Sophistry in Support of the Gun Lobby – SCOTUS and the AR 15
The Supreme Court’s pro-gun lobby bias, clearly evident since Justice Scalia rewrote the Second Amendment in Heller v District of Columbia in 2008, is poised to validate the AR 15 as a weapon “in common use” when it decides the joint cases of Grant v Higgins and Viramontes v Cook Countyover the course of the coming eleven months.
Fortunately, the Justices’ written opinions on the Second Amendment openly confirm their strained history and jurisprudence and offer windows to challenge the Justices against producing another rote gun lobby opinion on the incredibly deadly AR15.
The proper – and popular – response should be an all-out public communications campaign by recognized historians and legal experts to demonstrate the fundamental flaws in SCOTUS Second Amendment history and jurisprudence since Heller, running all the way through NYRPA v Bruen and Garland v Cargill in 2022 and Wolford v Lopez, the most recent Second Amendment case decided in favor of the gun lobby this year.
In particular, legal scholars and historians must speak out and make the strongest of public and legal cases exposing the Court’s flawed reasoning in its decisions in cases on the Second Amendment, decisions that make the U.S. the dangerous country that it is today.
To set the stage for this critically important effort, let’s start with some of the more revealing assertions/admissions by so-called “conservative” and “originalist” justices on the court, namely that serious SCOTUS examination of the Second Amendment only started in 2008 with Heller.
And let’s add in an essential “amicus” brief that should have been perpetually submitted to the Court beginning in 2017, the official Las Vegas Police Department report on the slaughter of 58 innocent people and wounding of 400 in ten minutes by a murderous legal gun owner in Las Vegas armed with 24 AR-style rifles and 6,000 rounds of ammunition.
With that shocking event’s tenth anniversary coming up on October 1, 2017, any public campaign should keep this tragedy constantly in the public eye so that the esteemed justices cannot escape reckoning with the true human cost of their decision on the AR 15.
But first, and most relevant to the pending SCOTUS cases, is Justice Scalia’s very questionable foundational assertion in Heller, namely that “arms” considered by the Founding Fathers in the December 15, 1791 Second Amendment should be seen today as a technologically open-ended concept. This assertion is plainly given the lie by the concurrent May 8, 1792 Militia Act establishing the regulation of the militia and specifying the arms referred to by the Amendment in its requirement that all white males ages 18-45 available for militia service provide themselves with a “good musket or firelock”, bayonet, and 24 cartridges for that service.
Here’s Justice Scalia in Heller, seemingly speaking in the royal “we” but actually only speaking on behalf of the five justices of the majority, haughtily dismissing the historically correct dissent of Justice Stevens and the other three justices in the minority (my underscoring in the cited texts below):
… “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, e.g., Reno v. American Civil Liberties Union, and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 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. …”
The how and why of Justice Scalia coming to this argument is likely found in his network of gun lobby friends, the kind he was associating with when he suddenly passed away in February 2016 at the exclusive Cibolo Creek hunting ranch in the Big Bend area of Texas, owned by John Poindexter, who apparently covered Scalia’s travel and ranch expenses and put the local kibosh on the details of Scalia’s death and the identities of 35 others at the ranch that week.
The descent of the Court into the netherworld of gun lobby false narrative and rewritten history was further confirmed by the Thomas-written opinion in NYRPA v Bruen (2022), where he opened the door to the current cases by asserting the relevance of the phrase “in common use” while establishing the malleable standard of finding historic parallels from the Founding period to justify rejecting modern day gun safety requirements or regulations.
In Cargill (2024), Justice Thomas’s argumentation simply parrots a gun lobby amicus brief on the technicalities of trigger mechanisms to justify a decision striking down the ban on bump stocks which, when installed, allow mass shooters to achieve a rate of fire of nine rounds a second or more. According to Justice Thomas, that doesn’t make the AR15 a machine gun under the 1934 law in question.
Thankfully, along the way, Justice Kavanaugh, in his concurring opinion in United States v Rahimi (2024), exposed the tenuous nature of the “originalist” or “textualist” arguments used to twist the Second Amendment like an uncooked pretzel, establishing the individual right as currently interpreted by SCOTUS.
According to Justice Kavanaugh,
“The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. The text of the Constitution is the “Law of the Land.” Art. VI. As a general matter, the text of the Constitution says what it means and means what it says. And unless and until it is amended, that text controls.”
“As the Court’s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently.”
Most recently, Justice Alito, writing the 6-3 decision in Wolford, starts with the false assertion that past Supreme Courts prior to Heller, despite such past cases as United States v Miller (1939) (a time when the NRA’s mission was focused on training and sensible firearm use), had not had the occasion to “examine its (Second Amendment) meaning”. He goes on to write a majority 6-3 opinion rejecting the right of owners of private property to require those carrying firearms to have the owners’ permission to do so on their property.
Some of what Justice Alito writes below is right out of the gun lobby playbook. He openly admits that the Court (that is the five justices in the 5-4 majority) only found for the individual right with Heller, arbitrarily dismissing in the process the Court’s previous interpretation in past relevant cases of the Amendment’s simple 27-word text.
Strikingly, by “exploring” the Amendment’s “meaning”, the Court reached reach positions promoted by the gun lobby since the “cold dead hands” takeover of the NRA in 1977, a turning point finally embraced by Justice Scalia in Heller:
“The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For more than two centuries after the ratification of the Second Amendment, this Court had few occasions to examine its meaning. Such an occasion arose in District of Columbia v. Heller, 554 U. S. 570 (2008).
When his case reached this Court, we provided our first thorough exploration of the Second Amendment’s meaning. We rejected the argument that the Second Amendment right extends only to members of a state militia and held instead that the Second Amendment, like other provisions of the Bill of Rights, protects an individual right enjoyed by “‘the people.’ ” Id., at 579–581. Our opinion went on to explain the meaning of the Second Amendment’s other key terms. The phrase “to keep and bear Arms,” we held, signifies what its terms mean in ordinary usage—that is, to “have” and “carry Arms.” Id., at 583–585. And “Arms,” we explained, refers to implements used for offense or defense. Id., at 581. We added that handguns, which are “overwhelmingly chosen by American society” for self-defense, fall squarely into this category. Id., at 628. We also identified the Amendment’s “central” concern: securing the fundamental right of self-defense.”
Those decisions reinforced the current SCOTUS pro-gun lobby status quo and its flawed jurisprudence related to the Second Amendment. They also and ominously set the stage for a likely and even more disastrous opinion validating the AR 15 as a weapon “in common use” in 2027 (combined cases of Grant v Higgins and Viramontes v Cook County).
Challenging the Court’s dubious pro-gun lobby reasoning – disingenuously reinforced over the past 18 years – is critical over the coming eleven months. Gun lobby protestations aside, the AR15 and similar firearms have little to do with protecting citizens’ homes and everything to do with killing and maiming as many people as fast as possible with their rapid-fire capability.
This was demonstrated tragically in Las Vegas on October 1, 2017, when a legal gun owner became a mass murderer, killing 58 and wounding hundreds of innocent people in ten minutes, expending 1,057 shell casings from his 24 AR 15 style weapons and more than 6,000 rounds of ammunition.
Unfortunately, the gun lobby’s influence over Republican politicians and the court has facilitated the sale of literally more than 20 million AR15s since the ban on assault weapons expired in 2004. Today, this fact will be bizarrely used to justify a possible SCOTUS declaration of the AR15 as a firearm in common use and thus, in some contorted logic, be protected for civilian use under the Second Amendment.
It is the Las Vegas Police Department’s Final Report on the mass casualty event that should be the principal amicus brief to the Supreme Court in considering Grant v Higgins and Viramontes v Cook County. Indeed, one would have thought that the existence of this report would have been sufficient basis for the Court to decide to reject the two cases it now proposes to review and decide.
That the massive sales promotion of AR15s in the wake of the expiration of the assault weapons ban in 2004 – allowing the creation of further “new facts” – should be relevant to such a critical ruling so important to public safety, the security of both law enforcement and the public at large is beyond unfortunate, even mind bending to anyone with common sense and a conscience, even to Supreme Court justices.
Sadly, the Trump administration is energetically shilling for the gun lobby. No doubt, Solicitor General Sauer’s machine gun presentation style during oral arguments this fall will be symbolic of the firepower of the weapons he is trying to ensure have legal protection as being “in common use”.
The naïve might point to passing mention by Justices Scalia and Alito of reasonable limits on firearms and in favor of gun safety but past experience has shown that such caveats carry little or no weight with the current “conservative” Court majority.
Per Alito in Wolford, citing Heller and Scalia:
“But while the founding generation cherished the Second Amendment right, they did not think it was absolute. Heller explained—and later cases have reiterated—that the Second Amendment “codified a pre-existing right.” And this right, as understood at the time, was not an “unlimited” right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Similarly, Heller warned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” …
“From 1791 to the present, “the First Amendment has permitted restrictions upon the content of speech in a few limited areas”—including obscenity, defamation, fraud, and incitement. United States v. Stevens, 559 U. S. 460, 468 (2010) (quotation marks omitted). So too with respect to the Second Amendment: “Like most rights, the right secured by the Second Amendment is not unlimited”; it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
“Heller indicated that: (i) “prohibitions on carrying concealed weapons were lawful”; (ii) the Second Amendment attaches only to weapons “in common use” because “that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons”; and (iii) “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive placessuch as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are presumptively constitutional.”
It’s simply hard to see such considerations receiving credible attention in the wake of Heller and the cases that followed.
The coming months are the critical time for effective public relations and education, to complement and strengthen other forms of public engagement on the cause of gun safety.
The common goal: to make the United States a safer and more secure country for all who live here, including the valued members of law enforcement who confront a well-armed and sometimes belligerent U.S. population every day.
So, legal scholars, the American Bar Association, the American Historical Association, the Fraternal Order of Police, the National Association of Chiefs of Police, the Major Cities Chiefs Associations, the International Association of Chiefs of Police, National Sheriffs’ Association, other relevant citizens groups and organizations, as well as leading community and religious leaders, and average Joes like this author need to stand up, speak out, write compellingly, and do every thing legally possible to challenge publicly the Court’s sophistry on the Second Amendment since 2008 . Mainstream gun safety organizations should also do their part.
All must persuade the justices to do the right thing in the two cases pending before them, that is not to declare AR15s to be weapons “in common use” and thus to ensure that they are subject to sensible gun safety regulation or legislation going forward. And, if they somehow walk back their mistakes in Heller and Bruen, so much the better for us and the country.
The clock is ticking, and come June, it will be deafening … and threatening.
Speak out and act now!