The AR-15 did not exist in 1791. Neither did the modern handgun, the electric stun gun, or the internet. That has never meant the Bill of Rights protects only the technology Americans had when it was ratified.
Yet with the Supreme Court preparing to hear two challenges to bans on commonly owned semiautomatic rifles, that is effectively the argument being offered against gun owners. Law professor Rory Little says a few words in District of Columbia v. Heller could keep modern rifles outside the Second Amendment. Constitutional scholar Jonathan Turley took issue with that reading this week. The text of Heller gives him good reason to do so.
The cases are Viramontes v. Cook County and Grant v. Higgins, consolidated for one hour of argument on December 2. They ask whether the Second Amendment protects possession of AR-15s and similar semiautomatic rifles in the face of bans imposed by Cook County, Illinois, and Connecticut. AmmoLand has covered the cases and the Justice Department’s support for the challengers. Little’s argument raises another question gun owners should watch: Can a court erase protection for a modern arm by treating 1791 as a cutoff date?
What Heller Actually Says
In a SCOTUSblog column, Little focuses on Heller’s discussion of weapons “in common use at the time.” He reads “at the time” as the founding era. Because semiautomatic rifles did not exist in 1791, he argues that the federal government’s brief supporting the challengers changes Heller’s rule when it asks whether AR-15s are in common use today.
But Heller did not leave that question to guesswork. Justice Antonin Scalia’s majority opinion expressly rejected the notion that the Second Amendment protects only arms that existed in the eighteenth century. It said the right extends, at least presumptively, to bearable arms that did not exist at the founding. The opinion compared that principle to the First Amendment’s protection of modern communication and the Fourth Amendment’s application to modern searches.
“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, and the Fourth Amendment applies to modern forms of search, 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.” – Justice Scalia, OPINION OF THE COURT, DISTRICT OF COLUMBIA V. HELLER
The Court’s reference to arms “in common use at the time” appears in its discussion of the historical distinction between common arms and “dangerous and unusual” weapons. Reading those words as a permanent 1791 equipment list clashes with the opinion’s own explicit treatment of later inventions. It would also make the government’s ability to prohibit a firearm depend on how long ago someone designed it, even when ordinary Americans possess it for lawful purposes today.
The Supreme Court has already confronted that exact founding-era argument. In Caetano v. Massachusetts, the Massachusetts Supreme Judicial Court had upheld a stun-gun ban in part because stun guns were not in common use when the Second Amendment was adopted. The U.S. Supreme Court vacated that decision and said the rationale conflicted with Heller. A right to keep and bear arms cannot be frozen at the technology available to the founding generation.
The Rifle Ban Cases Put Common Use Before the Court
The Justice Department’s brief argues that millions of Americans own AR-15s and that governments cannot criminalize possession of a rifle so widely kept for lawful purposes. Justice Brett Kavanaugh likewise wrote in a 2025 statement concerning the Court’s refusal to hear an earlier rifle-ban challenge that those facts give owners a strong Heller argument. Neither filing decides Viramontes or Grant. The justices will hear the merits in December.
Gun owners should reject the premise that improvements in firearms design reduce the scope of a constitutional right. The Second Amendment protects the people’s right to keep and bear arms. Heller recognized that right as an individual one, and Caetano made clear that its protection does not end with the inventions of 1791. When the justices consider bans on America’s most popular rifle, they should apply that principle to the arms Americans actually own.
Every Amicus Brief in Viramontes and Grant: Supreme Court Fight Over AR-15 Bans
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
