Briefs from the amici supporting Connecticut and Cook County, Illinois, are now arriving at the Supreme Court in Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, the consolidated cases on bans of the AR-15 and similar semiautomatic rifles. Argument is set for December 2. Some of my readers are alarmed by the volume of filings. They should not be. I expect the petitioners to win, and to win by a wide margin when the Court rules in June 2027.
Who Filed
The docket shows that the amici supporting the respondents filed on October 28. They include the Commonwealth of Virginia; former Representative Peter King and others; the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) and others; Survivors of Assault Weapon Shootings; former major city police chiefs; and social science scholars. Prosecutors Against Gun Violence and the Major Cities Chiefs Association, the Police Executive Research Forum, and the U.S. Conference of Mayors filed as well.
I will not spend this piece on each filing. The justices and their clerks will read every one of them, and they will weigh them accordingly. But the Court does not decide a case by tallying briefs, and these filings bring no answer to the controlling rule.
The most ambitious of them is Virginia’s, which asserts at the outset: “AR-15s are not ‘Arms’ that the Second Amendment protects.” It reasons that machine guns fall outside the amendment because they are “dangerous and inapt for self-defense,” and that the AR-15 should be treated alike. Prosecutors Against Gun Violence, whose co-chair is Manhattan District Attorney Alvin Bragg, writes that “[t]he Second Amendment does not entitle civilians to carry firearms that are designed for military combat.” These are arguments about how dangerous a rifle is. They are not arguments about whether Americans commonly own it.
The Rule That Decides the Case
If a type of arm is in common use by Americans for lawful purposes, no government may ban it. That rule did not begin with Bruen. It traces to United States v. Miller, 307 U.S. 174 (1939), and District of Columbia v. Heller, 554 U.S. 570 (2008), applied it. To uphold these bans, the Court would have to overrule Miller, Heller, and Bruen. I do not believe it will, and the Justices have cited Heller approvingly repeatedly, in Bruen, Wolford, Hemani, and Rahimi.
Common use is sufficient for the petitioners to prevail. It is not necessary in every case, and an arm outside common use is not automatically bannable. But today the AR-15, the AK-pattern rifle, magazines holding more than ten rounds, suppressors, and short-barreled rifles are all arms Americans own for lawful purposes. For the issues before us now, that settles the question. My scholarship on common use, published in the Harvard Journal of Law and Public Policy, is cited by the petitioners at the certiorari stage and on the merits.
What the Court Has Already Said
Much of what the amici offer overlooks a unanimous decision. In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141 (June 5, 2025), Justice Kagan wrote for a unanimous Court that Mexico could not hold gun makers liable because cartels favored their products. The Court noted that the rifles at issue, including the AR-15, were “both widely legal and bought by many ordinary consumers,” and described the AR-15 as “the most popular rifle in the country.”
I want to be precise about this. That was a Protection of Lawful Commerce in Arms Act case, not a Second Amendment case, and the 9-0 vote does not mean the Court has already ruled on AR-15 bans. No such ruling exists. But the principle is instructive. Criminals’ fondness for a lawful product does not make the product bannable, and an amicus brief that rests on dangerous misuse by a few invites the Court to retreat from that logic.
Why I Forecast a Win
This is a forecast, not a guarantee, and I do not take any case for granted. Several signals point the same way.
The Court granted review in June 2026 although no circuit split yet existed, which tells me it recognized that some lower courts have been evading Heller. The Court also took two cases from two jurisdictions. Because the Connecticut plaintiffs plead damages, a repeal of the challenged law could not moot them, and I read the pairing as a deliberate effort to prevent mootness maneuvers like the one that ended New York State Rifle & Pistol Association v. City of New York.
Wolford v. Lopez reads to me like an opinion written with the AR-15 cases in mind. It treats the plain-text inquiry as a linguistic one, and it leaves any historical debate to the second step, where the burden rests on the government. The lower courts that folded the common-use inquiry into the plain text, and so shifted the burden onto challengers, are wrong.
Justice Kavanaugh dissented in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), the first appellate decision on an AR-15 ban, and lower courts have relied on the majority there ever since. I expect him to want his position to become the law, and he may write the opinion. I also expect Justice Kagan, an adherent of stare decisis, to join the majority, and a unanimous judgment is not out of the question.
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.