualify as “unusual.”
As TTAG correctly observed, no reasonable person would consider the ubiquitous Ford F-150 pickup truck to be unusual. There are approximately 12 million of the models on U.S. highways, just under four percent of all registered vehicles.
Americans acquired roughly 30 million of the uber popular PlayStation 5 gaming consoles. That accounts for about nine percent of the nation’s population.
Are these unusual? Of course not.
Americans own roughly 40 million of these modern sporting rifles, with 25 million adults possessing at least one. That’s nearly 10 percent of individuals of legal age.
And consider the Supreme Court’s own recognition of the AR-15 as the most popular long gun in the U.S. in a recent decision.
Then note that Justice Brett Kavanaugh recently wrote that the bench “should and presumably will address the AR-15 issue soon, in the next Term or two.” That clock is ticking louder every day, and Second Amendment supporters are anxious to see the Court’s direction.
While there’s no way to deny the “common use” of the AR-15 logically, the “dangerous” disqualifier could be trouble. Justices in Bruen wrote that the historical test and popularity of a weapon do not automatically mean it falls under the Second Amendment’s protection.
The Court said that “other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”
Several lower courts used the “dangerous” standard to justify banning so-called “assault weapons.” They determined that mass shootings qualify as “unprecedented societal concerns” and therefore call for blanket bans.
Every firearm enthusiast wishes they had a crystal ball to foresee exactly what the Supreme Court will rely on to decide the issue. Raw and irrefutable data answer the “common use” question, and in that light the AR-15 is safe.
If “dangerous and unusual” is the basis, the facts may be twisted into something unrecognizable, and fearmongering could determine the outcome.
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