Supreme Court Struggles to Define Which Weapons the Second Amendment Protects

# Supreme Court Struggles to Define Which Weapons the Second Amendment Protects

The Supreme Court has established that the Second Amendment protects an individual's right to own firearms, but the justices have created significant uncertainty about which weapons actually qualify for that protection.

For nearly 70 years after the Court decided *United States v. Miller* in 1939, lower courts interpreted the Second Amendment narrowly. In that case, the Court upheld a federal law restricting sawed-off shotguns, reasoning that the Second Amendment applied only to weapons with "some reasonable relationship to the preservation or efficiency of a well regulated militia." Courts read this to mean the right applied only to people enrolled in military organizations, which made firearms regulations relatively easy to defend.

The landscape shifted dramatically in 2008 when the Supreme Court decided *District of Columbia v. Heller*. The Court recognized an individual right to own a handgun for self-defense and rejected the idea that only weapons useful in warfare qualify for protection. The majority stated that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms," including weapons that did not exist when the Constitution was written.

But the Court also drew a boundary. It said the Second Amendment does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes." The Court pointed to a historical tradition of prohibiting "dangerous and unusual weapons" as support for this limitation.

The Court reaffirmed this framework in 2016 when it struck down a Massachusetts ban on stun guns in *Caetano v. Massachusetts*. The Court rejected Massachusetts' argument that weapons not contemplated by the Founders or useful in military service could be banned. At the same time, the Court offered little guidance on how courts should apply its test going forward.

## The Semiautomatic Rifle Question

The most significant unresolved issue involves semiautomatic rifles like the AR-15, which fire one bullet each time a shooter pulls the trigger. No federal appeals court has struck down a state ban on these weapons, though some district courts have. At least two petitions challenging such bans now await Supreme Court action.

The U.S. Court of Appeals for the Fourth Circuit addressed the question in 2024 when it upheld Maryland's assault weapons ban in *Bianchi v. Brown*. The court ruled that semiautomatic rifles fall outside Second Amendment protection because they are "military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense." The majority pointed to *Heller*'s emphasis on self-defense as the central purpose of the right.

Three dissenting judges reached the opposite conclusion using an originalist approach. They defined arms based on Founding-era dictionaries as any "weapons of offense" that a person could carry and use to harm others. Because semiautomatic rifles meet that definition and millions of law-abiding Americans own them, the dissenters argued they cannot be banned.

Justice Brett Kavanaugh cast the deciding vote when the Supreme Court declined to hear the case. He wrote that while he doubted the Fourth Circuit's reasoning, the issue was not yet ripe for the Supreme Court because other circuit courts were considering similar cases. Kavanaugh predicted the Court would address the question "in the next Term or two."

## Large-Capacity Magazines

Federal courts have split on whether large-capacity magazines, typically defined as holding more than 10 rounds, qualify as protected arms.

The U.S. Court of Appeals for the Seventh Circuit concluded in *Barnett v. Raoul* (2023) that they do not. The court reasoned that magazines are more similar to military equipment than to firearms individuals would use for self-defense, so Illinois could ban them without violating the Second Amendment.

The U.S. Court of Appeals for the District of Columbia reached a different conclusion in *Hanson v. District of Columbia* (2024). The court found that magazines likely are protected arms because they are "necessary to make meaningful an individual's right to carry a handgun for self-defense." Otherwise, the court noted, the government could evade the Second Amendment by banning components like firing pins.

However, the D.C. Circuit upheld the magazine ban on different grounds. The court rejected the idea that common use could be determined simply by counting owners, noting that far more people own machine guns than stun guns, yet the Supreme Court has suggested the latter receive protection while the former does not. The court instead focused on the "dangerous and unusual" nature of magazines and their association with mass shootings.

## Remaining Uncertainties

The Supreme Court has drawn clear lines in some respects. Handguns receive protection. Machine guns apparently do not. But semiautomatic rifles and large-capacity magazines remain in limbo.

Justice Clarence Thomas, Justice Samuel Alito, and Justice Neil Gorsuch indicated they would have heard the semiautomatic rifle case, suggesting at least three justices see it as ripe for review. Kavanaugh's recent statement suggests the Court may soon resolve the question, though no cases have been granted as of now.

Until the justices act, lower courts will continue to produce conflicting rulings, and the scope of Second Amendment protection will depend on which state or circuit a challenger lives in.