Kavanaugh Hints Supreme Court on Track to Strike Down AR-15 Bans

After months of speculation (and 15 relists on the US Supreme Court calendar), the court denied a request to hear Snope v. Brown, which challenged the constitutionality of Maryland’s so-called “assault weapons” ban concerning semi-automatic rifles.

Three of the court’s conservatives—Justices Amy Coney Barrett, Brett Kavanaugh, and John Roberts—joined the liberals to deny cert, while Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas voted to hear the case. Kavanaugh wrote a concurrence, rather than be the fourth and deciding vote required to grant cert, while Thomas, the court’s staunchest defender of the Second Amendment, wrote a powerful dissent.

Commonly referred to as “America’s Rifle,” AR-15s are legal in 41 of the 50 states and are owned by tens of millions of Americans. The court’s decision to refrain from settling (once and for all) what is arguably the most controversial Second Amendment issue today is a huge disappointment to millions of law-abiding Americans who own AR-15s (or would own AR-15s but for outlier bans). Still, there appears to be a light at the end of the tunnel.

The most interesting part of the court’s denial is Kavanaugh’s concurrence. Not only does he recognize the nationwide popularity of AR-15s (“20 to 30 million” owned), but he reminds the court that it is analytically difficult to distinguish semi-automatic AR-15s, which are banned in a handful of jurisdictions, from the semi-automatic handguns at issue in District of Columbia v. Heller.

Kavanaugh also does a nice job silencing the argument that AR-15s are “like M-16s,”noting that “[s]emi-automatic handguns and rifles are distinct from automatic firearms such as the M-16 automatic rifle used by the military.” And he sets the record straight with respect to the criminal misuse of AR-15s: “[H]andguns 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.”

Although he voted to deny cert, Kavanaugh does call into question the constitutionality of the US Court of Appeals for the Fourth Circuit’s decision.

“Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review,” he writes. “Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR-15 issue,” suggesting that further litigation is necessary in the lower courts.

Kavanaugh’s reasoning gives us some reassurance that the court hasn’t completely abandoned this issue. While this court has repeatedly demonstrated a reluctance to risk the public’s ire in deciding highly controversial issues, its decision to observe how similar cases in the federal courts of appeals play out could be beneficial with respect to how the lower courts ultimately decide the matter.

Finally, and what might be considered the best takeaway from Kavanaugh’s concurrence, are his comments on timing. “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,” he writes. That’s a pretty specific timeline.

Kavanaugh’s prediction that the AR-15 issue will soon return to the Supreme Court holds a lot of merit. He made a similar prediction in 2020 in NYSRPA v. City of New York, in which the court granted cert but then declined to decide the merits due to mootness. In that case, which involved the right to transport firearms in public, Kavanaugh wrote in his concurrence, “I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” Two years later, the Court decided NYSRPA v. Bruen, which was a big win for the Second Amendment and originalists.

When the Supreme Court finally hears the AR-15 issue, there is a high likelihood of another great Second Amendment victory. While three of the court’s six conservative justices seem skittish to take up the AR-15 issue now, evidence shows they will likely follow Heller and vote in favor of the Second Amendment.

Notably, all six conservatives voted to strike down New York’s unconstitutional gun control law in Bruen. Additionally, Kavanaugh and Barrett wrote powerful dissents in gun control cases during their tenures as circuit judges (Kavanaugh dissented in the case known as Heller II, a 2011 D.C. Circuit case involving D.C.’s AR-15 ban, and Barrett dissented in Kanter v. Barr, a Seventh Circuit case concerning the possession of arms by nonviolent felons).

What is more, on June 5, just a few days after the cert denial in Snope, Justice Elena Kagan, writing for a unanimous court in the Mexico v. Smith & Wesson case, acknowledged that “[t]he AR–15 is the most popular rifle in the country.” It is impossible under a faithful application of Heller to uphold a ban on the most popular rifle in the country, providing more reason to believe the once the court does take up the AR-15 issue, it will rule in favor of the Second Amendment.

While Second Amendment supporters don’t always agree with the timeline by which the court addresses Second Amendment issues, the court has shown its commitment to the Second Amendment through landmark decisions in Heller (2008), McDonald v. Chicago (2010), and Bruen (2022). Considering the current political climate and how vigorously the Trump administration has championed the right to keep and bear arms, the Second Amendment community has reason to be optimistic we will ultimately prevail on the AR-15 issue before the end of President Donald Trump’s second term.

I think the Supreme Court will ultimately rule that “semi-automatic rifles,” including the AR-15, are protected under the Second Amendment—and it wouldn’t surprise me if Kavanaugh authors that opinion.

The case is Snope v. Brown, U.S., No. 24-203, cert. denied 6/2/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Mark W. Smith is a constitutional attorney and a distinguished scholar and senior fellow of law and public policy at the Ave Maria School of Law.

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