On June 30, the Supreme Court granted certiorari in two consolidated AR-15 ban cases: Viramontes v. Cook County, No. 25-238, out of the Seventh Circuit, and Grant v. Higgins, No. 25-566, the challenge to Connecticut’s ban out of the Second Circuit. I have already covered the grants themselves. What deserves attention now is the strategy behind them — why the Court took two cases instead of one, what its recent decisions telegraphed in advance, and what the petitions it accepted actually argue. Read together, the details reveal a Court that has learned from hard experience and is moving deliberately.
The Warning Shot in Whitton v. Dixon
About a month before the grants, the Court summarily vacated an Eleventh Circuit habeas ruling in Whitton v. Dixon, No. 25-580, a Florida capital case decided June 1, 2026. Justice Thomas, joined by Justice Alito, dissented in language I flagged at the time as significant:
“It is unfortunate that the Court chose to intervene at the request of a convicted murderer to correct the Eleventh Circuit’s inconsequential foot fault.”
The dissent faulted the Court for polishing minor errors for convicted criminals even while it refuses to correct far more consequential errors for law-abiding citizens — naming the discriminated-against families in Boston, Staff Sergeant Beck’s widow, and students challenging university censorship. No field of American law features lower courts flouting Supreme Court precedent against law-abiding citizens more conspicuously than Second Amendment jurisprudence. I read that dissent as a message to the rest of the Court: if error correction is worth the Court’s time for death-row petitioners, it is worth the Court’s time for gun owners. Twenty-nine days later came the AR-15 grants.
Wolford v. Lopez Set the Table
The second signal was Wolford v. Lopez, No. 24-1046, decided June 25, 2026, in which Justice Alito’s 6-3 majority struck down Hawaii’s “vampire rule” barring licensed carry on private property open to the public absent express consent. The holding mattered, but the methodology mattered more. The majority’s careful allocation of work between the plain-text inquiry and the historical-tradition inquiry under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), tracked precisely the interpretive approach that decides an arms-ban case in favor of the Second Amendment. I argued when Wolford came down that the Court was setting the table for an AR-15 ruling. Five days later, it granted cert in two of them.
Two Cases Are Mootness Insurance
Why two? Because the Court remembers 2020. In New York State Rifle & Pistol Association v. City of New York, 590 U.S. 336 (2020), the Court granted cert on New York City’s handgun-transport rule — and the city and state promptly rewrote the law to hand petitioners the precise relief their complaint requested. An unsigned per curiam dismissed the case as moot under Article III, denying the Second Amendment a precedent. Justice Alito, joined by Justice Gorsuch in full and Justice Thomas in principal part, dissented:
“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”
Granting cert on both a Cook County ordinance and a Connecticut statute means no single legislature can repeal its way out of a ruling. The Court used the same structure this term in the girls’ sports cases, Little v. Hecox and West Virginia v. B.P.J., taken from two different states and decided June 30, 2026. And as I read the Viramontes complaint, the plaintiffs pleaded damages — unlike the purely prospective relief sought in 2020, a live damages claim survives a repeal. The mootness escape hatch is welded shut.
Both Petitions Cite My Common-Use Scholarship
Finally, the two petitions the Court chose share something the passed-over Second Amendment petitions did not: both cite my article, Mark W. Smith, What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again, Harv. J.L. & Pub. Pol’y: Per Curiam (Fall 2023). Both press its core argument — that common use is a historical rule of decision, the correlative of the tradition of restricting dangerous and unusual weapons recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), and therefore belongs at Bruen’s historical step, not the plain-text step. Where the test sits determines who carries the burden. Placed correctly, the government must prove a banned arm is both dangerous and unusual — a showing no government can make for the most commonly owned rifle in America. The lower courts shifted that burden onto plaintiffs, and the Court has now agreed to review the cases built on exposing that error. Argument is expected this fall, with a decision by June 2027. I expect the lower courts to be corrected, emphatically.
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.