Viramontes Watch: Viramontes out, Is the Case now Moot?

Cutberto Viramontes has asked the Supreme Court to let him withdraw from the challenge to Cook County’s so-called assault weapons ban. Cook County wants the justices to go a step further and dismiss the Illinois case. Viramontes’s motion gives no reason for his request. That hasn’t stopped the speculation. Supreme Court docket

One petitioner wants out. Cook County wants the case dismissed.

On October 29, Viramontes asked the Court to dismiss him personally under Supreme Court Rule 46.2. Christopher Khaya, the Second Amendment Foundation, and Firearms Policy Coalition are also petitioners. On November 5, Cook County submitted a Suggestion of Mootness, arguing that if Viramontes leaves, the remaining petitioners lack a live dispute that fits the question the Court agreed to hear. As of November 6, both submissions are awaiting a ruling. Supreme Court docket

Viramontes’s withdrawal would remove the named petitioner who sought an AR-15. Both Firearms Policy Coalition and the Second Amendment Foundation could still argue that they have standing through Khaya, who belongs to both groups and says the same ordinance prevents him from owning a semiautomatic Galil. Either group could also rely on another member if the record shows that the ban causes that member a concrete injury the Court can remedy. Whether Khaya’s Galil falls within the question the justices agreed to hear is a separate issue. District court opinion · Supreme Court question presented

How similar are the AR-15 and the Galil?

Viramontes sought to own a Smith & Wesson M&P15, an AR-15-style rifle he intended to use for self-defense. Khaya sought to own a semiautomatic IMI Galil, primarily for use at the range. The Galil comes from a Kalashnikov-derived design family. Both rifles at issue fire one round per trigger pull, and both petitioners described lawful civilian uses. District court opinion · Small Arms Survey

Cook County says the record lacks evidence showing that the Galil functions like an AR-15 or is in common use. Report on Cook County’s filing

Here’s the wrinkle. A footnote in the district court’s opinion says the plaintiffs agreed with the defendants’ own description of Khaya’s Galil as an “AR-15 style semiautomatic rifle.” That description carries no constitutional ruling, but it makes the county’s current argument harder to square with how the defendants described the rifle below. District court opinion

The Supreme Court agreed to consider AR-15-platform rifles “and similar semiautomatic rifles.” If the justices focus on how the civilian rifles fire and what people lawfully use them for, Khaya has a plausible argument that his Galil fits. If they look for evidence of common use by design family or model, the AR-15 has the clearer record. Justice Kavanaugh cited estimates of 20 to 30 million AR-15s in civilian hands in his statement in Snope v. Brown. The materials cited here provide no comparable estimate for the Galil. Supreme Court question presented · Kavanaugh’s statement in Snope

The Seventh Circuit already found the record inadequate under its own precedent. The justices could find that Khaya still has a live dispute with Cook County and separately decide whether his Galil falls within the question they agreed to hear. Seventh Circuit opinion

Grant has its own petitioners

Grant v. Higgins challenges Connecticut’s ban and has its own petitioners. The Supreme Court consolidated the two cases for briefing and argument and agreed to hear the same Second Amendment question in both. Even if the justices dismiss Viramontes, they can still answer that question in Grant. Oral argument remains scheduled for December 2. Grant v. Higgins docket

That could matter just as much in Cook County. If the Court rules that the Second Amendment protects possession of AR-15s and similar semiautomatic rifles, that precedent would bind lower courts considering comparable bans, including Cook County’s. The county’s ordinance could remain on the books, but a broad ruling could make it much harder to defend in a future challenge. A narrower ruling tied to Connecticut’s specific law would leave Cook County more room to distinguish its ordinance.

So what happens next?

What I’ll be watching is where the Court draws the line. In Heller, the Court looked at handguns as a class. If the justices take the same approach here, Khaya’s choice of rifle may matter less than Cook County says it does. Does common use turn on the popularity of the specific rifle a plaintiff wants to own, or on the broader class of arms it belongs to? Discussion of Heller in Snope