Federal Government Backs Supreme Court Challenge To AR-15 Bans

Authored by Bill Pan via The Epoch Times,

The federal government is urging the U.S. Supreme Court to side with gun owners challenging state and local bans on AR-15-style rifles.

In a brief filed Friday, Solicitor General D. John Sauer asked the justices to overturn rulings from the U.S. Courts of Appeals for the Second and Seventh Circuits, which upheld AR-15 bans in Connecticut and Cook County, Illinois, respectively.

"The AR-15 rifle is unquestionably in common use among law-abiding citizens for lawful purposes," the federal government argued.

The cases, Viramontes v. Cook County and Grant v. Higgins, have been consolidated for Supreme Court review.

Connecticut has prohibited what it deemed "assault weapons" since 1993. It significantly expanded the ban after the 2012 shooting at Sandy Hook Elementary School, describing AR-15-style rifles as particularly dangerous and preferred by mass shooters.

Cook County, which covers the city of Chicago, adopted its current firearm ordinance in 2006, prohibiting the possession, sale, and transfer of a list of semiautomatic weapons.

The 'Common Use' Debate

At the center of the dispute is whether AR-15-style rifles qualify as weapons "in common use" for lawful purposes and therefore fall under Second Amendment protection.

The idea dates back to the Supreme Court's 1939 decision upholding a federal ban on short-barreled shotguns because those weapons were not "in common use."

The Court relied on the same concept in 2008 to invalidate a ban on handguns in the nation's capital, affirming that they are "the most popular weapon chosen by Americans for self-defense in the home."

Most recently, the Court referred to the common-use test in 2022 when it struck down a New York law requiring people to show a special need before receiving a license to carry a handgun in public.

Connecticut argues that AR-15-style rifles do not meet the Supreme Court's legal standard.

"Americans do not commonly own assault weapons for self-defense," state lawyers argued in an earlier Supreme Court filing, adding that the weapons are "neither used nor useful for that purpose."

The gun owners challenging the bans, however, argue that AR-15s easily pass the common-use test.

"If the most popular rifle in the country is not in common use," the challengers said in their petition, "it is hard to see what that phrase could possibly mean."

The Justice Department is siding with challengers in the debate.

"Today, AR-15s are lawful at the federal level and in 40 States, with law-abiding citizens using them for lawful purposes such as self-defense, target shooting, and hunting," the government said.

"Legislatures may not ban arms in common use among law-abiding citizens for lawful purposes."

DOJ Counters Pro-Ban Arguments

Sauer also rejected arguments that AR-15-style rifles can be banned because of their military origins, firepower, or use in mass shootings.

"When it comes to lethal arms, rifles such as AR-15s are not 'especially dangerous,'" the government argued.

Handguns are easier to carry and conceal and are used in crimes far more often than rifles, the government said. Yet the Supreme Court has already ruled that handguns cannot be broadly banned.

The government also rejected the argument that AR-15 bans are acceptable because people can still use handguns for self-defense.

Sauer compared that reasoning to banning one type of First Amendment-protected speech simply because another remains available.

Allowing a government to ban rifles because handguns remain legal would be "like saying books can be banned because people can always read newspapers," he wrote, quoting an analogy Justice Brett Kavanaugh made as an appeals court judge.

How Courts Could Judge 'Common Use'

The government also proposed a way for courts to determine whether a weapon is in common use without relying solely on estimates of how many people own it.

A longstanding ban adopted by Congress and most states could be evidence that a type of weapon is not commonly and lawfully possessed, the brief said.

The opposite would also be true. A firearm that has remained widely legal for decades would weigh in favor of constitutional protection.

The government argued that both the legal history and ownership figures favor the AR-15.

The AR-15 was developed by ArmaLite in 1956 and has been commercially available for decades. Industry estimates suggest that between 28 million and 32 million AR-15-style rifles are in circulation in the United States.

In 1994, Congress adopted a narrow ban on certain new semiautomatic firearms but did not prohibit possession of previously manufactured rifles. That ban expired in 2004.

The respondents' briefs are due Oct. 21. The Supreme Court has scheduled oral argument for Dec. 2.

A ruling is expected before the Court concludes its 2026-2027 term, typically in late June.