Many of us are gearing up with columns previewing the Court’s October term and have highlighted the upcoming arguments over bans on AR-15s and semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins). In a recent column, Professor Rory Little suggests that these cases will strike at what he considers a glaring flaw in the Heller decision that recognized the individual right under the Second Amendment. Professor Little repeats a common claim about Heller that some of us have challenged. I wanted to briefly address that controversy again.The column appeared in Scotusblog, a respected site that offers tracking and commentary on pending Supreme Court cases. Here is the portion that I wanted to address:The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently. Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns). I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”
As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” and the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791. Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis). This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011. Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.
As others have noted, this is an old saw repeated by many critics of Heller.
Justice Scalia anticipated this argument in the actual Heller decision. He wrote:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
As I recently discussed in a column, this issue came up nine years ago when Massachusetts attempted to ban stun guns. The Court issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that sent back a case to the First Circuit and rejected the logic that they were not in common use at the time of the Second Amendment’s enactment. The Court pointed out that in District of Columbia v. Heller, 554 U. S. 570, 582 (2008), it expressly rejected that argument and held that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” It also rejected two other rationales. (Notably, the Court is considering another stun gun case in Calce v. New York after the Second Circuit failed to heed the warning of the Court).
Notably, a new challenge has been filed in Connecticut over a ban of convertible handguns. It is likely to raise many of these same issues. The Firearm Industry Trade Association filed a lawsuit this week that will be before the district court as the Supreme Court hears arguments on the two pending cases.
I obviously disagree with Professor Little and other experts who raise this claim. There are, of course, good-faith arguments against the Heller decision. Some like Professor Little view that decision as “earth-shattering.” I do not. I still believe the Court was correct in viewing this as an individual right. However, I do not believe that this claim of a glaring and hypocritical contradiction between Heller and later cases is fair or supported. There was no sleight of hand in “changing ‘were’ to ‘are.'”
This really does not come down to a change in verbs. While many hope that packing the Supreme Court will result in an immediate reversal of Heller, it is unlikely to turn on the word “were.”
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
In the closer than not future, ‘Laser-Disintegrating Focused EMP (Electro Magnetic Pulse) Rifles’ will be in common use “at the time”.
These will be designed mostly to destroy (kill) Tesla’s AI Robots and burn holes through Human Enemy Combatants.
AS Justice Scalia anticipated “… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” …
Lets hope the SCOTUS doesn’t prematurely kneecap ‘The Resistance’ as the Skynet AI Robotics network overtakes Mankind. We are on the Cusp of that Dawn of the A.I. singularity.
Does the SCOTUS have any clue?
On the thought that Justice Scalia garnered votes for the majority opinion with Part lll recognition of a limitation of the right to keep and bear arms “in common use at the time “. Part lll goes on: “But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” Heller holds that modern pistols are protected arms in the 2d Amendment right. It is possible that Part lll salutes “in common use at the time” by giving it the sleeves out of its vest.
The “common use” test applies in the second stage under Bruen. The question is whether the regulation in question is analogous to restrictions applied in the past. The rationale that could justify the AR-15 restriction is that the weapon is “dangerous and unusual” since this was the most relevant principle underlying traditional regulations. It has to be both — exceptional dangerousness is not enough if the weapon is widely used for lawful purposes, making it not “unusual.” I don’t think any courts have held that this test is met if the weapon did not exist when the 2A was adopted.
<i<The rationale that could justify the AR-15 restriction is that the weapon is “dangerous and unusual” since this was the most relevant principle underlying traditional regulations
So is a bottle of bleach, an electrical outlet, a stove, a glass window, a chain linked fence, etc
Unless if the item in question has the innate ability to move, jump, lunge and commit an action, the item is no more a threat than a car parked on the side of the road. It’s the operator that commits the act, thus the AR-15 is a wonderful item to have by one’s desk – great paper weight
Sure. Take our speech, then take our means of defending ourselves. Neuter us as autonomous people free to tell our leaders to f*** off and back it up with a real response, drip by drip.
Not how we were founded, and I won’t let idiotic young people who have known nothing but relative peace and privilege their entire lives steer the conversation. This will increasingly include lawyers and even eventually, judges. Glad the courts are still relatively functional, but no. Just, no. May they remain so, so that we never get to the find out part of FAFO in this country. The hubris filled modern left can take their arrogance and entitlement and stick it where former Western royalty were forced to.
What is quite interesting is that all of the rights bestowed to “the people” in the Bill of Rights are viewed as individual rights, except the 2A by the left.
The 14th amendment (birth rights) has more negative impact on the American people than any semi automatic weapon. These Karlies would love to disarm the American people and run roughshod over them. Eugene Stoner is the only thing that keeps these crazies at bay.
So then, what is to stop machine guns and RPGs being Constitutionally allowed for self-defense?
It is the job of Congress, not Federal Court judges, to wield a legislative scalpel over these reasonable limits. Individual gun rights could be defined in terms of a maximum kill rate not to be exceeded based on the practical necessities of self-defense.
Some firebrands will refuse self-defense as the sole justification, and argue that the citizenry (as individuals) be prepared for armed civil war. They and their briefs will be laughed out of court. That kind of militant preparation could be the instigator of a civil war, the militant types simply refusing to engage in normal, peaceful politics as a matter of preference and power-seeking.
On the other hand, semi-automatic rifles are only involved in a very small number of deaths. And before someone says 1 is too many they better stop and think about deaths caused by illegal aliens. My point is that the banning of semi-autos is not necessary and this debate is really moot. If you want to reduce crime argue about handguns and start punishing violent offenders HARSHLY.
According to the Left, the test of a “right” is: common at the time of the Founding.
Thus: There is no right to own, for example, an AR-15 because they were not common at the time.
Here’s what else was not common at the time: White House press briefings. Yet somehow, according to the Left, the press has a Constitutional right to attend them.
In you want credibility, start by being consistent in your arguments.
@Sam
According to the modern left, history began and will be interpreted as they choose and see fit. They can go blow.
Anyone considering sitting out elections in 2026 needs to check themselves. We are past that, now. Being disgruntled is fine as a personal sentiment, but fence-sitting and hoping for the best is precisely what the modern left is counting on. We are not that stupid, even if what follows will be a challenge.
It’s what they were counting on with all of the rampant destruction of 20-24 – it would be very difficult to fix. Certainly more than one election cycle. It is their classic strategy: create discord and crisis, and then position themselves as the only ones that can fix it, all while ascribing blame to everyone but themselves.
At this point, one would have to be a moron (and many young progressives are precisely that, they are simply dumb) to not see through it like cellophane.
Turley,
You didn’t offer an alternative argument for “at the time.”
How do you interpret the meaning of those words without violating the non-surplusage doctrine?
“You didn’t offer an alternative argument for ‘at the time.’”
Actually, he did — via quoting Scalia.
That you don’t like his alternative, doesn’t mean that he didn’t offer one.
Do you understand what the non-surplusage doctrine is?
Every word, phrase, and provision in a legal text must be given operational effect.
Providing Scalia’s quote helps to understand what Scalia’s overall point is: “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
However, it does not give meaning to those specific words “at the time.”
@Anonymous
Try actually reading the article next time. Read the Constitution again, while you’re at it.
This is why the First Amendment clsims of CNN, MS DNC, and Politico must fail. NONE of them own or use a printing press, much less the hand-cranked hand-typeset letterpress “in common use at the time” the First Amendment was ratifie
For more than a decade, SCOTUS has remained silent on a very popular topic: By the end of June 2027 at the latest, several tens of millions of fellow citizens will find out whether they have been owning their A-15s legally so far. And that’s a good thing!
Only the left can fail to see a right expressly in the Constitution–the Right to Keep and Bear Arms–and see clearly a right that is not in the Constitution–the right to abortions any time for any reason.
The 2nd amendment seems to be quite clear and I would expect that even attorneys should be able to understand it. Of course that depends on where they got the primary education. Maybe all the misinterpretation of SCOTUS opinions has more to do with the sorry state of reading in the US in the 21st century. May have to send all attorneys to Mississippi to get remedial reading. Especially since they seem to be leading the way in revamping education so children can actually be educated.
After reading Nikole Hannah-Jones recent column on the trials of getting her child educated in modern day New York Schools I begin to see even more the challenges of the mess in American Education. No wonder our students are confused , ignorant and misled. The educational system produces moronic automatons incapable of meaningful thought. Obviously this rot has extended up to and including the learned professions.
Earth to GEB, earth to GEB. The article today is about Heller, not Jones or MS.
Keep it up! Pile one offense against the Constitution and those who honor it on top of another. Americans like me are gathering, our toes literally at the shore of the Rubicon, filled with a growing rage at the machinations of the Left. While we are rather basic people, we are not simpletons. We see the Left clearly. We understand their motivations. And we are peaceful, dedicated to debate and honest discourse and rational dialogue. But we are also a basic people, not prone to, nor tolerant of, gamesmanship when it comes to our God given rights. When all is said and done, and the games are begun, our mantra will be, as we are, simple. WE WILL NOT COMPLY will be our message. And we will begin the crossing of the Rubicon.
There’s a bigger issue not being addressed that the high court has never effectively reconciled.
The U.S. Constitution is a “wartime governing charter” designed to be followed during wartime primarily to “restrain” the authority of government officials – including presidents, including Congress and including judges.
The top duty of the U.S. Supreme Court is “judicial review” – to define and enforce those “restraints” on governing authority for local, state and federal officials (private contractors, private surrogates).
Bottom Line: the “ends” never justify “unconstitutional-means” since the U.S. Constitution already has temporary wartime and emergency clauses already designed into the Framer’s system (ie: 3rd Amendment, temporary writ of Habeas corpus and Article 1 war powers of Congress, etc).
In the 21st Century, the U.S. Supreme Court has been about 25 years late in “restraining” the government authority of multiple presidents and Congress practicing torture, assassinations, operating black site covert prisons, false imprisonment and not overtly confronting suspects before torturing, blacklist torturing, covert employment tampering and false imprisonment schemes.
In the early 21st Century, the high court allowed the political branches to manufacture new crimes like: playing paintball with dark skin, photographing building & bridges with dark skin and for 25 years blacklisting torture of dark skinned people without any confrontation in front a judge and without any constitutional due process whatsoever.
Although well-meaning, the high court apparently decided if the threat were great enough (roughly 3000 deaths in 2001) thatthe “ends” did justify “unconstitutional-means” and constitutional rule of law be damned! The court was derelict in providing constitutional judicial review about 20 years too late.
Using that measuring stick of the past 25 years, there are more gun deaths in a single year that surpass 9/11 (multiplied by 25 years). Cherry-picking rights, now the high court is providing judicial review on this issue they support playing politics.
According to ACLU statistics, the high court allowed about 40,000+ Americans to be blacklisted for over 20 years without any due process at all. Slowly the court has made great progress in strengthening 4th Amendment law, but those 40,000 mostly innocent Americans suffered lifelong harm
The U.S. Constitution is a “wartime governing charter” . I do you figure that? In 1789 the USA was not at war with GB, it was focused 100% on trade. The 2nd was simply a legal warning to potential fascists that the citizens are armed and ready. Everything else you wrote is obtuse nonsense.
No…let’s run with the Left’s view on Rights that they wish to apply to “Arms”.
There was no internet, no cell phones, no laptops, no iPads, no landline phones, no TV’s, no CB radios…..no automobiles, no steam powered trains, ships, boats, no electric batteries, no canned goods, no water systems, no power grid, no polling machines, and the list goes on for miles.
Let’s stick to just one….Voting…which is a Right….and was done on paper ballots and only Men who held property could vote….and only White Men at that.
What say we revert to that again….where every Voter. had to show up in person on a single day and file a written ballot that was counted by hand with several witnesses watching the count. The Count was done at each Precinct.
Reckon the Left would howl at that? No more voting from the Grave…no more ballots mailed to anyone, no early voting, and of course a much different demographic makeup of Voters.
I bet you if we treated all of our Rights as the Left wish to do the Second Amendment they would hush up like a Husband caught with Lipstick stains on his boxer shorts.
Perfect!
Perfect? Really? Okay, perfect, but only if you ignore the Amendments to the Constitution.
Calm down Ralph its only 8:30 AM. Easy boy …
So let’s see here – the Idiot Lefties always argue the Constitution, Declaration, and Bill of Rights are antiquated documents written by Slavers and Colonialist Racists and thus nullified in todays modern world? Oh, but when it comes to the sliver (the 2nd Amend) they hate most they are happy to refer to these relics and claim they are applicable TODAY? The IDIOCY and INCONSISTENCY of the Left never ceases to amaze.
There is no idiocy or inconsistency by the left, they have a plan that will take your weapons away. The left practically owns the American judiciary thanks to Soros,, then SCOUTS in the next 10 years, then game over. It’s inevitable. And all MAGA does is throw temper tantrums.
Leave my AR15 alone. We have way to many restrictions on guns already. I believe the the 2nd amendment has a national right to carry within its context. A National Right to carry law needs to written so that different states cannot have varying laws on the right to carry.
Professor Little another Professor Left Wing Radical Lawerence Tribe of Harvard. The Gun Grabbers will twist every little word or comma to suit their desire to limit our rights under the Constitution and the 2nd Amendment. 2nd Amendment clearly states our rights, no need to try and rewrite “Rose Colored Glass Left Wing Interpretation.
The 2nd amendment says “the right of the people to keep and bear Arms, shall not be infringed.”
It does not say the right of the people to keep and bear Arms ‘IN COMMON USE AT THE TIME THIS IS WRITTEN’, shall not be infringed.
Got proof? let’s see it.
You…you never heard of…read… the US Constitution? You’ll have to prove you are this dumb. I don’t believe you.
Um… still no proof eh? So, You think the 2nd is gonna save you? Think again dummy. The left will pummel the shite out of it through every means possible, decades if necessary. Only you’re too dumb to see that. But you’ll be dead and rotting away in your bunker.
he is quoting The Constitution. if that is not prof enough for you dont know what to tell you
So what?
I have proof you are both ignorant and stupid, and that is what you post everyday. Try again loser.