Attorney Mark W. Smith of The Four Boxes Diner says Cook County has filed a brief urging the Supreme Court to deny review in Viramontes v. Cook County, an AR-15/semi-automatic rifle ban case now sitting on a petition for certiorari.
Smith calls it “major breaking news,” and he frames the filing as a strategic push to keep the justices from weighing in on the core Second Amendment question.
He reminds viewers that cert decisions are as much about timing and institutional strategy as they are about right-or-wrong outcomes. In his words, the Court often thinks in “multi-decade” arcs.
What Cook County Is Arguing – According to Smith
Smith says Cook County leads with pages of mass-shooting descriptions involving semi-automatic rifles.
He argues that this is an “appeal to emotion,” not legal analysis likely to sway the Court.
To make his point, Smith notes that Heller (2008) was decided after the Virginia Tech tragedy and that the justices still held handguns are protected “arms.”
He says the Court does not narrow constitutional rights because “bad people misuse” protected items or liberties.
Smith also says Cook County insists there’s no circuit split on the constitutionality of AR-15 bans – traditionally a key factor for granting cert. He concedes that’s “sort of” true in a technical sense, but calls it misleading in practice.
According to Smith, the jurisdictions passing AR-15 bans sit in regions whose appellate benches are dominated by judges far more receptive to those laws, while circuits covering gun-friendlier states never see such bans at all.
So splits don’t form – not because the legal question is settled, but because the map never generates head-to-head contradictions.
That’s a fair observation about how structural politics can shape which issues reach the Supreme Court. It doesn’t guarantee cert, but it does explain why “no split” isn’t the end of the story.
The “Common Use” Fight and Who Bears the Burden
Smith spends most of his breakdown on the Heller/Bruen method and the “dangerous and unusual” carve-out.
He says Cook County tries to “smuggle” the in-common-use test into the text prong of the analysis – where the burden remains on the challenger – rather than leaving it in the history-and-tradition prong – where the burden shifts to the government.
As Smith explains it, the path is supposed to look like this: First, ask whether the regulated item is a bearable arm under the Second Amendment’s text (“keep” = possess; “bear” = carry).
If yes, the burden shifts to the government to justify a restriction using founding-era history and tradition. That’s where “dangerous and unusual” and “common use” live.
In Smith’s telling, Cook County wants to keep that burden from shifting by relabeling the test. He says that move flips the Supreme Court’s structure on its head.
He underlines his point with Justice Scalia’s famous line in Heller about the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Smith argues that if AR-15s are owned by the tens of millions, they can’t be “unusual,” which undercuts the ban once the analysis is in the history-and-tradition lane.
That’s a clean, intuitive argument. Whether the Court accepts that “ownership = common use” without further nuance is precisely why a merits case would matter.
Records, Experts, and the Myth of Needing a Trial
Smith says Cook County also complains that the plaintiffs didn’t build a trial record with expert witnesses to prove “common use.”
He calls that irrelevant and costly busywork.
To back it up, Smith points to Supreme Court Second Amendment wins – Heller (2008), McDonald (2010), Caetano (2016), Bruen (2022), and what he refers to as “Rahimi (2024)” – that were decided without live trials or expert testimony.
His larger point: when bans target bearable arms, the government must prove history supports the restriction. The burden doesn’t sit with citizens to prove their rights anew every time.
As commentary, that burden-shift theme is the beating heart of post-Bruen litigation. When courts honor it, governments struggle to carry their historical load. When courts muddy it, challengers face a moving target.
The Shadow of Kavanaugh and the Lower-Court Dissenters
Smith highlights what he calls “extremely powerful dissents” from respected appellate judges who object to semi-auto bans.
He cites Judge Walker (D.C. Circuit), Judge Richardson (Fourth Circuit), Judge Brennan (Seventh Circuit), and then-Judge VanDyke (Ninth Circuit, magazine case), as evidence of a real jurisprudential split even if not a formal circuit split.
Most pointedly, Smith flags then-Judge Brett Kavanaugh’s 2011 Heller II dissent, which – Smith says – viewed D.C.’s semi-auto rifle ban as unconstitutional under Heller. He suggests Justice Kavanaugh has not forgotten that analysis.
That’s a telling reminder. Personnel is policy, especially in close cases that require the Court to police wayward lower courts.
Smith believes Viramontes is a “layup” for the Second Amendment on the merits, but he’s candid that the justices may weigh institutional capital and sequencing.
He says if the Court denies cert, it won’t be because Cook County’s arguments are strong. It’ll be because the Court is pacing how and when it re-scaffolds the Second Amendment across the country.
From a Court-watching perspective, this rings true. The justices often time cases to build doctrine step by step – especially when lower courts resist.
My Take on the Stakes
First, Smith’s burden-shifting critique is the crux. If AR-15s are “bearable arms,” history and tradition must carry the day for any ban. That’s a tall order when the nation has no founding-era history of prohibiting commonly owned rifles in civilian hands.
Second, the “no circuit split” argument is thin gruel in a Bruen world where several circuits have openly improvised new tests.
When outcomes are functionally uniform because only certain circuits see these laws, the Court can still step in to settle a nationally important question.
Third, Smith’s point about ownership as use is provocative and powerful. “Keep” is in the text for a reason. When an arm is lawfully kept by tens of millions, courts that insist on statistics beyond that are arguably redefining “use” away from the Constitution’s plain words.
Finally, Cook County’s front-loaded narrative of mass shootings is politically resonant but legally fragile. Heller already told us rights aren’t conditioned on the behavior of the worst actors.
That principle isn’t unique to the Second Amendment; it’s how constitutional guarantees work.
What Happens Next
Smith notes that the Court is just weeks away from conferencing the case. A reply from petitioners is expected before then.
He suggests if the Court wants a clean vehicle to confront AR-15 bans, Viramontes fits the bill. If it passes for now, watch for the justices to take a similar case later – especially as dissents stack up and state-level experimentation continues.
Either way, the fight over who carries the burden – and where the “common use” question belongs in the analysis – will determine the fate of these bans.
Cook County just asked the Supreme Court to walk away. According to Mark W. Smith, that request leans on emotion, sidesteps Heller/Bruen, and tries to keep the burden off the government.
The justices may ignore the ask. Or they may punt for a season. But sooner or later, this question lands squarely on the merits.
And when it does, Smith believes the text, history, and tradition will do what they’ve done before – push back against bans on arms that millions of Americans already keep and bear.
For more info about this, check out the Cook County brief here and watch The Four Boxes Diner’s video here.
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A former park ranger and wildlife conservationist, Lisa’s passion for survival started with her deep connection to nature. Raised on a small farm in northern Wisconsin, she learned how to grow her own food, raise livestock, and live off the land. Lisa is our dedicated Second Amendment news writer and also focuses on homesteading, natural remedies, and survival strategies. Lisa aims to help others live more sustainably and prepare for the unexpected.
