Eric Lee/Bloomberg via Getty Images Associate Justice Samuel Alito Jr. during the formal group photograph at the Supreme Court in Washington, DC, US, on Friday, Oct. 7, 2022. A month after National Public Radio’s Nina Totenberg announced that Sam Alito was retiring (a story NPR later had to retract), the 76-year-old jurist told the Wall Street Journal in an interview, “Obviously, I’m here for another term.”
Looking at the docket for the coming term, it is easy to see why. Even after overturning Roe v. Wade and other historic opinions, Alito still has unfinished business. An example can be found in two cases involving bans on semiautomatic rifles like the AR-15 that are now awaiting argument in the October term.
Many of us have been frustrated by the Court’s failure to address these laws barring AR-15s and other weapons. Just last year, the Supreme Court declined review of such a Maryland law. Alito and Justices Clarence Thomas and Neil Gorsuch indicated that they wanted to hear the case, failing just one vote short of granting certiorari.
Notably, the required fourth vote could have come from Justice Brett Kavanaugh, who called the Fourth Circuit’s ruling in Snope v. Brown “questionable” and added that the Court “should and presumably will address the AR-15 issue soon, in the next Term or two.”
Now, it will.
Democrats are moving in various states to ban the nation’s most popular rifle (the AR-15) and its most popular handgun (the semiautomatic 9mm). Some of us view these laws as presumptively unconstitutional.
In 2008, the court declared in its opinion in Heller that gun ownership is an individual right. The court emphasized how these weapons were in common use and not the type of dangerous or unusual weapon that would fall outside of the Second Amendment. Handguns, the opinion reads, “are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”
In 2022, the Court held in the Bruen case that the government bears the burden of demonstrating that any restriction upon the right to keep and bear arms “is consistent with this Nation’s historical tradition of firearm regulation.”
The bans on Glock handguns and semiautomatic rifles are efforts to achieve indirectly what the Supreme Court barred directly. In Virginia, Gov. Abigail Spanberger (D) immediately moved against gun rights after her election. Ironically, her election not only spurred a massive surge in gun purchases, but she then supplied the lead line of briefs challenging the law. Spanberger admitted that the state law she signed would ban commonly used hunting guns.
In what is known as the court’s “clean-up conference,” the justices granted review in Illinois and Connecticut cases challenging bans on semiautomatic rifles.
In Viramontes v. Cook County, the Seventh Circuit relied on an earlier ruling that gun owners had failed to show “that the covered firearms materially differed from machine guns and military-grade weaponry, which the Supreme Court instructed can be banned under the Second Amendment.”
In Grant v. Higgins, the Second Circuit upheld a similar ban after agreeing with the state that the law imposes “a burden comparable to historical antecedents that regulated other unusually dangerous weapons unsuitable for and disproportionate to the objective of individual self-defense.”
Notably, in the Illinois case, Cook County argued that these are not just unusually dangerous weapons, but that the challengers cannot offer “even a single instance in which assault weapons were ever used in lawful self-defense.”
That is a highly dubious claim. Since 1990, there have been an estimated 32,091,000 Modern Sporting Rifles in circulation. These are semiautomatic models, which means they fire a single bullet and then automatically load another cartridge into the chamber. The AR-15 is the most popular model, and there are estimates that it has as many as 25 million owners.
The popularity of the AR-15 is due to the fact that it is modular, with some models allowing one to swap out barrels, bolts and high-capacity magazines, or add a variety of accessories. It is also not the most powerful gun; many guns have equal or greater calibers.
There is roughly the same number of Glock pistols in circulation. That means perhaps 40 million Americans currently possess weapons that Democrats are trying to ban as unusually dangerous and completely unprotected.
With the granting of these cases, Virginia’s ban on new sales of the AR-15 rifle and other guns will have to await the final decisions.
These gun bans are not the only cases involving politically popular, legally dubious legislation. The first case to be argued will be Suncor Energy v. Commissioners of Boulder County, a challenge to state laws imposing damages on fossil fuel companies for climate change.
With a docket like that, one can see why Alito is not going anywhere.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
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