Virginia AG Jay 'Two Bullets' Jones Tells SCOTUS AR-15s Unprotected by Second Amendment

Virginia Attorney General Jay Jones, who managed to get elected despite the revelation that he declared he'd put "two bullets" into Republican state Rep. Todd Gilbert's head (while sparing genocidal madmen like Adolph Hitler and Pol Pot) and that he hoped Gilbert's kids were murdered, is now offering his opinion about the constitutionality of a ban on commonly-owned semi-automatic firearms.

Rather than join in an amicus brief with other Democrat attorneys general, Jones's office has submitted one of his own to the Supreme Court in the Viramontes case. In it, Jones contends that AR-15s are not “Arms” that the Second Amendment protects. The basis for his argument is one of the most breathtakingly stupid things I've seen in more than 20 years of covering Second Amendment cases. 

This Court has already recognized that states may restrict machinegun possession. Machineguns are not “Arms” because they are dangerous and inapt for self-defense. AR-15s are machineguns, except that they—at least to start—have semiautomatic fire rather than automatic fire. AR-15s thus bear nearly all the same features that take machineguns outside the Second Amendment’s protection.

AR-15s are machine guns, except that they're not. After reading that, I can't help but wonder if Jones wrote the first draft of his brief in crayon, how many he ate in the process, and whether anyone in his office had the nerve to point out that the difference between semi-automatic and automatic fire isn't some minor technicality. It's literally what distinguishes an ordinary AR-15 from a machine gun.

By Jones's logic, my pickup truck is a tank, except for the armor, the cannon, and the tracks. Maybe I should ask the attorney general whether I need to register it with the Pentagon.

Jones spends several pages discussing bump stocks, auto sears, and other devices that can increase a semi-automatic firearm's rate of fire or convert it to automatic fire. His theory is that the potential for modification helps to justify treating an ordinary AR-15 as constitutionally equivalent to a machine gun. Cook County made a similar argument in its own reply brief, declaring that AR-15s are "readily convertible" to machine guns, so they should be treated like fully automatic weapons. 

That begs the question: if the possibility of an illegal modification is enough to strip an otherwise lawful firearm of constitutional protection, where does that principle end?

Jones makes another incredibly dumb argument in his brief by asserting that the AR-15 is unprotected by the Second Amendment at step one of the text, history, and tradition test laid out by SCOTUS. But as Justice Alito wrote in the Wolford opinion just a few months ago, the question at step one "is simply whether a challenged law falls within the Second Amendment’s 'plain text.'" In Wolford, Alito also said that step one includes asking whether the law in question "concern[s] any form of ‘Arms,’ i.e., any weapon customarily used for offensive or defensive purposes."

Clearly, the answer to both of those questions is "yes." The federal government also pointed this out in its own brief, but Jones argues that the DOJ "wrongly asks this Court to hold that all firearms are, by definition, Second Amendment-protected 'Arms,' and to proceed to Bruen step two 'without further ado.'”

Judicially created tests should make some common sense. Interpreting the Bruen test to require holding that laws regulating weapons “such as the M16, the short-barreled shotgun, the ricin pellet-firing umbrella gun, and the W54 nuclear warhead,” are “presumptively unconstitutional,” subject to a government’s ability to produce satisfactorily similar historical analogues, defies common sense. It wrongly and automatically flips the burden to the government to defend even the most frivolous challenges. And it wastes judicial resources by requiring time-intensive history-and-tradition analyses for each challenge.

After reading that, I'm wondering if Jones actually did ask other Democrat AGs to sign on to his amicus brief, only to be turned down. The Supreme Court has made it clear that the DOJ's argument is correct, while his own is utterly baseless. 

Yes, any regulation dealing with an "arm" is presumptively unconstitutional, and it's up to the government to justify it by pointing to historical analogues. This doesn't waste judicial resources, because we're talking about potential infringements on a fundamental enumerated right. Jones's argument shows just how little he thinks about those rights protected by the Constitution. 

Jones makes yet another fundamental mistake by asserting that the right to keep and bear arms is tethered solely to the use of arms in self-defense, when the Court has held that while self-defense is a core reason for the Second Amendment, the right to keep and bear arms extends to other lawful purposes. 

There are major deficiencies in almost every page of Jones's brief, but I'll content myself with documenting just one more here for the sake of brevity. Jones argues that no number of "present-day purchases can change the fact that AR-15s are nothing like 'the sorts of weapons' in use in the late 18th century. 

In the Founding era, 50 to 60 percent of households owned a firearm, typically a single-shot, muzzle-loading long gun. AR-15s, by contrast, are modern weapons of war that would have been wholly foreign to the framers of the Second Amendment. They were developed for Cold War battlefields in the 1950s and1960s. They retain the muzzle velocity, range, and lethality engineered to kill at hundreds of yards. And the rate at which they fire rounds, (60–180 rounds per minute without modifications), would have baffled the framers.

It certainly sounds like Jones is arguing that the Second Amendment only protects those types of arms that were in use in 1791, which wouldn't just place AR-15s outside of the Second Amendment's protections, but virtually all modern firearms. A Winchester 1873 is nothing like a muzzle-loading musket either. A 1911 is nothing like a cap-and-ball single shot pistol. 

The Supreme Court has already (and repeatedly) stated that the Second Amendment "extends... to... arms... that were not in existence at the time of the founding," which renders Jones's argument meritless. 

Virginia's attorney general is supposed to be one of the state's top legal minds, but this brief reads more like a wish list from a gun control activist who hasn't bothered to read Heller, Bruen, or Wolford. If I were him, I'd be embarrassed to put my name on this brief. Then again, with the text messages that I mentioned at the beginning of this post, Jones has already revealed himself to be shameless. 

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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