By Tanya Metaksa
What’s New — Department of Justice (DOJ): DOJ rights-restoration portal fills on its first public day (18 U.S.C. § 925(c)); SCOTUS Nov. 6 conference; Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566: amicus briefs even asked to overrule Heller; Davenport v. ANJRPC, Case No. 26-452: Awaiting a ruling on certiorari: plaintiffs request SCOTUS hold its certiorari decision until after Viramontes is decided; Appeals Court: Texas- Fifth Circuit: FPC v. ATF (formerly Reese v. ATF), Appeals Court Case No: 26-30154; FPC and SAF filed reply briefs opposing DOJ’s request to declare the case moot; Temple Gun Club, Inc. v. Blanche, Case No. 26-10696 (Nov. 4):. Fifth Circuit declines immediate full-court review of federal machine-gun ban; District Court: Colorado: Tenth Circuit: Del Toro v. Polis, No. 1:25-cv-02725 (D. Colo.): Colorado permit-to-purchase law survives preliminary-injunction motion; State Court: Georgia: Georgia Supreme Court: Trammell v. State, Case No. S26A1334 (Ga.); Virginia:-Virginia Circuit Court: Crump v. Katz, Case No:CL26000201-in the Circuit Court for the County of Lancaster, Virginia: Virginia assault-weapon and magazine ban injunction expanded; Florida Attorney General issues an opinion on SBRs and SBSs.
Department of Justice (DOJ)
DOJ rights-restoration portal fills on its first public day (18 U.S.C. § 925(c))
What happened: DOJ opened its Federal Firearm Rights Restoration application to the public on Nov. 4, and hit its 5,000-applicant cap that day. The next intake is Jan. 4, 2027, for 500 applicants, with a $30 fee (DOJ).
Why it matters: This is the first working § 925(c) program in over 30 years. It feeds directly into § 922(g)(1) as-applied cases. The en banc Third Circuit has declined to require defendants to seek administrative relief before raising a constitutional defense.
U.S. Supreme Court
November 6 — orders list
Last week we stated that 24 firearms-related petitions scheduled for consideration, predominantly challenges to the federal felon-in-possession prohibition or state equivalents, were on the November 6 orders list. According to Washington Gun Law’s YouTube report, the Court declined to hear most of the Second Amendment cases considered at its Nov. 6 conference. In all, 22 of the 24 Second Amendment cases were denied review. Two petitions remained pending and were rescheduled for the Nov. 13 conference: Balogh v. New York, a New York carry-licensing challenge, and Coleman v. United States, involving an AR-15 equipped with a device enabling multiple shots with one trigger pull. Kirk predicts that both may also be denied.
Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566
Last week we wrote about Cutberto Viramontes’s motion to withdraw personally from the Supreme Court challenge to Cook County’s assault-weapons ban, and that Mark W. Smith believes that the motion by Viramontes to withdraw personally from the Supreme Court challenge to Cook County’s assault-weapons ban, will not affect the case as it moves toward oral argument, scheduled for Dec. 2.
Viramontes amicus filings include calls to overrule Heller
Coverage this week highlighted two Oct. 28 briefs supporting the bans, from Americans Against Gun Violence and the American Enlightenment Project, that ask the Court to declare Heller wrongly decided. They are part of a large wave of respondent-side amici. The Court, however, did not grant review on whether to revisit Heller. The briefs mainly show how far the opposition’s anti-2A rhetoric goes.
Davenport v. ANJRPC, Case No. 26-452: Awaiting a ruling on certiorari
On Nov. 4, ANJRPC, FPC and five individual gun owners filed their brief in opposition to certiorari. They agreed with New Jersey that the Court should hold the petition until it decides the Viramontes and Grant cases. They also defended the en banc Third Circuit’s 10–5 ruling that struck down the rifle ban and the 10-round magazine limit.
Why it matters: The petition raises the magazine question, which Viramontes does not. Duncan v. Bonta and NAGR v. Lamont are already being held on that question. The Third Circuit’s mandate remains stayed, so New Jersey’s bans remain in force.
Court of Appeals
Texas: Fifth Circuit
FPC v. ATF (formerly Reese v. ATF), Appeals Court Case No. 26-30154: FPC and SAF, remand from Case No. 6:20-cv-01438.
FPC and SAF filed reply briefs opposing DOJ’s request to declare the case moot. DOJ based that request on a September 17, 2026, OLC opinion agreeing that the federal 18–20 handgun-sale ban is unconstitutional. A SAF motion filed on Nov. 4, asks the court to expand relief that now covers only members in Texas, Louisiana and Mississippi.
Why it matters: The case tests whether executive non-enforcement can moot a constitutional victory and limit how far relief reaches. That issue will recur as DOJ concedes more Second Amendment claims. Executive non-enforcement can be reversed by the next administration; it would be better for the gun owners if the courts issue an opinion.
Texas: Fifth Circuit
Temple Gun Club, Inc. v. Blanche, No. 26-10696 (November 4, 2026): Fifth Circuit declines immediate en banc-of federal machine-gun ban
What happened: On Nov. 4, the Fifth Circuit voted 9–8 not to hear the challenge to 18 U.S.C. § 922(o), the Hughes Amendment, en banc, The case will now go to a regular three-judge panel. The order is procedural. It did not strike down the ban or rule on the merits. Judge Andrew Oldham dissented, joined by Judge James Ho. He said the court should take up Temple Gun Club alongside United States v. Squire, the § 922(g) Commerce Clause case it is already rehearing en banc. He noted that § 922(g) has an express interstate-commerce element and § 922(o) does not. He also argued that law-abiding gun owners seeking a ruling before they act make better plaintiffs than Squire, a repeat felon. He repeated his view from United States v. Wilson: “As far as I am aware, there is no historical justification for banning machine guns.”
Why it matters: The challenge rests on Congress’s commerce power, not the Second Amendment. It asks whether Congress can ban purely intrastate machine-gun possession. Mark W. Smith views the 9–8 vote and the Oldham–Ho dissent as a sign that influential Fifth Circuit judges are open to revisiting § 922(o). He also sees support for his strategy of bringing cases with law-abiding plaintiffs who ask courts to clarify their rights before they break the law. The dissent is not a holding, though, and the ban remains in force.
District Court
Colorado: Tenth Circuit
Del Toro v. Polis, No. 1:25-cv-02725 (D. Colo.): Colorado permit-to-purchase law survives preliminary-injunction motion
On Nov. 4, Senior Judge William J. Martínez denied a preliminary injunction against the permit-to-purchase provisions of SB25-003. He held that the plaintiffs had not shown the covered semiautomatics are protected “arms,” citing a lack of historical civilian use. He also held that the scheme is permissible shall-issue licensing under Bruen.
Why it matters: The finding that the guns are not “arms” at step one directly conflicts with the “common use” theory the Supreme Court will hear on Dec. 2. The order is an early test of Bruen footnote 9’s “abusive ends” exception for licensing regimes.
State Courts
Georgia: Georgia Supreme Court
Trammell v. State, Case No. S26A1334 (Ga.): Georgia Supreme Court requires notice to the AG before ruling on felon-ban challenges. The court unanimously held that OCGA § 9-4-7(c) requires service on the Attorney General before a trial court rules on a constitutional challenge, including in criminal cases. It vacated the ruling on the Second Amendment claim and remanded.
Why it matters: This is a procedural trap for defense counsel bringing Bruen challenges in Georgia. The court did not decide whether the felon ban is constitutional.
Virginia: Virginia Circuit Court
Crump v. Katz, Case No: CL26000201,-in the Circuit Court for the County of Lancaster, Virginia, before Judge John S. Martin: Virginia assault-weapon and magazine ban injunction expanded.
On Nov. 2, Judge John S. Martin expanded the temporary injunction against SB 749. It now binds “the Commonwealth of Virginia, its agencies and employees,” not just the State Police Superintendent. The injunction still runs through Dec. 31, or a final ruling. The Commonwealth noted its objection.
Why it matters: The order closes a gap that had let local police and prosecutors enforce the ban. It is a state-court challenge running alongside the federal question in Viramontes.
Florida Attorney General issues an opinion on SBRs and SBSs
The Firearms Firm, Katz and Phillips, P.A., posted a video on x.com about Florida Attorney General James Uthmeier’s Nov. 6, interpretation of Florida law as permitting otherwise lawful possession of short-barreled rifles (SBRs) and short-barreled shotguns (SBSs) without federal NFA approval, registration, or a tax stamp. The presenter, attorney James Phillips, describes this as a change in legal interpretation and enforcement—not a repeal of Florida’s statute.
The legal reasoning
Florida Statutes § 790.221 generally prohibits possession of these firearms but contains an exception for firearms “lawfully owned and possessed under provisions of federal law.” According to Phillips, the question is whether that exception requires actual federal registration or instead covers possession that is lawful without registration.
The video describes this sequence:
- Aug. 5: A federal district court in Silencer Shop Foundation v. ATF reportedly invalidated certain NFA registration and approval requirements following the elimination of the relevant making and transfer taxes. Phillips says the injunction protected specified plaintiffs and associated members and customers—not everyone automatically.
- Aug. 25: Phillips submitted a letter on behalf of Gun Owners of America requesting clarification of how Florida’s statutory exception applied to people protected by that injunction.
- Oct. 9: ATF reportedly announced broader nationwide non-enforcement of the affected requirements.
- Nov. 6: Uthmeier reportedly issued statewide guidance concluding that missing NFA paperwork alone does not make otherwise lawful SBR or SBS possession unlawful under Florida law.
Phillips says his letter and the memorandum rely on the statutory text and the Florida Supreme Court’s Rinzler v. Carson precedent, alongside principles favoring defendants when criminal statutes remain genuinely ambiguous. His argument is not that a federal court erased Florida’s prohibition, but that Florida’s existing federal-law exception must account for the current operation of federal law.
The November 6, 2026, memorandum from Attorney General Uthmeier begins with:
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What the memorandum reportedly directs
According to the video, the attorney general’s guidance states that:
- Mere possession of an SBR or SBS does not, by itself, establish reasonable suspicion or probable cause for a search or seizure.
- Discovering such a firearm during an otherwise lawful encounter does not automatically authorize its seizure under the plain-view doctrine.
- The attorney general’s office will no longer defend convictions on appeal when the sole basis is the absence of NFA approval, registration, or a tax stamp.
The important limits
The distinction is between an enforcement position and a binding change in law. Phillips acknowledges that an attorney general’s memorandum is neither a new statute nor a definitive Florida appellate ruling, and that ATF’s non-enforcement policy could change. Other state and federal restrictions remain applicable; the video specifically says this development does not eliminate restrictions on machine guns or destructive devices.
