Originalism has been an imperfect but salutary method of constitutional interpretation, an effective means, in many cases, of restraining judicial power. Nevertheless, judges face temptations to abuse this power. Nowhere is originalism’s susceptibility to abuse more evident than in the U.S. Supreme Court’s Second Amendment jurisprudence. We are now at a watershed for that provision: at its June 29 conference, the Supreme Court consolidated and granted review to two nation-defining cases for its next term. Viramontes v. Cook County (from the Seventh Circuit), consolidated with Grant v. Higgins (from the Second Circuit), will be argued and decided by next June on the following issue, with vast implications for public safety: “Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.”
There is, of course, no secret about how the cases will come out: state-law bans on AR-15s, the most ubiquitous rifle platform in the country (Americans own an estimated 20 to 30 million of them), will be struck down as a violation of the Second Amendment. At that time, Americans will have a newly invented constitutional right to own an AR-15. The problem (for originalism, a crisis) is that the right will have no basis in the Constitution. The consequence is that the scope of democratic control, especially by states, over the regulation of firearms in the interest of public safety will continue to diminish dramatically. In other words, when it comes to the Second Amendment, federalism is a dead letter.
State bans on AR-15s have been working their way through federal courts for some time. In one high-profile case from 2025, the Fourth Circuit, in Snope v. Brown, upheld a Maryland law prohibiting possession of AR-15s. The losing party appealed the decision to the U.S. Supreme Court, but the Court denied certiorari. Justices Alito and Gorsuch would have granted certiorari, while Justice Kavanaugh issued a statement in response to, and Justice Clarence Thomas filed a dissenting opinion from, this denial that indicated that they both were eager to hear and reverse the case. Notably, Justice Kavanaugh’s statement was not technically a vote in favor of certiorari; otherwise, the Court would have had the four votes necessary to grant it. Instead, he identified comparable cases in the appellate pipeline that would be better suited to formulating new law.
For its own sake, the Court was shrewd in declining to hear Snope and waiting for Viramontes and Grant. The Snope opinion was written by Judge J. Harvie Wilkinson III, one of the most distinguished conservative federal appellate judges. He is also an outspoken and penetrating critic of the Court’s overreach on gun rights. In applying current Supreme Court precedent to Maryland’s law, Judge Wilkinson reached the judicially modest conclusion that
the Maryland law fits comfortably within our nation’s tradition of firearm regulation. It is but another example of the state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.
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This reasonable, coherent result was reached using the Supreme Court’s bewildering standard for evaluating the constitutionality of firearm regulations. In the 2022 case New York State Rifle & Pistol Ass’n., Inc. v. Bruen, the Court rejected the traditional standard for individual rights (balancing the state’s interest with the means chosen to protect that interest) and instead promulgated an the easily manipulated, results-driven standard: this was the “historical tradition” test, a standard that is utterly divorced from contemporary concerns about public safety and any consideration of the astounding lethality of contemporary firearms. For example, on December 14, 2012, twenty-year-old Adam Lanza, after killing his mother at home, walked into the Sandy Hook Elementary School in Connecticut with an AR-15. He fired 154 rounds in under five minutes, killing twenty first-grade students, six educators, and himself. These plain facts of mass murder will not (and under Bruen, must not) be a factor in the Court’s analysis of Connecticut’s ban on AR-15s in response to this staggering atrocity.
“We conclude,” wrote Judge Wilkinson in Snope, “that Bruen did not mandate an abandonment of our faith in self-governance, leave the balance struck throughout our history of firearms regulation behind.” Alas, Judge Wilkinson will undoubtedly be shown to have been far too optimistic about Bruen’s mandate. What is clear already is that self-government and balanced regulation are definitively gone from Second Amendment jurisprudence. The Court aggressively superintends the regulation of firearms in all its complex detail just as it used to oversee abortion regulations in the world it created by Roe v. Wade in 1973. Once it declared an unfettered right to abortion, the Court spent decades ruling on the constitutionality of state regulations like waiting periods, parental notification for minors, and restrictions on late-term abortions. Whatever a coalition of at least five votes agreed on the constitutionality of any regulation, that became the law of the land.
Similarly, with the misbegotten creation in District of Columbia v. Heller (2008) of an individual right to keep and bear arms, and its ahistorical incorporation against the states in McDonald v. City of Chicago (2010), the Court became the national review board for firearm regulations, now directed by nothing more than Bruen. For instance, last term in United States v. Hemani, marijuana smokers were granted Second Amendment protection. Two terms before that, in United States v. Rahimi, domestic violence perpetrators were found not to have such rights. These decisions are perfectly united in their policy whimsy. Like abortion regulations, whatever position can attract a majority of justices will prevail. Make no mistake: these cases are creating gun policy; the Court is supplanting legislative choices with its own preferences. These are not matters of constitutional interpretation.
The U.S. Court of Appeals for the Third Circuit has just offered a preview of the Court’s constitutionalization of AR-15 ownership. On July 17, 2026, in the en banc opinion in Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General of New Jersey, New Jersey’s AR-15 ban, along with the prohibition of large-capacity-ammunition magazines (anything beyond ten rounds), was struck down. Breaking with all other federal courts of appeal that have uniformly upheld the bans on AR-15s, the Third Circuit, in an opinion by President Biden appointee Judge Arianna Freeman, concluded: “Together, Heller and Bruen teach that bans or broad prohibitions on possessing or carrying of a class of weapons in common use for lawful purposes fail to find support in our Nation’s tradition of firearm regulation. That is so even when the regulations are passed with the intention of reducing gun violence.” Applying the same analysis, the Court also voided the restriction on magazine capacity.
As a matter of public policy, it is now impossible for a legislature to know what to do to thwart Adam Lanza’s inevitable homicidal successors. This decision, to use Judge Wilkinson’s phrasing from the Maryland case, is
a profound blow to the basic obligation of government to ensure the safety of the governed. Arms upon arms [are] permitted in what can only be described as a stampede toward the disablement of our democracy in these most dangerous of times.
Rather than serving as the jewel in the crown of originalism, Heller and its progeny represent instead the decay of this interpretive method into mere judicial willfulness. Indeed, it is a sobering realization that the exercise of power eventually distorts even a methodology that is designed to restrain power and is applied by the Court’s originalists. The promise of originalism is that it will eliminate the turbocharged discretion over policy exercised with such deleterious consequences for self-government by the Warren and Burger Courts. However, with the current Second Amendment jurisprudence, characterized as it is by its freewheeling policymaking, the Court’s originalists have incontestably embraced what Robert Bork called “the heresy of political judging.” The distressing truth is that Justice William Brennan, Jr., is the animating spirit of the Court’s gun cases.
For gun rights libertarians, the elimination of bans on AR-15s will be a real triumph. Americans will have a constitutional right to own an AR-15. Just as abortion rights activists brushed aside any concern for the common good to maintain unrestricted access to abortion, gun rights activists seek through litigation to dissolve all impediments to the purchase and use of firearms, irrespective of public safety. With these cases, they will have every right to celebrate when this major victory predictably comes. “But do not celebrate the Constitution,” to adapt Chief Justice John Roberts’s conclusion in his memorable dissent in the Obergefell same-sex marriage case in 2015. “It had nothing to do with it.” Originalism was supposed to show us the way out of this government-by-judiciary mess. With the current Second Amendment jurisprudence, its practitioners on the Court have utterly lost their way.
