“Common use” should defeat firearm bans — not give government a loophole to ban newer or less common arms.
AR-15s are unquestionably common.
Millions of Americans lawfully possess them for self-defense, training, hunting, competition, and other lawful purposes. That widespread ownership should make categorical bans on America’s most popular rifle impossible to defend.
But the Supreme Court’s newly granted AR-15 cases raise a deeper question: Must an arm become common before the Second Amendment protects it at all?
The Supreme Court granted review in Viramontes v. Cook County and consolidated it with Grant v. Higgins on June 30. The question before the Court is whether the Second and Fourteenth Amendments guarantee the right to possess AR-15-platform and similar semiautomatic rifles.
The answer should not depend on a national sales contest.
The Constitution Protects a Preexisting Right
The right to keep and bear arms does not come from government.
It is an inherent, God-given right to defend life and liberty — a right that existed long before the Constitution was written.
The Second Amendment does not grant that right. It recognizes and guarantees it by commanding that it “shall not be infringed.”
That distinction matters. Americans do not need government permission — or sufficient sales numbers — to exercise a right government never gave them in the first place.
The phrase “common use at the time” entered modern Second Amendment doctrine through the Supreme Court’s 1939 decision in United States v. Miller.
But Miller did not establish a numerical ownership threshold. It did not require citizens to produce sales figures, market surveys, or evidence showing how often a particular weapon had been used in self-defense.
The Court was discussing the historical militia system, under which ordinary citizens were expected to appear for service carrying privately supplied arms of the kind commonly possessed at the time.
Nearly 70 years later, District of Columbia v. Heller held that the Second Amendment protects an individual right to possess firearms and relied on the “common use” concept when describing which weapons receive protection.
That doctrine has become a powerful shield against bans on handguns, semiautomatic rifles, magazines, and other arms widely possessed for lawful purposes.
But Heller also said something broader: the Second Amendment extends, prima facie, to all instruments that constitute bearable arms — even those that did not exist at the Founding.
The right exists before government. But when courts evaluate an infringement, the constitutional analysis must begin with the text — not with a firearm’s popularity.
Common Use Confirms Protection
The common-use doctrine still matters.
Heller connected it to the historical prohibition on carrying “dangerous and unusual weapons.” An arm possessed by millions of ordinary Americans for lawful purposes cannot plausibly be called unusual.
But “common use” should operate as a floor confirming protection — not a ceiling excluding every newer, rarer, or government-suppressed arm.
The proper rule is straightforward:
Common ownership makes constitutional protection undeniable. But an arm should not have to become popular before the Second Amendment applies.
Otherwise, government receives a dangerous loophole.
Lawmakers could prohibit a new firearm before it becomes widely available. Years later, they could point to the relatively small number in circulation and argue that it was never protected because it failed to become common.
Government would then be allowed to prevent citizens from acquiring an arm, use the resulting scarcity against them, and claim its own prohibition proves the arm falls outside the Constitution.
That turns the infringement itself into evidence supporting further infringement.
The Second Amendment cannot work that way.
Bruen Put the Burden on Government
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen made clear that courts must begin with the constitutional text.
When the Second Amendment’s plain text covers an individual’s conduct, that conduct is presumptively protected. The government then bears the burden of demonstrating that its restriction is consistent with America’s historical tradition of firearm regulation.
The question is therefore not whether a judge believes enough people own a particular arm — or whether the judge considers some other firearm “good enough.”
The proper questions are:
Is it a bearable arm?
Is the citizen keeping or bearing it?
If so, where is the historical tradition supporting the government’s categorical ban?
This places the burden where it belongs: on the government seeking to restrict a constitutional right.
“The Second Amendment is not a popularity contest,” Texas Gun Rights Foundation President Chris McNutt said. “The right to keep and bear arms comes from God — not government — and the Constitution guarantees that right against infringement.”
“Government cannot ban an arm before it becomes common and then use that ban as proof that the arm was never protected. Common ownership makes the constitutional case undeniable, but Americans should not have to win a national sales contest before government is forced to justify violating a preexisting right.”
AR-15s Win Under Either Approach
None of this weakens the case for AR-15s.
They are bearable arms possessed by millions of Americans for lawful purposes. Their widespread ownership confirms that they cannot plausibly be classified as “unusual,” and no relevant historical tradition supports banning an entire class of commonly owned semiautomatic rifles from ordinary citizens.
But the right to keep and bear arms does not originate from manufacturing totals, retail sales, or government permission.
It is inherent. The Second Amendment guarantees it against government infringement.
The Court can therefore strike down AR-15 bans under existing common-use doctrine while preventing lower courts from transforming that doctrine into a popularity prerequisite.
The Right Comes First
The Supreme Court should make clear that “common use” is a shield for gun owners – – not a loophole for government.
AR-15s are bearable arms. They are unquestionably common. And no historical tradition supports banning them from ordinary Americans.
That should resolve the cases before the Court.
But the Justices should also reject the circular theory that an arm receives constitutional protection only after government allows enough people to acquire it.
The right comes from God. The Constitution guarantees it. Common use merely confirms that government has no authority to infringe it.
As Texas Gun Rights Foundation prepares its amicus brief in the pending AR-15 cases, it will continue advancing the full, no-compromise meaning of the Second Amendment — without trading away one class of arms to protect another.
Those who support historically grounded, no-compromise Second Amendment advocacy can chip in to Texas Gun Rights Foundation and help ensure the courts hear a full defense of the right to keep and bear arms — without unnecessary concessions.
