On August 4, 2026, the United States Court of Appeals for the Third Circuit, sitting in Philadelphia, granted New Jersey’s motion to stay issuance of the mandate in Cheeseman v. Davenport. That is the case in which the en banc Third Circuit ruled, 10 to 5, on July 17, 2026, that New Jersey’s ban on AR-15-style semiautomatic rifles and its ban on magazines holding more than ten rounds both violate the Second Amendment. The stay means that victory does not take legal effect. New Jersey’s bans remain enforceable, and they will stay enforceable until the Supreme Court disposes of New Jersey’s anticipated certiorari petition — which, as a practical matter, ties this case to the Court’s ruling in June 2027 in the consolidated AR-15 cases now pending before it.
The Victory Now on Ice
The underlying win was substantial. In Cheeseman v. Davenport, consolidated with Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General of New Jersey, the en banc Third Circuit struck down New Jersey’s “assault firearm” ban as applied to the covered class of semiautomatic rifles and struck down its ten-round magazine cap. Judge Arianna Freeman, a Biden appointee, wrote the majority opinion; Judge Paul Matey wrote separately in concurrence. Judge Tamika Montgomery-Reeves, also appointed by President Biden, joined the majority in full. A third Biden appointee, Judge Cindy Chung, concurred in part and dissented in part. A fourth, Judge L. Felipe Restrepo, dissented outright, joining the dissent authored by Judge Patty Shwartz, who wrote that AR-15s and similar semiautomatic rifles fall outside the Second Amendment’s protection altogether. That a majority spanning Bush, Trump, and two full Biden appointments coalesced over dissents from Obama and Biden appointees alike is itself a marker of where this area of law is heading.
But none of it takes effect without the mandate — the formal instrument that sends an appellate judgment back down to the district court for enforcement. New Jersey asked the Third Circuit to freeze that instrument, and on August 4 the court agreed, tying the freeze to the Supreme Court’s disposition of New Jersey’s expected cert petition.
Why the Delay Stings
I will not pretend this is anything but frustrating. Our friends in New Jersey will continue living under a ban I believe is unconstitutional for another nine to eleven months, at minimum. That is a real cost, borne by real people, and it does not sit well with me.
The Strategic Case for Patience
Here is the case for why the Third Circuit’s stay may nonetheless be the right outcome. The Supreme Court granted certiorari in Viramontes v. Cook County, No. 25-238, out of the Seventh Circuit, and in Grant v. Higgins, out of the Second Circuit, on June 30, 2026 — before the Seventh Circuit’s July 9 ruling in Barnett v. Raoul upholding Illinois’s ban, and before the Third Circuit’s own July 17 ruling in Cheeseman. Both cases ask whether the Second and Fourteenth Amendments protect the right to possess AR-15-platform rifles. The Court took that question up ahead of, not in reaction to, the circuit split hardening beneath it. The trend is our friend, and the last thing the Second Amendment community should want is to disrupt it before the Court rules.
Consider the alternative. Had the Third Circuit denied the stay, New Jersey would almost certainly have rushed an emergency stay application to the Supreme Court itself — this month, while the Court is in summer recess and the Justices are scattered, and while an entirely new class of law clerks is rotating in to replace the ones who worked on Wolford v. Lopez and United States v. Hemani. An emergency, unfocused ruling on a compressed record is exactly the setting in which an unfavorable position, particularly on the magazine question, could get locked in without the deliberation this issue deserves.
What Comes Next
I expect New Jersey to file its certiorari petition, and I expect the Supreme Court to hold that petition pending its decision in Viramontes and Grant. Once decided, the ordinary mechanism would be a grant, vacate, and remand — sending Cheeseman back to the Third Circuit to reissue its ruling in light of a Supreme Court holding that I anticipate will vindicate the right to keep and bear semiautomatic rifles. The magazine question is less certain to be addressed directly, but nothing about that outcome threatens the rifle holding. We are fighting to win the war for this right for generations, not merely the next news cycle, and that is the standard by which this stay should be judged.
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.