Law Professor Weighs In: What James Madison Might Say About AR-15s

What would James Madison say about AR-15s?

Notre Dame law professor Haley Proctor argues you don’t need a séance to find out.

In her SCOTUSblog column “What James Madison thought about AR-15s,” Proctor explains that courts do two separate things in constitutional cases: interpretation and application. Judges first travel back to recover the original meaning of constitutional text. 

Then they return to the present and apply that meaning to modern facts. Madison isn’t asked to rule on video games or AR-15s; the Constitution’s meaning guides the decision instead.

Proctor’s point is crisp: history supplies meaning, not case judgments. That’s the core of originalism as she teaches it.

Old Rules, New Facts

Proctor says the Founders wrote rules general enough to handle change.

That’s why “speech” covers TikTok and why a DNA swab can be analyzed under the Fourth Amendment.

The same for the Second Amendment. “Arms” in 1791 meant weapons an individual could carry. Today’s semi-automatic rifles and handguns still qualify as “arms.” If law didn’t work that way, both rights and regulations would freeze in 1791. They don’t.

To show the method, Proctor recalls a famous Brown v. Entertainment Merchants exchange. Justice Scalia asked whether the First Amendment has any historical violence exception. Justice Alito joked about what Madison thought of video games. 

The punchline is Proctor’s: a judge doing originalism does not ask what Madison thought about Xboxes; he asks what the First Amendment meant—and then applies that rule to games today.

That’s equally true for AR-15s. The question is not what Madison would think of polymer lowers. The question is what “the right of the people to keep and bear arms” meant, and how that rule applies now.

This is a clean, accessible way to teach originalism. It avoids culture-war detours and forces everyone back to the text and history.

How Courts Bridge 1791 to 2025

Proctor says judges use analogical reasoning – comparing modern laws to historical traditions at the right level of generality. 

She highlights Justice Amy Coney Barrett’s Rahimi concurrence: do we need a founding-era twin of every regulation, or do past laws reveal principles that mark the borders of the right?

Proctor’s answer: courts look for principles, then ask two questions.

Do the modern burdens on armed self-defense look comparable to historical ones? And are they comparably justified?

This is not a loophole to smuggle in modern policy preferences. It’s a structured way to respect original meaning while allowing modern governance inside historical guardrails.

She also stresses why this matters. In Brown, the Court rejected the idea that legislators can invent novel categories of unprotected speech with a cost–benefit balancing test. The First Amendment’s boundaries were set at the Founding. The same logic, she notes, undergirds modern Second Amendment doctrine.

And if the people want a different balance today, Proctor reminds everyone of the constitutional tool that was always available: amendment.

My take: the “principles, not twins” frame is where real Second Amendment litigation now lives. It’s also where sloppy analogies die.

Cam Edwards: Don’t Shrink the Right to Only 911 Moments

On his Bearing Arms’ Cam & Co program, journalist Cam Edwards digs into Proctor’s column and extends the argument to AR-15 bans moving through the courts. 

He points to multiple cases – Connecticut’s “assault weapon” law, Cook County’s ban, and magazine cases from California and Washington – that could tee up a Supreme Court showdown.

Edwards praises Proctor’s explanation of originalism but pushes on one line courts sometimes adopt: measuring modern burdens by focusing only on individual self-defense. He argues that’s too narrow historically.

Edwards notes the Founders’ broader purpose: the armed people were expected to deter tyranny as part of a well-regulated militia system. He cites Madison in the Federalist Papers, contrasting monarchies that disarmed their citizens with the American model that trusted them. 

If you limit the Second Amendment to whether a gun is used in a home-defense incident last week, you’ve lost a huge slice of the original why.

That matters for AR-15s. Edwards says the correct test is whether the arm is in common use for lawful purposes, including but not limited to self-defense. On that standard, he believes AR-15s are squarely protected. He reads Proctor as compatible with that conclusion, even if she doesn’t say it outright.

This is the debate line you’ll see in appellate briefs. “Comparable burden” can’t erase the Founders’ militia-centric understanding. If the history includes collective security against tyranny, the frame for “burdens” must include it too.

What “Arms” Means When Politics Heats Up

Proctor’s method leads to a practical roadmap.

Step one: Interpret “arms” as the Founders used it – portable weapons for individual use.

Step two: Apply that rule with analogical reasoning: are modern restrictions within the historically permitted limits?

On bans targeting an entire class of commonly owned semi-automatics, the historical analogues get thin. Proctor doesn’t litigate the specific bans in her column, but her method highlights the government’s burden: show a tradition of comparable restrictions with comparable justifications.

Edwards predicts that when the Supreme Court finally takes an “assault weapon” case, this will be the fight. 

States will argue semi-automatic rifles are uniquely lethal and novel; plaintiffs will argue they’re common, widely used for lawful purposes, and not historically excluded as a class.

Whichever side owns the “level of generality” wins. If a state defines the analogue as “weapons with heightened lethality in public,” it will find a cousin. If plaintiffs define it as “total bans on commonly owned arms,” the state’s cupboard looks bare.

Where Madison Likely Lands, Using Proctor’s Rules

Proctor says judges shouldn’t ask what Madison would do with AR-15s. They should ask what rule Madison and his generation ratified, then apply it.

Apply that here, and the analysis is straightforward:

Text: “the right of the people to keep and bear arms” covers today’s handheld firearms.

History: restrictions must fit within a tradition the Founders would recognize at the right level of generality.

Burden/Justification: do modern bans impose a comparable burden, comparably justified, to historical regulations?

Edwards adds the missing dimension: the militia logic. If the original purpose included an armed populace as a political check, bans on the most commonly owned rifles look especially suspect.

Neither source says Madison would endorse a free-for-all. Proctor emphasizes that regulation has always coexisted with the right. The question is whether a ban on a class of common arms fits the historical principles. Edwards answers no, particularly when courts try to squeeze the right into a self-defense-only mold.

Proctor’s interpret-then-apply method, combined with Edwards’s reminder about the Founders’ militia logic, points toward robust protection for AR-15s under Bruen’s “history and tradition” test. If voters want a different balance, the Constitution gives them Article V, not creative balancing tests.

Haley Proctor teaches the posture: history gives the rule; judges apply it to today.

Cam Edwards urges courts not to amputate the Founders’ broader reasons for an armed citizenry.

Together, they outline a principled way to answer the Madison question without mythology.

“Arms” still means arms. Application turns on historical principles, not nostalgia or fear. And if the modern polity truly wants a different settlement, the path is clear and constitutional: amendment, not judicial invention.

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The article Law Professor Weighs In: What James Madison Might Say About AR-15s first appeared on Survival World.