Despite the warning “we’ll sue” to protect the very commonly owned AR-type rifles—often called “America’s rifle”—issued by both the NRA and the U.S. Department of Justice, Virginia Gov. Abigail Spanberger (D) signed Senate Bill 749, which will make it illegal to sell, purchase, import, manufacture or transfer this legislation’s definition of “assault firearm” starting on July 1.
The NRA, along with the Firearms Policy Coalition, the Second Amendment Foundation and two NRA members, immediately filed a lawsuit challenging this unconstitutional ban of commonly owned firearms. The case, McDonald v. Katz, was filed in the U.S. District Court for the Eastern District of Virginia.
The NRA also filed a similar lawsuit, Santolla v. Katz, in the Circuit Court of Washington County, Virginia. This state case adds a claim under Article 1, Section 13 of the Virginia Constitution, the state’s right to arms provision.
Referencing the Virginia ban, U.S. assistant attorney general for the U.S. Department of Justice’s Civil Rights Division, Harmeet Dhillon, quickly posted on X: “See you in court.”
This should not be a difficult case for any court that is not guided by political activism, as the constitutionality of this ban—and of other state bans on these commonly owned firearms—has already been foreclosed by the reasoning the U.S. Supreme Court used to decide other cases.
In District of Columbia v. Heller (2008), the high court ruled that the Second Amendment protects the individual right to possess firearms that are in common use by law-abiding citizens. According to the National Shooting Sports Foundation, the trade association for firearms manufacturers, citizens already own over 32 million AR-type rifles.
Still, anti-Second Amendment legislators and Left-leaning judges have found novel ways to work against the clear constitutional protection that exists for these semi-automatic firearms before; for example, in a challenge to D.C.’s semi-automatic rifle ban in Heller II back in 2011, the D.C. Circuit held that, while AR-type rifles are in common use, a ban was valid under a contrived “two-part test” that allowed courts to balance away rights. Indeed, at the time, then-Circuit Judge Brett Kavanaugh, now an Associate Justice of the U.S. Supreme Court, argued that the ban violated the Second Amendment and that the majority decision upholding the ban employed the wrong standard of review.
The NRA-backed case New York State Rifle and Pistol Association v. Bruen (2022) explicitly condemned that two-part test. In Bruen, the U.S. Supreme Court reiterated Heller’s holding that text and history should be the standard for determining the constitutionality of laws that impact Second Amendment rights and determined that the two-part test was “one step too many.” Also, the Court found that the Second Amendment presumptively protects “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The history is clear. From the beginning, Americans had the right to be armed, and repeating firearms were hardly unknown to the Founders. Guns such as an eight-shot musket that Joseph Belton exhibited for the Continental Congress in 1777, as well as the 22-round air rifle Lewis and Clark took on their famous expedition in 1804, were just two examples.
It is true that firearms technology has changed—this is also true of technology we use today, for example, to engage in First Amendment-protected speech. But the argument that the Founders were not aware that things, including guns, can be improved upon is absurd.
“From the beginning, the AR-15 has been a civilian rifle. In 1963, the last year Leave It to Beaver was on television, the predecessor agency of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) examined Colt’s ‘AR-15 Sports Version Rifle’ and found it to be a semi-automatic and not in the machine gun category,” wrote the Second Amendment attorney and author of America’s Rifle, Stephen Halbrook for the NRA. “It was then introduced to the public as the AR-15 Sporter in 1964, the same year the first M16s were delivered to the Air Force.”
The AR-type rifle wasn’t even that novel an idea, as semi-automatics had already been popular in America for over a half century by then—it is a technology that is well over a century old and that has been popular with American citizens since the early 20th century.
This is a platform that is so popular for sport and self-defense that the NRA is holding and promoting America’s Rifle Challenge competitions in many parts of this great nation. The courts, one would hope, should make short work of this ban in Virginia, and the U.S. Supreme Court should take up a case to enforce Heller and Bruen and thereby strike down bans in other states, but that is far from certain in the Fourth Circuit. Despite the clear unconstitutionality of this and other bans, this case will take time and resources to litigate and might need to be appealed. America, more than ever, needs its freedom-loving patriots to stay involved!
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