The Supreme Court's conservative majority has been a reliable ally for gun rights advocates, but two pending cases could test the limits of that alliance. The justices will hear oral arguments in December on whether the Second and Fourteenth Amendments protect the right to possess AR-15-style semiautomatic rifles, a question that has split lower courts and sparked intense political debate.
Gun rights groups are optimistic, given the Court's trajectory since District of Columbia v. Heller (2008) and its landmark 2021 decision in New York State Rifle and Pistol Association v. Bruen. In Bruen, the Court established a "history and tradition" test, holding that firearm restrictions are presumptively unconstitutional unless they align with the nation's historical tradition of regulation. This approach explicitly rejected the balancing of government interests against individual rights, a standard used in other constitutional contexts.
That strict historical test has made it difficult for legislatures to enact modern gun safety measures, even in the face of mass shootings. The cases before the Court stem from tragedies in Connecticut and Illinois. In 2012, a gunman killed 20 children and six adults at Sandy Hook Elementary School in Newtown, prompting Connecticut to ban certain semiautomatic rifles. In 2022, a shooter used an AR-15-style weapon to kill seven people at a Fourth of July parade in Highland Park, Illinois, leading Cook County to reaffirm its assault weapons ordinance.
These laws, and similar ones across the country, have been challenged by gun rights advocates who argue that semiautomatic rifles are protected by the Second Amendment. The gun lobby has leaned heavily on Bruen's text, which states that judges should not "assess the costs and benefits of firearms restrictions."
But there is a potential opening for gun control supporters. In United States v. Rahimi, the Court upheld a law disarming domestic abusers, signaling that the conservative majority is willing to relax the strict historical test when public safety is at stake. Now, Justice Brett Kavanaugh's concurrence in a recent birthright citizenship case, Trump v. Barbara, may offer a roadmap for upholding assault weapon bans.
In that concurrence, Kavanaugh argued that constitutional rights can be subject to exceptions when "new circumstances" arise that were "largely unknown or unanticipated" at the time of ratification. He cited significant illegal immigration and air travel as examples. Gun control advocates see a parallel: the proliferation of semiautomatic rifles, which are far more lethal than anything available in the 18th century, constitutes a new circumstance that warrants regulation.
"If 'new circumstances' can justify limits on birthright citizenship, the same logic should apply to firearms," said Steven Lubet, a constitutional law scholar. "The Second Amendment is not a super-right immune to the realities of modern society."
The Court's decision in these cases will have profound implications. A ruling that strikes down the bans could hinder efforts to address gun violence, while a ruling that upholds them could signal a shift in the Court's approach. As the justices prepare to hear arguments, the nation watches closely, hoping for a resolution that balances constitutional rights with public safety.
