An AR-15 at a booth during the 2025 NRA Annual Meeting
An AR-15 at a booth during the 2025 NRA Annual Meeting / Stephen Gutowski

Analysis: Did SCOTUS Just Tip Its Hand on AR-15 Bans? [Member Exclusive]

Several of the actions the Supreme Court took on guns this week may show where it’s going to end up on “assault weapons” bans.

Certainly, denying cert in Snope v. Brown provides the most straightforward message: the Court isn’t in a rush to rule. But several lines from that denial, as well as one from the Court’s ruling in Mexico v. Smith and Wesson, provide some insight into the intentions of a majority of justices.

Most importantly, we have a statement from one of the justices who voted to deny Snope‘s challenge to Maryland’s ban on the sale of AR-15s and similar firearms.

While three of the conservative justices noted they would have taken up the challenge, three didn’t. It’s likely, especially given Justice Clarence Thomas’s dissent slamming Maryland’s law, that the three who wanted to take the case immediately would strike down the ban. It’s also generally safe to assume the Court’s three liberal members are inclined to uphold it–although, that line from Thursday’s Mexico ruling makes that assumption a bit less safe than we might think.

So, the important question is what will the three in the middle do?

That’s where Justice Brett Kavanaugh’s statement on the denial comes into play. While he apparently voted against taking up Snope, otherwise the Court would’ve had the four votes necessary to do so, he heavily implies the ban is unlikely to pass constitutional muster.

“This case primarily concerns Maryland’s ban on the AR–15, a semi-automatic rifle,” Kavanaugh wrote. “Americans today possess an estimated 20 to 30 million AR–15s. And AR–15s are legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier.”

He argued the rifles are so popular they likely meet the standard for Second Amendment protection set forth in 2008’s DC v. Heller, where the Court first articulated the Constitution protects an individual right to keep and bear arms.

“Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment under Heller,” Kavanaugh wrote. “If so, then the Fourth Circuit would have erred by holding that Maryland’s ban on AR–15s complies with the Second Amendment.”

Kavanaugh even implied that AR-15s are less dangerous on the whole than the handguns the Court has already ruled are protected, because they are also semi-automatic but used less often in crimes.

“For their part, criminals use both AR–15s and handguns, as well as a variety of other lawful weapons and products, in unlawful ways that threaten public safety,” he wrote. “But handguns can be more easily carried and concealed than rifles, and handguns—not rifles—are used in the vast majority of murders and other violent crimes that individuals commit with guns in America.”

He concluded that the Fourth Circuit Court of Appeals decision upholding Maryland’s ban is “questionable.” He emphasized the decision not to take up Snope “does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review.” He then noted there are several other similar cases circulating in the lower courts, which will give the Supreme Court ample opportunity to address AR-15 bans in the future.

He even went so far as to predict the Court will take up a case relatively soon.

“Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR–15 issue,” Kavanaugh wrote. “Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.”

So, that almost certainly makes four votes to strike down AR-15 bans. The question from there is whether Kavanaugh is speaking strictly for himself or whether his views represent where some of the other justices who voted against taking up Snope come down. Since they’ve been on the Court together, Justices John Roberts, Amy Coney Barrett, and Kavanaugh have voted the same way on all the Court’s Second Amendment cases.

Do Kavanaugh’s words in the Snope denial speak for Roberts and Barrett, too? It’s impossible to say for sure. They didn’t sign on to his statement or make any of their own. They could be undecided on the issue, which would explain why there weren’t four votes to take up Snope if nobody was confident where those two might come down.

However, Kavanaugh’s tone is pretty confident. Instead of just encouraging it to do so, he presumes the Court will take up an AR-15 case and that it will do so soon. That’s an interesting presumption to make if he’s not confident of where the other justices stand.

The other gun case the Court weighed in on this week provides some reason to think even the liberal members of the Court may be open to the idea that the Second Amendment protects the ownership of AR-15s. In Mexico v. Smith and Wesson, the Court unanimously tossed a suit that sought to hold American gun companies liable for cartel violence in Mexico in part because those companies make firearms like the AR-15. The Court, in an opinion written by Elana Kagan, stated as fact that the AR-15 is popular with many law-abiding Americans–a key finding for whether its protected by the Second Amendment under the Heller test.

“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,” Kagan wrote. “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.”

So, in a week where the Court directly denied the opportunity to weigh in on AR-15 bans–allowing Maryland’s to remain in effect as a result–it also provided new reasons to believe it will eventually strike them down.

Join For Sober, Serious Firearms Reporting & Analysis

Free Weekly Newsletter

Get the most important gun news

Reload Membership

Monthly
$ 10 a Month
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions

Reload Membership

Yearly
$ 100 a Year
  • 12 Months for Price of 10
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions
Best Deal
Created by potrace 1.16, written by Peter Selinger 2001-2019

Share

Facebook
Twitter
Reddit
Email
Created by potrace 1.16, written by Peter Selinger 2001-2019

Comments From Reload Members

2 Responses

  1. I have a feeling that the three liberal justices will use the “unprecedented social concerns” language from Bruen to overcome Kagan and Sotomayor’s acknowledgment that semiautomatic rifles are widely owned.

    Regardless of what might happen, I just want the issue to be resolved one way or another. As a blue state resident, things won’t get any worse for us if SCOTUS finds a way to rule that the bans do not violate the Constitution.

    1. Yea, I think that’s a strong possibility. I believe it’s still a stretch to think the liberal justices will come around on an AR ban case. I would also still believe there are probably five votes from the conservatives, though. Even if the denial of cert in Snope raises questions there. Seems like it could just be that they don’t want to deal with it right now.

Leave a Reply

Menu

Member Login

Go back to the home page.

Enjoy a Free Preview of Member Exclusive Content! Enter Your Email for Access.

Buy a Membership for Permanent Access Today!

Reload Membership

Monthly
$ 10 a Month
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions

Reload Membership

Yearly
$ 100 a Year
  • 12 Months for Price of 10
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions
Best Deal

Back to the home page

Sorry, only paid members have access to the full story.

Join For Sober, Serious Firearms Reporting & Analysis

Reload Membership

Monthly
$ 10 a Month
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions

Reload Membership

Yearly
$ 100 a Year
  • 12 Months for Price of 10
  • Exclusive Sunday Analysis Newsletter
  • Access to Exclusive Posts
  • Early Access to the Podcast
  • Commenting Privileges
  • Exclusive Question & Answer Sessions
Best Deal

Back to the home page