The Supreme Court is apparently too busy to uphold rights that are explicitly protected in the Bill of Rights. 

This week, the court denied certiorari in two cases challenging “assault weapon” bans in Maryland and Rhode Island. The ban in Maryland, where prohibitive regulations make it unconstitutionally difficult for law-abiding citizens to obtain any guns, was first challenged five years ago. The plaintiffs lost in the district court and then in front of the U.S. Court of Appeals for the 4th Circuit. The case has been sitting there for a year.

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This is all a bit odd considering the positions of the majority. Justices Clarence Thomas, Sam Alito, and Neil Gorsuch all said they would have granted cert.

“Additional petitions for certiorari will likely be before this Court shortly and, in my view,” Justice Kavanaugh said, “this Court should and presumably will address the AR–15 issue soon, in the next Term or two.” 

Why wait? 

For instance, Chief Justice John Roberts has been on the majority side in every landmark case upholding gun rights. District of Columbia v. Heller, among other cases, found that the Second Amendment was an individual right. McDonald v. City of Chicago found that the Second Amendment applies to the states. New York State Rifle & Pistol Assn. v. Bruen stopped government officials from arbitrarily denying permits to law-abiding citizens. 

Judge J. Harvie Wilkinson III’s tortured and ahistorical majority opinion for the 4th Circuit ignores all these cases. There is no way the Supreme Court can allow it to stand. 

“The assault weapons at issue,” said Wilkinson, who once compared Heller to Roe v. Wade, “fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.”

Guess what? Most firearms are, “in essence,” military weapons. The AR-15 is less than most. The revolutionary-era musket was obviously a military weapon. The Spencer repeating rifle was developed for the military. The Browning 1911 semiauto was used by the U.S. military until 1986. 

However, Eugene Stoner, the inventor of the ArmaLite rifle, built and marketed AR-15s specifically for the civilian marketplace in the early 1960s, before its more powerful iteration was adopted by the military. The AR-15 was never designed for “sustained combat operations.” It has barely been used in combat. 

Indeed, Heller found that the Second Amendment protected firearms “in common use by law-abiding citizens.” The AR-15 easily meets that criterion. It is the most common rifle in the country. It is legal in most states.

The bans, Wilkinson argued, are necessary because of the “plague” of gun violence. Maybe 4% of all firearm deaths in the United States involve semi-automatic rifles. They are rarely used in criminality. There are more victims of blunt instruments each year in this country than AR-15s. 

Now, that’s not to say these guns aren’t used in ghastly crimes such as school shootings. Handguns are still the main weapon of choice by all criminals, including mass shooters. The panic around the AR-15 is predominantly about aesthetics. Indeed, Wilkinson allowed states to categorize AR-15s as “assault weapons,” in this case, a meaningless concocted moniker of the media and gun restrictionists.  

Aside from all that, though, Heller found that the Second Amendment protects an individual’s right to keep and bear arms for any “lawful purpose,” not merely home protection. Beyond criminal activity, it’s not up to politicians or judges to decide which gun is most efficient in the task of self-defense. 

The 4th Circuit’s decision stresses that Justice Antonin Scalia, who delivered the majority opinion in Heller, found that “the Second Amendment is not unlimited.” This snippet of the decision is often lifted and isolated by gun controllers. Scalia’s line, read in the context of the decision, only undermines Wilkinson’s long-standing claim regarding the history of the Second Amendment. Scalia said Americans possess an individual right to possess a firearm unconnected from militia service, allowing the states only to limit “dangerous and unusual weapons.” Heller, in fact, found prohibitions on entire classes of “arms” that Americans “overwhelmingly choose” to use to be unconstitutional. This is to say, the idea that Scalia envisioned Heller being used to outlaw rifles, whose mechanisms are the same as most semi-automatic firearms, is implausible.

The founders, Wilkinson said, understood that we would be “ceding unadulterated freedom for the nation’s common good.” There are already tens of thousands of laws governing individual gun ownership on the books. The notion that gun ownership is “unadulterated,” or anything approaching the proximity of unadulterated, is a myth. No constitutional right has as many limitations. 

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Perhaps the best way to test my claim is to replace every instance of the words “Second Amendment” with the words “First Amendment” and every instance of “AR-15” with “media outlet.” See if what you’re saying sounds constitutional.  

Are AR-15s protected under the Second Amendment? If we rely on the text, history, and tradition, the answer is clear. Eventually, the court will have no choice but to acknowledge it.