The Supreme Court’s decision to hear Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, gives the Court its first real opportunity to say whether a state may ban the AR-15 and the other semi-automatic rifles tens of millions of Americans already own. Both cases are now consolidated. The Court has not yet set an argument date; my own expectation is argument this fall and a decision by the end of the term, but that is my forecast, not the Court’s calendar. I do not think the outcome will turn on how many rounds a homeowner fires in an average self-defense encounter, or on which side marshals more historical statutes. It will turn on a question of method that the Court itself only recently resolved: at the first step of a Second Amendment case, may a court import limits drawn from the historical regulatory tradition into the plain-text analysis? Justice Amy Coney Barrett answered that question in her concurrence in Wolford v. Lopez, 609 U.S. ___ (2026), decided June 25, 2026 by a 6-3 vote, with the majority opinion by Justice Alito. Her answer is what will decide these cases.
The Sequence Bruen Requires
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), established a two-step framework. At step one, a court asks whether the challenged law regulates conduct covered by the Second Amendment’s plain text: does it apply to “the people,” does it concern “arms,” and does it burden keeping or bearing them. That is a linguistic inquiry, fixed to what those words meant in 1791. Only if the text is implicated does the analysis move to step two, where the burden shifts to the government to prove the regulation is consistent with this nation’s historical tradition of firearms regulation.
That sequencing is not a formality. It determines who has to prove what. If step one is read narrowly — if a plaintiff must first show that a particular firearm is commonly carried for self-defense, measured by how often it is actually fired in self-defense — the burden of historical proof effectively moves onto the citizen before the government has had to justify anything. Every lower court that has upheld an AR-15 ban has done exactly this: folded a historical, tradition-derived limitation into what is supposed to be a plain-text question.
What Barrett’s Concurrence Forecloses
Barrett’s concurrence, joined in part by Justices Thomas and Gorsuch, confronts this directly. Responding to the dissent Justice Ketanji Brown Jackson wrote — joined by Justice Sotomayor, with Justice Kagan dissenting separately — Barrett wrote that courts do not get to blend the two Bruen steps together. As her concurrence puts it:
“Courts cannot smuggle additional limits drawn from our regulatory tradition into the plain text stage of the inquiry.”
That single sentence is decisive for the AR-15 cases. An AR-15 is a firearm. A firearm is an arm. The Court told us in Heller that an arm is anything that can be used offensively or defensively, and in Bruen that it includes any instrument that facilitates armed self-defense. We know “arms” is not limited to firearms at all — Caetano v. Massachusetts, 577 U.S. 411 (2016), held that stun guns, which are not firearms, are still protected arms. Once a court accepts that an AR-15 is an arm, the plain-text inquiry is finished. Whether the government can justify banning it is a step-two question, and the government bears that burden.
How the Circuits Got the Order Backwards
The courts below in Viramontes required plaintiffs, at the plain-text stage, to show that the weapons at issue are arms ordinary people would keep at home for self-defense — a formulation that smuggles a historical, common-use limitation into what should be a linguistic question about the word “arms.” That is precisely the move Barrett’s concurrence forbids. The Second Circuit did no better reviewing Connecticut’s ban in Grant. I have made the identical charge against the Fourth Circuit, where Judge J. Harvie Wilkinson III sits, and against the Ninth Circuit, whose Wolford decision the Supreme Court has now reversed for the same interpretive error. Each of these courts asked the Second Amendment community to prove something at step one that Bruen only ever required at step two.
Why the Sequencing Wins the Case
I have made this argument for years, including in my article What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again, published in 2023 in Per Curiam, the online companion to the Harvard Journal of Law & Public Policy. Both the Viramontes and Grant cert petitions cite it, and the petitioners’ merits brief relies on the same sequencing: once an AR-15 clears the plain-text step, the government must show the rifle is “dangerous and unusual” — meaning not in common use for lawful purposes — and Heller has already told us that a firearm owned by millions cannot meet that description. Properly sequenced, under Barrett’s rule, that is a burden the government cannot carry.
That is why I expect the Supreme Court to reverse the Seventh and Second Circuits by June 2027, and why every circuit that upheld an AR-15 ban by smuggling history into the plain text did the one thing the Court has now told them, unequivocally, they may not do.
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.