On September 2, 2026, Professor Akhil Reed Amar of Yale Law School filed an amicus brief in the Supreme Court’s consolidated AR-15 cases — Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566. The filing is captioned in support of neither party. Its substance is a different matter: Amar’s own doctrinal framework, applied to the record before the Court, leads him to conclude that AR-15 platform rifles are constitutionally protected and that the bans at issue should fall. That a scholar of Amar’s stature and politics reaches this conclusion is significant. How he gets there is worth explaining in full, because it is not the route this Court has taken, and I do not think it should take it now.
Why This Brief Lands Differently
Amar is the Sterling Professor of Law and Political Science at Yale University and Yale Law School, a distinguished chair he received in 2008, more than two decades after joining the Yale faculty in 1985 at age 26. He clerked for then-Judge Stephen Breyer on the U.S. Court of Appeals for the First Circuit in the mid-1980s, years before Breyer’s 1994 elevation to the Supreme Court. He is, by any honest account, one of the most cited constitutional scholars in the country, and he is not a movement conservative or a Second Amendment advocate. That is precisely why his brief matters. Every justice on this Court knows his name and his work. When a brief carrying that reputation tells the Court that presumptively law-abiding adults have a constitutional right to possess AR-15 platform rifles, it is far harder for the other side to wave away than a brief filed by an organization built to reach that conclusion. Briefs from familiar allies confirm what the Court already expects to hear. A brief from Akhil Reed Amar forces every chambers to actually read it.
The Fourteenth Amendment, Not the Second
Amar’s argument does not rest on the Second Amendment. He reads the Amendment as originally addressed to the federal government and rooted in a “collective, localist, and political” Revolutionary War-era conception of an armed citizenry organized into militias — a right, in his account, tied to the civic-republican tradition of James Harrington and Niccolò Machiavelli, and to voters who were, at the founding, “essentially voters with guns in their hands.” On his reading, that provision does not itself supply an individual right to keep and bear arms for self-defense.
Instead, Amar locates that individual right in the Fourteenth Amendment, ratified in 1868. He credits Representative John Bingham of Ohio and Senator Jacob Howard of Michigan with the Section One language that, in his telling, nationalized a new civil right to arms — a right forged to protect freed Black citizens and, by extension, all citizens, distinct from and broader than the militia-focused guarantee of 1791. He draws on Corfield v. Coryell, 6 F. Cas. 546 (1823), and Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), to build the case that this individualist, self-defense-oriented right is a creature of Reconstruction rather than of the Founding.
Applied to the AR-15 cases, Amar’s brief argues that AR-15 platform rifles are “facially proper weapons for lawful self-defense by presumptively law-abiding and non-threatening adults” and fall within what he calls the core gun right envisioned by the Fourteenth Amendment’s architects. He also notes that roughly four-fifths of the states, covering roughly two-thirds of the population, impose no serious restrictions on AR-15s — a fact he treats as independent evidence that AR-15 possession has become a fundamental feature of American life.
Where I Part Ways With Him
I respect the scholarship, and I welcome the conclusion. I do not accept the method. The Court settled this question in McDonald v. Chicago, 561 U.S. 742 (2010), where Justice Alito’s plurality opinion incorporated the right to keep and bear arms against the states through the Second Amendment, applied via the Due Process Clause, while Justice Thomas concurred separately on Privileges or Immunities Clause grounds. The plurality prevailed, and nothing since has disturbed it. Every enumerated right in the Bill of Rights carries the same substantive meaning whether it is invoked against the federal government or a state, and the best evidence of that meaning is the text the ratifiers actually adopted. The Second Amendment has never been repealed. Its operative clause — the right of the people to keep and bear arms — supplies the very citizenry from which a well-regulated militia is drawn; the two clauses work together, not against each other. Amar’s theory asks the Court to treat the Second Amendment as a dead letter and rebuild the right from Fourteenth Amendment materials. This Court is not going to do that.
The theory also has a cost the gun-rights community should not ignore. Amar’s brief cautions against extending his own reasoning to invalidate bans on large-capacity magazines, warning the Court against what he calls a “doubly dangerous invitation.” I disagree with that caution as much as I disagree with his framework. But the caution illustrates the danger of accepting his premise: an unenumerated right built by judicial construction can be narrowed by the same method that built it.
None of that diminishes what this brief accomplishes. Coming weeks after the Third Circuit’s en banc ruling in the Cheeseman/Association of New Jersey Rifle & Pistol Clubs litigation — authored by Judge Arianna Freeman and joined by Judge Tamika Montgomery-Reeves, both Biden appointees — Amar’s brief adds another voice from outside the movement to the same bottom line. The AR-15 cases will be decided on Second Amendment text and history. But a liberal Yale scholar has now told nine justices, in his own words, that the destination is correct.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.