Estimated reading time: 8 minutes

The Supreme Court is finally preparing to answer one of the biggest questions left hanging after Bruen: Does the Second Amendment protect the right to own an AR-15?

The Court has consolidated Viramontes v. Cook County and Grant v. Higgins, with oral arguments scheduled for Dec. 2, 2026. The official question is whether the Second and Fourteenth Amendments protect AR-15-style and similar semiautomatic rifles. You can follow the filings on the Supreme Court’s official docket.

A recent amicus brief from Dr. Angus McClellan, Jews for the Preservation of Firearms Ownership (JFPO) and the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) makes a detailed historical case against these bans.

It is a strong pro-2A argument. But let’s play devil’s advocate and look at what the other side is likely to say.

One important note: The governments’ final merits briefs are not due until Oct. 21. The counterarguments below come from the positions Cook County and Connecticut have already taken in their earlier Supreme Court filings.

Point: History Separates Ownership From Misconduct

The amicus brief argues that early American and English law dealt with dangerous weapons in three different ways.

Some laws addressed carrying weapons in a manner that frightened people. Others punished someone for using an ordinary object as a weapon. A much narrower group of laws prohibited particular weapon types.

According to the brief, those distinctions matter. A law against waving a gun around in a threatening manner is not historical support for banning millions of people from owning that gun at home.

That is a clean, understandable argument.

Counterpoint: History Was Never That Neat

Cook County and Connecticut will likely argue that the brief organizes centuries of scattered laws into categories that were not nearly so precise at the time.

They will also point to the Supreme Court’s more recent instructions in Bruen and Rahimi. Under that approach, the government does not necessarily need to find an identical law from 1791. It needs a historical comparison that is close enough in its purpose and burden.

In plain English, the states will say that an old restriction does not have to mention detachable magazines or pistol grips to be relevant. The pro-2A response will be just as direct: A restriction on threatening behavior is still not the same thing as a ban on possession.

Point: A Weapon Must Fail Two Tests Before It Can Be Banned

The amicus brief’s biggest argument is that governments historically banned a weapon type only when two things were true.

First, the weapon had no commonly recognized lawful purpose. Second, it was particularly associated with criminals and violent wrongdoing.

The brief points to restrictions on weapons such as short concealable handguns, pocket daggers and certain polearms. These were viewed as tools favored by criminals rather than ordinary defensive arms.

Under that test, an AR-15 ban has a serious problem. The rifle has obvious lawful uses, and it is not the weapon most commonly used in violent crime.

Counterpoint: That Test May Be Too Rigid

The states will likely say the Supreme Court has never adopted that exact two-part formula.

They will point to historical restrictions involving Bowie knives, dirks, machineguns, gunpowder storage and other arms or materials considered unusually dangerous. Some of those items certainly had lawful uses.

Their argument will be that government has always possessed some authority to address weapons that create an exceptional public danger, even when those weapons are not completely useless to law-abiding citizens.

The response from the pro-2A side will be that many of those old laws regulated carrying, storage or misuse. They did not prohibit ordinary citizens from keeping the weapons inside their homes.

That difference could become a major part of the showdown.

Point: AR-15s Are Clearly in Common Use

Supporters of the challenge have numbers on their side. Americans own tens of millions of AR-15-style rifles. They are lawful in most states and sold by ordinary gun stores across the country.

The challengers’ merits brief argues that these rifles are among the most popular firearms in America.

If Heller protects arms commonly possessed for lawful purposes, the pro-2A side says this should be an easy call. Government cannot allow millions of rifles into circulation and then declare them “unusual.”

Counterpoint: Ownership Numbers Cannot Decide Everything

Cook County and Connecticut argue that raw ownership totals should not settle the constitutional question.

Their concern is that firearm manufacturers could effectively create constitutional protection by selling enough copies of a new weapon before lawmakers respond. Popularity alone, they argue, cannot place a firearm permanently beyond regulation.

They also distinguish between common ownership and common defensive use. Millions of people may own AR-15s, but the states say there is far less evidence showing that people regularly fire them in lawful self-defense.

The pro-2A comeback practically writes itself: People should not have to shoot someone with a firearm before their ownership becomes constitutionally meaningful. Heller protected handguns without requiring every owner to prove a defensive shooting.

Point: AR-15s Have Plenty of Lawful Uses

The amicus brief lists home defense, hunting, target shooting, competition, training and pest control.

That matters because the brief’s historical test begins with whether a weapon has a recognized lawful purpose. Whatever someone thinks about the AR-15, it is difficult to say that it has none.

Counterpoint: Lawful Use Does Not Erase Risk

The states are unlikely to deny that AR-15s can be used lawfully. Their argument is that lawful utility does not require lawmakers to ignore what they describe as the rifle’s elevated danger.

They will focus on detachable magazines, controllability, accuracy, ammunition and the ability to fire repeated shots without manually operating the action. They will also argue that gun owners have access to handguns, shotguns and many other rifles for personal defense and sporting purposes.

That tees up a basic disagreement.

Does widespread lawful use end the inquiry? Or can lawmakers still prohibit a popular firearm if they believe its capabilities create an extraordinary risk?

Point: AR-15s Are Rarely Used in Crime

The amicus brief cites research placing so-called “assault weapons” in a tiny percentage of violent crimes. Handguns remain far more common in murders, robberies and ordinary street crime.

The pro-2A argument is straightforward. If AR-15s are not characteristically favored by criminals, they fail the second part of the brief’s historical test.

Why prohibit one of America’s most popular rifles when it appears in a small fraction of crimes?

Counterpoint: Frequency Is Not the Only Measurement

The states will say the number of incidents is not the whole story.

Their focus will be the potential harm produced during a single event. AR-style rifles have been used in some of the country’s deadliest mass shootings. The governments will argue that lawmakers do not have to wait for a weapon to become the most common crime gun before addressing its potential for mass casualties.

The pro-2A side will answer that this amounts to the interest-balancing approach rejected in Bruen. A constitutional right does not disappear because officials believe a restriction might produce a public benefit.

That may be one of the hardest questions for the justices: Are these bans historical regulations, or are they modern policy judgments dressed in historical clothing?

Point: The AR-15 Is the Modern Musket

The brief argues that military usefulness has never automatically removed a weapon from Second Amendment protection.

Founding-era laws often required citizens to possess effective arms for militia service. Muskets and longbows were powerful weapons of war, but ordinary people could still own them.

An AR-15 also fires one round per trigger pull. Unlike an M16, it does not normally offer automatic fire. To the challengers, that is a major mechanical and legal distinction.

Counterpoint: It Is Still Closely Related to a Military Rifle

Cook County and Connecticut emphasize the AR-15’s shared history and design features with military rifles.

They will likely lean on Heller’s statement that “M-16 rifles and the like” may be prohibited. Their position is that “and the like” includes civilian semiautomatic rifles that share important characteristics with military firearms.

The pro-2A side says the automatic-fire capability is precisely what separates an M16 from an AR-15. The states say that difference is being overstated because semiautomatic fire remains fast, accurate and effective.

Expect the justices to spend plenty of time pulling on that thread.

Point: There Were No Founding-Era Bans Like This

At the end of the day, the amicus brief returns to a simple historical fact. The Founders did not prohibit ordinary citizens from possessing an entire class of commonly owned rifles inside the home.

Laws punished criminals, threatening conduct and misuse. They did not operate like today’s bans.

Counterpoint: The Founders Never Faced Today’s Technology

The states will argue that lawmakers in 1791 could not have regulated a rifle that did not exist.

They will say Bruen allows courts to reason by analogy when modern technology or modern social problems have no exact historical twin. In their view, restrictions on exceptionally dangerous weapons provide enough historical foundation for today’s laws.

The challengers will respond that new technology does not lose constitutional protection merely because it is new. The First Amendment protects websites and smartphones even though the Founders used printing presses and handwritten letters.

And that is where this case gets bigger than the AR-15.

One side says a commonly owned arm with legitimate civilian uses cannot be banned simply because the government considers it especially dangerous. The other says widespread ownership cannot permanently immunize a weapon whose capabilities present a modern public-safety problem.

The Supreme Court’s answer could determine the future of AR-15 bans across the country. It could also tell us how far any government may go when it wants to prohibit a firearm that millions of Americans already own.

So, who has the stronger case? Does common lawful ownership settle the matter, or should lawmakers retain some authority to draw a line based on a weapon’s capabilities? And, whatever happened to shall not be infringed?

That is the debate the justices will face in December.

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