A Right to an AR-15? Look to the Courts, Not Congress

Salesman Ryan Martinez clears the chamber of an AR-15 at the Ready Gunner gun store in Provo, Utah, on June 21. Reuters

And after 25 hours, they rested. For more than a day this week, Democrats in the House of Representatives staged a sit-in on the floor of the chamber, singing "We Shall Overcome" and demanding the chance to vote on measures to curtail firearms sales, including denying guns to those on the government's "no-fly" list.

They failed, and the Republican-controlled House adjourned for the July 4 holiday without a vote. The result was only slightly less disappointing for Democrats than what happened in the Senate, where similar measures came up for a vote after a dramatic filibuster by gun control advocates earlier in the week, only to go down in defeat or be left on life support.

After the mass shooting at a gay nightclub in Orlando, Florida, on June 12, Congress has again been at the center of the action on gun control. But the big questions about how Americans buy and sell guns—including the controversial AR-15 rifle—are likely to be settled in the courts rather than in the still-paralyzed Congress. And at the center of any judicial fight over guns is one man who isn't even alive: Supreme Court Justice Antonin Scalia.

When he died unexpectedly this past winter at a Texas ranch, the 79-year-old Ronald Reagan appointee was, of course, a hero among conservatives. Scalia was best-known in recent years for his blistering dissents in the liberal rulings that guaranteed same-sex marriage across the country, as well as those upholding Obamacare. But the pugilistic jurist was also famous, and infamous, for his ruling on gun control. In 2008, Scalia and a majority of the court infuriated liberals and settled the question, at least for now, about whether a much-debated phrase from the Second Amendment, "well regulated militia," means that citizens have a right to a gun only if they are part of such a group or whether they have an individual right to buy and own a gun. Scalia's ruling firmly said it is an individual right.

The case that went to the high court involved District of Columbia courthouse guard Dick Heller, who wanted to buy a gun to keep at home but ran afoul of Washington, D.C.'s sweeping handgun ban. Scalia and the court's majority struck down that ban and ruled that the Constitution entitled Heller to own a gun and use it at home for self-protection.

The District of Columbia v. Heller ruling still looms large today, as much for what it left unsaid. Consider semi-automatic weapons like the AR-15 rifle, which laid waste Sandy Hook Elementary School in Newtown, Connecticut, in 2012, as well as unleashing carnage in San Bernardino, California, last December. In Orlando, the gunman used a Sig Sauer MCX rifle, which is aesthetically similar to the AR-15 and just as deadly. Can sales of this kind of weapon be banned under Heller?

It's still not clear. In June, gun control advocates were relieved when the Supreme Court refused to take a case upholding Connecticut's ban on such weapons. The court also punted in December after lower courts upheld a similar ban in Highland Park, Illinois. That doesn't mean the Supreme Court is giving its Black Robe Seal of Approval to these gun control bans, only that it's put off ruling on them to another day—something the court often does when a consensus among the justices is still forming. If the court takes the cases up, and at some point it likely will, its decision will come back to Scalia's famous Heller opinion.

Despite his more than deserved conservative reputation, Scalia left some gifts for liberals in the Heller ruling. While enshrining an individual's right to keep and bear arms, Scalia noted that he wasn't striking down prohibitions on felons or the mentally ill from carrying firearms or bringing firearms into "sensitive places" like schools.

The late justice also more generally offered the belief that, "like most rights, the right secured by the Second Amendment is not unlimited." It is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." For instance, Scalia said concealment laws were permitted at the time of the Constitution's ratification and should be permitted today. The opinion also upheld bans on selling M-16 rifles or sawed-off shotguns or machine guns.

The biggest issues that Scalia left future courts to grapple with is what constitutes a protected weapon. "The traditional militia was formed from a pool of men bringing arms 'in common use at the time' for lawful purposes like self-defense," Scalia writes. From there, he ruled that guns that are in common use at any time—muskets back in the Alexander Hamilton days, handguns in our Hamilton days—are presumed to be legal.

What Scalia didn't say in the Heller opinion—and what the court has deferred ruling on—is whether an AR-15-style gun fits the bill for a common weapon. On one hand, it's certainly not rare. Justice Clarence Thomas, joined by Scalia, made this point when he lamented the court's not taking the Illinois case back in December. "Roughly five million Americans own AR-style semi-automatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting," Thomas wrote. "Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons."

But none of the other court's conservatives—Justices John Roberts, Anthony Kennedy or Samuel Alito—signed on, which means there aren't four conservative justices ready to make owning a AR-15 a constitutional right, or to declare definitively that it's not. Two of the most respected appeals court judges in the country— Frank Easterbrook, a conservative Reagan appointee, and José Cabranes, a Clinton pick—upheld the bans, saying Heller gave legislators room to ban some kinds of weapons, even if they're popular, as long as they don't ban a whole class. (The AR-15 is just one type of semi-automatic weapon.)

In other words, there is no last word when it comes to guns. It's one more reason why it's important to pay the most attention to the courts and not to our hamstrung Congress. The former is what really counts.