The Supreme Court closed its term last week by opening the one every Second Amendment lawyer in the country has been waiting for.
On June 30, the justices granted certiorari in Viramontes v. Cook County, consolidated with a companion case out of Connecticut, and agreed to decide whether the Second and Fourteenth Amendments protect the right to possess AR-15-platform rifles and similar semi-automatic firearms. Oral argument comes this fall. A ruling should land by next spring. And when it does, it won’t stay contained to two jurisdictions. Close to a dozen states, including New York, California, and New Jersey, have versions of the same ban on the books, and every one of them is now waiting on what the Court decides in Chicago’s backyard.
I didn’t need a law degree to see this coming. I needed three justices who kept saying so out loud. When the Court passed on a challenge to Maryland’s version of the ban last year, Justice Clarence Thomas wrote separately that he would not wait to decide whether the government can ban the most popular rifle in America. Justice Brett Kavanaugh predicted the Court would take up the question within a term or two. Justices Samuel Alito and Neil Gorsuch said they would have granted review right then. Four votes are what it takes to add a case to the docket. The Court just proved it had them, and it only took a year to prove it.
The stakes aren’t abstract. Industry data puts roughly 32 million of these rifles in civilian circulation. Cook County’s ordinance bars residents from owning, buying, or transferring more than a hundred different firearm models, the AR-15 chief among them. Connecticut’s statute works the same way. Both governments argue that a rifle built on a military pattern isn’t the kind of arm the Second Amendment was written to protect, and that its rate of fire makes it suited to mass casualty events rather than lawful self-defense. Gun rights advocates argue the opposite: a rifle owned by tens of millions of law-abiding citizens for hunting, competition, and home defense is, by definition, in common use, and common use is the test the Court itself set in District of Columbia v. Heller almost twenty years ago.
That test isn’t going anywhere, and neither is the one the Court added in 2022. New York State Rifle & Pistol Association v. Bruen requires modern gun regulations to have a historical analogue, something similar in kind to a restriction the founding generation would have recognized as legitimate. Cook County and Connecticut will have to find that analogue in a founding era that never saw a repeating rifle, let alone a legislative debate about magazine capacity. That’s a hard needle to thread, and Kavanaugh already told us where his sympathies lie.
My family has carried a rifle in military service for two generations. My son, a West Point graduate and an Army aviator, has spent his adult life around weapons most Americans will never touch. None of us confuses a semi-automatic rifle with the fully automatic weapons the military actually issues its own. That distinction gets lost in the political shorthand every time this debate resurfaces, and it’s going to matter a great deal to nine justices trying to work out whether “assault weapon” describes a category of arms or just describes a category of fear.
SUPREME COURT TO HEAR CHALLENGE TO ‘ASSAULT WEAPONS’ BANS
This is the marquee case of the new term, but it isn’t the only one the Court has already added. Younge v. Fulton Judicial Circuit District Attorney’s Office, out of Georgia, asks a procedural question about when a defendant can raise a defense it never formally pleaded, a case that will matter far more to litigators than to the general public. Guerrero v. Johnson, a habeas corpus case out of the Fifth Circuit, tests how far a death row inmate can stretch an old constitutional ruling to get a second chance at a claim he already had an opportunity to raise. Neither will make headlines. Both will shape how lower courts handle the cases that never make it to Washington.
The rifle case will make headlines, and it should. It sits at the intersection of everything Bruen unsettled two years ago: what counts as an arm, what counts as history, and how much deference a state gets when it decides an entire category of firearm is too dangerous for its citizens to own. The justices who dissented from denial in the Maryland case have been telling us for a year that this fight was coming. It’s here now, and it won’t leave the docket the way it arrived. It will leave as the next Heller, or the next Bruen, or the case a dozen state legislatures spend next spring rewriting their laws around.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.