A showdown over America’s bestselling rifle is heading to the Supreme Court this fall: Gun-rights groups are asking the court to consider whether the AR-15 and other rifles described as assault weapons are deserving of constitutional protection.
Should the conservative Supreme Court take up the case in its new term, it could put some of the gun-control movement’s biggest victories in jeopardy.
Nine Democratic states and Washington, D.C., have restrictions on the purchase or possession of AR-15 rifles and other firearms labeled assault weapons, with many enacted after a 20-year-old gunman used an AR-15-style rifle to kill more than two dozen first-graders and faculty at Sandy Hook Elementary School in Connecticut in 2012.
The high court in a landmark 2008 opinion said law-abiding Americans have a right under the Second Amendment to protect themselves with handguns.
But justices have never said if that right extends to the AR-15.
“The court has yet to weigh in squarely on what kinds of guns can be prohibited,” said Joseph Blocher, a law professor at Duke University and co-director of the Duke Center for Firearms Law. “These cases are a lot harder than either side makes them out to be,” he said.
The court in its 2008 opinion said an individual’s right to bear arms is limited to weapons used for self-defense and other lawful purposes, and suggested that dangerous and unusual weapons designed for military use—such as the fully automatic military M16 rifle—fall outside Second Amendment protections.
The ‘perfect vehicle’
An August federal appeals court ruling upholding Maryland’s AR-15 ban offers the Supreme Court a prime chance to enter the fray.
The 10-5 decision by the Fourth U.S. Circuit Court of Appeals is the most substantial pronouncement from lower courts on the right to own an AR-15 since the Supreme Court expanded Second Amendment protections two years ago in a decision that said gun regulations are valid only if they are consistent with historical precedent.
The Fourth Circuit’s entire roster of active judges heard the case. Two-thirds of the bench agreed that the AR-15 was a combat weapon too destructive and ill-suited for self-defense to be treated like handguns.
The majority opinion by Judge Harvie Wilkinson, who was appointed by President Ronald Reagan, said the AR-15’s fearsome firepower makes it “ill-suited for the vast majority of self-defense situations in which civilians find themselves.”
He described it as a military-style weapon best suited for “wreaking death and destruction,” quoting a trauma surgeon who likened getting struck in the liver with an AR-15 to a watermelon exploding onto concrete.
“Compared to a handgun, the AR-15 is heavier, longer, harder to maneuver in tight quarters, less readily accessible in an emergency, and more difficult to operate with one hand,” he wrote.
Five judges signed onto a lengthy dissent that accused the majority of disparaging the weapon and its millions of law-abiding owners.
Judge Julius Richardson, a President Donald Trump appointee who wrote the dissent, wrote that AR-15 rounds are more likely to fragment and wobble passing through walls compared with handguns, diminishing the risk to bystanders. He said the rifle’s accuracy only enhances its suitability for self-defense.
“For these reasons, law enforcement has long found the AR-15 to be an effective weapon for urban building raids and hostage situations,” he wrote. He also cited a 2021 survey of AR-15-style rifle owners about their reasons for purchasing the weapon. More than 60% said home defense was a reason.
The gun-rights groups that brought suit against Maryland have asked the Supreme Court to review the Fourth Circuit decision. They submitted a petition to the court last week that said the case was the “perfect vehicle” to resolve questions over the right to own AR-15s.
In July, the Supreme Court declined to review a similar case on Illinois’s AR-15 ban. Two justices, Clarence Thomas and Samuel Alito, urged the court to clarify what makes a weapon dangerous and unusual.
But legal observers say the Supreme Court is more likely to take up the case out of Maryland. The lower-court litigation, unlike in the Illinois case, is completed with a final judgment against the plaintiffs and amassed a more extensive evidentiary record. The Fourth Circuit ruling also carries more weight coming from the full bench instead of a typical three-judge panel.
Other appeals courts are currently weighing AR-15 restrictions enacted in New Jersey, California and Connecticut.
A notorious gun
No other firearm has so divided Americans. Gun owners swear by them. The weapons fire rounds with smooth ease at ferocious speeds. They are lightweight, highly customizable, reliable and built to last—costing about as much as a laptop computer. U.S. civilians own approximately 20 million AR-15s, according to industry estimates.
The ubiquity of the rifles and owner survey data are helpful evidence for gun-rights plaintiffs, said Dave Kopel, a Second Amendment scholar who has argued that AR-15s should be protected. But enough justices have to be convinced that the rifles aren’t super-dangerous compared with smaller firearms, said Kopel.
While handguns have been used more often in mass shootings, AR-15s and other semiautomatic rifles were used in four of the five deadliest mass shootings in American history, according to data from Hamline University’s Violence Prevention Project.
A body is covered with a sheet after a mass shooting in Las Vegas in 2017. Photo: Steve Marcus/Las Vegas Sun/AP
In the 2017 Las Vegas massacre, a single man perched in a hotel suite rained more than 1,000 rounds onto a country music festival, killing 60 and wounding hundreds. It was also the weapon of choice for the gunman who attempted to assassinate Trump.
Proponents of AR-15 bans question how often the rifles have saved lives.
“I’ve never seen a single case where it was at all clear that having an AR-15 as opposed to a handgun led to a better defensive outcome,” said Stanford law professor John Donohue, a gun-policy researcher.
