On July 10, 2026, lawyers for gun owners filed supplemental briefs before the en banc U.S. Court of Appeals for the Third Circuit that may resolve, once and for all, whether New Jersey’s ban on AR-15-style rifles survives the Second Amendment. The filing in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, No. 24-2415, consolidated with Cheeseman v. Platkin, rests almost entirely on a single paragraph: footnote 1 of Justice Amy Coney Barrett’s concurrence in Wolford v. Lopez, decided by the Supreme Court on June 25, 2026. That footnote, I believe, dismantles the analytical maneuver lower courts have relied on for years to uphold bans on the most commonly owned rifle in America.
A Briefing Order That Signals Where This Is Headed
Days earlier, the en banc Third Circuit had ordered the parties to address what bearing, if any, Wolford v. Lopez and United States v. Hemani, 608 U.S. ___ (2026), should have on the pending challenge to New Jersey’s Assault Firearms Law. The court had already heard full en banc argument in October 2025, and the Supreme Court has now granted certiorari in Viramontes v. County of Cook and Grant v. Higgins, the two arms-ban cases it will hear next term. A court that reopens briefing this late, on this narrow a question, is not asking whether to rule for the Second Amendment. It is working out how to write the opinion.
The Footnote That Ends the Smuggling Operation
Bruen’s two-step framework asks first whether a law touches conduct covered by the Second Amendment’s plain text — a linguistic, definitional inquiry in which the challenger bears the burden. Only if the text is implicated does the analysis proceed to step two, where the government must prove a historical analogue, and the burden shifts to it. For years, states defending gun bans have tried to import historical-tradition arguments into step one, precisely because the burden sits with the challenger there and shifts against the government at step two. The July 10 brief calls this out directly:
“The Supreme Court in Wolford v. Lopez explicitly rejected New Jersey’s argument and adopted plaintiffs’ view… the Supreme Court took pains to stress how straightforward the analysis at step one is in most cases. In a case such as this one, the only predicate issue is whether the law ‘concerns any form of arms’ — any weapon customarily used for offensive or defensive purposes. Arguments like New Jersey’s — that are not based in the plain text, but which attempt to divine the historical understanding of the scope of the right — are out of place at Bruen step one. At that stage, the question is simply whether a challenged law falls within the Second Amendment’s plain text.”
And then, quoting Justice Barrett directly:
“As Justice Amy Coney Barrett explained in her concurrence, [the] attempt to smuggle additional limits drawn from our regulatory tradition into the plain-text stage of the inquiry has never been the test.”
I made this argument in the Harvard Journal of Law & Public Policy, laying out how the “in common use” test governs at the plain-text stage and how lower courts had inverted it. The Supreme Court has now adopted that reasoning, and Justice Barrett’s footnote gives it a name.
Widespread, Well-Known, and Widely Accepted
The brief also draws on Wolford’s clarification of step two itself:
“Wolford clarified the historical inquiry that this court is to conduct at Bruen’s second step… historical analogs must be widespread, well-known, and widely accepted to be informative about the scope of the right. Here, nothing the State of New Jersey could cite would check all of those boxes because, as the Supreme Court in Heller already explained, the robust and well-established practice… has been that the sorts of weapons protected were those in common use at the time. At the founding that meant the muskets and rifles militia members brought with them for militia service were protected, and today that means the AK-47, the AR-15, and other semi-automatic firearms that are both widely legal and bought by many ordinary customers are equally protected.”
That last clause cites Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025) — the case the Mexican government brought against American gun manufacturers in Boston, revived by a hostile First Circuit before the Supreme Court reversed unanimously. In reaching that result, all nine justices treated AR-15s as commonly owned firearms. The lawyers who sued on Mexico’s behalf handed the Second Amendment community precedent it is now using against New Jersey. That is what reckless litigation buys you: a unanimous opinion your opponents get to cite for the next decade.
The Seventh Circuit’s Wrong Turn
The timing here matters. On July 9, 2026, the Seventh Circuit split 2-1 in Barnett v. Raoul, upholding Illinois’s ban on AR-15-style rifles, with Judge Amy St. Eve writing for the majority joined by Judge Frank Easterbrook. I expect the Third Circuit to reject that reasoning within weeks. A court that reopens briefing on Wolford’s footnote the day after a sister circuit goes the other way is not signaling hesitation — it is building the record to say so.
The discipline point should not be lost on anyone in this fight. The Solicitor General’s push to take United States v. Hemani to the Supreme Court risked a bad precedent we happened to survive 9-0; that was luck, not strategy. Bringing a case you cannot win, on an issue where the votes are not there, is how the other side ended up handing us Smith & Wesson. The lesson from this brief is as much about strategic patience as it is about doctrine: win the cases the law and the votes support, and let your opponents’ overreach do the rest of the work.
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.