Some arguments succeed by being true. Some attempt to succeed by confusing the debate and substituting misdirection for clarity. And some attempt to succeed merely by dogged persistence, refusing to die or go away, no matter how often ignored or refuted. A staple of the last category is the simple-minded insistence that the Second Amendment’s protection of firearms is limited to 18th Century gun designs.
It didn’t work in District of Columbia v. Heller (2008), nor in any other case to receive U.S. Supreme Court review, but that hasn’t stopped its small band of adherents from keeping the idea alive. No doubt they envision the day when a reconstituted High Court will be ready to reverse or nullify Heller’s individual rights holding and will happily accept any pretense, no matter how transparent, on which to do it.
On September 15, the well-read SCOTUSblog published a rundown of upcoming Supreme Court cases by University of California Law San Francisco Professor Rory Little that included a woeful passage on Viramontes v. Cook County. At issue in the case is whether Cook County, Ill., and Connecticut’s bans on commonly-owned semi-automatic firearms like the AR-15 violate the Second Amendment.
In the Heller decision, Justice Antonin Scalia’s opinion made clear that the Second Amendment protects an individual right to keep and bear arms “‘in common use at the time’ for lawful purposes.” According to Little, “in common use at the time,” as it appears in part III of the decision, should be read to only protect the right to keep and bear arms in common use at the time of the founding. Thus, the professor contends, governments should have the power to ban modern commonly-owned semi-automatic firearms such as the AR-15.
Consider if this thesis is defensible in light of the following paragraph from the Heller decision,
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
On September 23, George Washington University Law Professor Jonathan Turley wrote a piece that does an admirable job of dismantling Little’s argument, citing the above passage from Heller as well as subsequent actions taken by the Court.
For instance, Little’s argument is impossible to square with the Court’s per curiam decision in Caetano v. Massachusetts (2016). In this case, the Court summarily overturned a decision of the Supreme Judicial Court of Massachusetts finding stun guns unprotected by the Second Amendment, in part because it depended on this exact fallacy. Obviously, electronic stun guns did not exist at the time of the founding, but an 8-0 decision of the U.S. Supreme Court made clear that did resolve their status as Second Amendment arms.
The justices stated:
The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment's enactment.”… This is inconsistent with Heller 's clear statement that the Second Amendment “extends ... to ... arms ... that were not in existence at the time of the founding.”
Following Turley’s post, Little doubled down on his dubious theory in a piece ambitiously titled, “The Second Amendment and AR-15s: an unexplained betrayal of originalism?” The professor spends much of the piece attempting to divine the arcane mysteries allegedly hidden in the structure of Justice Scalia’s landmark Second Amendment opinion. Little contends his unique gift of clairvoyance is so profound that he alone is able to divine the secret thoughts that lie behind Scalia’s seemingly unmistakable prose:
Affirming a ban on AR-15 rifles, which as the U.S. solicitor general and the Second Amendment Foundation acknowledge represent new 20th century technology that explains their now-popular use, would honor Scalia’s memory and his careful constitutional consideration, not “reverse” it.
Unfortunately for Professor Little, this collides with reality and with sentiments Scalia unambiguously endorsed as to how Heller would apply to this very question. In 2015, Justice Scalia joined Justice Clarence Thomas in a dissent from the denial of certiorari in Friedman v. Highland Park, a case concerning a local ban on commonly-owned semi-automatic firearms such as the AR-15.
In the Justice Scalia-endorsed dissent, Justice Thomas lamented that despite the Supreme Court’s holdings in Heller and McDonald v. Chicago, “several Courts of Appeals… have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes,” which he made clear was “noncompliance with our Second Amendment precedents.”
Justice Thomas went on to explain,
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
The 2026 National Firearms Survey now puts the number of comparable semi-automatic rifles owned by Americans at around 60 million. The research paper also noted that “about one out of every ten adults in the U.S. owns an AR-15 or similarly styled rifle.”
While Professor Little at least shows some modesty in admitting he is not an expert on firearms, it is also worth noting that the design of the revolver Dick Heller meant to register in Washington, D.C., would not have been in common use in America as of 1791, the year the Second Amendment was ratified. This, to say the least, did not trouble the Court.
In his second piece, Little wrote of his theory, “I continue to wonder why this is not a centerpiece of the Viramontes debate.”
Presumably, the answer is because the parties who are actually litigating the case want to be taken seriously.
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