Connecticut to Second Circuit: Please Ignore What SCOTUS Just Said About AR-15s

When the Supreme Court issued its unanimous ruling in Smith & Wesson v. Mexico that rejected Mexico’s attempt to pin the blame for cartel violence on the U.S. firearms industry, we noted with great interest that Justice Elena Kagan’s opinion referred to so-called assault weapons as “widely legal and purchased by ordinary consumers.” In fact, her opinion acknowledged that “the AR-15 is the most popular rifle in the country”. 

Connecticut Attorney General William Tong’s office is asking the Second Circuit to ignore that language as it considers whether to grant an injunction in the case of National Association of Gun Rights v. Lamont; a challenge to the state’s ban on AR-15s and other semi-automatic firearms in common use for lawful purposes, as well as prohibition on magazines that can hold more than ten rounds. 

U.S. District Court Judge Janet Bond Arterton upheld the ban in August, 2023, denying the injunctive relief that NAGR sought. In her opinion, Arterton claimed that the group was unlikely to prevail at trial because AR-15s and other semi-automatic long guns are not in common use for self-defense. That decision ignored that the Supreme Court has said that arms that are in common use for lawful purposes, not just self-defense, are prima facie protected by the Second Amendment. Arterton also claimed that, despite SCOTUS saying prohibited arms must be both “dangerous and unusual”, arms arbitrarily found by a judge to be “unusually dangerous” also fall beyond the Second Amendment’s protections. 

The wheels of justice grind slowly, and NAGR’s appeal of the denial wasn’t heard by the Second Circuit until last October. We’re still waiting on the Second Circuit’s decision about granting injunctive relief to the plaintiffs, and as of right now the case has yet to be scheduled for trial in district court. 

After SCOTUS’s decision in Smith & Wesson v. Mexico earlier this month, NAGR filed a supplemental letter with the Second Circuit highlighting what the Court said about the commonality of AR-15s and arguing: 

In D.C. v. Heller the Court held that the government may not ban firearms that are in common use by law abiding citizens. In Smith & Wesson Brands, the Court held that AR–15 rifles and AK–47 rifles are in common use by by ordinary citizens. 

Moreover, the Court held that the mere fact that criminals also use those firearms has no bearing on the analysis. Smith & Wesson Brands, Inc. is absolutely dispositive on the issue of whether AR–15 rifles and AK–47 rifles are protected by the Second Amendment. Because they are in common use by ordinary citizens, they are protected.

Not so, says Connectictut’s A.G. In her letter to the appellate court, Assistant Attorney General Janelle R. Medeiros argued that NAGR’s assertion that the Court has now officially decided that AR-15s are protected arms is “utterly incorrect.”

Mexico argued that because defendants made “design and marketing decisions” intended to stimulate cartels’ demand, including for “military-style assault weapons, with an eye toward cultivating the criminal market,” they were liable for “illegal gun sales.”  The Court considered these allegations insufficient partially because such weapons are not “illegal” as required for a predicate exception to the PLCAA, but “are both widely legal and bought by many ordinary consumers.” 

This has nothing to do with the PLCAA. The question here is whether Connecticut may prohibit assault weapons and large-capacity magazines, in part because they are “dangerous and unusual” weapons unprotected by the Second Amendment. As Defendants already demonstrated, Plaintiffs cannot show such weapons are protected by the Second Amendment. Nothing in Smith &Wesson Brands, Inc., changes that.

I have to agree with Medeiros that the language about AR-15s in Smith & Wesson v. Mexico is dicta and non-binding on future cases, but I don’t think it can simply be ignored by the Second Circuit judges either. The Court said what is said, and at the very least it’s a stark reminder of the lengths that Arterton went to twist and contort the Heller, Bruen, and Caetano decisions in order to uphold Connecticut’s gun ban. 

It’s impossible to reconcile the unanimous position of SCOTUS that AR-15s are “widely legal”, “purchased by ordinary consumers,” and “the most popular rifle in the country” with the idea that these same guns are dangerous and unusual. The Second Circuit has to fix Arterton’s “unusually dangerous” error, as well as her mistaken belief that only those arms in common use for self-defense are protected by the Second Amendment, but if they’re willing to do that (an open question, to be sure) then I don’t believe the panel could do anything other than conclude that Connecticut’s ban is unconstitutional. 

Again, it’s far from certain that’s what the Second Circuit will do here, but NAGR was right to bring up Kagan’s decision in Smith & Wesson v Mexico. It may not be entirely dispositive, but it certainly doesn’t help Connecticut’s case, and is a very strong hint that the Court believes these arms are, in fact, protected by the Second Amendment. 

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