The Trace, the “newsroom” funded by anti-gun extremist Michael Bloomberg, reported in June on the extent to which the NRA-backed NYSRPA v. Bruen case has, to date, rebuilt the modern Second Amendment landscape. “Federal courts have now ruled on more than 3,000 challenges to gun laws since the Supreme Court’s landmark 2022 Bruen decision expanded the right to bear arms,” with “dozens of federal judges … rul[ing] against age limits and waiting periods for purchasing guns, restrictions on machine guns, and a host of other federal and state gun laws.
That has only been possible, as we have mentioned many times before, because of the judicial appointments President Trump made during his first term and continues to make in his second.
Two of the most important upcoming cases building on the Bruen foundation will have the Court decide whether the Second Amendment guarantees the right to possess AR-15 platform and similar semiautomatic rifles (pejoratively and inaccurately called “assault weapons” in the laws at issue). The cases, Viramontes v. Cook County, No. 25-238 (Illinois) and Grant v. Higgins, No. 25-566 (Connecticut), have been consolidated, with oral arguments scheduled for December 2 and a decision expected by or before next June.
As mentioned in a prior alert, the NRA has filed a lengthy amicus brief jointly with the Independence Institute and the American Suppressor Association, and amicus briefs have been filed by very many other entities.
Of special interest are those involving governmental and law enforcement authorities, the entities for which firearm-related crime is more than an abstraction or subject of hyperbolic headlines.
The amicus brief on behalf of the United States, in furtherance of President Trump’s mandate to protect the right to keep and bear arms as “an indispensable safeguard of security and liberty,” begins with the unequivocal assertion that “Connecticut’s and Cook County’s categorical bans on AR-15 rifles violate the Second Amendment,” a refreshing statement considering that the federal government itself enacted an “assault weapon” ban in 1994, and only a couple of years have passed since the Biden-Harris Administration’s constant agitating for another such ban.
Firearms law expert Stephen Halbrook praises the government brief as “everything one would expect professionally from the Solicitor General’s office. All the bases are covered, but it makes the point often ignored that traditional legislative practice provides useful and further guidance to applying the common-use test.” Specifically, the fact that Congress and a significant majority of the States have refrained from banning or severely restricting a class of arms “is strong evidence” that the arms are in common use and that law-abiding citizens can and do possess such arms for lawful purposes. The brief dismisses the term “assault weapon” as a politically-loaded phrase invented by “anti-gun publicists,” which did not exist prior to 1989. One additional satisfying detail is the brief citing a historical analysis, The History of Bans on Types of Arms Before 1900, co-authored by Joseph Greenlee, Director of NRA’s Office of Litigation Counsel.
Another brief that urges the Court to invalidate the bans is one filed on behalf of the States of Tennessee, Kansas and 25 other states, expressing the “significant interest” all of these jurisdictions have “in ensuring that the Second Amendment receives the full protection [the] Court’s precedents require,” not the least because their citizens are among the millions of Americans who own AR-15s and similar semiautomatic rifles for lawful purposes. While these states affirm, as a general matter, the rights of state legislatures to address policy issues as they see fit, they nonetheless recognize that categorical bans and similar restrictions are unconstitutional restrictions on the Second Amendment, and impermissibly “leave constitutional rights dependent on geography.”
Law enforcement professionals offered their own perspective as the individuals with “direct, front-line insight into the real-world consequences of the firearms laws at issue here” and who daily “witness[] both the human cost of violent crime and the futility of laws disarming law-abiding citizens.”
The National Sheriffs’ Association (NSA) and the Western States Sheriffs’ Association (“Sheriffs’ brief”) have submitted their brief and another has been jointly filed by the Peace Officers Research Association of California (the largest law enforcement organization in California and the largest statewide association nationally), the California Association of Highway Patrolmen, and Dr. John Lott’s well-known Crime Prevention Research Center (“Research brief”).
The Sheriffs’ brief specifically highlights the legal right of citizens to use reasonable and proportional force in self-defense, stating bans only make would-be victims more vulnerable:
Law enforcement officers cannot be everywhere at once and cannot automatically appear instantaneously at the scene of the crime. Response times may vary from a few minutes to half an hour depending on manpower and geographical area. And a violent crime, especially a home invasion, can occur in seconds. The only viable option for an innocent citizen to have immediate protection is to have a weapon for self defense. (Emphasis added.)
The sheriffs also raise the concern that broad bans on popular firearms needlessly and counterproductively put law enforcement officers and honest citizens at odds. Referring to the purpose of the Second Amendment (“to grant citizens the right to bear arms against tyranny of government”), the brief notes that empowering the government “to seize the most popular weapon citizens own for self defense” will place officers at the forefront of any confiscation program. There is also the potential that, faced with this constitutional infringement, “many citizens will not submit peacefully to such a government overreach. Law enforcement will bear the brunt of this conflict.” The more productive and constitutionally sound approach is to “welcome the help of such armed citizens in fighting crime and protecting themselves to ease the burden on law enforcement.”
Likewise, the Research brief amici note they:
share a common conviction that firearms regulation should focus on the misuse of firearms, disarming prohibited persons and those posing a physically-violent danger to themselves or others, confining violent offenders under gun-enhancement statutes, and securing the self-defense rights of the law-abiding, rather than furnishing a symbolic substitute that faults the arm for the consequences of [under- or mis-applied] lax enforcement.
California’s extreme version of the bans at issue furnishes an additional and more perfect illustration of their perverse and irrational nature. As the Research brief explains, a law enforcement officer may possess what is classified as an “assault weapon” only while employed for duty by a qualifying agency and only if the agency provides a discretionary certification for the gun; off-duty possession is limited to specific locations. Once employment ends due to retirement or otherwise, the former officer has 90 days in which to render the gun inoperable, sell it (only to a licensed dealer), or exile the gun out of state, even as the person and their family members remain potential targets for reprisal and “politically motivated retaliation” attacks.
If even trained, vetted, and background checked officers cannot be trusted to keep these arms in retirement, the prohibition cannot rest on the dangerousness of the arm. If these arms are safe enough for an officer to carry for years in public service, there is no principled basis to strip them from that officer, or from any other law-abiding citizen, merely by virtue of retirement. Thus, the [law’s] own inconsistencies undermine the contention these firearms are inherently too dangerous to be privately owned.
In a last and telling point, the Research brief asserts that California’s police officers are required to “enforce an ever-growing body of firearm laws while abandoning the enforcement that would actually save lives,” demonstrating that the real focus is enacting laws that suppress the lawful exercise of constitutional rights rather than crime control. Any ostensible reduction in firearm-related violence is pursued through burdening the law-abiding even as California “exhibits no equivalent zeal for keeping firearms from prohibited persons” and (as these officers would know) “tolerates widespread non-enforcement of laws already barring felons from possessing any firearm.”
Most importantly, the Research brief asks that the Supreme Court not only resolve the validity of the challenged bans but also “confront the tactic” that States have used to legitimize those and similar, invidious bans. Feature-based bans are specifically “designed to evade the Second Amendment” by allowing a “legislature that cannot ban a common firearm outright [to] achieve[] a de facto ban by forbidding ordinary, commercially available features of commonly owned arms.” California has extended this feature-based approach from semiautomatic rifles to standard magazine capacities and a “de facto ban on nearly all modern handguns through its Unsafe Handgun Act.” Bruen, the brief states, measures regulations by their burden, so incremental “feature restrictions rendering prohibited a firearm in common circulation demand the same historical justification as express bans.”
The common threads running through all of these submissions to the Court are that while the Bruen test may be difficult to apply in some instances, that is certainly not the case here. No founding-era tradition supports banning common arms like the AR-15 platform and other semi-automatic rifles currently owned by millions of Americans. Many use such guns as their weapon of choice for defense, especially home defense. (As stated in the Tennessee brief, 94.5% of local police departments have authorized semiautomatic rifles for on-duty officers.) Far from being vital safety measures, the challenged bans do nothing to enhance the safety of the public or law enforcement officers, as disarming the law-abiding only enables criminals.
It is to be hoped that the Supreme Court will take all of these briefs seriously and act accordingly, adding to the tally of Bruen-based cases that reassert the true scope and intent of the Second Amendment.
While these two significant cases will be carefully watched and reported on by your NRA-ILA, they are just a small part of an ongoing battle. The NRA remains active in other litigation, fighting to protect and preserve gun rights in about 70 other cases it is currently involved in at the state and federal level. Follow all the latest updates at www.nraila.org/litigation.
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