By now you’ve heard about U.S. District Judge William Young’s decision to uphold Massachusetts’ ban on the most popular rifle in America, the AR-15.
You may not know the reason why.
Judge Young stated in his decision that the “AR-15’s present day popularity is not constitutionally material” and (here’s the kicker) “Justice Scalia would be proud” of this ruling.
In D.C. v. Heller, Supreme Court Justice Antonin Scalia held that the sorts of weapons protected by the Second Amendment are those in “common use.” State militias were formed, Scalia explained, by farmers and blacksmiths and merchants who mustered with the firearms they already possessed. Here’s how he put it:
The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. ‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’ State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980).
Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.
As, once again, the most popular rifle in America, we can safely assume that Scalia would have grouped AR-15s in the category of weapons protected by an originalist understanding (AKA the correct understanding) of the Second Amendment.
This line of reasoning seems to have escaped Judge Young, who said, “The AR-15’s present-day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted.”
The NRA-ILA pointed out another instance in which Scalia cited the popularity of the AR-platform rifle as evidence for its constitutional protections.
“It is outrageous that Judge Young is taking advantage of the fact that Justice Scalia is unable to refute such a claim,” they said in a statement.
“Justice Scalia’s position on the question of whether the AR-15 is protected by the Second Amendment is clear. In the 2015 Friedman v. City of Highland Park case, Justice Scalia joined a dissent which stated that the decision by millions of Americans to own AR-style rifles for lawful purposes ‘is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.’”
Unfortunately, Judge Young’s decision falls in line with similar district court decisions upholding bans on… wait for it… the most popular rifle in America.
Overturning these rulings would require a decision by the Supreme Court, which has been frustratingly hesitant to tackle the issue.