Two Liberal Supreme Court Justices Have Now Conceded that ARs and AKs Meet the Common Use Standard Under Heller

If you’re keeping score at home, we’re now up to two Democrat-appointed Supreme Court Justices who have acknowledged in their written opinions that America’s most popular rifles — namely AR-15 and AK47 semi-automatic rifles — are owned by millions of lawful gun owners and therefore qualify as being “in common use” under the standard laid out in the Court’s Heller decision.

The first such instance happened last year when the Court ruled in favor of Michael Cargill in his challenge to ATF’s Trump 1.0 bump stock ban. The court split along the usual ideological lines in its 6-3 decision and the dissent was written by Justice Sonia Sotomayor and joined by fellow liberals Kagan and Brown). Sotomayor wrote . . .

On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. 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.

Fast-forward almost exactly a year to this week’s unanimous ruling throwing out Mexico’s lawsuit against Smith & Wesson which claimed the company somehow “aided and abetted” the illegal flow of guns across the border and is therefore not entitled to the protections of the PLCAA.

The 9-0 opinion in the Smith case was written by Justice Kagan and was even more explicit that Justice Sotomayor was in the bump stock case. She wrote . . .

Mexico’s allegations about the manufacturers’ “design and marketing decisions” add nothing of consequence. 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. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country). 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. 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.” 

We feel sure that the gun rights orgs and their attorneys who continue to fight the “assault weapons” bans on the books in states like Illinois, California, Hawaii and others will find it very convenient that two of the most liberal Justices on the Court have lent such a helping hand in making the case that the banned guns are, by the standards established in Heller, in common use by any definition.

Justice Kavanaugh, however, spoke for a majority of the Court this week when they denied cert in Snope and Ocean State. He announced that the Justices will probably get around to ruling on Second Amendment cases like “assault weapons” bans and magazine capacity limits, but the millions of Americans in the affected states whose civil rights have been limited will have to come back in another year or two and make their case then. The Court is just too busy to take up the matter right now.

Thanks to Justices Sotomayor and Kagan, the job of overturning those laws is now easier.