Supreme Court AR-15 Brief Defends Militia Arms—Then Abandons Machine Guns
A new Supreme Court brief makes one of the strongest originalist arguments for protecting the AR-15: Its value as a militia arm is precisely why it falls within the Second Amendment. Unfortunately, the brief then undercuts its own argument by treating machine guns as constitutionally disposable.
Attorney G. Antaeus B. Edelsohn submitted the 48-page amicus brief on August 27 in Viramontes v. Cook County and Grant v. Higgins, the consolidated cases in which the Supreme Court will decide whether the Second and Fourteenth Amendments protect AR-15-platform and similar semiautomatic rifles.
The brief correctly attacks the central deception behind Cook County and Connecticut’s defense of their bans. Those governments argue that AR-15s are not protected “arms” because they are supposedly more useful for offensive combat than personal self-defense.
Edelsohn responds that the governments have the Second Amendment backward. Its prefatory clause expressly identifies a well-regulated militia as necessary to the security of a free state. An arm does not lose protection because it is useful for militia service. That usefulness is an affirmative reason for protecting it.
That is the right argument. It also leads somewhere the brief appears unwilling to go.
The Machine-Gun Concession Undercuts the Militia Argument
After explaining why United States v. Miller protects arms with a reasonable relationship to militia efficiency, the brief declares that the “general consensus” is that automatic weapons are not protected. It then argues that semiautomatic rifles fall within the Second Amendment because they fire one round per trigger pull and are therefore legally and mechanically distinguishable from machine guns.
That may be a convenient litigation strategy, but it is not a faithful application of the constitutional principle Edelsohn has just defended.
The Second Amendment protects “arms.” Its plain text contains no semiautomatic-only limitation, no cyclic-rate test, and no exception for a bearable arm because politicians consider it too effective. If militia suitability strengthens constitutional protection, then a rifle does not suddenly fall outside the right when its selector moves from semiautomatic to automatic fire.
Miller did not ask whether a firearm was particularly comforting to legislators. It asked whether the arm had a reasonable relationship to the preservation or efficiency of a well-regulated militia, was part of ordinary military equipment, or could contribute to the common defense. Congress’s own Constitution Annotated discussion of Miller recognizes that militia relationship as the center of the decision.
Machine guns plainly satisfy that test.
The Rough Riders Prove the Point
The most damaging evidence against the brief’s compromise appears in the brief itself.
While describing America’s reliance on armed volunteers, Edelsohn recounts that Theodore Roosevelt’s Rough Riders took two Colt-Browning Model 1895 machine guns to Cuba. The guns were privately supplied to the volunteer regiment, with future Sergeant William Tiffany among the men associated with acquiring and operating them.
These were not government-issued rifles handed to members of a modern standing army. They were privately obtained automatic arms brought into volunteer military service. Roosevelt referred to the “Colt automatic guns” in his own account, and the weapons became famous as the Rough Riders’ “potato diggers.”
That is nearly a perfect historical example of the Second Amendment’s militia purpose in practice: Citizens organized for the common defense and supplied militarily useful arms outside the regular Army’s standard issue system.
It makes no originalist sense to cite that history in defense of militia-capable rifles, then insist that the constitutional protection ends immediately before reaching the automatic arms those volunteers actually carried.
Heller’s Machine-Gun Dicta Is Not the Second Amendment
The obstacle is language in District of Columbia v. Heller suggesting that “M-16 rifles and the like” may be banned. Edelsohn leans on that passage, understandably recognizing how lower courts have used it.
But Heller was a challenge to Washington, D.C.’s handgun ban—not a challenge to the National Firearms Act or the federal machine-gun restrictions. The Court did not receive a developed record on civilian machine-gun ownership or decide the constitutionality of 18 U.S.C. § 922(o). The M-16 sentence was dicta, not the holding of the case. The actual holding struck down a categorical ban on a class of bearable arms.
AmmoLand has warned about this exact fault line before. In examining whether the Supreme Court’s “common use” test is truly originalist, I described the semiautomatic-versus-machine-gun distinction as a powerful and strategically conservative way to defeat AR-15 bans without forcing the Court to revisit Heller’s M-16 language. But a strategy can be effective in one case and still surrender the larger constitutional principle.
As AmmoLand reported in United States v. Bridges, the Sixth Circuit acknowledged that machine guns are bearable “arms” covered by the Second Amendment’s plain text, then upheld the ban by declaring them dangerous and unusual. Once courts accept the government’s semiautomatic-versus-automatic boundary, they can acknowledge that machine guns are arms and still deny citizens any meaningful protection.
Why the Compromise May Appeal to the Justices
The machine-gun concession is probably not accidental. It gives the Supreme Court a narrow path to strike down AR-15 bans without deciding anything about the National Firearms Act or the Hughes Amendment.
That path could matter to justices who are skeptical of broad Second Amendment rulings or especially unwilling to disturb federal machine-gun restrictions. The Court’s three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—may still be unlikely votes against an AR-15 ban, but the brief offers them a limiting principle: Protect semiautomatic rifles in common use while leaving machine guns untouched.
The more important audience may be Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Kavanaugh has already supplied almost the exact framework the brief invites the Court to adopt. As a D.C. Circuit judge, he concluded that Washington’s semiautomatic-rifle ban violated Heller while also stating that machine guns had traditionally been banned and could continue to be banned. In his 2025 statement in Snope v. Brown, Kavanaugh emphasized that Americans possess tens of millions of AR-15s and predicted the Court would address the issue soon.
For a justice occupying that position, Edelsohn’s brief is attractive. It says the Court can protect the AR-15 as a common semiautomatic militia rifle while assuring the country that the decision will not reopen the machine-gun registry. Roberts joined the Heller opinion containing the M-16 language, while Barrett has shown in firearms cases that she will scrutinize statutory text without necessarily embracing every broader constitutional claim. A tightly confined ruling may be easier for those justices to join than one questioning the entire federal machine-gun regime.
There is, however, a serious cost to this strategy.
A Supreme Court majority could take the brief’s compromise and convert Heller’s machine-gun dicta into a much firmer constitutional boundary. Gun owners might win protection for AR-15s while receiving a new precedent declaring automatic fire categorically outside the Second Amendment. That would make future challenges to the Hughes Amendment considerably harder.
Nor can the government manufacture its own “unusualness.” The Hughes Amendment generally bars civilian possession of machine guns made after May 19, 1986, while grandfathering previously registered arms under specified conditions. Federal law therefore froze the civilian supply nearly four decades ago.
The government should not be allowed to prohibit new production, make lawful examples artificially scarce and expensive, and then point to that government-created scarcity as proof that the arms are “unusual.” AmmoLand’s history of the Hughes Amendment details how a disputed 1986 voice vote froze the transferable supply and transformed once-affordable automatic arms into five-figure collectibles. Congress manufactured the rarity that courts now invoke to sustain the prohibition.
Allowing that circular argument would give Congress a roadmap for destroying any enumerated right: suppress its exercise long enough and then cite the suppression as constitutional justification.
Protect the Principle, Not Just One Rifle
Edelsohn deserves credit for rejecting the gun-control claim that the AR-15 is too military to be protected. His discussion of the Militia Acts, civilian marksmanship programs, private arms and America’s volunteer tradition gives the Supreme Court ample reason to reject Cook County and Connecticut’s bans.
But gun owners should not have to surrender one protected class of bearable arms to save another. The Constitution does not say the people may keep only those firearms anti-gun judges consider sufficiently weak, sporting or politically acceptable.
The Supreme Court should hold that AR-15s are protected militia arms. It should not get there by repeating the same ahistorical compromise that allowed the federal government to price, register, and eventually close the civilian market for newly manufactured machine guns.
The Second Amendment protects militia arms—not merely the subset of militia arms the government has not yet succeeded in banning.
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.