Supreme Court Brief Makes the Case Against Banning Militia Arms
Illinois’ and Connecticut’s so-called “assault weapons” bans are contradicted by history and law, an amicus brief filed in the Supreme Court Friday by Attorneys Kenneth T. Cuccinelli and Earl N. “Trey” Mayfield argued. The combined cases addressed in the brief are Viramontes v. Cook County and Grant v. Higgins, both challenges to bans on AR-15 and similar semiautomatic rifles.
Filed on behalf of “eleven nonprofit organizations and seven individuals,” the brief addresses “whether the rifles and magazines most suitable for militia service — and therefore… most clearly protected by the Second Amendment — may be banned on precisely that account.”
“The Second Amendment’s militia clause marks the core of the right — arms suitable for the common defense, kept by ordinary citizens in ordinary civilian life,” the brief declares. “The decisions below each offend that guarantee, though by different routes.
“The Seventh Circuit held the AR-15 too much like a military rifle to be an ‘Arm’ within the Amendment’s protection at all — treating suitability for militia service itself as a ground for prohibition,” the brief explains. “The Second Circuit reached the same result by recasting the historical ‘dangerous and unusual’ exception as a license to ban arms whose military-derived features it deems ‘unusually dangerous,’ notwithstanding their common use.”
“Nor may ‘unusual’ be manufactured as a consequence of governmental prohibition,” the brief elaborates, addressing a concern that “legality” could be solely determined by commercial popularity. “Were it otherwise, government could ban an arm into unusualness and then cite the unusualness it created as the justification…”
“Arms that bear a reasonable relationship to the preservation or efficiency of a well regulated militia… lie at the core of the Second Amendment’s protection, and a State may not prohibit them,” the brief concludes. “A prohibition imposed because those arms are useful for the common defense is contrary to the Second Amendment’s text, purpose, and history.”
The arguments presented confirm that ignoring the core militia purpose, something many briefs have either passed over or not fully explored, makes the Second Amendment vulnerable to infringements.
There’s an added potential Cuccinelli articulated when he announced this brief was in development:
“The more effective an arm is for the purposes for which a militia would require arms, the harder it should be to argue that its effectiveness somehow removes it from constitutional protection,” he noted. Establishing this with SCOTUS “could therefore reach substantially further than the particular rifles before the Court.”
* Concurrent with this, the National Association for Gun Rights has announced, “We just filed @gunrights’ Viramontes amicus brief, authored by @KenCuccinelli & joined by @TXGunRights. Our goal: Put the strongest case possible to SCOTUS to position us for a long-term win, not just short-term success on the question asked.”
We just filed @gunrights‘ Viramontes amicus brief, authored by @KenCuccinelli & joined by @TXGunRights.
Our goal: Put the strongest case possible to SCOTUS to position us for a long-term win, not just short-term success on the question asked.
Link: https://t.co/qwvhnMHiMh pic.twitter.com/UtqKPIyzqF
— Hannah Hill (@hannahhill_sc) September 3, 2026
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
