America's Rifle, the AR-15 Is
Protected by the Second Amendment

Also published in Reason's The Volokh Conspiracy Mon. December 12, 2022

By Stephen P. Halbrook. Dec 13, 2022

Thanks to Eugene for inviting me to post about some of the developments in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. Bruen held that New York’s limitation of the issuance of permits to carry a handgun to those who officials decide have a special need violates the Second Amendment, which protects from infringement “the right of the people to ... bear arms.” The government may not limit that right to a privileged class.

One of the hot-button issues that is being relitigated after Bruen is whether banning semiautomatic rifles such as the AR-15 violates the Second Amendment. I argue that it does in my new book America’s Rifle: The Case for the AR-15. It covers text and precedent, English and colonial history, the Founding, and how the constitutional right to arms kept pace with the development of firearms. The expired federal ban of 1994 was a true aberration from a Congress that has almost never actually banned a type of firearm.

When Bruen was decided, six states restricted permits to carry handguns—California, Hawaii, Maryland, Massachusetts, New Jersey, and New York. Five of those states (excluding Hawaii) plus Connecticut also prohibited possession of rifles they derogatorily call “assault weapons.” A week after Bruen was handed down, the governor of Delaware signed a law adding that state to the list.

In most of the 20th century, the antigun movement focused on banning handguns. Rifles and shotguns were said to be good, pistols and revolvers bad. The Colt AR-15 Sporter rifle hit the civilian market in 1964, the same year that Colt made its first deliveries of the M-16 to the Air Force. The AR-15 is semiautomatic, requiring a separate function of the trigger for each shot, while the M-16 is automatic, meaning it fires continuously as long as the trigger is pulled back. Despite that basic difference, they looked similar on the outside, causing the Violence Policy Center see the potential for confusion in the public. The idea of labeling the AR-15 and like rifles “assault weapons” and banning them was born.

In 1989, California became the first state to ban “assault weapons,” which it defined to include a list of makes and models such as the AR-15. We challenged that law in Fresno Rifle & Pistol Club v. Van de Kamp (1992), but the Ninth Circuit held that the Second Amendment doesn’t apply to the states. The Supreme Court has since ruled that it does, in McDonald v. Chicago (2010). .....


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