Virginia’s Impending ‘Assault Firearm’ Ban Is Logically and Constitutionally Dubious

Virginia is poised to become the 11th state with a ban on “assault weapons,” an arbitrarily defined category of politically disfavored firearms. Senate Bill 749 makes it illegal to import, sell, or buy many of the country’s most popular rifles, including the AR-15, although it does not apply to firearms possessed prior to July 1. The bill also prohibits the importation, sale, or purchase of magazines that hold more than 15 rounds, which are likewise highly popular and come standard with many models of rifles and handguns.

The bill is awaiting the signature of Gov. Abigail Spanberger, a Democrat who has said she favors such legislation. Although the ban’s supporters portray it as a common-sense way to reduce mass shooting deaths, that proposition is doubtful given the features it targets, which as usual have little or nothing to do with a gun’s suitability for such crimes. And because the prohibited firearms are indisputably “in common use” for “lawful purposes,” the ban seems vulnerable to a constitutional challenge under the Supreme Court’s Second Amendment precedents.

S.B. 749 defines “assault firearms” to include any semi-automatic, center-fire rifle that accepts detachable magazines and has any of five features: a threaded barrel, a flash suppressor, a thumbhole stock or pistol grip, a second handgrip or a protruding grip that can be held by the non-trigger hand, or a folding, telescoping, or collapsible stock. As state Sen. Saddam Salim (D–Fairfax), the bill’s lead sponsor, sees it, any of those features transforms a rifle from a legitimate product into an intolerable “weapon of war.”

The logic here is hard to follow. With or without these features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Adding a threaded barrel, a flash suppressor, or a folding stock does not make the weapon any deadlier. And while the other features might improve control of the rifle, that advantage does not make much difference in a scenario where a gunman is indiscriminately firing at a group of unarmed people.

On its face, the magazine limit makes more sense, since the seconds required to switch magazines might provide an opportunity for victims to escape or disarm the shooter. But the wide availability of magazines already in circulation undermines any potential public safety benefit. Of the 1 billion or so magazines that have been sold in the United States since 1990, according to a 2024 report from the National Shooting Sports Foundation (NSSF), about three-quarters hold more than 10 rounds, while nearly half hold 30 or more.

To the extent that the prohibited gun features and “large capacity” magazines are useful to mass murderers, of course, they are also useful to law-abiding gun owners—meaning nearly everyone who possesses these products. According to the latest NSSF numbers, more than 32 million rifles that would qualify as “assault weapons” under definitions like Salim’s have been sold in the United States since 1990.

Those guns are rarely used to commit crimes. In 2023, for example, rifles of all sorts accounted for just 4 percent of gun homicides where the type of firearm was specified, according to FBI data, while handguns were used in 53 percent of those cases.

Handguns are also the most common type of firearm used in mass shootings, accounting for 54 percent of the total incidents since 1982. U.S. mass shootings committed with handguns include the third deadliest: the 2007 Virginia Tech attack, which Salim cited in explaining his motivation for introducing S.B. 749.

Even if all the rifles used to commit murder qualified as “assault weapons” (which they don’t) and even if you add other criminal uses of such guns, we are talking about a tiny percentage of the total stock. These numbers suggest the focus of laws like S.B. 749 is misguided, even without considering the dubious criteria by which “assault weapons” are identified. But as a matter of constitutional law, the share of violent crimes involving a given category of firearms is irrelevant.

The first two Supreme Court decisions explicitly recognizing that the Second Amendment protects an individual right to arms, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), both involved local bans on handguns, by far the category most popular with violent criminals. The Court nevertheless held that the Second Amendment guarantees the right to own a handgun, which it described as “the quintessential self-defense weapon.” And in the 2022 case New York State Rifle & Pistol Association v. Bruen, the Court added that Americans have a Second Amendment right to carry handguns in public for self-defense, notwithstanding the manifest criminal utility of such weapons.

Under Heller, the Second Amendment applies to arms “in common use” for “lawful purposes like self-defense”—a point that Bruen reiterated. Since that description clearly applies to the guns prohibited by S.B. 749, it is hard to see how that ban can be reconciled with the constitutional right to keep and bear arms.

Philip Van Cleave, president of the Virginia Citizens Defense League, says his organization will make that argument in court. “We got an attorney,” Van Cleave told WVIR, the NBC affiliate in Charlottesville. “We’ve been just game-planning this since December. There’s no way they’re going to sustain this at the Supreme Court level.”

While that remains to be seen, several federal judges have ruled that similar laws are unconstitutional under the Second Amendment test established in Bruen, which requires the government to show that gun restrictions are “consistent with this Nation’s historical tradition of firearm regulation.” By contrast, several appeals courts, including the 1st Circuit, the 4th Circuit, and the 7th Circuit, have concluded that “assault weapon” bans meet the Bruen test.

Last year, the Supreme Court declined to hear an appeal of a 4th Circuit decision upholding Maryland’s “assault weapon” ban. Justices Clarence Thomas, Samuel Alito,  and Neil Gorsuch dissented from the rejection of that petition. “It is difficult to see how Maryland’s categorical prohibition on AR-15s passes muster” under Bruen, Thomas said.

Justice Brett Kavanaugh, who as an appeals court judge dissented from a 2011 D.C. Circuit decision upholding the District of Columbia’s “assault weapon” ban, likewise expressed sympathy for the challenge to Maryland’s law. “Given that millions of Americans own AR-15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR-15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment under Heller,” he wrote. “Under this Court’s precedents, the Fourth Circuit’s decision is questionable.”

Kavanaugh nevertheless did not join Thomas, Alito, and Gorsuch in supporting acceptance of this petition, which would have supplied the fourth vote necessary for the Supreme Court to hear the case. “Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review,” he wrote. “The AR-15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. Opinions from other Courts of Appeals should assist this Court’s ultimate decision making on the AR-15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR-15 issue soon, in the next Term or two.”

The Trump administration’s challenge to the D.C. “assault weapon” ban may give the Supreme Court another chance to weigh in on this issue. When she filed that lawsuit in December, Harmeet Dhillon, the assistant attorney general in charge of the Justice Department’s Civil Rights Division, said she was determined to “defend American citizens from unconstitutional restrictions [on] commonly used firearms.”

Dhillon noted that the D.C. ban, like S.B. 749, is “based on little more than cosmetics, appearance, or the ability to attach accessories.” More to the point, it “fails to take into account whether the prohibited weapon is ‘in common use today'” or whether “law-abiding citizens may use these weapons for lawful purposes protected by the Second Amendment.” She argued that there is no “historically analogous” precedent for a “broad ban” on firearms “commonly used” by “law-abiding citizens” for “lawful purposes” such as “self-defense inside the home”—the right recognized in Heller.

That case is pending in the U.S. District Court for the District of Columbia. Meanwhile, a local appeals court ruled last week that D.C.’s 10-round magazine limit is unconstitutional. “Magazines capable of holding more than 10 rounds of ammunition are ubiquitous in our country, numbering in the hundreds of millions,” the D.C. Court of Appeals said, “and they come standard with the most popular firearms sold in America today. Because these magazines are arms in common and ubiquitous use by law-abiding citizens across this country, we agree…that the District’s outright ban on them violates the Second Amendment.”

That conclusion contradicted a 2024 decision in which the U.S. Court of Appeals for the D.C. Circuit upheld the same magazine restriction. The appeals court conceded that the prohibited magazines are “in common use” for “lawful purposes.” But that fact, it said, was not enough to make the ban unconstitutional.

Applying the Bruen test, the D.C. Circuit perceived a “relevantly similar” historical analog to the magazine limit: restrictions on “particularly dangerous weapons” such as Bowie knives and pocket pistols. Because “large capacity” magazines “implicate unprecedented societal concerns and dramatic technological changes,” it said, “the lack of a ‘precise match’ does not preclude finding at this preliminary juncture an historical tradition ‘analogous enough to pass constitutional muster.'”

U.S. District Judge Peter Sheridan, who ruled against New Jersey’s AR-15 ban in 2024, nevertheless agreed that magazine limits pass muster under Bruen. “This regulation is in line with the historical regulations within the tradition of our Nation,” he wrote. “Put more precisely, the reduction of capacity is a limitation on firearms ownership. It is not a categorical ban preventing law-abiding citizens from exercising their Second Amendment rights [with] a weapon that is in common use for self-defense.”

By contrast, Sheridan said, the AR-15 ban amounted to “the total prohibition [of] a commonly used firearm for self-defense…within the home.” And under Heller, he said, “a categorical ban on a class of weapons commonly used for self-defense is unlawful.”