On October 21, Connecticut and Cook County, Illinois, filed their merits briefs in the Supreme Court in Grant v. Higgins, No. 25-566, and Viramontes v. Cook County, No. 25-238, the consolidated cases that will decide whether the Second and Fourteenth Amendments protect possession of AR-15-platform rifles. Argument is set for December 2. This is the first look at how the governments propose to defend the bans, and what stands out is what they decline to argue.
The Step the Lower Courts Dodged
Under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the analysis begins with the text. If the Second Amendment’s plain text covers the conduct, the Constitution presumptively protects it, and the burden shifts to the government to demonstrate that its regulation is consistent with the Nation’s historical tradition of firearm regulation.
Lower courts in the Fourth, Seventh, and Ninth Circuits have avoided that burden by suggesting that AR-15s may not be “arms” at all, which keeps the challenger stuck at the threshold. That maneuver is unsupported by the text. A semiautomatic rifle is a weapon, and a weapon is an arm.
Before the Supreme Court, the maneuver has gone quiet. Connecticut’s brief does not contest that an AR-15 is an arm. It never engages the textual step and rests its defense entirely on history and tradition. Cook County is more guarded. It writes: “To the extent that AR-15-platform weapons are ‘Arms,’ it is because they are customarily used for offensive purposes.” I read that sentence as a hedge, not a defense, and neither respondent offers a developed textual argument that the rifle falls outside the amendment. The burden rests with the governments, and the case turns on whether they can carry it.
Interest Balancing Under Another Name
What they offer is a theory that these rifles are “unusually dangerous,” supported by the mass shootings at Newtown, Las Vegas, Parkland, and Uvalde and by the claim that folding stocks, pistol grips, muzzle devices, detachable magazines, and rails make a killer more efficient. Connecticut concludes that the Constitution “does not prevent Connecticut from banning the very weapons that have wrought incalculable harm and unimaginable loss on the people of that State.”
The harm is real, but the argument is a weighing of a firearm’s benefits against its costs. Heller and Bruen rejected that exercise, along with tiers of scrutiny.
Heller supplies the answer to the premise as well. The argument against handguns in 2008 was that criminals prefer them, and a gunman had used semiautomatic pistols at Virginia Tech the year before. Justice Scalia’s majority opinion, District of Columbia v. Heller, 554 U.S. 570 (2008), held that handguns could not be banned, and Justice Breyer’s dissent pressed the argument about criminal misuse and lost. If a weapon’s popularity with wrongdoers can strip it of protection, the handgun ban in Heller was valid. The only route to a Connecticut or Cook County victory runs through overruling Heller, and in my judgment the Court will not take it. The Justices who have cited Heller approvingly in Bruen, Rahimi, Wolford, and Hemani are not poised to abandon it, and even Justice Kagan, an adherent of stare decisis, may weigh that doctrine heavily.
The Arguments Left Unanswered
Cook County invokes the dramatic technological change and unprecedented societal concern that Bruen itself identified as triggering a more nuanced approach. My scholarship on the common-use standard, which petitioners cite in their briefing, takes the opposite view: new technology or new social concerns cannot justify departing from Heller’s protection of arms in common use. I see no serious engagement with that argument in either brief.
Nor do the respondents address Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141 (2025). That was a Protection of Lawful Commerce in Arms Act case, not a Second Amendment case, and Justice Kagan wrote for a unanimous Court. In explaining why Mexico’s theory of liability failed, the Court observed that the firearms at issue were widely legal and bought by many ordinary consumers, and it described the AR-15 as “the most popular rifle in the country.” The opinion did not decide the question now before the Court. Yet it is difficult to square that description with a claim that the rifle is an exotic weapon of war, and neither respondent tries.
Finally, the history. In my reading, the laws on which Connecticut and Cook County rely, the early restrictions on Bowie knives, slungshots, and trap guns, are the same type of laws offered in Heller and Bruen and found wanting. I saw nothing new in either brief.
What I Expect
I will take up my further points of response in later pieces. For now my assessment is this. The respondents did not fight at the plain-text step, which leaves the burden on them. They have built their case on a balancing of harms the Court has already refused to conduct. And they have not answered the arguments most likely to shape the Court’s reasoning.
This is a forecast and not a guarantee: I expect the Court to rule for the petitioners when it decides the case, likely by June 2027, and I believe there is a real chance the judgment is unanimous. I am not worried about Justice Barrett, Justice Kavanaugh, or Chief Justice Roberts. The reply briefs are due November 20.
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.