Mark Smith Was Right: Supreme Court’s AR-15 Move Was Strategy, Not a Snub

“Several weeks ago, I explained that the U.S. Supreme Court’s silence on the AR-15 semi-automatic rifle question did not demonstrate hostility to the Second Amendment, but rather constituted a rationing of the high Court’s docket space. Now the Supreme Court’s decision to grant certiorari in two consolidated AR-15 cases proves my point: the Court’s decision to push the AR-15 question to the Fall of 2026 was deliberate all along. Here are my receipts.” – Professor Mark W. Smith, Four Boxes Diner Host

On June 30, the U.S. Supreme Court granted certiorari in two consolidated AR-15 cases — Viramontes v. Cook County, Illinois, No. 25-238, out of the Seventh Circuit, and Grant v. Higgins, No. 25-566, out of the Second Circuit — setting up oral argument in the October 2026 with a decision expected by June 2027. I am not revisiting that news here. I am writing this because I told you it was coming, in print, more than a month before it happened, and I explained then exactly why the Court’s silence on the AR-15 question earlier this Term was strategy rather than retreat. My prediction has now been vindicated, and the reasoning behind it tells you more about how this case will be decided than the bare fact of the grant does.

What I Wrote in Early May 2026

In an AmmoLand article published in May, I addressed a frequent question: why had SCOTUS passed over an AR-15 case this Term? I wrote then: “The Supreme Court did not skip the AR-15 case this term out of hostility or neglect. They ran out of bandwidth on a generational docket, and Justice Brett Kavanaugh has already telegraphed that the AR-15 case is coming as soon as October 2026.”

I made the same point in a video a few weeks later, walking through the reasoning in more detail: “I’m often asked why the Supreme Court did not take an AR-15 or large-capacity-magazine case this term. The implication is usually that the Supreme Court is dodging the Second Amendment, but there is another, more basic explanation. The justices have one of the most packed precedent-setting dockets in living memory, and Chief Justice John Roberts decided to ration the Court’s political capital for now.”

A Court Docket Rationed, Not Refused

The Supreme Court decides roughly seventy cases a year on the merits, drawn from every corner of federal and constitutional law — criminal procedure, intellectual property, environmental regulation, tax issues, tort questions, ERISA, the death penalty, civil rights and more. In a single SCOTUS Term, the Court can typically absorb only one or two cases in any given subject area, and this Term’s docket was extraordinarily heavy with high-stakes executive-power, tariff, and immigration disputes. That left room for two Second Amendment cases at most.

And the Court used its 2A allotment on Wolford v. Lopez, the Hawaii “vampire rule” no-carry default carry case, and United States v. Hemani, the drug-user firearm-prohibition case brought at the U.S. Solicitor General’s own urging.

An AR-15 case would have been a third, and that would have been too much given this Term’s politically-charged docket. Chief Justice Roberts manages the docket the way any institution with finite political capital manages risk: he spends it deliberately. Reading that restraint as hostility to the Second Amendment mistook institutional bandwidth for institutional intent.

Justice Brett Kavanaugh’s Chessboard

The clearest previous signal came from Justice Kavanaugh, whose forecasting record on this Court is difficult to ignore. Roughly eighteen months before the Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), he had already indicated publicly that the Court needed to resolve whether the right to bear arms extended to public carry — and it did, in Bruen.

Justice Kavanaugh had since signaled that the AR-15 question would come before the Court “in the next term or two.” That is precisely the sequence that has now unfolded: the cert grants in Viramontes and Grant lands squarely in the October 2026 Term, exactly the window Kavanaugh identified.

I also read the Court’s decision this Term in Wolford v. Lopez, No. 24-1046 (U.S. June 25, 2026), a 6-3 ruling authored by Justice Alito, as a preview: its treatment of the Second Amendment’s text against the historical record reads like a dress rehearsal for the Court’s AR-15 analysis to come.

WW II Island Hopping Metaphor and SCOTUS

The same order list that granted certiorari in the rifle cases held two magazine-ban petitions — Duncan v. Bonta, No. 25-198, out of California, and State of Washington v. Gator’s Custom Guns, Inc., No. 25-153. That sequencing is deliberate, and I view it as good news rather than a snub. Litigating an AR-15 ban and a magazine ban before the Court in the same Term risks handing a justice inclined toward the middle the room needed to split the difference — striking the rifle ban while upholding the magazine restriction. Keeping the cases apart forecloses that compromise.

Relatedly, this incremental approach to restoring our Second Amendment rights mirrors America’s World War II island-hopping campaign in the Pacific theatre: resolve the semiautomatic-rifle question first, let the reasoning in Viramontes and Grant settle (reaffirm) the governing legal framework, and then bring the magazine and suppressor questions forward on a foundation the Court has already built. I expect the Court to hold Duncan and Gator’s Custom Guns for roughly a year and then remand them via a GVR in light of the AR-15 decision, not deny them outright.

The Record So Far Supports the Bet

The anti-gun lobby has poured enormous resources into defending assault-weapons bans precisely because the AR-15 is the most popular rifle in America. A ruling that the Second Amendment protects it would be the most significant restoration of the right to keep and bear arms since Heller itself, and it would supply lower courts with language they can use against the pending magazine and suppressor bans in due course. The Supreme Court’s caution earlier over the last year or two was not evasion. It was preparation, and the timing has run exactly the course I described weeks before the cert grants.

Finally! SCOTUS Will Hear Two ‘Assault Weapon’ Ban Cases

About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube and Rumble; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the U.S. Supreme Court. Professor Smith’s most recent book is ISRAEL DISARMED: What the October 7 Attack Teaches Americans about the Right to Bear Arms and he has lectured at Harvard Law School, Yale Law School, Princeton University, the Wharton School at U. Penn, and Oxford University. He is a frequent speaker at the Federalist Society’s Annual National Lawyers Convention in Washington, D.C.

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