Forty States Is Not the Constitution

The Solicitor General of the United States told the Supreme Court this week that Cook County’s AR-15 ban violates the Second Amendment. That sentence is true. It is also the smallest true sentence the Department of Justice was willing to write.

Brief for the United States as Amicus Curiae in Support of Petitioners, Viramontes v. Cook County and Grant v. Higgins, Nos. 25-238 & 25-566 (Sept. 4, 2026). Executive amicus. Not a holding of the Court. Useful. Incomplete.

They will get applause for saying the rifle is “unquestionably in common use among law-abiding citizens for lawful purposes,” lawful in forty States, and therefore not ban-able. They should. The ban is unconstitutional.

They will not get a pass for the theory they used to get there.

What They Would Not Say

The United States did not start with the text.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

That is the whole amendment. It does not say: the right exists where Congress and a significant majority of the States have long declined to ban the arm. It does not say: count the statutes, and if forty legislatures have not yet gotten around to the confiscation, the people may keep the rifle. That is the Department’s hedge. It is how a brief can help Viramontes without lighting the rest of Title 18 on fire.

It is also backwards.

The Constitution binds the legislatures. The legislatures do not get to define the right by the company they keep. If they did, a coordinated fashion in ten more Statehouses would repeal the Amendment without a convention. “Common use,” in the Department’s mouth, is at risk of becoming a headcount of governments. The Founders were not taking attendance in State legislatures. They were arming the people against them.

What the Founders Actually Said

James Madison, The Federalist No. 46 (Jan. 29, 1788):

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

That is not a popularity contest among statutes. That is a people the government is afraid to trust — and a Constitution written so that fear would run the other direction.

Patrick Henry, Virginia Ratifying Convention, June 14, 1788:

The great object is, that every man be armed. … Everyone who is able may have a gun.

Not: every man, provided a significant majority of States still license the pattern. Not: every man, provided the Attorney General can still defend the machinegun statute on the next page. Every man who is able.

Tench Coxe, writing as “A Pennsylvanian,” Pennsylvania Gazette, February 20, 1788:

Their swords, and every other terrible implement of the soldier, are the birthright of an American. … The unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people.

The Department spent pages insisting there is no founding-era distinction between “militaristic” arms and civilian arms. Good. Then say the rest of Coxe’s sentence. The terrible implement is the point. The militia was not issued a sporting-purposes affidavit. It showed up with what the people owned or built.

George Mason, same Virginia convention: the militia is “the whole people, except a few public officers.” The security of a free State is not a hobby the Court balances against Cook County’s feelings about black rifles. It is why the right exists.

“Common Use” Is Not a Census the State May Rig

Heller asked whether the arm is typically possessed by law-abiding people for lawful purposes. That is revealed preference. It is the people wanting the arm and keeping it.

The Department almost said that, then flinched. It offered a second metric: has Congress, and have most States, “long banned or severely restricted” the class? If they have not, the ban fails. If they have — the brief is careful not to finish the sentence, because the sentence is the machinegun statute, the short-barreled rifle tax, and every preemptive ban a legislature can pass before the first civilian shipment lands.

That is the circularity Heller was written to kill. Ban it early. Point to the empty gun shops. Call it unusual. The Department admits the trick exists and offers a different analysis for new arms. Fine. The honest analysis is simpler: the people’s choice is the test. A ban cannot manufacture rarity and then hide behind it. If the people want it, buy it, or build it, the Amendment follows the people — not the factory list, and not the session laws.

Sotomayor, dissenting in Garland v. Cargill, 602 U.S. 406, 430 (2024), called AR-platform rifles “commonly available.” The Department put that sentence in the common-use pile. She did not hold that the rifle is protected. She described the market. The market exists because the people want the rifle. “Available” is not “in common use.” It is the evidence that the use is possible. Do not put Heller’s words in her mouth. Do not pretend the Solicitor General found a fifth vote in a bump-stock dissent. Use the sentence for what it is: even the dissenters treat these rifles as ordinary civilian arms.

Lawful Purpose Was Never Only the Bedroom Closet

The brief lists self-defense, defense of the nation, defense of the community, training, and hunting. Then it says the quiet part as a policy line:

Because handguns and rifles are both in common use, Americans have a right to decide for themselves which to use for self-defense and other lawful purposes.

Yes. Write it in ink. The people choose the arm. The County does not.

What the brief still will not write is why “defense of the nation” is in the Amendment at all. The militia clause is not decoration. Madison was not drafting a recreational shooting statute. The Founders would not have been merely “astonished,” as the Department puts it, that a legislature might ban a common arm because it can be used for military purposes. They would have recognized the ban as the thing they had just fought.

Wristwatches and duct tape were not the birthright. The rifle was.

The Brief We Needed, and the Brief We Got

Give the Department this: it told the Court the AR-15 is an arm, it is in common use, and Cook County may not ban it. It rejected the “weapons of war” cartoon. It cited the English survey, NSSF production numbers, Smith & Wesson, Thomas in Harrel, Kavanaugh in Snope. It filed on the side of the people in a case that will set the national rule.

Give it this too: it is still a brief written by lawyers who must defend the rest of the code tomorrow morning. So the right shrinks to a forty-State comfort zone. So the machinegun page stays. So “the people” becomes a statistic that governments help compile.

The Constitution does not require forty States. It requires that the right of the people not be infringed.

The Morning After the Ban

Rocky Mountain Gun Owners filed the brief the Department would not write. Brief Amicus Curiae for Rocky Mountain Gun Owners in Support of Petitioners, Viramontes and Grant, Nos. 25-238 & 25-566 (Sept. 4, 2026) (D. Sean Nation, Michael W. Melito).

It is not a census of friendly States. It is a warning about the next statute.

A jurisdiction may not “invent[] a substitute burden that again makes ordinary exercise of the right exceptional.” Direct prohibition, feature test, or stacked paperwork — the constitutional fact does not change because the County renamed the offense.

Colorado is the exhibit. Colo. Rev. Stat. § 18-12-116 puts a categorical ban on specified semiautomatic firearms, then sells the exception as training, an eligibility card, and recurring certification. That is not a background check. That is a permission slip. As RMGO put it: Colorado “did not adopt a narrow procedure limited to promptly verifying an objective, historically grounded disqualification. It enacted a categorical ban and made government-approved education and licensing the price of an exception.”

Bruen put the historical burden on the government. RMGO tells the lower courts to keep it there. Jim Crow disarmament statutes, surety laws aimed at the disfavored, and “character” discretion are not a tradition of regulation. They are a tradition of abuse. “The government cannot abstract those laws into a neutral principle of discretionary disarmament while discarding the very rationale that produced them.”

Then the sentence that should be in the opinion:

When a decision leaves room to relabel a ban as licensing, convert discretion into multifactor “character” review, or make a license practically useless through place restrictions, jurisdictions will occupy that room.

Yes. They will. Cook County did not invent the pattern. New York, Hawaii, Maryland, New Jersey, Illinois, California, and Massachusetts are already living in that room. A holding that the rifle is an arm, and then silence about the permit that replaces the ban, is a holding the County can survive.

The Department asked the Court to count States. RMGO asked the Court to close the door. Only one of those requests is the Founding.

Want it. Buy it. Build it. And do not let them rent it back to you as a license.