The ripple from Wolford v. Lopez has reached the fight over bans of the AR-15 semi-automatic rifle. This week the prominent Second Amendent law firm Cooper & Kirk, PLLC filed a Rule 28(j) letter of supplemental authority in Cheeseman v. Platkin, Nos. 24-2415, 24-2450, 24-2506 — the challenge to New Jersey’s ban on roughly sixty-six semi-automatic rifles, the AR-15 and the AK-47 among them, and on magazines holding more than ten rounds — telling the en banc United States Court of Appeals for the Third Circuit that Wolford v. Lopez controls and that the ban cannot survive it.
How New Jersey Lost Its Predicate
For years the gun-control bar has insisted on a threshold gate: before any Second Amendment scrutiny attaches, the challenger must first prove that the arms he wants to keep and bear are in common use for self-defense. Wolford just slammed the door shut on this argument. As Cooper & Kirk wrote to the court:
Wolford definitively rejects the argument that, as a predicate to applying any Second Amendment scrutiny to a challenged arms restriction, plaintiffs must first demonstrate that the arms they wish to possess are ‘in common use’ … the only predicate question is do the laws at issue ‘concern any form of arms’ … The answer to that question here is beyond dispute.
The answer is obviously YES!
This is the methodology I have taught for years. In an arms-ban case, the 2A rights claimant’s burden at step one is minimal: show that the challenged law restricts a bearable arm. Government restrictions on possessing or carrying an AR-15 or the AK-47 plainly qualify. Once the plain text is implicated, the burden shifts to the government (here New Jersey) to prove the banned rifles are “dangerous and unusual” — and it cannot. The Court did the founding-era historical work in District of Columbia v. Heller, 554 U.S. 570 (2008), for arms ban cases and the rule that emerged is unforgiving for the State: arms in common use for lawful purposes are, by definition, not dangerous and unusual. And, thus, they may not be banned.
No Smuggling of History Into Bruen’s Step One
The letter’s second move forecloses the State’s escape route. New Jersey wants to fold the common-use question into the threshold inquiry, weighing its regulatory tradition before the burden shifts. Cooper & Kirk answered with both wings of the Wolford Court:
Contrary to New Jersey’s argument that ‘the common-use analysis is part of the court’s threshold inquiry into the scope of the Second Amendment’s original right,’ Wolford makes clear that such considerations ‘are out of place at Bruen’s first step.’
That reading is fortified by footnote one of Justice Barrett’s concurrence, which refuses to import regulatory-tradition limits into the plain-text stage. It draws equal force from the Justice Brown Jackson’s dissent. Justice Jackson, writing for herself and Justice Sotomayor to attack the majority, described its rule with precision: at step one courts look only to the plain text, and the historical burden falls on the government. A dissent meant as an alarm now reads as a roadmap. The majority also cited Judge Lawrence VanDyke of the Ninth Circuit favorably, twice — a detail worth marking.
Caetano and the Six-Justice Signal
Bruen reaffirmed that the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms,” including modern instruments that facilitate armed self-defense. New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). For that proposition it cited Caetano v. Massachusetts, 577 U.S. 411 (2016), which held that the Amendment protects stun guns. Jaime Caetano was a domestic-violence victim who carried one after restraining orders failed to protect her.
What Wolford did with Caetano is the tell. The majority did not cite the case in passing; it spent several pages on it and embraced Justice Alito’s concurrence in Caetano explaining why a stun gun is a protected arm. When six members of the Court endorse the view that an electrified weapon unknown to the founding generation is a protected arm, the implication for the AR-15 — and for the magazines and suppressors that accompany modern rifles — is unmistakable.
A Law That “Concerns Any Form of Arms”
At step one, Wolford framed the inquiry around whether a challenged law “concern[s] any form of ‘Arms,’ i.e., any weapon customarily used for offensive or defensive purposes.” The operative verb is “concerns,” not “is” — and that distinction should help challengers facing suppressor and magazine bans in two ways. First, an arm equipped with a suppressor or a magazine is itself a form of arms, and a law banning those items concerns that form of arms. This is the point I have made before: a magazine ban is a firearms ban, because it prohibits an entire category of firearms — those capable of firing more than ten rounds without manual reloading. Second, to say a law “concerns” a form of arms is not to say it “regulates” an arm. Regulating a component or accessory — even one that is not itself an arm — still concerns arms, because it shapes what the arm can do.
I argued for months that the Third Circuit was sitting on Cheeseman deliberately, waiting for Wolford and United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), to avoid the GVR it had already suffered once in the Bryan Range v. United States case. Now that Wolford and Hemani have landed the 2A plaintiffs are not waiting. The plain text comes first, the historical burden belongs to the government, and any law that concerns a form of arms triggers both. This letter is the first move of the endgame, and the law is running in one direction.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.