Estimated reading time: 6 minutes
By Larry Keane
I’ve got to be honest. I had mixed emotions when the U.S. Supreme Court announced it was going to hear arguments challenging bans on the sale of Modern Sporting Rifles (MSRs).
First, I was downright giddy. Then, with a sigh, I thought, “It’s about time.”
In fact, NSSF used the word “elated” in our statement upon hearing that Viramontes v. Cook County and Grant v. Higgins will be heard by the Supreme Court in the next session. These petitions were relisted several times before the Supreme Court ultimately decided to grant cert. Viramontes and Grant challenge Cook County, Illinois and Connecticut’s respective bans on MSR possession, the most-commonly sold centerfire rifle in America, of which there are over 32 million in circulation. Heller and Bruen clearly hold that firearms in common use are protected by the Second Amendment and cannot be banned unless the government can prove the ban fits with our nation’s history and tradition of firearm regulation — which they plainly cannot do.
Why a Supreme Court MSR Ban Ruling is Long Overdue
This day at the Supreme Court has been decades in the making. Last year, we got close with Snope v. Brown and the NSSF-funded Ocean State Tactical Rhode Island petitions. NSSF submitted amicus briefs supporting both petitions. In the amicus for Snope, NSSF argued that the U.S. Court of Appeals for the Fourth Circuit erred when it held that the MSR — or AR-15-style rifle — isn’t even an arm. In 2024, NSSF asked the Supreme Court to hear our appeal in Barnett v. Raoul challenging the Illinois ban on MSRs and standard magazines. Like in Snope, the U.S. Court of Appeals for the Seventh Circuit reversed a preliminary injunction that brazenly ignored Supreme Court precedent and held MSRs are not “Arms.”
It was disappointing, even frustrating, that the Supreme Court didn’t agree to the petitions then. NSSF agreed with Justice Clarence Thomas in his dissent of the denial of cert in Snope, when he wrote that he “would not wait to decide whether the government can ban the most popular rifle in America. That question is of critical importance to tens of millions of law-abiding AR–15 owners throughout the country. [The Supreme Court has] avoided deciding it for a full 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. Until we are vigilant in enforcing it, the right to bear arms will remain ‘a second-class right.’”
Now, however, the clouds have parted. Gloom gave way to sunshine. The day at the Supreme Court is arriving. Justice Brett Kavanaugh’s prediction that the Supreme Court should answer the question of whether banning the most popular-selling centerfire rifle in America violates the U.S. Constitution is coming. The firearm industry, gun owners, Second Amendment supporters and constitutional watchdogs are just as excited as the industry.
Gun Control Doom
Gun control groups, on the other hand, are wringing their hands and gnashing their teeth. If you read their statements, the sky is falling. They’re again making unmoored hyperbolic predictions of carnage.
Just a warning before you check these links out for yourself. You’ll be peppered with solicitations to donate money to their antigun and unconstitutional causes. Ignore them. We do. Just like almost everything else they say.
Everytown for Gun Safety’s Janet Carter, the managing director of Second Amendment litigation at Everytown Law, said in a press release, “Assault weapons cause massive devastation. They are the weapons of choice for mass shooters.”
That’s not unhinged at all.
Brady United was a little more circumspect but resorted to the warnings that law-abiding citizens, who lawfully possess and lawfully use MSRs are, in their estimation, a menace to society.
“The Court’s decision to take up these cases is just that – a decision to consider these cases. Its [sic] doing so does not overrule any state or local gun safety law,” said Kris Brown, President of Brady, in a press release. “Local and state regulations of assault weapons prevent harm and death in our communities, our schools, and our country.”
GIFFORDS Violence Prevention & Advocacy either hadn’t gotten around to posting anything about their thoughts or was busy screaming in their offices about the announcement. They did, however, post their endorsement of gun grabber U.S. Sen. Chris Coons (D-Del.) for reelection. That could be considered something, since Sen. Coons has supported banning MSRs for years.
Reason for Confidence
But why so sullen? Predicting what the U.S. Supreme Court will decide prior to the decision actually being published is a fool’s errand. That’s not what I’m attempting to do. Rather, my confidence of prevailing in these combined cases and finally settling the matter that state laws banning the sale of these firearms violate the U.S. Constitution comes from, well … the U.S. Constitution.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
It’s also backed up by Supreme Court precedent. The landmark Heller decision clarified that individuals have the right to possess firearms for lawful purposes and the government couldn’t ban entire classes of firearms in common use. The Supreme Court later held in McDonald that the right to keep and bear arms is fully applicable to the states. The Bruen decision not only struck down New York’s “proper cause” concealed carry permitting scheme, it also made clear that Heller, in rejecting Justice Stephen Breyer’s dissent, did away with the unconstitutional “interest-balancing” test that lower courts were applying after Heller. Bruen reinforced Heller by making the test for deciding Second Amendment cases eminently clear.
Under Bruen, the first question is whether the plain text of the Second Amendment covers the individual’s conduct prohibited by the law. If it does, e.g., possession of a semiautomatic rifle, then the conduct is presumptively protected. The burden then shifts to the government to show (step two) that the regulation, e.g., banning commonly owned rifles, is consistent with the Nation’s historical tradition of firearm regulation. If the government cannot meet its burden, then the regulation violates the Second Amendment.
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History and tradition show there were no restrictions on commonly-owned and commonly-used arms in 1791, when the Bill of Rights was adopted, or even in 1868, when the 14th Amendment was ratified. That was consequential in the recent Wolford v. Lopez and United States v. Hemani decisions.
There’s even more reason to be confident going into the Viramontes argument. In Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos, the Supreme Court unanimously rejected Mexico’s unfounded $10 billion lawsuit against U.S. firearm manufacturers. Justice Elena Kagan, writing for the Court, said AR-15s are “widely legal and bought by many ordinary consumers” and the AR-15 “is the most popular rifle in the country.”
The question of whether states are violating the rights of their citizens by banning the sale of MSRs is long overdue. It should have been answered years ago because the answer is apparent. MSR bans violate constitutionally protected rights.
No one is getting cocky. Everyone is getting ready for this momentous day at the Supreme Court. We’re just confident that the law and the facts are on our side. Maybe that’s why gun control groups are so glum.
Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.
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