On Counting in Assault Weapons Cases

For the area of constitutional law tied most closely to historical inquiry, Second Amendment cases produce something of an oddity in litigation around assault weapons: they often turn on modern-day data. I’m not talking about the kind of data that assesses whether assault-weapon bans save lives or otherwise contribute to public safety. Those kinds of considerations are verboten under the post-Bruen regime. Instead, the data that matter tend to be contemporary numbers of AR-style weapons in circulation and deaths caused by such rifles—particularly in cases in which laws restricting such arms are deemed unconstitutional. The way these courts interpret the Supreme Court’s “common use” test makes this natural. As the Court prepares to hear a case on the constitutionality of assault-weapons bans this coming term, these decisions on what and how to count will likely be central.

What makes those kinds of data relevant is what can only be called a consequential misreading. In Heller, Justice Scalia cited United States v. Miller for the proposition that the Second Amendment protects only those arms “in common use.” Yet Miller’s dicta, repurposed by Heller, was likely wrong in its historical claim that citizens brought their common arms to militia service at the Founding, and may not even have been using commonality in the way Heller says it did. As Joseph Blocher notes in a forthcoming article, “[t]he common use test is ipse dixit, unmoored from the Second Amendment’s text, history, or principles.” But it is the test lower courts have run with, lacking any other guidance from the Court. 

As that test is implemented by many gun-rights jurists, it means that once a weapon reaches some unspecified level of popularity, the government is forbidden from restricting it. In dissenting from a poorly reasoned opinion striking down New Jersey’s assault weapons ban, Judge Krause put the point bluntly: the majority casts aside the legislation on the basis that AR-style rifles “are ‘in common use’ because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gunowners assert their subjective intent to use them only for lawful purposes.” That approach, she rightly notes, “gives undue weight to today’s market trends and the idiosyncratic preferences of an ill-defined subset of gunowners.”

The “common use” test is extremely problematic, but it’s not the key figure I want to focus on here. Instead, I want to highlight one of the least justified and least important, yet strangely consequential, numbers thrown around in litigation over assault weapon bans: the number of Ford F-series trucks currently owned in America. For reasons surpassing understanding, gun-rights jurists are obsessed with this statistic. The argument is apparently that because F-series trucks are the most popular car in America, and AR-style weapons are the most popular rifle in America, it is worthwhile to compare them.  It is shocking how often this mantra is replayed. Here is just a very small sample:

• Said Fourth Circuit Judge Traxler in a panel opinion later overturned by the en banc court, after noting the number of AR-style rifles among the population: “For perspective, we note that in 2012, the number of AR- and AK-style weapons manufactured and imported into the United States was more than double the number of Ford F-150 trucks sold, the most commonly sold vehicle in the United States.”
• Judge Benitez, a federal judge in San Diego, emphasized that: “modern semi-automatic rifles like the AR-15 are as ubiquitous as Ford F-series pickup trucks (which are the most popular vehicles in America).” That same judge had credulously marveled on a prior occasion, “every time one passes a new Ford pickup truck, it is a reminder that two new modern rifles have been purchased.”
• “For context,” Fourth Circuit Judge Richardson wrote dissenting in Bianchi v. Brown, “this means that there are more AR-style rifles in the civilian market than there are Ford F-Series pickup trucks on the road—the most popular truck in America.”

If you are unfamiliar with these debates, you might be puzzled how anyone could think that that number is relevant to the legal question of whether a certain model of firearm receives constitutional protection. As someone very familiar with these debates, I am also puzzled. But the argument typically runs like this: The Second Amendment provides its most robust protection to the most popular weapons today. Heller told us those were handguns. And today, AR-15-style rifles are the most popular rifle in America because there are more AR-style rifles in private hands than Ford F-series, and Ford F-series trucks are the most popular truck in America. They are therefore entitled to constitutional protection.

The comparison is uncommonly silly. A new Ford F-150 has an MSRP of about $40,000. The rifle named “Best Goldilocks AR-15” of 2026 by PewPew Tactical is listed at $1,049. In other words, it costs about 40 times more to buy a Ford pickup than to buy an AR-15. Of course there are fewer of them! Heck, the best-selling pencil in the world is likely the #2 pencil. One outlet even called it the “Goldilocks of pencils,” perhaps making it an apt comparator to the Goldilocks AR. And how many are there? Well, “[i]t’s estimated more than 15 billion pencils are produced each year, and the No. 2s are usually only one that teachers prefer students bring to the first day of class, making them the Goldilocks of pencils.” (Emphasis added). By that metric (and what makes it a worse one than Ford trucks?), AR-style rifles are downright rare in comparison. Imagine, we might paraphrase Judge Benitez, every time you see a #2 pencil, it is a reminder that there are billions more of them in civilian hands than assault weapons. Does that “context” or “perspective” add anything to the analysis? I don’t see how it does.

Since analogical reasoning appears to rule the Bruen test, it makes sense to ask for the basis on which to compare things. The question of “popular as compared to what” will likely be consequential in Viramontes. One can only hope that unreasoned truck comparisons do not appear.

Now compare how these judges count and compare assault weapons in private hands to how they typically count mass shooting victims, in whose name many of these assault-weapon bans are passed. For that metric, these judges typically count only the number of individuals killed. And then they note how small that percentage is in proportion to the total number of firearm deaths each year (usually around 1%, depending on the definition one uses for mass shooting). But the same judges who are quick to note the perceptions that matter for why gun owners obtain AR-style rifles, regardless of whether those guns are ever used for self-defense purposes, cannot fathom that perceptions of the harms from mass killings might reverberate beyond the number of people shot and killed. As Joseph, Darrell, and I argued in a piece about the importance of considering gun violence “beyond bodies and bullets,” these events are community shattering. Data about bodies pierced by bullets cannot capture the immense psychological toll of these events for friends, families, and the broader public, nor—as Darrell and co-authors describe in another piece—can they capture “the costs to those not directly affected: people who have stopped going to church, to parades, to the movies, or to the grocery store for fear that they will be the next victims.” By all credible metrics, the number of those affected by mass shootings is enormous. 

As the Court uses an ostensible historical test to judge the constitutionality of assault weapons next term, it should not give more weight to contemporary gun statistics than those numbers can bear. And if it does place significance on ownership numbers, it ought to just as rightly consider the surpassing vastness of the scale of harm occasioned by the uniquely American phenomenon on recurrent mass shootings.