Professor Jacob Charles Files Amicus Brief in Supreme Court Cases Viramontes v. Cook County and Grant v. Higgins

Professor Jacob D. Charles has filed an amicus brief in support of respondents in the Supreme Court cases Viramontes v. Cook County and Grant v. Higgins. The Supreme Court consolidated the cases for briefing and oral arguments to examine whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

Summary of the Argument

This Court has long prescribed a two-step framework for evaluating constitutional claims. Step 1 asks whether the provision invoked applies at all; that is, whether the challenged regulation or the claimant’s conduct falls within the boundaries of the relevant constitutional guarantee. Only if so will the court, at the second step, determine whether the challenged law or regulation passes constitutional muster. This two-step framework—consisting of “coverage” and “protection,” respectively—applies in some way to nearly all constitutional claims.

The Second Amendment is no different. In New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), this Court adopted a framework under which courts first ask whether “the Second Amendment’s plain text covers an individual’s conduct” and, if so, whether the government has shown, in the face of a presumption of unconstitutionality, that the challenged regulation “is consistent with [this] Nation’s historical tradition of firearm regulation.” Id. at 17, 24. Bruen rejected the means-end scrutiny that the courts of appeals had applied at the second step. But it described their coverage analysis—which asked whether regulated conduct fell “outside the scope of the right as originally understood”—as “broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history.” Id. at 18-19 (citation omitted).

Last Term, in United States v. Hemani, 608 U.S. 772 (2026), and Wolford v. Lopez, 609 U.S. 185 (2026), the Court reiterated the two-step nature of the inquiry. Wolford restated that first step as involving three “subsidiary questions”: whether the challenged regulation applies to a member of “the people,” whether it concerns “Arms,” and whether it restricts “keep[ing]” or “bear[ing].” 609 U.S. at 195 (brackets in original). Those questions were not in dispute in Wolford, and the Court had no occasion to explain how they apply when they are contested. They could potentially be read, however—and Justice Jackson warned in dissent that they would be read—to reduce Bruen’s first step to a mere formality, such that “any law that regulates the carrying of firearms is presumptively unconstitutional.” 609 U.S. at 243 (Jackson, J., dissenting). Amici write to explain why the Court should instead confirm that Bruen’s coverage step requires what Heller envisioned: a meaningful analysis into the boundaries of the right that the Second Amendment codified.

The stakes of getting Second Amendment coverage analysis correct are tremendous. A coverage step that does nothing would largely repeat the errors that produced Bruen’s course correction. Before Bruen, the courts of appeals routinely assumed, without deciding, that claimants’ conduct fell within the Second Amendment’s boundaries and proceeded to means-end scrutiny. Because the step-one inquiry screened out almost nothing—apart from the regulations that Heller itself appeared to bless—all analysis was shunted into the second step. Means-end scrutiny buckled under this load, with courts sustaining regulations under a form of intermediate scrutiny that turned out to be overly forgiving. This Court rejected that approach. But an empty first step would place the same pressure on Bruen’s historical-tradition second step. Courts could perceive that they face a choice between invalidating laws regulating conduct well outside the historically understood boundaries of the right or stretching historical analogies past their breaking points in order to sustain those laws. The first course would turn the Second Amendment into a vehicle for claims it was never understood or intended to support; the second would water down its protections.

Nor can a coverage step premised solely on literal text reliably produce sensible outcomes. Rather, it risks being both overinclusive and underinclusive. Read literally, it will deem presumptively unconstitutional regulations of grenades, explosives, portable nuclear devices, and handguns with obliterated serial numbers, to name just a few examples of cases in which it was never thought problematic for the government to regulate. From there, courts and litigants will be forced to find and parse historic analogues to test that presumption. They may fail to do so, and in so doing either extend the right to an unreasonable and unanticipated degree or distort Bruen’s test to avoid such an extension and thereby undermine its goal of to restraining judicial discretion. At the same time, a semantically literal test threatens to be underinclusive, failing to reliably extend the right to protect activity implicating the core of its historically understood meaning. Various laws and regulations that affect firearms—such as those governing ammunition, acquiring or selling a firearm, or training at a range—do not implicate the Amendment’s plain text, understood as its literal, semantic meaning. The lower courts, recognizing as much, have already begun to improvise tests the text does not contain.

There is a better solution. The Second Amendment protects “the right of the people to keep and bear Arms”—a right that, as this Court has explained, the Amendment “codified” rather than created. District of Columbia v. Heller, 554 U.S. 570 (2008). The Amendment’s plain text, therefore, refers to a “right” with historically understood boundaries—and identifying those boundaries is part of reading the text, not a departure from it. This Court should take this first post-Wolford opportunity to confirm that Bruen’s first step requires meaningful analysis, in which courts determine whether the people, firearms, and conduct at issue fall within the right as understood when it was codified, drawing on history that “elucidates how contemporaries understood the text.” Wolford, 609 U.S. at 213-214 (Barrett, J., concurring) (citation omitted). 

The complete amicus brief may be found at Viramontes v. Cook County and Grant v. Higgins