American Rifleman Takes Swing at Why Semi-Auto Bans are Unconstitutional

Once upon a time, assault weapon bans were based on certain features that were present on certain rifles but not on so-called hunting guns. Folding or collapsible stocks, barrel shrouds, bayonet lugs, and the like were the line in the sand, and the law said you couldn’t have more than a couple of them. We all pointed out how none of those had a damn thing to do with how a gun functioned and were just cosmetic. Gun companies even started making guns that were compliant with the laws, all without changing how they worked in the least.

Unfortunately for us all, though, the anti-gunners listened.

Now, they’re targeting how a gun functions, versus what it looks like. They’re no longer worried about whether some hunting guns get caught up in the mix; they’re just determined to make it impossible to own an “evil black rifle” of any kind, and damn the collateral damage.

But, as Frank Miniter notes at American Rifleman, even these new attempts are unconstitutional.

Today, semi-automatic firearms are by far the most popular arms in rifles, pistols, and shotguns.

In Common Use
“In common use” is an important legal term that the U.S. Supreme Court established in Heller (2008). If a firearm, for example, is popularly owned (or in common use) by the American public, it is presumed to be considered to have constitutional protections under the Second Amendment.

AR-style rifles have not just been sold to American citizens for well over a half century, but citizens also own a lot of these rifles.

The National Shooting Sports Foundation (NSSF) uses data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) detailing manufacturing/export reports, import figures, and production numbers (subtracting exports and accounting for domestic sales) to estimate the number of these rifles that are in the possession of Americans. The NSSF’s most recent estimates indicate that citizens have around 32 million AR-style and similar rifles.

Production and sales of AR-type rifles have been the leading centerfire rifle category for years, even as overall rifle sales softened in 2024-2025. Online marketplaces and reviews, such as Gunbroker, consistently rank AR-15 variants as top sellers.

How can anyone not consider 32 million in common use?

I’m not a fan of the whole “in common use” thing, in part because it basically gives the go-ahead to ban new weapons technology before it can filter to the general public in sufficient quantities to meet that standard. Sure, AR-15s meet it, but rail guns or laser blasters that become the military norm sometime in the future won’t, at least not initially, and those could well be banned, and that ban be defended as constitutional because the weapons aren’t in common use.

But that’s a topic for another day.

Today, we’re talking about semi-automatic firearms, particularly rifles like the AR-type guns. These are the ones places like Virginia want to ban, and that they’re targeting the action itself as what makes an “assault weapon” an “assault weapon.”

And under the legal precedents of today, the “in common use” standard still applies, which means there’s no universe where this should be permissible. They are in common use by any objective metric you care to name. Yes, even if they’re not routinely used in home defense scenarios, they’re used at the gun ranges, in competition, and elsewhere, so you can’t even pretend they’re not being used and excuse this blatantly unconstitutional gun grab.

There’s no way this will survive judicial challenge without a complete overhaul of jurisprudence as it stands in 2026 with regard to gun rights. Unless something bizarre happens in the short term, everyone with half a brain knows the Supreme Court will never uphold it. The best hope such bans have is that they won’t want to take it on, but as it seems there’s a plan to take on the question at some point in the future, it’s idiotic to think this survives.

But it’s also not really about guns.

I mean, look at Virginia for a moment. How many anti-gun politicians also support opening cell doors and letting dangerous people back out on the streets? How many of them backed the moves that allowed the individual who gave the Old Dominion killer his gun back on the streets?

No, it’s about playing to the base, saying you did what you could, and when it’s overturned, well, that’s someone else’s problem. They’re playing games with people’s rights, all to position themselves better down the road.

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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