Scotus Watch: Viramontes / Grant

The Supreme Court is preparing to hear two consolidated cases that could determine whether governments may ban AR-15-style and similar semiautomatic rifles: Viramontes v. Cook County and Grant v. Higgins.

As of October 27, 2026, the consolidated docket lists 46 merits-stage amicus briefs—submissions from people and organizations that are not parties to the cases but want to offer the Court their arguments.

The breakdown is striking:

• 43 support the challengers seeking to strike down the bans.
• Two are labeled as supporting neither party.
• One supports the governments defending the bans.

The count could change as more briefs are submitted. The 43 briefs opposing the bans come from a wide range of groups, including firearms organizations, legal scholars, law enforcement organizations, states, manufacturers, and the United States Department of Justice.

Many argue that AR-15-style rifles are commonly owned for lawful purposes and therefore protected under the Supreme Court’s decision in District of Columbia v. Heller. While I question whether constitutional protection should depend on an arm’s popularity, common use is part of the Court’s existing precedent, and it provides a substantial argument against these bans.

The other three briefs caught my attention for different reasons.

Akhil Reed Amar: Protect the rifles, but rethink the framework

Yale constitutional scholar Akhil Reed Amar filed his brief in support of neither party, but he expressly asks the Court to reverse the lower court’s decision in Viramontes.

Amar argues that AR-15-style rifles are suitable for lawful self-defense and that the Court should place greater emphasis on the Fourteenth Amendment’s protection of individual rights against state and local governments. He also points to the number of states that allow possession of the rifles as evidence that their use is a fundamental customary freedom.

I agree with his proposed outcome on the rifles, but I question whether a constitutional right should depend on how many states currently permit its exercise. Amar also asks the Court to leave restrictions on larger-capacity magazines for another case, arguing that they are not ordinarily needed for self-defense. That raises another question: Who gets to decide what someone needs to defend themselves?

(Although magazine capacity is discussed in several briefs and referenced in Cook County’s rifle ordinance, the separate magazine-capacity bans are not being challenged in these consolidated cases.)

The Catholic bishops: “Capable of exceptional violence”

The U.S. Conference of Catholic Bishops’ brief also supports neither party and takes no position on the facial constitutionality of the particular laws. The bishops recognize a right to self-defense, but ask the Court to preserve government authority to regulate weapons they describe as capable of “exceptional violence.”

That phrase deserves scrutiny. What something is capable of being used for does not tell us how it is ordinarily used—or whether prohibiting it is constitutional.

The FBI’s 2024 expanded homicide table recorded 6,246 murder victims involving handguns and 401 involving rifles of all types. It also recorded 4,565 victims where the firearm type was not stated. Even if every one of those unspecified firearms had been a rifle—an extreme hypothetical—the resulting total would still be lower than the recorded handgun count.

Those figures have limits: the rifle category includes more than AR-15-style rifles, and the unspecified cases prevent us from knowing the complete breakdown. They also do not answer every question about weapons used in particular kinds of attacks. But they do raise a fair question: If the frequency of criminal use is the concern, why focus on rifles when handguns account for far more recorded homicides?

The bishops might respond that their concern is the potential severity of a rare attack. But potential for harm alone is an incomplete standard. Many ordinary products, including certain fertilizers, can be misused with devastating consequences. Some fertilizer ingredients are regulated, but we do not generally prohibit fertilizer possession because of what someone might do with it. Firearms, moreover, have a specific constitutional protection.

I would like to ask the bishops: If the government may restrict arms because they are capable of exceptional violence, which firearms do you believe the government may not ban?

David A. Robinson: An “extinct” Amendment

Connecticut attorney David A. Robinson submitted the one brief supporting the governments defending the bans. He argues that the Second Amendment’s militia clause is effectively extinct and that the right to keep and bear arms survives only to the extent it protects an inherent right, principally self-defense. He asks the Court to conclude that semiautomatic firearms, including AR-15s, are not constitutionally protected. Robinson explains that he previously tried to build support for a constitutional amendment addressing firearms, but people could not agree on its language. He argues that the Court should therefore decide what portions of the Second Amendment remain applicable. He also compares the militia clause to Major League Baseball’s former exclusion of Black players and firearm-capacity limits to automobile speed limits.

The difficulty of amending the Constitution does not give the Supreme Court authority to accomplish a proposed change by declaring constitutional language obsolete. Article V makes amendments difficult because changes to our founding document require broad agreement.

My own amicus brief

After reading these submissions, I believe I can offer the Court a somewhat shorter argument:

Dear Supreme Court Justices,

Shall not be infringed.

Sincerely,
Zion Patriot

Oral argument in the consolidated cases is scheduled for December 2, 2026. The Court’s eventual decision—and the reasoning behind it—could shape Second Amendment law well beyond the two laws being challenged.