The Snope Clarification: Reinforcing the “Common-Use / Burden-Shifting” Doctrine under the Second Amendment

1. Introduction

In Snope v. Brown, No. 24-203 (Jun. 2, 2025), the Supreme Court denied certiorari on a challenge to Maryland’s statutory ban on AR-15 style rifles. Although the writ was refused, two separate writings—Justice Kavanaugh’s statement respecting denial and Justice Thomas’s dissent—collectively constitute the Court’s most elaborate commentary since Bruen (2022) and Rahimi (2024) on the “common-use” test and the allocation of burdens in Second Amendment litigation.

The petitioners, led by David Snope, sought review of the en banc Fourth Circuit’s decision (Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024)) upholding Maryland’s ban by declaring that AR-15s are not “arms” protected by the Amendment. The respondents were state officials headed by Attorney General Anthony G. Brown.

Though certiorari was denied, the separate opinions sharpen three inter-related issues that will influence every future “assault-weapon” case:

Whether AR-15 style rifles are presumptively protected “arms” because they are in “common use”.
Which party bears the evidentiary burden regarding historical analogues.
How lower courts must implement the “dangerous and unusual” exception first articulated in Heller.

2. Summary of the Judgment

• The Court denied certiorari. A denial has no precedential effect but leaves the Fourth Circuit’s ruling intact.
• Justice Kavanaugh (joined by no one) wrote a concurrence in part, emphasizing that the denial does not signal agreement with the Fourth Circuit and foreshadowing that the Court should resolve the AR-15 question soon.
• Justice Thomas dissented, joined implicitly by no one else, asserting that the Fourth Circuit “distort[ed]” Supreme Court precedent by (i) misplacing the burden of proof on challengers and (ii) misapplying the dangerous-and-unusual carve-out.

3. Analysis

3.1 Precedents Cited

District of Columbia v. Heller, 554 U.S. 570 (2008) – source of the “common-use” and “dangerous & unusual” tests.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) – created the current text-and-history methodology and burden-shifting scheme.
United States v. Rahimi, 602 U.S. 680 (2024) – reaffirmed Bruen but applied it to firearms possession by domestic-violence respondents.
Caetano v. Massachusetts, 577 U.S. 411 (2016) – per curiam reversal protecting stun guns; important for the “dangerous and unusual” discussion.
Staples v. United States, 511 U.S. 600 (1994) – recognized the AR-15 as a traditionally lawful civilian firearm.
Lower-court “percolation” cases: Capen v. Campbell (1st Cir. 2025); Harrel v. Raoul (7th Cir. 2024); Miller v. Bonta (9th Cir. pending) etc.

3.2 Legal Reasoning

A. Justice Kavanaugh’s Statement
Kavanaugh stresses empirical data: 20–30 million AR-15s owned; legal in 41 states. Under Heller, that level of ownership is powerful evidence of “common use.” He further notes that semi-automatic handguns (protected in Heller) are functionally indistinguishable in mechanism from semi-automatic rifles, undermining the Fourth Circuit’s attempt to differentiate them.

B. Justice Thomas’s Dissent
Thomas offers a step-by-step critique grounded in Bruen:

Petitioners met the textual requirement by showing AR-15s are “bearable arms.”
Therefore the burden shifts to the State to produce a tradition of analogous regulation.
Maryland’s reliance on the “dangerous & unusual” tradition fails because a weapon cannot be simultaneously “in common use” and “unusual.”
The Fourth Circuit erred by (i) putting the historical burden on petitioners and (ii) performing its own policy-laden utility analysis rather than gauging commonality.

Thomas also warns that recent regulatory moves (Bondi v. VanDerStok, 604 U.S. ___ (2025)) could allow ATF to re-characterize AR-15s as “machineguns” by regulation, heightening the need for sooner Supreme Court review.

3.3 Impact

1. Re-energized Circuit Split. The First and Fourth Circuits now explicitly uphold AR-15 bans; the Seventh and Ninth are considering similar bans; the Fifth has indicated skepticism. The opinions in Snope will be quoted heavily by both sides in pending cases.

2. Burdens of Proof Clarified. Thomas’s articulation that the challenger bears only an initial textual burden, after which historical proof shifts to the government, will guide district courts implementing Bruen.

3. “Common Use” Metric Hardened. Both separate writings rely on quantitative ownership and lawful-purpose statistics. Future litigants will marshal nationwide sales, manufacturing and crime-usage data to establish or rebut “common use.”

4. Legislative Drafting. States contemplating assault-weapon bans are now on notice that such laws will be evaluated under a demanding historical analogue test. Legislatures may instead focus on regulations short of bans (e.g., age restrictions, training, storage) or craft narrower definitions.

5. ATF Regulatory Horizon. The exchange concerning VanDerStok foreshadows challenges to any attempt by ATF to reclassify semi-automatic rifles through rulemaking.

4. Complex Concepts Simplified

Common Use Test – A weapon is protected if it is typically possessed by law-abiding citizens for lawful purposes; popularity and lawful intent trump perceived dangerousness.
Dangerous & Unusual Exception – Historical tradition allows bans only on weapons that are both especially dangerous and not in common civilian use.
Burden-Shifting Framework (Bruen) – (i) Challenger shows plain text covers the conduct; (ii) burden shifts to government to prove consistency with historic tradition.
Denial of Certiorari – The Court declines to hear the case; it implies no endorsement and sets no precedent, but separate writings can influence later jurisprudence.
Semi-Automatic vs. Automatic – Semi-automatic fires one round per trigger pull; automatic (e.g., M-16) fires continuously while trigger is depressed.

5. Conclusion

While Snope v. Brown produced no binding holding, it cemented a doctrinal roadmap: pistols, rifles, or other firearms that are markedly prevalent among law-abiding Americans enjoy a strong presumption of constitutional protection, and the government shoulders the historical burden to justify any intrusion. The separate opinions underscore the Court’s readiness to intervene once the circuit conflict matures further. Until then, the “Snope Clarification” will shape every lower-court skirmish over so-called assault-weapon bans and reinforce that the Second Amendment is not “a second-class right.”