By Tanya Metaksa
What’s New — SCOTUS 2026-2027 Viramontes v. Cook County and Grant v. Higgins cases will be argued before SCOTUS this fall during the 2026-2027 term. Analysis of the petitioners opening brief; Duncan v. Bonta, No. 25-112, U.S. Supreme Court (petition for certiorari pending from the en banc Ninth Circuit): Petitioners filed a supplemental brief on August 7, 2026, urging the Court to grant certiorari in light of the en banc Third Circuit’s intervening decision in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General of New Jersey, which invalidated New Jersey’s materially similar magazine ban; New Mexico: Tenth Circuit: Oretega v. Grisham: Case No. 24-2121: Published Aug. 19: The Tenth Circuit held that the plaintiffs were likely to succeed because the Second Amendment’s protection of keeping and bearing arms includes acquiring arms, and New Mexico had not established a sufficiently analogous historical tradition for a categorical “cooling-off” delay; Colorado: Tenth Circuit: Del Toro v. Polis, Case No. 1:25-cv-02725, U.S. District Court for the District of Colorado (filed September 2, 2025); On Aug. 11, the Colorado State Shooting Association and five individual plaintiffs, now represented in part by NRA-ILA counsel, moved for a preliminary injunction to suspend the permit-to-purchase requirements while the action proceeds.
Week ending August 29
As the summer winds down to the Labor Day weekend, very few new judicial threads have emerged. At the Supreme Court, the consolidated AR-15 cases (Viramontes v. Cook County and Grant v. Higgins) remain the marquee vehicles awaiting fall argument, while the large-capacity-magazine cases (Duncan, Gator’s Custom Guns, NAGR v. Lamont) sit held over for the September 28 long conference.
SCOTUS
The petitioners’ opening brief in the consolidated Viramontes v. Cook County and Grant v. Higgins SUPREME COURT cases has been filed.
Viramontes v. Cook County, Docket # 25-236; and Grant v. Higgins, Docket # 25-566
Mark W. Smith, Second Amendment attorney (@FourBoxesDiner on X.com and the Four Boxes Diner on YouTube.com), has just analyzed the petitioners opening brief in videos and it his highly likely that he will keep adding his thoughts throughout this consequential year. This will be the most important Second Amendment case in my lifetime and as a result, we are going to follow this case throughout this term on this page and include filings, court orders, the oral argument before the Supreme Court, other important events, and THE final judgment.
Smith has spent the past several years making a case on his youtube.com channel, The Four Boxes Diner, and in published articles that District of Columbia v. Heller (2008) and NYSRPA v. Bruen (2022) already require the Court to hold that commonly owned semiautomatic rifles cannot be banned. However, that prediction is his advocacy and legal interpretation—not an announced Court outcome.
Central Argument
Smith says the cases ask whether the Second and Fourteenth Amendments protect possession of AR-15 platform and similar semiautomatic rifles. He explains that the Fourteenth Amendment is relevant because it incorporates the Second Amendment against state and local governments.
Militia and history
A central point of Smith’s analysis is that the “common use” principle also rests on the founding-era militia system: ordinary citizens were expected to bring privately owned arms and equipment to militia service. In his view, that history supports constitutional protection for arms commonly kept by the public, rather than limiting the Second Amendment to formal military service.
His legal theory is straightforward: semiautomatic rifles are “arms” within the Second Amendment’s text; once that is established, the government must identify a historically grounded tradition sufficient to justify a modern prohibition. He argues that Heller supplies the decisive rule—arms “in common use” for lawful purposes cannot be categorically banned as “dangerous and unusual.”
Brief’s Analysis
The videos emphasizes the brief’s assertions that tens of millions of Americans own AR-15–type rifles for lawful purposes, including self-defense, hunting, and target shooting, and that the rifles are widely legal across the country. Smith also highlights arguments that their features—such as lighter weight, reduced recoil, adjustable stocks, and pistol grips—serve ordinary usability and accuracy rather than turn them into a constitutionally distinct class of firearms.
Smith keeps arguing through both videos that lower courts have improperly treated mass shootings, modern firearm technology, and “new social problems” as grounds for a more flexible constitutional analysis. In his view, common use today already accommodates technological and social change, so those considerations cannot displace the Heller rule.
Dynamic-right theory
Smith emphasizes that common use is a contemporary, public-choice inquiry: weapons that may once have been rare or subject to restrictions can become protected once they are widely possessed for lawful purposes. He uses handguns as the principal example and suggests the same logic could eventually extend protection to other presently uncommon arms if lawful public adoption made them common.
Bottom line
Thus the second video’s thesis is that the Second Amendment protects the public’s practical choices about which bearable arms are useful for self-defense, rather than allowing legislators or judges to define those choices away. Smith expects that idea—and an AR-15-ban invalidation—to figure prominently in a future Supreme Court decision, which he speculates could arrive in June 2027.
Duncan v. Bonta, No. 25-112, U.S. Supreme Court (petition for certiorari pending from the en banc Ninth Circuit).
Issue: Whether California’s prohibition on possession of firearm magazines capable of holding more than ten rounds violates the Second Amendment.
August’s development: Petitioners filed a supplemental brief on Aug. 7, urging the Court to grant certiorari in light of the en banc Third Circuit’s intervening decision in Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General of New Jersey, which invalidated New Jersey’s materially similar magazine ban.
Certiorari basis: The supplemental filing identifies a direct and acknowledged circuit split: the Ninth Circuit held that magazines over ten rounds fall outside Second Amendment protection, while the Third Circuit held that magazines are protected “arms” and that commonly used magazines may not be banned.
Practical significance: The petition asks the Court to resolve whether commonly owned magazines receive Second Amendment protection, potentially alongside pending Supreme Court challenges to bans on AR-15-style rifles; the Court had relisted Duncan more than 20 times before holding it over for the summer.
Court of Appeals
New Mexico: Tenth Circuit
Oretega v. Grisham: Case No. 24-2121: Published Aug. 19: Ortega v. Lujan Grisham is a Second Amendment challenge to New Mexico’s seven-day firearm-purchase waiting period. The Tenth Circuit held that the plaintiffs were likely to succeed because the Second Amendment’s protection of keeping and bearing arms includes acquiring arms, and New Mexico had not established a sufficiently analogous historical tradition for a categorical “cooling-off” delay.
Applying the framework associated with District of Columbia v. Heller, N.Y. State Rifle & Pistol Ass’n v. Bruen, and United States v. Rahimi, the 2-1 majority reached two central conclusions:
- Covered conduct. The court held that the right to “keep and bear Arms” necessarily incorporates a right to acquire arms. A law that categorically prevents a qualified buyer from taking possession of a purchased firearm for seven days therefore burdens conduct within the Second Amendment’s text.
- Historical tradition. The State did not identify a comparable historical tradition that justified the modern, across-the-board waiting period. The court rejected the proposition that a contemporary waiting period could be sustained simply as a commercial-sales condition or as a longstanding historical regulatory practice.
The court also concluded that the plaintiffs had satisfied the remaining preliminary-injunction factors: a likelihood of irreparable constitutional injury, a balance of equities favoring relief, and consistency with the public interest.
Holding and practical significance
The Tenth Circuit reversed the denial of a preliminary injunction and instructed the district court to enter appropriate injunctive relief. Its holding is significant because it treats a complete prohibition on taking possession of an otherwise lawfully purchased firearm—even for a limited duration—as a burden on the core Second Amendment right, rather than merely a regulation of commercial firearms transactions.
U.S. District Court: Case No: 1:23-cv-00471-JB-SCY. The district court denied the preliminary injunction. Its reasoning included the view that the Second Amendment did not extend to acquiring firearms and that the waiting period was consistent with historical firearms regulation.
District Court
Colorado: Tenth Circuit
Del Toro v. Polis, Case No. 1:25-cv-02725, U.S. District Court for the District of Colorado (filed September 2, 2025).
Issue: Colorado Senate Bill 25-003 creates a permit-to-purchase system for specified semiautomatic firearms. An applicant must obtain a third-party background check and vendor attestation, apply to the county sheriff with identification and supporting documents, pay an eligibility fee, complete 12 hours of qualifying instruction over at least two days (or four hours with hunter-education credit), pass a written examination with a 90% score, undergo a further background check, and wait three days to take possession.
This week’s development: On Aug. 11, the Colorado State Shooting Association and five individual plaintiffs, now represented in part by NRA-ILA counsel, moved for a preliminary injunction to suspend the permit-to-purchase requirements while the action proceeds.
Reasoning argued by plaintiffs: The motion characterizes the regime as an ahistorical and constitutionally impermissible licensing system that burdens or effectively prevents law-abiding people from acquiring commonly used firearms, while affording sheriffs discretion to deny permits based on predictive assessments of future conduct.
Practical impact: The law took effect Aug. 1, and the plaintiffs assert that uneven county implementation, delays, and some counties’ failure to issue eligibility cards have already obstructed purchases of covered firearms; no preliminary injunction had issued as of the article’s publication.
Colorado: Tenth Circuit
Howeth v. City and County of Denver: Case No. 1:26-cv-03690-DDD-KAS: U.S. District Court for the District of Colorado (filed Aug. 31).
Issue: Colorado’s refusal to issue concealed-handgun permits to nonresidents, combined with its limited reciprocity rule and Denver’s prohibition on open carry, allegedly leaves qualified out-of-state visitors with no lawful way to carry a handgun in Denver.
This week’s development: The NRA, Colorado State Shooting Association, and two individual plaintiffs—Greg Howeth of Hawaii and Zackary Dougherty of South Carolina—filed suit seeking declaratory and injunctive relief.
Reasoning argued by plaintiffs: The combined state and municipal provisions allegedly amount to a complete carry ban for nonresidents, contrary to Supreme Court Second Amendment carry precedent and the historical treatment of travelers, whom the complaint says traditionally possessed at least equivalent, and often greater, carry rights than residents.
Practical impact: The suit challenges Colo. Rev. Stat. §§ 18-12-203 and 18-12-213 and Denver Rev. Mun. Code § 38-117(a), (b), and (f) as they operate together; absent preliminary relief, nonresident permit holders remain unable to lawfully carry either concealed or openly in Denver under the challenged framework.
Tenth Circuit: New Mexico:
Ortega v. Grisham, Case No. 1:24-cv-00471-JB-SCY, U.S. District Court for the District of New Mexico (filed May 15, 2024).
Issue: New Mexico’s 2024 Waiting Period Act imposed a categorical seven-day delay before a purchaser could take possession of most newly purchased firearms, including buyers who promptly passed a background check. This week’s development: The district court granted summary judgment for the NRA-supported plaintiffs and entered final judgment holding the statute unconstitutional after remand from the Tenth Circuit.
Reasoning: The Tenth Circuit had held that the Second Amendment right to keep and bear arms encompasses lawful acquisition of arms and that mandatory “cooling-off” periods lack support in the Nation’s historical tradition of firearm regulation; the district court concluded it was bound by that ruling despite the State’s contrary argument.
Practical impact: The final judgment invalidates New Mexico’s seven-day waiting-period law, although the State may appeal again to the Tenth Circuit, which had already rejected the State’s petition for rehearing en banc and ruled the law unconstitutional.
