The Supreme Court will hear Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, on December 2, and the case for the AR-15 turns on one word. The tradition that permits government to ban “dangerous and unusual” arms reaches only arms that are both. An arm in common use is not unusual, and the Court has told us how that is shown. There is a third route to the same conclusion, one that borrows its method from the only other place the Bill of Rights uses the word: the Eighth Amendment’s ban on “cruel and unusual punishments.”
One Word, Two Amendments
The Eighth Amendment forbids punishments that are cruel and unusual. The Second Amendment, as District of Columbia v. Heller, 554 U.S. 570 (2008), reads it, leaves government free to prohibit arms that are dangerous and unusual. The phrases do different work, but “unusual” asks the same question in each: how far a practice departs from what the American people actually do.
The usual proof is numerical. On the survey evidence, between 40 million and 60 million AR-15-style rifles are in American hands, owned by tens of millions of law-abiding citizens. That evidence should be enough, but the Eighth Amendment cases show what else the Court can measure.
How the Court Counts Cruelty
In Stanford v. Kentucky, 492 U.S. 361 (1989), Justice Scalia asked whether executing offenders who were sixteen or seventeen at the time of their crimes was cruel and unusual. The Court later overruled Stanford’s holding in Roper v. Simmons, 543 U.S. 551 (2005). I do not cite it for the death penalty. I cite it because both opinions began with the same method: they counted States. Roper itself started from a tally of the 30 States that prohibited the juvenile death penalty.
Justice Scalia explained the method in his opinion for the Court:
”‘[F]irst’ among the ‘objective indicia that reflect the public attitude toward a given sanction’ are statutes passed by society’s elected representatives.”
He rejected the alternative of judicial intuition, writing that the Court has “looked not to our own conceptions of decency, but to those of modern American society as a whole.” And he applied the count directly: of the 37 States whose laws permitted capital punishment, 15 declined to impose it upon sixteen-year-old offenders and 12 declined to impose it on seventeen-year-olds. That was not enough to establish a consensus against the practice.
The same logic condemns punishments. Justice Scalia recalled that in striking down the death penalty for the rape of an adult woman, the Court “stressed that Georgia was the sole jurisdiction that authorized such a punishment.” Coker v. Georgia, 433 U.S. 584, 595–596 (1977). One State out of fifty made the punishment unusual. The same reasoning would condemn the iron maiden or the stocks, which no State permits.
The Outlier Principle
Heller applied that discipline to arms. As I read it, the Court did not rest on surveys or expert testimony about how many handguns Americans own. It recognized that handguns are the people’s chosen weapon of self-defense and stressed how few laws in the Nation’s history had ever banned them.
Caetano v. Massachusetts, 577 U.S. 411 (2016), shows the counting method at work. The Court vacated the judgment in a per curiam opinion, and Justice Alito, joined by Justice Thomas, concurred in the judgment and wrote:
“While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country.”
He noted that citizens may lawfully possess them in 45 States. Massachusetts was among a small minority of jurisdictions that prohibited them, and Justice Alito counted that isolation against the ban. The Court does not look kindly on outlier legal rules, a point the Solicitor General’s brief develops under the heading of traditional legislative practice.
Apply the Count to the AR-15
The States that ban AR-15-style rifles are the outliers. Most of the country permits these rifles, and federal law does not prohibit them. A few Democratic-controlled legislatures have chosen to restrict them, and those enactments are the deviation from the American norm. If an arm that most States allow can be called “unusual,” the word has lost its meaning.
I want to be precise about the limits of this argument. The analogy to the Eighth Amendment is my own. The Solicitor General relies on common use and legislative practice drawn from the Second Amendment cases, and I do not suggest that the government has invoked Stanford. I also do not embrace the Court’s death-penalty jurisprudence. I take only the method: when the question is whether something is unusual, the Court looks first to what elected representatives across the country have actually enacted.
That method gives the challengers three independent routes to the same conclusion. The first is the number of rifles, the second the number of owners, and the third the small number of States that have banned them. Together they leave the Illinois and Connecticut laws without a foothold. My forecast is that the Court will say so in June 2027.
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.