By Tanya Metaksa
What’s New — An amicus asking the Court for a “dangerousness standard”; Viramontes v. Cook County,—Governments file merits briefs defending semiautomatic-rifle bans; Beckwith v. Frey-certiorari denied; Texas – Fifth Circuit: United States v. Peter Villa Cordova (W.D. Tex.) – oral argument scheduled for en banc in January 2027; Pennsylvania – Third Circuit: United States v. Bost (W.D. Pa.).another case dealing with dangerousness; New Mexico – Tenth Circuit: NSSF v. Torrez: No. 1:26-cv-03514, New Suit Seeks Broader Relief From New Mexico’s Waiting Period Case identification; New York – Second Circuit; Heeter v. James, Case No. 1:24-cv-00623 — U.S. District Court for the Western District of New York: Body-armor purchase ban struck down, with relief temporarily stayed; Massachusetts Supreme Court—Commonwealth v. Mikai Thomson, No. SJC-13856, decided Oct. 20. The Massachusetts Supreme Judicial Court ruled 5–2 that the Commonwealth’s minimum age of 21 for a license to carry firearms does not violate the Second Amendment.
Weekly Second Amendment Developments — Week Ending Friday, October 23, 2026
The week’s most consequential judicial development was United States v. Peter Villa Cordova (W.D. Tex.); where the NRA and the Second Amendment Foundation’s amicus regarding the concept of a delineation by the Court of dangerousness standard was submitted.
U. S. Supreme Court
Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566—Governments file merits briefs defending semiautomatic-rifle bans.
Cook County and Connecticut submitted their respondents’ merits briefs in the consolidated challenges to prohibitions on AR-15s and similar semiautomatic rifles. The governments defend their authority to prohibit these weapons and dispute the challengers’ characterization of them as ordinary protected arms; the Court has scheduled argument for December 2, 2026.
Beckwith v. Frey, Case No. 25-1160. In this case District Court Judge Lance E. Walker granted a preliminary injunction blocking the enforcement of Maine’s 72-hour waiting period law. Unfortunately for the plaintiff, the Court of Appeals for the First Circuit upheld Maine’s 72-hour waiting period for firearm purchases and ruled that the waiting period for firearm purchases does not implicate conduct protected by the “plain text” of the Second Amendment and therefore survives at step one of the Bruen–Rahimi framework. SCOTUS denied petition for certiorari.
Landrum v. United States, Case No: 25-7530. Both the Circuit Court and the Fifth Circuit affirmed his conviction on 18 U.S.C. § 922(g)(1) grounds. SCOTUS denied certiorari on October 19, 2026.
U.S. Courts of Appeals
Texas – Fifth Circuit
United States v. Peter Villa Cordova (W.D. Tex.); District Court Case No. 7:24-cr-00031-1
Cordova challenged 18 U.S.C. § 922(g)(1), the federal felon-in-possession prohibition, as unconstitutional under the Second Amendment as applied to him; his prior felony convictions included drug possession and evading arrest or detention with a motor vehicle. His motion to dismiss the indictment was unsuccessful, and he pleaded guilty without a written plea agreement, preserving his as-applied constitutional challenge for appeal. The appellate docket Court of Appeals — panel disposition and subsequent en banc proceedings
Court of Appeals: panel disposition and en banc proceedings: This past May 20, a panel consisting of Circuit Judges Catharina Haynes, James C. Ho and Andrew S. Oldham affirmed Cordova’s conviction in a published per curiam opinion—meaning no individual author was identified—with Judges Ho and Oldham each writing separately to concur in the judgment. The court rejected Cordova’s as-applied challenge because his vehicular-evasion conviction demonstrated a “credible threat to the physical safety of others,” while Judge Oldham urged replacing United States v. Diaz’s framework with a historically grounded dangerousness standard.
On Sept. 14, the Fifth Circuit granted rehearing en banc and vacated the May 20 panel opinion, so that opinion is not the court’s current merits disposition. As of Oct. 21, en banc review remained pending, with oral argument tentatively scheduled for the week of Jan. 18, 2027.
Dangerousness standard — NRA/SAF amicus position
The National Rifle Association and Second Amendment Foundation filed their amicus brief in support of neither party, asking the en banc court to adopt a dangerousness standard rather than treat felony status alone as sufficient justification for disarmament. Their historical argument is that disarmament traditionally targeted persons posing a threat of violence or armed insurrection—not peaceable citizens, including nonviolent felons without a propensity for violence. They also reject the inference that Founding-era capital punishment for some felonies establishes a tradition of permanent disarmament after an offender completes a sentence, arguing that comparable reasoning would not justify stripping other Bill of Rights protections.
That proposed standard does not necessarily require a ruling for Cordova: Judge Oldham advocated a dangerousness inquiry but concluded that Cordova’s record justified rejecting his challenge. Judge Ho separately emphasized that Cordova had not adequately presented a distinct challenge to the lifetime duration of his disarmament, an important distinction between the broader concern addressed by the amici and the arguments resolved at the panel stage.
Why it matters: The decision extends Bruen’s protection beyond firearms and recognizes that restrictions on acquiring and supplying arms can implicate the right. Its distinction between a permissible regulatory purpose—the historical “why”—and an impermissibly broad method—the “how”—offers a consequential framework for other commercial restrictions. It does not invalidate every provision of the Federal Switchblade Act.
Pennsylvania – Third Circuit
United States v. Bost (W.D. Pa.). Case No. 2:21-cr-30-CCW, U.S. District Court for the Western District of Pennsylvania, Judge Christy Criswell Wiegand. Decision: Nov. 8, 2023
James Bost, who had prior convictions for terroristic threats and conspiracy to commit terroristic threats, moved to dismiss charges of possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1) and possessing a stolen firearm under § 922(j), principally on Second Amendment grounds. Applying Bruen and Range, the court held that disarming Bost was consistent with the nation’s historical tradition of firearm regulation because his prior terroristic-threats conviction indicated potential dangerousness, distinguishing him from the nonviolent challenger in Range. The court also held that knowing possession of a stolen firearm falls outside the Second Amendment’s protection and, alternatively, that historical analogues supported § 922(j). It denied the motion to dismiss in its entirety, also rejecting Bost’s facial, vagueness, and Commerce Clause challenges to § 922(g)(1), leaving both charges pending
Third Circuit No. 24-1719, decided Oct. 13, 2026.
The en banc Third Circuit affirmed James Bost’s federal firearm conviction, holding that his Pennsylvania terroristic-threats conviction was sufficient to justify presumptive disarmament under 18 U.S.C. § 922(g)(1). Judge Stephanos Bibas’s opinion rejected both Bost’s challenge to the statute as applied to him and his facial challenge seeking to invalidate it across the board. The critical distinction is between a conviction establishing statutory eligibility for disarmament and a conviction establishing its constitutional justification: the majority did not uphold firearm prohibitions for every person covered by the statute. It held that some convictions, including Bost’s, themselves demonstrate a sufficient risk of physical violence.
Why Bost’s conviction mattered
Bost’s predicate convictions arose from a 2002 carjacking in which he threatened to kill the driver unless she gave him money. He pleaded guilty to terroristic threats and other offenses and received four years’ probation. Although Pennsylvania classified the terroristic-threats and conspiracy offenses as misdemeanors, each carried a maximum five-year prison sentence and qualified as a predicate under the federal prohibition. The state-law label and the sentence actually imposed therefore did not resolve his federal firearm eligibility.
The constitutional analysis turned on the elements of the terroristic-threats offense: Bost had been convicted of threatening a crime of violence with intent to terrorize another person. The majority treated that adjudicated threat as sufficient evidence of a risk of violence to defeat his motion to dismiss. It did not require the predicate offense to have involved a firearm.
The rule—and its limits
The court connected its ruling to the historical-analogy framework required by New York State Rifle & Pistol Association v. Bruen. It relied principally on laws addressing threatening armed conduct and surety laws, under which magistrates could require a person found likely to breach the peace to post a bond. The majority reasoned that these traditions permitted preventive restrictions following an individualized judicial determination of risk—and that a conviction with violent or threatening elements could supply the necessary determination.
The holding is presumptive, not a complete account of when firearm rights may be lost or recovered. At the motion-to-dismiss stage, the government must justify the prosecution by reference to the predicate crime. Bost’s offense supplied that justification, but the court left unresolved:
- Whether violent or threatening elements are necessary, rather than merely sufficient, and when facts underlying a conviction or other evidence may be considered.
- Which offenses fall into an intermediate category between plainly violent crimes and offenses that do not indicate physical danger.
- What showing, if any, could later remove a person from the category presumptively subject to disarmament.
Those reservations matter because Bost preserves the distinction underlying Range v. Attorney General, which invalidated § 922(g)(1) as applied to a person convicted of food-stamp fraud. A qualifying criminal record alone does not establish the majority’s constitutional justification; the predicate offense must support the required inference of physical danger, or the government must provide a different historical analogy.
Where the judges divided
The separate opinions disputed both the breadth of legislative authority and the adequacy of the majority’s framework:
- Judge Shwartz, joined by Judges Krause and Restrepo, would have upheld the prohibition for all felons. She argued that the majority’s offense-dependent approach leaves individuals uncertain about their rights and district courts without adequate guidance.
- Judge Mascott would have resolved the case through Bost’s individual violent record rather than judicially defining categorical subclasses of disqualifying offenses.
- Judge Montgomery-Reeves joined the majority except for its discussion of discriminatory historical disarmament laws. That section did not command a majority.
- Judge Phipps, joined by Judge Bove, dissented from the as-applied ruling. He argued that historical restrictions did not justify presumptively permanent disarmament after a person had completed his punishment. He nevertheless agreed that the statute was not facially unconstitutional.
Practical significance
The decision gives prosecutors a basis to defend § 922(g)(1) charges involving predicates with violent or threatening elements without first proving a new threat involving a firearm. At the same time, it requires courts to distinguish those predicates from offenses that do not establish physical danger. The resulting inquiry is narrower than a blanket felon prohibition, but its boundaries—and the means of overcoming the presumption—remain unsettled.
The court also held that Bost did not have to seek administrative restoration of firearm rights before raising a constitutional defense in his prosecution. It rejected his vagueness claim, treated his Commerce Clause objection as foreclosed by circuit precedent, and upheld the stolen-firearm prohibition as applied to him. Those rulings disposed of his remaining claims without resolving the broader questions concerning the duration of disarmament or restoration of rights.
District Court
New Lawsuit Challenges Continued Enforcement of New Mexico’s Firearm Waiting Period
New Mexico – Tenth Circuit
NSSF v. Torrez: No. 1:26-cv-03514, New Suit Seeks Broader Relief From New Mexico’s Waiting PeriodCase identification
| Proceeding | Case number and court | Judge(s) |
| National Shooting Sports Foundation, Inc., et al. v. Torrez — new lawsuit | No. 1:26-cv-03514, U.S. District Court for the District of New Mexico. The complaint was filed October 19, 2026. | Jerry H. Ritter, United States Magistrate Judge. |
| Ortega v. Lujan Grisham — related district court litigation | No. 1:24-cv-00471-JB-SCY, U.S. District Court for the District of New Mexico. | District Judge James O. Browning; referred to Magistrate Judge Steven C. Yarbrough. |
| Ortega v. Grisham — related appeal producing the waiting-period decision | No. 24-2121, U.S. Court of Appeals for the Tenth Circuit. | Circuit Judges Timothy M. Tymkovich, Scott M. Matheson Jr., and Allison H. Eid. Tymkovich wrote the majority opinion; Matheson dissented. |
Ortega is a separate, related case—not an appeal—in the newly filed NSSF action. Reporting indicates that New Mexico also appealed the subsequent final judgment in Ortega in September 2026;
What happened
On Oct. 19, NSSF, the NRA, the Second Amendment Foundation, other firearms organizations and retailers, and an individual purchaser filed a new federal lawsuit challenging New Mexico’s continued enforcement of its seven-day firearm-purchase waiting period. The suit follows the Tenth Circuit’s Aug. 19, 2025, decision reversing the denial of a preliminary injunction in Ortega, followed by a district court final judgment in August 2026 protecting the two individual plaintiffs. New Mexico maintains that the injunction protects only those plaintiffs, while the new plaintiffs seek declaratory and injunctive relief covering themselves, their customers, and their members.
Why it matters
The central issue is the difference between constitutional precedent and the scope of an injunction. Although Ortega supplies appellate authority against the waiting period, New Mexico maintains that the resulting injunction does not prohibit enforcement against nonparties; NSSF seeks an enforceable order extending protection to additional purchasers and retailers. Practically, those outside the existing injunction remain subject to the waiting period and potential misdemeanor penalties while the broader challenge proceeds.
Jurisdiction
Federal constitutional litigation challenging a New Mexico law in the U.S. District Court for the District of New Mexico, with appellate review in the Tenth Circuit. The underlying constitutional claim concerns the Second Amendment right to acquire firearms.
Latest verified development
Oct. 19, 2026 — filing of the complaint in NSSF v. Torrez. The file-stamped complaint establishes that date, notwithstanding an Oct. 20 news report describing the lawsuit as filed Tuesday.
New York – Second Circuit
Heeter v. James, Case No. 1:24-cv-00623 — U.S. District Court for the Western District of New York: Body-armor purchase ban struck down, with relief temporarily stayed.
On Oct. 21, 2026, Judge John L. Sinatra Jr. granted summary judgment to challengers of New York’s restrictions on purchasing and selling body armor to residents outside designated eligible professions. His 47-page decision concludes that defensive body armor falls within the Second Amendment’s text and that New York failed to establish an adequate historical analogue for the restriction. The injunction was stayed for 14 days to permit appellate proceedings, so the ruling did not immediately eliminate the restrictions.
Why it matters: The decision applies Heller’s definition of “arms,” including “armor of defense,” to modern protective equipment. It also rejects using generalized suspicion of the public to justify a categorical restriction on otherwise law-abiding purchasers—an important distinction from individualized dangerousness-based regulation. n analysis by Eugene Volokh of this opinion can be four in Reason. Online
Massachusetts Supreme Court
Commonwealth v. Mikai Thomson, No. SJC-13856, decided Oct. 20. The Massachusetts Supreme Judicial Court ruled 5–2 that the Commonwealth’s minimum age of 21 for a license to carry firearms does not violate the Second Amendment. The court affirmed Thomson’s conviction for carrying a handgun without a license. The two dissenting justices would have required further historical development before deciding the constitutional question; they did not conclude that the age restriction was unconstitutional.
