On September 29, the Supreme Court granted the government’s application to stay the judgment of the District of Massachusetts in Department of Homeland Security v. D.V.D., No. 26-426 (application 26A406), and in the same order agreed to hear the case. The litigation concerns the Executive Branch’s policy of removing noncitizens who already hold final removal orders to third countries, meaning countries other than their own. Precision matters here. This is an interim stay coupled with a grant of certiorari before judgment. It is not a ruling on the merits.
What the Court Actually Did
The order is unsigned and carries no opinion. It reads: “The application for stay presented to Justice Jackson and by her referred to the Court is granted.” It continues: “The application is also treated as a petition for a writ of certiorari, and the petition is granted.” The Clerk was directed to set a briefing schedule “that will allow the case to be argued in the December 2026 argument session,” and the Court has since set argument for December 9.
Three Justices noted their position in a single line: “Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay.” No one wrote separately.
The Court framed three principal questions: whether the district court had jurisdiction over the respondents’ claims; whether it had authority to enter classwide declaratory relief and vacatur under the Administrative Procedure Act in light of 8 U.S.C. § 1252(f)(1); and whether the government’s guidance on third-country removals is lawful under 8 U.S.C. § 1231(b), the Due Process Clause, and the statutes and regulations implementing the Convention Against Torture. Solicitor General D. John Sauer secured the stay. The merits remain undecided, and the First Circuit’s September 18 decision, which required effective notice and a meaningful opportunity to raise fear-of-torture claims before removal, is the ruling the Court will now review.
My forecast, and it is only a forecast, is that the government prevails when the case is argued. The Court also stayed an earlier injunction in this litigation in June 2025.
The Structural Lesson Gun Owners Already Know
The part of this episode that matters most to Second Amendment readers is not the immigration policy itself. It is the pattern of resistance below.
Judge Stephen Reinhardt of the Ninth Circuit, who died in 2018 at the age of 87, was candid about his approach. Asked about the frequency with which the Supreme Court reversed him, he is widely reported to have said that the Justices could not catch them all. The remark was an accurate description of arithmetic. The Court decides roughly sixty to seventy argued cases a year. A lower court willing to issue rulings the Court disfavors can count on most of them never being reviewed.
Judge Reinhardt applied that logic to this amendment. In Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), he wrote for the panel that the Second Amendment protects a collective right tied to the militia and not an individual one. That view stood as binding circuit law for years, until the Supreme Court rejected it in District of Columbia v. Heller, 554 U.S. 570 (2008). Residents of the Ninth Circuit lived under the collective-right reading in the interim.
I believe the strategy did not die with him. The Court cannot supervise every docket. What it can do is take the vehicle that presents the question cleanly, and in December it will hear two: Viramontes v. Cook County and Grant v. Higgins, the AR-15 cases, set for argument on December 2, one week before D.V.D.
Why First Circuit Rulings Draw Scrutiny
I have long argued that the First Circuit is the least receptive court in the country to claims of individual constitutional rights, the Second Amendment included. Massachusetts was the forum chosen by the government of Mexico when it sued the American firearms industry, and the Supreme Court unanimously reversed in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025). Where a litigant chooses to file is itself a signal of what that litigant expects.
Immigration and the Second Amendment
I have said before that immigration policy bears on the future of Second Amendment rights. My argument is political, not legal. Gun-rights protections ultimately depend on legislatures and electorates, and newcomers from countries with no tradition of lawful private firearm ownership may bring different assumptions about gun regulation. In Virginia, where roughly 13.5 percent of residents are foreign born, according to the Migration Policy Institute’s 2024 estimate, I believe that matters at the margin of close elections.
That is my view of the politics, offered as argument. It is separate from what the Court has decided, which for now is only that the government may continue the removals while it hears the case.
The Court has given this dispute a December argument and has told the lower courts, for the moment, to stand down. Whether it gives the same attention to the many other cases where its direction is being resisted is the question gun owners should keep asking.
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.