AR-15-style rifles have become increasingly popular among gun enthusiasts—and those intent on doing harm. In the context of mass public shootings like the May 2022 school shooting in Uvalde, Texas, the use of AR-15-style rifles by perpetrators is associated with increased fatalities and injuries compared to other types of firearms. Nearly a year after the Uvalde massacre, in April of 2023, a Texas man armed with an AR-15-style rifle shot five neighbors in the town of Cleveland to death execution style. The perpetrator was reportedly angry over his neighbors asking him to cease firing weapons so late at night because a baby was trying to sleep. The increasing frequency and salience of these events, and the weapons that generate them, continue to put questions about legal restrictions on assault weapons under the spotlight.
But regulation of firearms designated as “assault weapons” presents a number of difficulties. For starters, it can be hard to decipher just what weapons do—or should—qualify. Most state laws restricting these weapons define them as semiautomatic firearms with the ability to accept a detachable magazine that contain certain features (or a combination of features), like a forward pistol grip, thumbhole stock, flash suppressor, or muzzle brake. As with any gun policy that aims to increase safety, assault weapon restrictions must be both effective and constitutional. This blog post assesses the constitutional dimensions of assault weapons restrictions, which have garnered significant attention and renewed importance following the Supreme Court’s Second Amendment decision last summer in New York State Rifle & Pistol Association v. Bruen.
That critical decision is the Supreme Court’s only substantive discussion about the scope of the Second Amendment since the Court first declared, in the 2008 case District of Columbia v. Heller, that the Amendment guarantees a personal right to firearms apart from militia service. Heller had provided little guidance to lower courts about how to assess claims arising under the Second Amendment when it struck down a DC law that barred handgun possession in the home. The Court in Bruen struck down a concealed carry licensing law in New York, but the case is especially important for the method the Supreme Court announced for considering future Second Amendment challenges.
In Bruen, the Supreme Court declared that rather than using the analytical tests applied in the context of other constitutional rights, which often consider the nature of the government’s interest in regulating and the scope and degree of the burden on the rights-holders, the question of Second Amendment constitutionality would be considered through a historical test. Under the new test, courts must now consider two questions. First, they must decipher if the “plain text” of the Second Amendment encompasses the conduct at issue. Second, if the conduct is covered, then the government must show that the regulation is “consistent with this Nation’s historical tradition of firearms regulation.” That means the state must find an analogous law in the distant past to support regulation today.
In Bruen, the Supreme Court declared that rather than using the analytical tests applied in the context of other constitutional rights… the question of Second Amendment constitutionality would be considered through a historical test.
Different safety concerns and weapon technologies confronted the country’s founding generation, so their gun laws are unsurprisingly not identical to the kinds of laws commonly adopted today. This is true across the board, but recent litigation over assault weapon restrictions has demonstrated the particular difficulties courts face in applying Bruen’s historical method with respect to such firearms. Firearms have evolved drastically since the 18th century, and historians and legal scholars have shown how vastly the difference in lethality has changed over time. Nonetheless, Bruen directs sole attention to the past if the weapon at issue is deemed to fall within the “plain text” of the Constitution. In answering the question of whether weapons are covered by the plain text, courts since Bruen have interpreted the case as directing them to decide whether a weapon is in “common use” or is instead “dangerous and unusual.” If weapons are in common use, then they fall within the type of “arms” that the Second Amendment protects; if, however, they are dangerous and unusual, then the Constitution does not protect them and government can prohibit them. The common-use inquiry typically looks to today’s practices, but there are a number of unsettled questions about the test, including whether a weapon must be commonly used (and for what purposes) or if common possession is sufficient, along with questions about how to judge commonality and the scope of temporal and geographic range it looks to.
Courts have had trouble applying this amorphous test to assault weapons. For example, in the aftermath of the Bruen decision, Delaware, Illinois, and Washington adopted new restrictions on these types of weapons. The new laws were immediately challenged, and lower courts have disagreed about their constitutionality. At the first step of the Bruen test—deciding whether the plain-text protects the weapon—government lawyers have generally argued that assault weapons are not in common use but are instead dangerous and unusual weapons that the Second Amendment does not protect. Most judges so far have stated or assumed for the purposes of the cases before them that such weapons are protected by the plain-text of the Constitution, but they have also recognized the uncertainty created by a test that remains ill-defined about how to measure the constitutional threshold for commonality.
When addressing the second part of the Bruen test—whether the regulation is consistent with historical tradition—several courts have, however, concluded that a sufficiently similar historical tradition exists to regulate weapons considered especially dangerous. They have done this by raising the level of generality at which they view tradition with respect to the types of weapons and laws considered (Bruen, for its part, did not explain the proper level of abstraction at which to search the past). Post-Bruen courts have likened modern assault weapon regulations to historical restrictions on dangerous weapons of yore: bowie knives, billy clubs, and slungshots. On that basis, several courts have recently upheld the new assault weapon restrictions in Delaware, Illinois, and Washington. On the other hand, one court has ruled Illinois’s law unconstitutional and invalidated the law because it concluded that a sufficiently analogous regulation was not presented. That decision has been placed on hold, allowing the law to remain in effect for the time being.
So far, the only federal court rulings on assault-weapon restrictions following Bruen have come from trial courts; no federal court of appeals has yet issued a ruling. Challengers to the Illinois law recently sought emergency relief from the US Supreme Court to block the law while its merits were considered on appeal. Without any noted dissent, the Supreme Court declined that opportunity to intercede before the normal appeals process runs its course. As of this writing, the laws are still in effect in each of these states, as well as in the seven states plus the District of Columbia that had restrictions in place prior to Bruen.
The common-use inquiry typically looks to today’s practices, but there are a number of unsettled questions about the test, including whether a weapon must be commonly used (and for what purposes) or if common possession is sufficient, along with questions about how to judge commonality and the scope of temporal and geographic range it looks to.
As courts grapple with the new challenges posed by the Bruen test, they will find that the decision does not provide all the answers needed to resolve many of the cases involving assault weapons. As I have argued in other work, the test Bruen prescribed fails to provide guidance at both steps of its framework, which is manifesting in confusion over assault weapon challenges. At the plain-text step, the decision does not clarify how the common-use test is supposed to work in practice, leaving questions about measuring weapon usage and ownership open. At the historical-tradition step, the justices did not explain what it means to find a relevant tradition, how widespread or long-lasting regulations need to be to qualify, and a number of other aspects for how to define the elusive concept of tradition.
As courts continue to encounter assault weapon restrictions, they will need to find coherence in the questions about “common use” and in the kinds of historical regulations that might satisfy the tradition-only test. More likely than coherence or unanimity among the courts, however, is further fracturing. And that may lead the Supreme Court to weigh in on other related cases in the near future. While several of the conservative justices have already signaled their view that such regulations are unconstitutional, it is not yet clear if a majority of the justices hold that view. We will likely find out soon.
ABOUT THE AUTHOR
Jacob D. Charles is an affiliate scholar of the Regional Gun Violence Research Consortium at the Rockefeller Institute of Government and an associate professor of law at Pepperdine University Caruso School of Law. He also is an affiliated scholar with the Duke Center for Firearms Law at Duke University School of Law.