What Should We Make of Justice Kavanaugh's Snope Opinion?

Distinguishing two different questions about the constitutionality of assault weapons bans

On Monday the Supreme Court denied certiorari in Snope v. Brown, a Fourth Circuit case about a ban on a bunch of semiautomatic rifles called “assault weapons,” such as the AR-15. The petitioners argued that the ban violates the right to keep and bear arms. Three justices (Alito, Gorsuch, and Thomas) announced that they would have granted the cert. petition. It takes four to grant cert., so we know that no other justices agreed.

Justice Kavanaugh wrote separately to explain that he would like to grant cert. in a different case, sooner rather than later. Here is his opinion in full:

In District of Columbia v. Heller, this Court ruled that the Second Amendment must be interpreted in light of constitutional text, history, and tradition. 554 U.S. 570, 576–628 (2008). The Court further determined that the Second Amendment protects those weapons that are in “common use” by law-abiding citizens. Id., at 624, 627, 128 S.Ct. 2783. Because handguns are in common use by law-abiding citizens, the Court held that the District of Columbia's ban on handguns violated the Second Amendment. Id., at 628–629. The Court's later Second Amendment decisions in Bruen and Rahimi did not disturb the historically based “common use” test with respect to the possession of particular weapons. See New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 47 (2022); see also United States v. Rahimi, 602 U.S. 680, 735–736 (2024) (KAVANAUGH, J., concurring); post, at –––– – –––– (THOMAS, J., dissenting from denial of certiorari).

This case primarily concerns Maryland's ban on the AR–15, a semi-automatic rifle. 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. See Staples v. United States, 511 U.S. 600, 612 (1994) (stating that AR–15s “traditionally have been widely accepted as lawful possessions”).

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. See Heller v. District of Columbia, 670 F.3d 1244, 1286–1288 (CADC 2011) (Kavanaugh, J., dissenting). If so, then the Fourth Circuit would have erred by holding that Maryland's ban on AR–15s complies with the Second Amendment.

Under this Court's Second Amendment precedents, moreover, it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller. AR–15s are semi-automatic, but so too are most handguns. (Semi-automatic handguns and rifles are distinct from automatic firearms such as the M–16 automatic rifle used by the military.) Law-abiding citizens use both AR–15s and handguns for a variety of lawful purposes, including self-defense in the home. 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. 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.

In short, under this Court's precedents, the Fourth Circuit's decision is questionable. 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. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. See Capen v. Campbell, 134 F.4th 660 (CA1 2025); see also, e.g., National Assn. for Gun Rights v. Lamont, 685 F.Supp.3d 63 (D.Conn. 2023), appeal pending, No. 23–1162 (CA2); Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin, 742 F.Supp.3d 421 (DNJ 2024), appeal pending, No. 24–2415 (CA3); Viramontes v. County of Cook, No. 1:21–cv–4595, 2024 WL 897455 (ND Ill., Mar. 1, 2024), appeal pending, No. 24–1437 (CA7); Miller v. Bonta, 699 F.Supp.3d 956 (SD Cal. 2023), appeal pending, No. 23–2979 (CA9). Opinions from other Courts of Appeals should assist this Court's ultimate decisionmaking on the AR–15 issue. 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.

It’s not uncommon for a Justice to decide that a given issue is potentially certworthy but requires further “percolation” in the lower courts before the Court should grant it. But Justice Kavanaugh’s version of this is a little unusual in two respects. One is that he expresses sufficiently firm skepticism of the lower court opinions in this area that it is a puzzle what benefit percolation will bring. Normally percolation is most useful when Justices are not actually sure what the right answer is, or are not sure that the issue is important. In other cases the specific petition might be a bad vehicle for the question presented — but Justice Kavanaugh does not suggest that is true here.

The other unusual feature of Justice Kavanaugh’s opinion is his relatively firm prediction about when the issue will have percolated enough: “this Could should . . . address the AR-15 issue soon, in the next Term or two.” That is an unusually firm prediction that the issue is coming back and when.

So what are we supposed to make of this opinion? What assistance could these future decisions possibly provide? I have no clue what Justice Kavanaugh has in mind, but here is a bit of sheer speculation:

Assault weapons bans actually raise two distinct questions under current constitutional doctrine. The first question is whether assault weapons are “arms” protected by the Constitution. The second question is whether, if they are arms, the bans are nonetheless a permissible regulation on the right to keep and bear arms. To analogize to free speech doctrine for a moment, the first question is analogous to whether the speech is in an unprotected category (like libel, obscenity, etc.) and the second is analogous to whether the regulation satisfies strict scrutiny, is a reasonable neutral time/place/manner regulation, etc.

On the first question, I think the lower courts are wrong, and it sounds like Justice Kavanaugh does too. Justice Kavanaugh applies the common-use test and his significant prior opinion in Heller II. I have written about the issue from a more originalist perspective in The General-Law Right to Bear Arms with Robert Leider, where we argue that traditionally “The general law permitted the banning of noxious weapons for two reasons: (1) these weapons were particularly useful for criminal purposes, and (2) these weapons had no military or public defense value. . . . Measured by this understanding, so-called assault weapons are at the core of the right to keep and bear arms.” I bet there are at least five justices in total, maybe more, who share this view for one reason or another.

But what about the second question? Even if one concludes that semi-automatic rifles are generally protected, could assault weapons bans be upheld as a permissible regulation of the manner of bearing arms? This I think is a harder question — it might depend on exactly which semi-automatic rifles are covered by a given states ban and why. It might depend on the level of abstraction we use for thinking about the state’s interest in the ban, debated in Rahimi. It might also depend on how we define the class of arms: Is the class “all semi-automatic rifles,” or is the class “all rifles”? If it is the latter, could one see a ban on semi-automatic rifles as a regulation on the manner of fire of the class of all rifles.

If I had to guess, this second question might be giving some of the Justices a little bit more pause. Justice Kavanaugh does not make clear what he thinks on this issue. Even if he is confident the bans flunk this test, there may not be four others who agree. And it might not also be totally clear, after Bruen and Rahimi, exactly how to analyze it.

This question has also gotten less attention in some of the lower courts, in part because of the first question. Justice Thomas, who wrote a longer dissent from denial in Snope, acknowledges some aspects of this second question in a footnote, but argues that the Fourth Circuit did not really decide it: “The Fourth Circuit also purported to hold in the alternative that, assuming that AR–15s are protected arms, banning them is consistent with a national tradition of responding to the ‘threats posed by excessively harmful arms with responsive and proportional legislation.’ . . . This holding, however, is not genuinely independent of its misguided common-use analysis. . . .”

So if I had to guess, I would guess that Justice Kavanaugh and perhaps other Justices on the Court would like a little more percolation or a better vehicle for addressing the second question, even if they know enough already to answer the first. And regardless, when the Court does take this issue up “in the next Term or two,” I think the “permissible regulation” question will prove harder than the “arms” question.