The Supreme Court of the United States accepted a pair of consolidated cases—Viramontes v. Cook County and Grant v. Higgins (referred to as “Viramontes”) involving the constitutionality under the Second Amendment of bans on semi-automatic AR-15 and similar rifles, with oral argument December 2nd and a decision likely by June, 2027. We are uniquely positioned to present a critical issue in ourAmicus Curiae (Friend of the Court) Brief, how “commonality” should be determined going forward. Recall that one of the issues relating to whether an “arm” is protected by the Second Amendment is whether it is “in common use for lawful purposes.”
While the number of firearms is easily determined due to how they are regulated, that is not true of virtually every other “arm,” including knives. The numbers of knives, impact weapons, stun-weapons and self-defense sprays, for example, are not authoritatively tracked in the same way as firearms. There is concern that SCOTUS could take a very limited view of the commonality test; one that relies strictly on hard numbers or which sets a very high limit to meet, because that is what they are presented with in these cases with millions of AR-15 rifles possessed.
Our Second Amendment challenge to the Federal Switchblade Act relies on a variety of means to determine commonality because hard numbers like with firearms are more difficult to determine. Beyond historical numbers from testimony back when the Federal Switchblade Act was being considered in Congress, we also rely upon the categorical commonality of “knives” or even “pocketknives” in general and the jurisdictional commonality that the knives banned are legal is the vast majority of states. These latter two means of determining commonality are true of many other non-firearm “arms.”
Determining solid numbers for anything other than firearms will be a challenge and, at a minimum, expensive and time-consuming. A narrow decision could impair challenges to any arm bans besides firearm under the Second Amendment. So, our brief argues that the commonality test inherently calls for a broad understanding of “common use.”. While the Heller decision implies that there are multiple ways to decide commonality, it would be best if the issue was better settled in a clear manner that benefited all types of “arms” seeking the Second Amendment’s protection.
We are proud to join our Second Amendment brethren being one of 43 briefs submitted in support of the Petitioners. It is also great that the United States’ Amicus Brief also touched on this issue in a manner that supports our view. Hopefully, SCOTUS takes note and gives us a decision that works for all of the arms protected by the Second Amendment.
Also worth noting, the DOJ took a completely opposite position in this critical case compared to their position in our appeal challenging the Federal Switchblade Act. As you will recall we are awaiting rulings in both that FSA appeal and in our case challenging Minnesota’s outright ban on switchblades. We have no way of knowing if those judges are waiting to see what SCOTUS decides in Viramontes, which appears to be the case with many 2A firearms-related cases. All we can do is wait and see.