The Supreme Court Agrees To Address the Constitutionality of ‘Assault Weapon’ Bans

Last year, the Supreme Court declined to hear a challenge to Maryland’s “assault weapon” ban, which covers some of the most popular rifles sold in the United States, including the AR-15. “Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles,” Justice Brett Kavanaugh said at the time, “petitioners have a strong argument that AR–15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment.”

Although Kavanaugh nevertheless voted against granting that petition, he said “this Court should and presumably will address the AR–15 issue soon, in the next Term or two.” His prediction came true on Tuesday, when the Court agreed to hear Viramontes v. Cook County, which involves a local ordinance similar to Maryland’s law. The Court consolidated that case with Grant v. Higgins, a challenge to Connecticut’s “assault weapon” ban, signaling that it will finally resolve the long-simmering question of whether laws that prohibit possession of widely owned but politically disfavored rifles are consistent with the Second Amendment.

A dozen states, most recently including Virginia, have enacted “assault weapon” bans, and so have several local governments. The law at issue in Viramontes, which Cook County, Illinois, enacted in 2006 and revised in 2013, is typical of the genre. It bans a long list of rifle models by name, including the AR-15, along with “copies or duplicates” of them. It also extends to all other semi-automatic rifles that accept detachable magazines and have any of five features: a pistol grip, a protruding grip that can be used by the non-trigger hand, a barrel shroud, a muzzle break or a muzzle compensator, or a folding, adjustable, or thumbhole stock.

With or without those features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Cook County, which includes Chicago, nevertheless has deemed them an intolerable threat to public safety, copying the illogic of similar laws going back to the ban that California enacted in 1989. Cook County’s ordinance prohibits the manufacture, sale, transfer, or possession of the targeted guns. A resident caught with one faces up to six months in jail and a $10,000 fine, along with confiscation of the firearm.

In 2021, three Cook County residents, joined by the Firearms Policy Coalition (FPC) and the Second Amendment Foundation, challenged the ordinance in the U.S. District Court for the Northern District of Illinois. They noted that the prohibited rifles clearly qualify as “bearable arms” that are “in common use” for “lawful purposes like self-defense,” which is how the Supreme Court defined the weapons covered by the Second Amendment in the landmark 2008 case District of Columbia v. Heller. The plaintiffs had no luck in the district court, which granted summary judgment to the county in 2024, or at the U.S. Court of Appeals for the 7th Circuit, which upheld that decision in 2025.

Last August, the FPC et al. asked the Supreme Court to review the 7th Circuit’s ruling and “address the confusion in the lower courts over how to apply this Court’s precedent in arms bans cases—precedent that is straightforward but that the lower courts have proven incapable of applying correctly.” The question presented is whether the Second Amendment guarantees “the right to possess AR-15 platform and similar semiautomatic rifles.”

The petition reiterates points that opponents of “assault weapon” bans have been making for many years, starting with the fact that the rifles banned in Cook County (and, as of 2023, across Illinois) are indisputably in common use for lawful purposes. In January, the National Shooting Sports Foundation, the gun industry’s trade association, reported that Americans own more than 32 million “modern sporting rifles,” its preferred term for the models covered by bans like Cook County’s. Survey data suggest that somewhere between 16 million and 25 million Americans have owned AR-15-style rifles. They commonly report using them for lawful purposes such as self-defense, hunting, and target shooting.

In their 2021 complaint, the FPC et al. noted that AR-15-style rifle typically “are chambered for 5.56x45mm NATO (similar to .223 Remington) ammunition, a relatively inexpensive and common cartridge that is particularly well suited for home-defense purposes because it has sufficient stopping power in the event a home intruder is encountered but loses velocity relatively quickly after passing through a target and other objects, thus decreasing the chance that an errant shot will strike an unintended target.” They also explained why there is nothing inherently nefarious about the rifle features prohibited by Cook County.

“Folding, telescoping, and thumbhole stocks reduce length- or weight-based obstacles to maneuverability without sacrificing the stability and thus accuracy that stocks may provide,” the lawsuit said. “Muzzle brakes or compensators, thumbhole stocks, and protruding grips for non-trigger hands all reduce the ‘kick’ or recoil in discharging a rifle and thereby [enhance] accurate fire (in particular for individuals of smaller stature, including, of course, many women). Absent, folding, and telescoping stocks also increase the likelihood of successful home defense by permitting safe storage of defense instruments in accessible spaces.”

The prohibited features are also useful for hunting and target shooting. “Folding and telescoping stocks, for example, allow for safe transportation, including in a hiking pack, an ATV, or a boat,” the complaint noted. “These stocks, as well as thumbhole stocks, also ease carrying over long distances while hunting….Muzzle brakes or compensators, thumbhole stocks, and protruding grips for non-trigger hands open hunting and sport-shooting to those for whom recoil represents a high barrier to entry.” A barrel shroud “allow[s] the bearer to hold the firearm with the non-trigger hand without being burned.”

Although defenders of bans like Cook County’s aver that “assault weapons” are especially useful to criminals, the FBI’s data do not support that contention. “From 2014 to 2023, rifles of any kind were used in an average of 380 homicides per year,” the Supreme Court petition notes. “Assuming every one of these rifles was an AR-15 or a similar semiautomatic rifle, that would mean that approximately 99.999% of them are not used in a homicide in any given year.”

By comparison, handguns accounted for an average of 7,043 homicides per year from 2014 through 2023. The annual average was 1,592 for knives and 691 for “personal weapons like hands and feet.”

These numbers are not constitutionally decisive. In Heller, after all, the Supreme Court held that Americans have a right to own handguns, which it described as “the quintessential self-defense weapon,” notwithstanding their prominence in homicide statistics. But the crime data do suggest that the obsession with “assault weapons” is irrational as well as constitutionally dubious.

Heller contrasted arms in common use for lawful purposes with “dangerous and unusual weapons,” which the Supreme Court said could be banned without violating the Second Amendment. As the Court clarified in the 2022 case New York State Rifle & Pistol Association v. Bruen, that exception was based on “this Nation’s historical tradition of firearm regulation.” But “history demonstrates that only arms that are both dangerous and unusual may be banned,” the FPC et al. argue in their petition. Whatever you make of “dangerous,” which arguably describes every firearm, the banned rifles plainly are not “unusual.”

The 7th Circuit “attempted to cobble together a different historical tradition, of confining certain weapons to ‘military and law enforcement’ uses, provided that ‘[m]any other weapons remain that are more universally available,'” the petition notes. But “this exceptionally broad principle,” which the appeals court “purported to derive” from “historical regulations ranging from gunpowder storage laws at the Founding to the National Firearms Act of 1934,” has “no basis in history,” the FPC et al. say.

The resort to early gunpowder storage laws, which have absolutely nothing to do with banning pistol grips and folding stocks, suggests that Cook County will have a hard time arguing that its law meets the Bruen test. In addition to Kavanaugh, who as a judge on the U.S. Court of Appeals for the D.C. Circuit dissented from a 2011 decision upholding the District of Columbia’s “assault weapon” ban, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have indicated that they are inclined to be skeptical of that proposition.

Neither Chief Justice John Roberts nor Justice Amy Coney Barrett has directly addressed “the AR-15 issue.” But if their positions in United States v. Hemani are any indication, they are willing to question contemporary politicians’ notions about the sort of danger that justifies gun regulations.

Barrett not only joined the rest of the Court in upholding the Second Amendment rights of cannabis consumers in Hemani. As a 7th Circuit judge in 2020, she wrote a dissent arguing that the federal ban on gun possession by people with felony convictions sweeps much more broadly than the historical tradition can support. So at the very least, Barrett is not shy about deviating from the 7th Circuit’s understanding of the constraints that the Second Amendment imposes on gun control.

When you combine those clues with the seemingly straightforward implications of Heller and Bruen, it sure looks like Cook County will be fighting an uphill battle at the Supreme Court. “This is not the end of the fight to eliminate bans on so-called ‘assault weapons,'” the FPC says, “but it marks the end of the beginning.”