The ongoing debate surrounding the Second Amendment and its application to AR-15s sheds light on some intriguing legal considerations relating to originalism. Notably, the upcoming case of Viramontes v. Cook County may address the apparent departure from the originalist interpretation as outlined by the late Justice Antonin Scalia in the landmark decision of District of Columbia v. Heller. Scalia’s principle, according to the text of the decision, was that the protection extended primarily to weapons “in common use at the time” of the founding. However, recent decisions interpret the Second Amendment to protect weapons “in common use today,” potentially including semi-automatic AR-15 rifles.
This interpretative shift has raised questions about whether it constitutes a betrayal of originalism, a judicial philosophy that Scalia himself championed. As pointed out in a detailed examination by scholars and legal experts, the historical foundation of the “in common use at the time” standard dates back to United States v. Miller in 1939, a case that upheld prohibitions on sawed-off shotguns not in “common use” by the militia at the time of the Second Amendment’s ratification.
Justice Scalia’s meticulous approach and commitment to originalism are well documented. As analyzed, the phrase “in common use at the time” appeared multiple times in his opinions, reinforcing the notion that the limitation was deliberate and not an oversight. Critics argue that the evolving interpretation deviates from the originalist principles, and they demand a clearer justification for this shift, emphasizing the need for judicial integrity and adherence to historical understanding.
The implications of Viramontes v. Cook County are profound, given that a majority of the American public supports bans on modern AR-15s. As the case moves forward, the Supreme Court’s decision could redefine the boundaries of the Second Amendment, requiring a nuanced balance between historical precedent and contemporary readings.