MA GUN LAWYER

By William S. Smith, Esq. www.attorneysmithlaw.com

The avalanche of anti-Second Amendment amicus (“friend of the court”) briefs in Viramontes v. Cook County and Grant v. Higgins reveals just how far opponents of the AR-15 will go to defend laws that prohibit ordinary Americans from acquiring some of the nation’s most popular firearms.

The United States Supreme Court is preparing to hear two of the most consequential Second Amendment cases since New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). In Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, the Justices will confront the constitutionality of laws restricting semiautomatic rifles, including the extraordinarily popular AR-15 platform.

Oral argument is scheduled for December 2, 2026.

The stakes could hardly be higher. At issue is whether governments may prohibit law-abiding Americans from acquiring firearms that are widely possessed for lawful purposes simply because politicians have decided that those firearms are too dangerous for ordinary citizens.

Judging from the remarkable assortment of amicus curiae briefs submitted in support of the bans, the opponents of the Second Amendment appear determined to answer that question with virtually everything except a convincing application of the Constitution.

The Court has been inundated with submissions from gun-control organizations, politicians, prosecutors, academics, public-health advocates, and governmental officials. Many recycle familiar assertions about weapons of war, mass shootings, and the supposed exceptional danger of semiautomatic rifles. Others attempt to repackage the same arguments in the language of science, medicine, statistics, and history.

What emerges is a troubling picture: an effort to transform constitutional adjudication into a competition over which side can produce the most alarming description of a firearm.

Yet the fundamental question remains remarkably simple. Where, in the history and tradition of American firearms regulation, is the constitutional authority to prohibit millions of peaceable Americans from acquiring an entire category of commonly possessed semiautomatic firearms?

No amount of scientific jargon, emotional rhetoric, or mathematical sophistication can relieve the government of its obligation to answer that question.

The Supreme Court’s docket reflects the breadth of the October 28 filings, including briefs from Everytown, Giffords, Brady, a multistate coalition, medical organizations, historians, law-enforcement groups, and numerous other amici.

The Latest Assault on the AR-15: Calling an Ordinary Semiautomatic Rifle a Weapon of War

One of the most persistent themes in the anti-AR-15 briefs is the attempt to erase the distinction between semiautomatic civilian rifles and military automatic weapons.

Consider the position advanced by Prosecutors Against Gun Violence, whose October 29 announcement describes the rifles as weapons designed for military combat. Manhattan District Attorney Alvin Bragg likewise urges the Court to uphold bans on what he characterizes as weapons of war. Manhattan District Attorney’s Office

The problem with this rhetoric is that the AR-15 is not an automatic military rifle.

A conventional semiautomatic AR-15 fires one round for each separate operation of the trigger. An automatic M16, by contrast, is capable of firing multiple rounds through a single sustained trigger operation. This is not an insignificant technicality. It is a fundamental mechanical distinction recognized by the Supreme Court itself in Staples v. United States, 511 U.S. 600, 602 (1994).

Moreover, the fact that military personnel may use a particular type of firearm does not establish that its possession by civilians falls outside the Second Amendment. Police departments throughout the country employ AR-platform rifles precisely because they are accurate, controllable, and useful for defensive purposes. Those characteristics do not mysteriously become illegitimate when the person holding the rifle is an ordinary citizen defending his or her home.

Indeed, an amicus brief filed by Commonwealth Second Amendment specifically emphasizes the contradiction between governmental training materials recognizing the defensive utility of these rifles and governmental arguments that the same firearms are inappropriate for civilian defense. Commonwealth Second Amendment

Apparently, according to the opponents of these firearms, a rifle can be an excellent defensive tool in the hands of a government employee but an intolerable menace in the hands of a law-abiding homeowner. That is not a coherent constitutional distinction. It is a distinction based upon who possesses the firearm rather than what the firearm actually does.

The Mathematics of Gun Control: When a Ballistics Equation Becomes a Constitutional Argument

Perhaps the most revealing aspect of the scientific approach to defending these prohibitions is the effort to portray the .223-caliber cartridge commonly associated with the AR-15 as possessing some uniquely alarming ballistic quality. The underlying proposition deserves particularly close scrutiny.

Ballistic energy can be expressed through the familiar kinetic-energy equation:

\[ E_k=\frac{1}{2}mv^2 \]

Here, \(m\) represents projectile mass and \(v\) represents velocity.

The formula is elementary physics. It applies to a projectile fired from an AR-15, a traditional hunting rifle (the AR15 itself is commonly used as a hunting rifle) or any other firearm. Indeed, it applies to moving objects generally. Because velocity is squared, changes in velocity can substantially affect kinetic energy. That is scientifically unremarkable. What would be remarkable is the preposterous suggestion that the equation somehow supplies a constitutional basis for prohibiting a particular category of commonly owned rifles.

The .223 Remington and closely related 5.56×45mm NATO cartridges are certainly capable of causing devastating injuries. No serious firearms-rights advocate needs to deny that reality. Most centerfire cartridges are. But the proposition that the .223 possesses uniquely destructive characteristics sufficient to distinguish it constitutionally from other lawful rifle cartridges demands proof, not merely mathematical notation.

Numerous conventional centerfire hunting cartridges deliver greater muzzle energy than typical .223 ammunition. Projectile construction, velocity, mass, stability, tissue interaction, and numerous other variables influence wound characteristics. Even the amount of kinetic energy delivered at the muzzle is not identical to the amount transferred to a particular target. A mathematical formula cannot, by itself, establish that an entire firearm platform is uniquely dangerous. Nor can it establish that the rifle is outside the Second Amendment’s protection.

And there is an additional enormous problem that seems to escape much of the rhetoric surrounding the AR-15. The .223 cartridge is not exclusive to the AR-15 platform. Not even remotely. I t is also chambered in conventional bolt-action and other rifles that usually, if not always, fall outside the challenged prohibitions. If the supposed constitutional justification for banning an AR-15 is the ballistic performance of its ammunition, how can the government explain permitting another rifle that fires the same cartridge?

Conversely, if the distinction is based on a pistol grip, adjustable stock, barrel shroud, or similar feature, then the supposedly exceptional characteristics of the cartridge do not explain the prohibition. The argument threatens to collapse under its own contradictions.

The Historical Tradition Argument: Rewriting the Second Amendment Through Historical Generalities

Another recurring feature of these arguments is the attempt to manufacture historical support for modern prohibitions by invoking historical regulations of supposedly dangerous or unusual weapons. This is where the constitutional analysis becomes particularly strained. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court recognized that the Second Amendment protects firearms typically possessed by law-abiding citizens for lawful purposes. The Court also discussed the historical tradition of restricting dangerous and unusual weapons.

Those two words matter: dangerous and unusual.

Every firearm is potentially dangerous if misused. That is hardly a reason to conclude that every firearm can be prohibited from sale and/or possession. The constitutional inquiry cannot be reduced to whether a particular weapon is capable of inflicting serious injury. If that were sufficient, the government could prohibit virtually every meaningful instrument of armed self-defense.

Nor can an extraordinarily common firearm become constitutionally unusual merely because its appearance offends the political preferences of state legislators. The historical analogies invoked by defenders of semiautomatic-rifle prohibitions also require careful examination under Bruen. The Court instructed that historical comparisons must account for both how and why regulations burden the right to armed self-defense. A historical restriction on carrying weapons in a particular manner is not automatically analogous to a modern prohibition on acquiring an entire class of rifles.

Likewise, a historical regulation addressing unusually hazardous uses of firearms does not necessarily justify a contemporary ban on possession by responsible citizens. The difference between regulating dangerous conduct and prohibiting ownership of a commonly possessed firearm is constitutionally substantial. The historical argument becomes particularly troubling when advocates characterize earlier regulations at such a high level of generality that almost any modern restriction can be made to resemble them.

At that level of abstraction, the historical inquiry becomes meaningless. One could just as easily argue that because colonial governments regulated the storage of gunpowder, contemporary governments may prohibit the sale of virtually any modern firearm. That is precisely the sort of reasoning that threatens to transform Bruen’s historical test into the interest-balancing inquiry the Supreme Court rejected.

The Public-Health Briefs: Serious Tragedies Do Not Rewrite Constitutional Rights

The medical and public-health organizations supporting the restrictions present another familiar argument: firearms capable of inflicting serious injuries should be subject to sweeping restrictions because of their potential consequences. It might be worth pointing out here as a threshold matter that medical negligence is now the third leading cause of death in the United States and takes some 280,000-400,000 Americans per year. This utterly dwarfs the 300 Americans killed yearly in homicides where a long gun of any type is used (which necessarily means AR15s are an even smaller number than this 300).

The Supreme Court’s docket identifies an October 28 brief submitted by organizations including the American Academy of Pediatrics, the American College of Physicians, and the National Medical Association. Other briefs were submitted by organizations representing school nurses, psychologists, educators, and survivors of mass shootings. Supreme Court

The suffering caused by criminal homicidal shootings is real. Just as real are all murders and homicides, regardless of the instrumentaily used. The devastation experienced by victims and their families deserves respect and compassion. But acknowledging that suffering does not answer the constitutional question.

Medical professionals possess expertise concerning injuries and their treatment. That expertise does not confer authority to determine the historical scope of the Second Amendment. A physician may persuasively explain the devastating effects of a gunshot wound. The physician’s testimony does not, without more, establish that the government may constitutionally prohibit an entire category of firearms.

Indeed, the argument proves far too much. Most commonly owned firearms can cause devastating wounds- including a .22 firearm used for plinking cans at a range. That includes shotguns, hunting rifles, and ordinary semiautomatic handguns. If the severity of potential injury is sufficient to extinguish constitutional protection, the Second Amendment becomes a guarantee to possess only firearms that the government considers insufficiently effective to cause serious harm.

That would invert the very purpose of the right.

Massachusetts Joins the Campaign Against Commonly Owned Rifles

Particularly disappointing is the participation of Massachusetts in the coalition supporting these restrictions. Disappointing, but entirely predictable.

On October 28, California Attorney General Rob Bonta announced his participation in a coalition of 19 attorneys general supporting the Connecticut and Cook County laws. The Supreme Court docket identifies the multistate brief as submitted by Massachusetts, New Jersey, sixteen other states, and the District of Columbia.

The coalition’s position reflects a familiar governmental attitude toward the Second Amendment: constitutional rights are acceptable only to the extent that legislators and licensing officials believe their exercise serves the public interest.

Massachusetts gun owners have experienced the consequences of this philosophy for years. The Commonwealth has imposed extensive restrictions on firearms ownership, licensing, and the acquisition of semiautomatic rifles. Its increasingly elaborate regulatory structure rests upon the assumption that government officials should enjoy broad authority to decide which firearms ordinary citizens may possess.

But Bruen rejected the notion that constitutional rights depend upon a governmental determination that their exercise is sufficiently justified. That principle applies with particular force to prohibitions on commonly possessed firearms. If the Second Amendment protects an individual’s right to possess arms, the government cannot avoid that protection merely by assigning disfavored firearms a politically charged label.

The Common-Use Question Cannot Be Evaded

The defenders of these prohibitions face a particularly difficult obstacle: the widespread civilian ownership of AR-15-pattern rifles and other semiautomatic firearms. The media’s failure (refusal?) to report that there is all of nothing new about a semiautomatic rifle does not change this. An air powered one was taken along in the Lews & Clark expedition of 1804 for example. In their modern incarnation, they are now over 100 years old.

Under Heller, common lawful possession is central to determining whether a firearm receives constitutional protection. The government’s response frequently attempts to shift the inquiry from whether a firearm is commonly possessed for lawful purposes to whether it has been demonstrated to be commonly fired during actual defensive encounters. But that distinction is deeply problematic.

A firearm may be acquired and kept for defensive purposes without ever being discharged against another person. Indeed, the overwhelming preference of responsible gun owners is that such a confrontation never occurs. A person who keeps a rifle for home defense does not lose the constitutional significance of that purpose merely because no intruder has ever entered the home.

The Supreme Court did not suggest in Heller that constitutional protection turns upon a citizen’s ability to document actual defensive shootings involving a particular firearm. Such a requirement would create the absurd result that the most peaceably possessed firearms receive less constitutional protection precisely because their owners have never needed to fire them in self-defense. The right to keep arms necessarily encompasses preparedness for circumstances one hopes never to encounter.

The Problem With the “Assault-Weapon” Label

There is another fundamental weakness in the effort to justify these prohibitions: the category of firearms described as assault weapons is largely a legislative creation- a media one before that. An AR-15 with a particular configuration of features may be prohibited, while another semiautomatic rifle employing substantially similar operating principles remains lawful.

The resulting distinctions often depend upon characteristics such as adjustable stocks, pistol grips, and other ergonomic features. Yet those features do not convert a semiautomatic rifle into an automatic weapon. Nor does the presence of a particular stock configuration alter the fundamental operating principle of the firearm. The arbitrariness of these classifications exposes the central weakness in the entire regulatory project.

If the government’s real concern is the ability to fire one round per trigger operation without manually cycling the action, then the argument implicates a vast array of ordinary semiautomatic firearms. Indeed, lever and pump acion rifles, for example, are vortually as rapidly-firing. If its concern is ammunition performance, then its reasoning necessarily reaches beyond AR-platform rifles.

And if its concern is merely the external appearance of the firearm, then it has a serious constitutional problem explaining why cosmetic or ergonomic distinctions justify denying a fundamental right. The Second Amendment does not disappear when a rifle looks sufficiently intimidating to a legislator.

The Supreme Court Must Decide a Constitutional Question, Not a Public-Policy Referendum

The most troubling feature of the anti-AR-15 amicus campaign is the underlying suggestion that sufficiently compelling assertions about public safety should permit courts to disregard the constitutional protection of commonly possessed firearms. That approach is wholly ncompatible with the framework established in Heller and Bruen. Certainly, the government possesses legitimate authority to punish criminal violence and enforce constitutionally permissible firearms regulations.

But that authority is not unlimited. The Constitution does not authorize judges to suspend an enumerated right whenever the government produces what it claims is a sufficiently disturbing collection of statistics or predictions about the consequences of its exercise. Nor does it authorize legislatures to define constitutionally protected firearms out of existence through terminology designed to generate public fear.

The pending cases present the Justices with an opportunity to reaffirm a principle that should never have become controversial: the Second Amendment protects ordinary Americans, not merely the firearms that government officials are comfortable allowing them to own. The AR-15 is not a constitutional orphan because it resembles a military rifle in its asthetic appearance. The .223 cartridge does not lose constitutional relevance because someone inserts its ballistic characteristics into a mathematical equation. And a firearm does not become “unusual” merely because a coalition of politicians and their friends in the national media repeatedly call it an assault weapon.

The opponents of these rifles have every right to advocate their preferred public policies. They may criticize the firearms, question their utility, and argue that society would be safer without them. But advocacy is not constitutional authority. Ultimately, the Supreme Court must determine whether the challenged prohibitions are consistent with the constitutional protection of arms and the nation’s historical tradition of firearms regulation. It should not permit that inquiry to be displaced by alarming rhetoric, selectively presented technical (mis)information, or historical analogies so abstract that they would justify virtually any restriction imaginable.

The Constitution does not require Americans to prove that their firearms are harmless before they may exercise the right to keep and bear arms.

And the Second Amendment is not subject to cancellation by a physics equation.