Category: RKBA

A look at the legal thinking of the new ATF legal counsel

The Federalist Society at UVA Law’s “The Second Amendment After Bruen: The Relationship Between Originalism, History & Tradition” panel with Professor Robert Leider of Antonin Scalia Law School and Professor Mark W. Smith of The King’s College.

End to Taxes, Registration on Most NFA Items Faces a Weekend Byrd Bath

Donald Trump has said he wants to see his One Big Beautiful Bill hit the Resolute desk in the Oval Office by July 4th, and though it remains to be seen whether Republicans in the House and Senate will be able to meet that deadline, Senate Majority Leader John Thune has set an aggressive schedule in the upper chamber, with a goal of having the full Senate cast its first procedural vote on the bill by the middle of next week.

For gun owners, the biggest question is whether the language removing the tax and registration requirement on suppressors, short-barreled firearms, and “any other weapons” will survive the Senate parliamentarian’s scrutiny of the bill. Politico reports the Byrd bath, as it’s colloquially known, will begin in earnest this weekend.

Senate rule-keeper Elizabeth MacDonough is scrubbing the final draft of the megabill in a “big beautiful” Byrd bath. Her rulings on which provisions will fly under the filibuster-skirting budget reconciliation process are expected to roll in through the middle of next week, when Thune wants to schedule the first procedural vote related to the package.

Republicans are bracing for an answer to one consequential question they punted on earlier this year: whether they can use an accounting maneuver known as “current policy baseline” to make it appear that extending Trump’s 2017 tax cuts would cost nothing.

Senate Finance Republicans and Democrats will make a joint presentation to MacDonough this weekend about which provisions to keep or scrap. And there’s no shortage of GOP priorities under Byrd scrutiny — from tax cuts on certain gun silencers to a plan to raise taxes on foreign companies known as the “revenge tax.”

Other outstanding issues before the parliamentarian: whether Commerce has to tweak language to prohibit states from regulating AI over the next decade; whether Judiciary can block judges’ ability to issue preliminary injunctions; and whether Agriculture can use the megabill to pay for pieces of the stalled farm bill.

Punchbowl News reports that Democrats are planning on challenging about 60 provisions in the text offered by the Senate Finance Committee, and the language that would remove the taxation and registration requirements for most NFA items is among their their targets. Supporters of the language have expressed confidence that the measures will survive the Byrd Bath, with Rep. Andrew Clyde of Georgia telling Fox News that the “taxation and registration of firearms under the draconian NFA are inseparably linked,” and therefore should easily fit within the reconciliation guidelines.

Over at The Reload, Stephen Gutowski isn’t quite as confident. Gutowski notes that while the Senate language is more expansive than what was approved by the House, which only dealt with suppressors, it’s likely more “vulnerable to an adverse ruling from the parliamentarian” because the language from the Finance Committee doesn’t separate the elimination of the tax requirement from the provisions delisting the NFA items.

On Friday morning, Politico reported that MacDonough has given the thumbs down to several pieces of the Senate Banking Committee’s OBBB language, including measures meant to “zero out funding for the Consumer Financial Protection Bureau, slash some Federal Reserve employees’ pay, cut Treasury’s Office of Financial Research and dissolve the Public Company Accounting Oversight Board.” Hopefully that’s not a sign of things to come when the parliamentarian takes her red pen to the Finance Committee’s language this weekend.

In his piece, Gutowski also brings up a long-term issue with using reconciliation to remove items from the NFA. If the parliamentarian gives the green light to changing the NFA through a budget bill, there would be nothing to stop Democrats from using the same maneuver to put items onto the NFA list of restricted items, and even jack up the taxes beyond the $200 currently required. Imagine a budget bill that raises the NFA tax to $400, $600, or even $1,000, while also placing AR-15s and other semi-automatic long guns on the list of restricted firearms.

I don’t think that is reason enough for Republicans to back down and voluntarily strip these provisions from the OBBB, but it’s something to keep in mind, and it’s another reason why the various lawsuits challenging aspects of the NFA are still incredibly important. There aren’t enough votes in the Senate to fully repeal or even modify the NFA in a standalone bill, but if we can weaken the NFA through litigation it will be far more difficult, if not impossible, for Democrats to use future budget bills to raise NFA taxes or add to the list of restricted arms. If MacDonough rules the NFA language out of order, we won’t have to worry as much about Democrats using reconciliation to impose new gun controls, but the ongoing litigation will become an even more important tool for Second Amendment advocates to use against the NFA going forward.

9th Circuit Panel finds California’s 1 gun in 30 days limit, unconstitutional

Affirming the district court’s summary judgment in favor of plaintiffs, the panel held that California’s “one-guna-month” law, which prohibits most people from buying more than one firearm in a 30-day period, facially violates the Second Amendment.

Applying New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the panel first asked whether the Second Amendment’s plain text covers the regulated conduct. If so, the Constitution presumptively protects that conduct.

That presumption can be overcome only if historical precedent from before, during, and even after the founding evinces a comparable tradition of regulation.

The panel held that California’s law is facially unconstitutional because the plain text of the Second Amendment protects the possession of multiple firearms and protects against meaningful constraints on the acquisition of
firearms through purchase.

Next, the panel held that California’s law is not supported by this nation’s tradition of firearms regulation. Bruen requires a “historical analogue,” not a “historical twin,” for a modern firearm regulation to pass muster. Here, the historical record does not even establish a historical cousin for California’s one-gun-a-month law.

Concurring, Judge Owens wrote separately to note that the panel’s opinion only concerns California’s “one-gun-amonth” law. It does not address other means of restricting bulk and straw purchasing of firearms, which this nation’s tradition of firearm regulation may support.

Federal Appeals Court Upholds Gun Free School Zones Law

The federal government may legally disarm at least some gun owners on or near school property.

That was the unanimous holding of a three-judge Fifth Circuit Court of Appeals panel on Monday. The panel upheld the conviction of a man charged with violating the Federal Gun Free School Zones Act by possessing an AR-15 in a vehicle he was living in 40 feet from a private catholic school. It ruled that the modern buffer zone around schools comported with historical analogues dating back nearly 700 years in England that prohibited possessing firearms in a manner that might “terrify the People.”

“The ‘why and how’ of 18 U.S.C. § 922(q)(2)(A), as applied to Allam, are ‘consistent with the principles that underpin our regulatory tradition,’” Judge Cory T. Wilson wrote in US v. Allam. “Put differently, ‘taken together,’ the historical analogues offered by the Government ‘establish that our tradition of firearm regulation supports the application of [§ 922(q)(2)(A)] to [Allam].’”

The ruling leaves intact one of the most expansive “sensitive places” restrictions for firearm possession in all of federal law. It deals a blow to Second Amendment advocates who have long felt that the law’s 1000-foot buffer zone around school property unduly infringes upon gun-carry rights. At the same time, the panel’s narrow ruling tailored to the specific fact pattern of the case may mitigate the fallout for gun-rights advocates.

The panel’s decision focused entirely on defendant Ahmed Abdalla Allam’s conduct surrounding his arrest.

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The Senate did it the easy way. They deleted everything but Machineguns and Destructive Devices from the list of definitions of what a NFA “Firearm” is.

Louisiana Lawmakers Make Major Improvements to State’s Carry Laws

Louisiana’s annual legislative session has officially drawn to a close, and lawmakers have sent a number of good bills to Gov. Jeff Landry for his approval, including several measures that will bolster the state’s carry laws.

HB 407, for instance, allows non-residents to apply for a Louisiana carry license, including a lifetime permit that won’t expire unless the licensee loses their right to keep and bear arms. While non-residents 18 and older who can lawfully possess a gun can carry without a permit in most places in Louisiana, the federal Gun-Free School Zone Act contains a provision that prohibits carrying within 1,000 feet of a school unless the individual possessing the firearm is “licensed to do so by the State in which the school zone is located or a political subdivision of the State”. In other words, permitless carry doesn’t apply in that location, and even if someone possesses a permit from a state that has reciprocity with Louisiana, that still doesn’t allow them to legally carry within that particular “gun-free zone.”

SB 101 also addresses this issue by specifying that, at least under state law, any person who has a valid concealed handgun permit issued pursuant to Louisiana statute, by a state that has reciprocity with Louisiana, or a person carrying a handgun pursuant to Louisiana’s permitless carry statute, can carry within 1,000 feet of a school without committing a crime.

Given that more than half the country no longer requires a permit to carry, that language desperately needs to be revised by Congress, but until then Louisiana lawmakers have at least provided visitors with a workaround.

The bill also declares that privately-owned vo-tech schools are not considered “schools” under Louisiana state law and are not subject to the provisions of the Gun-Free School Zones Act. As we’ve previously reported, this bill seems designed to finally put an end to attempts by the city of New Orleans to carve out the French Quarter from the state’s permitless carry law by declaring a police substation in the tourist-friendly neighborhood an educational facility by hosting one or two vo-tech classes.

HB 393, meanwhile, clarifies existing state law regarding carrying at or near parades or demonstrations. While those participating in these events are still prohibited from lawfully carrying a firearm, bystanders and spectators are free to exercise their Second Amendment rights.

Louisiana Gov. Jeff Landry is expected to embrace all of these pro-Second Amendment reforms, but Louisiana gun owners should still reach out to his office and encourage him to sign the bills into law. While they’re at it, it wouldn’t be a bad idea to contact the lawmakers who backed these measures to thank them for their efforts.

Congratulations to the Louisiana Shooting Association are also in order. President Dan Zelenka, the board, and individual members have done an outstanding job of bolstering the right to keep and bear arms in the Pelican State, for both residents and non-residents alike. This session shows the power that grassroots organizations can have, and the state’s gun laws will hopefully soon be even better than they already are.

North Carolina law states that when the legislature is in session, if a Governor doesn’t sign or veto a bill within 10 days, not including Sundays, it becomes law. The state’s legislature is in session until the end of July.

NC Gov. Stein signs 3 bills, waits to take action on guns or immigration

In a Friday morning event at the North Carolina Governor’s Mansion, Gov. Josh Stein hosted a bipartisan group of lawmakers and Council of State members to sign three bills into law.

Those bills overhauled who is in charge of investing state pension funds, allow licensed social workers to apply to offer services across state lines, and another that allows long-serving officers to continue working without forfeiting a “special separation allowance.”

Stein did not take any action on more controversial pieces of legislation the General Assembly sent him this week. Those include a bill letting people carry concealed weapons without a permit and a pair of immigration bills.

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The Hearing Protection Fearmongering Continues

The Hearing Protection Act should survive the Byrd Rule challenge it’s currently dealing with, in part because, as Cam noted on Wednesday, it deals with the tax portion specifically. Remove the tax, and there’s no reason to have a registry, which was just about knowing who paid the tax.

The National Firearms Act really revolves around taxes, not availability. The way those who passed the law saw it, it didn’t violate the Second Amendment because it didn’t tell anyone what they could and couldn’t have.

Yet now that suppressors are potentially being removed from the NFA, the usual suspects are losing their minds.

And they’re fearmongering like crazy about it, such as in this op-ed.

The budget bill passed by the U.S. House of Representatives and now before the Senate has rightly drawn a lot of criticism for its sharp cuts to Medicaid. But what has largely escaped the public’s attention is the part of the bill that would aid mass shooters, terrorists, and assassins by deregulating gun silencers.

Silencers on guns make it harder for ordinary civilians and police to hear the sound, see the flash, and quickly detect the location of the shooter. Thus they can serve to facilitate mass shootings.

In Virginia Beach, Virginia, in 2019, a gunman who shot and killed twelve people used a silencer. At first, those present didn’t even know that a shooting was underway. Some of them began running but didn’t know which way to go because they hadn’t heard the gunfire.

I find it amusing that the author had to go back to 2019 to find a high-profile case involving a legally purchased suppressor.

First, Virginia Beach kind of proves that their inclusion on the NFA doesn’t stop bad actors from doing bad things with legally purchased suppressors if they decide to do so.

Second, this whole thing was written by someone who learned everything they know about suppressors from television or movies. A number of suppressors don’t even lower the sound of a shot enough to justify shooting without hearing protection in some cases, and none make those shots whisper quiet. Sure, people didn’t recognize the sounds at first in Virginia Beach, but part of that was simply because they didn’t realize what they were hearing in the first place.

I also notice that the author didn’t mention the murder of UnitedHealthcare CEO Brian Thompson. His alleged assassin, Luigi Mangione, allegedly used a 3D-printed suppressor that he didn’t purchase legally.

Unfortunately, legalizing silencers fits the pattern of Trump’s second term gun policy. He weakened the Brady background check system by revoking President Joe Biden’s Zero Tolerance Policy. Under it, the licenses of gun dealers could be cancelled if they failed to run background checks as required or sold guns to prohibited people. And Trump’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) would even allow “irresponsible and dangerous gun sellers who lost their licenses because of willful violations of the law to get back into business,” as the group Brady United put it. They can simply reapply.

And this is how you know this writer either doesn’t know what the heck he’s talking about or is actively lying to his readers.

The policy didn’t somehow make it possible for licenses to be revoked for breaking the law. That’s always been on the table, as well as prosecution, should a licensed dealer fail to conduct a NICS check or knowingly sell a gun to a prohibited person. That’s still something dealers face should they do such a thing.

That wasn’t Biden’s “Zero Tolerance” policy.

What his policy did was lead to licenses being revoked for things like abbreviating a county instead of spelling it out, or misunderstanding when the 72-hour waiting period for a NICS check properly starts.

So, with either such a poor understanding of what that policy did or a propensity to outright lie to his readers, why should anyone take his expertise on suppressors seriously?

There is no reason.

Suppressors aren’t commonly used in crimes, even with them being available for 3D printing these days. They add bulk to a gun and make it harder to conceal, which most bad guys prize for various reasons. They also have a finite lifespan, which means you can only get the sound suppressed so many times before it stops.

But hey, when you’re focused on fearmongering to delusional nutjobs who are predisposed to being lied to on guns, what else can you expect?

Constitutional carry bill clears NC legislature, sent to governor

The North Carolina House passed the Freedom to Carry NC Act on Wednesday afternoon along party lines, sending the permitless carry legislation to the governor’s desk.

In a 59-48 vote, the General Assembly moved one step closer to making North Carolina the 30th state to adopt constitutional carry. The bill allows individuals 18 and older to carry concealed handguns without a permit.

“This bill further ensures that Carolinians can exercise their Second Amendment rights, which include both owning and carrying firearms,” said Rep. Brian Echevarria, R-Cabarrus. “The absolute language of ‘shall not be infringed’ in our Constitution is the strongest prohibition on earth against any government action that would limit this right.”

All Democrats, as well as two Republicans, Reps. William Brisson, R-Bladen, and Ted Davis, R-New Hanover, voted against the bill.

 

Rep. Keith Kidwell, R-Beaufort, praised the bill, noting it mirrors his own bill proposal that was introduced in the House earlier this year. The Senate passed its own version and sent it to the House for approval.

“This is a very good bill,” said Kidwell. “Most of you run a bill and it goes over to the Senate and they make changes and send it back,” Kidwell said. “In this particular case, the Senate just took the bill right after I wrote it, took it over there, put their name on it, and sent it back. So I do appreciate that they enjoyed that bill that much.”

Kidwell explained that the bill would allow North Carolinians to constitutionally carry a firearm without obtaining a permit from the government to exercise their God-given right to defend themselves.

Representatives debated the bill for roughly an hour, with Democrats speaking out against the bill. Democrats pointed to various statistics, such as a Stanford study that shows permitless concealed carry states face a 13-15% violent crime increase over the next decade.

Rep. Phil Rubin, D-Wake, pointed to West Virginia as the worst example, where firearm deaths surged 26% and gun homicides rose about 48% in five years, compared to 17 prior years, after repealing permit requirements.

“I know that there are profound, strong feelings on both sides of the aisle about the best approach for guns, but we don’t have to go this far,” he said. “I think this bill does not help the people that we represent because it is dangerous. It is unnecessary and it is deeply unpopular.”

Rep. Clark shared her own story of a childhood friend dying by suicide with a legal gun and another friend who was murdered. She urged lawmakers vote down the bill, arguing that the “bill goes too far.”

Countering what he called “cherry-picked” statistics, Kidwell said 83% of states with permitless carry have homicide rates below the national average, while 84% of states have lower violent crime rates than they did prior to permitless carry.

“It’s interesting information,” Kidwell said. “Where does that come from? Not some cherry-picked group. Not some organization that was already against firearms. That comes from the FBI, the Federal Bureau of Investigation. To me, that’s pretty amazing. 84% of states have lower violent crime rates in 2022 than they did before they had permitless carry.”

While Senate Bill 50 now awaits Democratic Gov. Josh Stein’s signature, he has suggested a veto. With Stein’s expected veto, Republican leadership would need to secure a three-fifths majority in both chambers to override—a task that was easier during the last session when both chambers held supermajorities.

Senate Republicans hold a supermajority, but House Republicans are one seat short, meaning any override effort will require unified attendance and careful vote counting, as any veto override may hinge on attendance numbers.

BLUF
Either Kinzinger knows all this and is willfully trying to deceive his audience, or he’s an ignorant buffoon who thinks he’s much smarter than he really is. I won’t hazard a guess about what’s more likely, but either way folks are better off tuning out what he has to say.

I don’t have to ‘guess’. From all his prior anti-civil rights rants, Kinzinger-precisely-fits a description of a domestic enemy.

Kinzinger Delivers What Might Be the Dumbest Take on the Second Amendment Ever

I lost whatever respect I might have had for former Congressman Adam Kinzinger when he said he was open a ban on so-called assault weapons in 2022. Since his departure from Congress, Kinzinger has embraced a number of anti-gun proposals, even telling a gathering in Chicago in 2023 that ““Second Amendment people should be on the front line of gun control.” Kinzinger didn’t mean on the front lines defending against gun control. No, he means we should be advocating for “reasonable solutions to gun violence” like banning young adults from keeping and bearing arms.

As dumb as those comments were, they pale in comparison to Kinzinger’s latest invocation of the Second Amendment, which he now insists is about “guaranteeing a state a right to a militia.”

I’m not sure why Gavin Newsome doesn’t activate the rest of his army guard to prevent the president from it or force him to overrule it…. Then fight on the second amendment guaranteeing a state a right to a militia. How can a state have a militia if the president can simply…

— Adam Kinzinger (Slava Ukraini) 🇺🇸🇺🇦 (@AdamKinzinger) June 10, 2025
Since that post Kinzinger has doubled down on his hare-brained theory, both on X (where he was quickly rebuked by Charles C.W. Cooke):

This is astonishingly illiterate. See, inter alia, Article I, Section 8, Clause 15 and Article II, Section 2. Moreover, as Scalia noted, it’s precisely *because* the federal government has plenary power here that the individual rights reading of the Second Amendment (the Standard… https://t.co/dSv2vG8oPt

— Charles C. W. Cooke (@charlescwcooke) June 10, 2025
and in a post on his Substack, where he argues:

If we believe in the Second Amendment’s invocation of a state-based militia, we need to reconcile it with the uncomfortable truth that the National Guard, as currently structured, doesn’t really fit that mold. Either we redefine what we mean by “militia,” or we face the fact that state-controlled military forces don’t exist in a meaningful way when they can be federalized at will.

Kinzinger probably should have read through the Heller decision before declaring himself an expert on the intricacies of the Second Amendment. As the Supreme Court made clear, the amendment has nothing to do with guaranteeing a state a “right to a militia”. Nor does it require serving in a militia in order to keep and bear arms.

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Vox Misses the Plot Entirely on SCOTUS Decision In Smith & Wesson v. Mexico

I don’t expect a lot from Vox. I’d like to, but that’s because I’m annoyingly optimistic about things in general. I say “annoyingly” because it annoys me how optimistic I am much of the time, in part because so many people let me down.

Take Vox, for example. Please. Seriously, please.No takers? Not surprising.

Anyway, Vox…

It’s unsurprising that they wrote a piece on the Mexican lawsuit against Smith & Wesson. It’s not surprising they’re displeased by the result. It’s also unsurprising that they were idiotic in their writing about it.

But Kagan’s opinion concludes that the mere fact that US gun companies likely knew that some of their guns were being resold in the illegal market, much less that some of their guns are designed to appeal to Mexicans, is not enough to overcome PLCAA. As Kagan explains, this conclusion largely flows from the Court’s fairly recent decision in Twitter v. Taamneh (2023).

Twitter concerned an attack by the terrorist group ISIS that killed 39 people at a nightclub in Istanbul, including a man with American relatives. Those relatives sued several social media companies in US court, claiming that the companies aided and abetted the Istanbul attack by allowing ISIS to post content which promotes ISIS’s ideology and that attempts to recruit people to the terrorist organization’s cause.

But Twitter warned against a legal regime where “ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.” As a general rule, someone who provides a good or service to all comers is not legally responsible if a bad actor uses their product for a wicked purpose. If Ford sells a truck to a man who intentionally uses it to run over and kill his wife, Ford normally will not be responsible for this homicide.

And so Kagan concludes that it’s not enough for Mexico to show that gunmakers could have taken additional steps to prevent their products from winding up in the hands of drug cartels. Instead, “the merchant becomes liable only if, beyond providing the good on the open market, he takes steps to ‘promote’ the resulting crime and ‘make it his own.’”

Of course, one thing that distinguishes Smith & Wesson from Twitter is that social media platforms are not weapons whose entire purpose is to injure people. If PLCAA did not exist, Mexico might have argued that the gun companies’ decision to make and sell an inherently dangerous product should make them liable for the consequences of selling such a product.

The author does acknowledge that the PLCAA does exist, but that’s kind of beside the point.

See, the Twitter decision is still applicable, if for no other reason than the fact that the product is still sold for lawful purposes. That’s not even touching on the nonsense claim that “weapons…entire purpose is to injure people.” Hunting rifles are intended to kill animals, for example, and many people really don’t expect to ever shoot a person, but buy guns because they love the act of shooting. It’s something of a martial art in and of itself.

But getting back to the Twitter decision, the point is that a company that creates a product that’s intended for lawful use cannot be held liable because someone does something unlawful with it.

Even without the PLCAA’s existence, Mexico could try to make the claim, but the Twitter decision still stands. Its legal reasoning is still a thing. The idea that you could or should hold a company responsible for making products designed for lawful purposes that later get misused by other parties is asinine.

It was always asinine.

I wasn’t always a pro-gun guy. I liked guns as a much younger man, but I was pretty liberal in my beliefs back then. Even at the time, I thought the idea of holding gun companies responsible for what third parties did with the firearms they made was ridiculous. Nothing has changed on that front in the last 40 years or so.

Not that anyone who is writing on gun-related issues at Vox has a damn clue on any of that. They’re too absorbed in their “guns are bad” thinking to ever comprehend how mentally deficient their animosity toward firearms actually is.

Well, at least we’re finally getting a firm idea of exactly where a majority of this court stands on the 2nd amendment’s restriction on goobermint powers when it comes to those nasty icky guns.

US Supreme Court rebuffs challenge to Washington, DC’s high-capacity gun magazine ban

WASHINGTON (Reuters) -The U.S. Supreme Court declined on Friday to hear a challenge to the legality of a restriction imposed by Washington, D.C., on large-capacity ammunition magazines in a case that gives the justices a chance to further expand gun rights.

The justices turned away the challengers’ appeal of a lower court’s ruling that upheld the Democratic-governed city’s ban on virtually all ammunition-feeding devices holding more than 10 rounds. The lower court rejected arguments that the measure violates the U.S. Constitution’s Second Amendment right to “keep and bear arms.”

The four men who challenged the law had asked the Supreme Court to consider whether the Second Amendment allows a categorical ban on arms that are commonly used throughout the United States for generally lawful purposes such as self-defense. The challengers all hold concealed-carry pistol licenses for the District of Columbia and regularly carry a pistol there.

The Supreme Court has dramatically expanded the Second Amendment in recent decades, including in a landmark 2008 ruling that struck down a strict gun control law in Washington and declared that individuals have a right to own guns for such lawful purposes as self-defense in the home.

In 2022, powered by its 6-3 conservative majority, the court made it harder to defend gun restrictions under the Second Amendment, requiring that such limits be “consistent with the nation’s historical tradition of firearm regulation.”

The District of Columbia’s government makes it illegal to possess or sell any ammunition-feeding device that holds more than 10 rounds, with only a narrow exception. The city’s lawyers in court papers wrote that it has restricted the capacity of gun magazines “in some form for close to a century.”

Washington-based U.S. District Judge Rudolph Contreras in 2023 ruled in favor of the city, finding that large-capacity magazines are not “typically possessed for self-defense,” citing evidence showing that around two shots on average are fired in self-defense situations. The judge also found the city was likely to prevail in the case because it had demonstrated that its law is consistent with firearms regulation grounded in the “historical tradition” of the United States.

The U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 decision upheld the judge’s ruling in October 2024, prompting the challengers to appeal to the Supreme Court.

The Supreme Court on June 2 declined to hear a similar challenge to Rhode Island’s ban on large-capacity magazines, as well as a challenge to a ban in Maryland on powerful semiautomatic rifles such as AR-15s, after lower courts upheld these restrictions.

The court on March 26 upheld a federal regulation targeting largely untraceable “ghost guns.” In two rulings last year, it upheld a federal law that makes it a crime for people under domestic violence restraining orders to have guns but rejected a federal rule banning “bump stocks” – devices that enable semiautomatic weapons to fire rapidly like machine guns.

Friday’s action by the court was unexpected. The court had planned to release it on Monday along with its other regularly scheduled orders, but a software glitch on Friday prematurely sent email notifications concerning the court’s decision in the case.

“As a result, the court is issuing that order list now,” said court spokesperson Patricia McCabe.

It is not the first time the court has inadvertently disclosed action in sensitive cases. Last year, an apparent draft of a ruling in a case involving emergency abortion access in Idaho was briefly uploaded to the court’s website before being taken down. That disclosure represented an embarrassment for the top U.S. judicial body, coming two years after the draft of a blockbuster ruling rolling back abortion rights was leaked.

This time, it’s not in a dissent, but as dicta in the actual decision.

Kagan Echoes Sotomayor and Accepts That AR-15s Are ‘In Common Use’

By 

Last year, in the case of Garland v. Cargill, Justice Sotomayor wrote a dissent that included the following description of the AR-15:

Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles.

At the time, I noted that this was an odd concession to make, given a) that Sotomayor is reflexively hostile to Second Amendment challenges, and b) that one of the most important challenges the Court is likely to hear in the coming years will revolve around precisely that claim:

. . . those who wish to ban the AR-15 have taken to claiming that the rifle is not, in fact, “in common use,” and that, as a result, it is not protected under the Second Amendment. Remarkably, Justice Sotomayor just pulled the rug from underneath that argument — and, to make matters worse, did so in an official Supreme Court opinion on the subject of firearms law. [. . .] Sotomayor even uses the word “common”! Not “everyday” or “universal” or “normal” or “usual,” but common — the very word that was used in Heller.

This morning, in her majority opinion in Smith and Wesson Brands, Inc v. Estados Unidos Mexicanos, Justice Kagan did pretty much the same thing:

Finally, Mexico’s allegations about the manufacturers’ “design and marketing decisions” add nothing of consequence. Brief for Respondent 23. As noted above, Mexico here focuses on the manufacturers’ production of “military style” assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles.

See supra, at 6; App. to Pet. for Cert. 121a. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country. See T. Gross, How the AR–15 Became the Bestselling Rifle in the U. S., NPR (Apr. 20, 2023.)

The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. See supra, at 6. Those guns may be “coveted by the cartels,” as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to “millions of law-abiding Hispanic Americans.”

Note the language here. “Widely legal and bought by many ordinary consumers.” “The AR–15 is the most popular rifle in the country.” “They also may appeal, as the manufacturers rejoin, to ‘millions of law-abiding Hispanic Americans.’”

Under Heller, all firearms that are “in common use” are presumptively protected. At some point — and relatively soon — we are going to get a case in which the plaintiffs contend that the ban on AR-15s in their state is illegal under Heller. I have no doubt that, when that happens, Kagan and Sotomayor will find some convoluted reason to uphold the ban, but, having twice conceded such a key claim, that reason will need to be much, much more radical than it would otherwise have been.