The onslaught of amicus briefs in the Viramontes case created a bonanza of solid rhetoric. One penned by attorney Daniel Schmutter takes a head-on approach to issues with flawed logic.
The combined cases of Viramontes v. Cook County and Grant v. Higgins are about to upend the gun control movement’s modern approach to subverting rights. It’s not a foregone conclusion that the Roberts Supreme Court will abolish the practice of hardware bans, but it is looking pretty good. Bearing Arms has been covering the swell of amicus briefs that have been filed. A brief by acclaimed New Jersey attorney, Daniel Schmutter, took on the topic by asking the court to deliver better guidance.
Initially, Schmutter, on behalf of the Association of New Jersey Rifle and Pistol Clubs, filed an amicus in support of the court granting cert in the Viramontes case. That 2025 filing was fairly straightforward. “Granting the Petition could broadly vindicate the fundamental right to keep and bear arms throughout the Nation,” Schmutter wrote in the first amicus. “This is particularly so for New Jerseyans who have lived under one of the oldest such rights violating regimes for the past 35 years.”
Since the High Court has agreed to hear Viramontes and combined it with a similar hardware ban challenge, Grant out of Connecticut, the amicus briefs have piled up. There are now some 47 amicus briefs that have been filed.
One of Schmutter’s recent briefs was filed by the following organizational plaintiffs: Association of New Jersey Rifle & Pistol Clubs, Inc., Gun Owners’ Action League, Inc., and New Jersey Firearms Owners Syndicate. The Sept. 4 amicus cites the lower courts’ defiance to case precedent set forth by the High Court. Specifically stating that said defiance has been “widespread and egregious.”
“The judgments below should be reversed because unconstitutional prohibitions on these commonly possessed arms exist in multiple states, including some of the oldest of their kind in New Jersey and Massachusetts. Reversing the judgments below would broadly vindicate the fundamental right to keep and bear arms throughout the Nation,” the brief states. “This is particularly so for New Jerseyans and Bay Staters who have lived under some of the oldest such rights violating regimes for decades.”
An area that the brief touches on is the lack of a historical analogue for regulations banning such arms. But rather than just point out the lack of an analogue, the brief asks the court to consider mapping a process in which the lower courts should use when arriving at their decisions.
It’s recommended that “Courts should”:
(1) begin with close, firearm specific analogues;
(2) abstract up only if no such analogues exist, ensuring that any generalization preserves Bruen’s focus on “how and why” rather than relying on incidental or unrelated doctrines; and
(3) rely only on historical laws that are themselves well-established and representative, as Rahimi requires, so that generalized principles reflect a genuine historical tradition.
That third point can be likened to the third rail on a train track. We’ve seen defendants — and even judges and justices — who are sympathetic to keeping the people disarmed use some questionable — at best — analogues. That reflection of a “genuine historical tradition” is important. Citing a historical law that’s also unconstitutional or perhaps worse yet, morally repugnant, should not be allowed to pass as an appropriate analogue.
“Given the Court’s commitment to elevating the history and tradition of firearm use and regulation when deciding Second Amendment challenges, the idea that courts must categorically exclude historical laws that restricted Black people from possessing firearms (not unlike the categorical exclusion of the people who were historically bound by those laws) warrants further scrutiny,” Justice Jackson wrote in her dissent in Wolford.
That third rail written into the brief, I believe, is there to stop the kind of flawed logic and thinking that Jackson — and many others — use to contort blatantly unconstitutional law as a tool to disarm modern people (Or, in the case of Jackson’s statements/opinions, be eventually used as a framework to invalidate Buren should the court’s makeup change).
“And so, to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table,” Jackson said to attorney Alan Beck during the Wolford oral arguments. “And if we start taking pieces off, whether it's because we've moved away from it or we don't agree with it anymore, I think there's --there's going to be a problem with respect to the accuracy of our test.”
Jackson, however, did leave some breadcrumbs in her dissent in Wolford that are worth pointing out. “The majority’s exclusion operates indiscriminately and without clear definition,” Jackson wrote. “If the point of taking the Black Codes out of the equation is that they are not a valid part of our Nation’s historical tradition, then the Court must provide guidelines on how to determine the type of history that can be considered to ensure that this inquiry does not become a free pass to quick invalidation.”
It appears these types of twisting of history are exactly what the amicus brief aims to coerce the court to put a stop to.
“Absent additional guidance from this Court, lower courts will continue to apply inappropriately high levels of abstraction, creating inconsistency in the interpretation of a constitutional right and threatening to produce the same type of results oriented test that Bruen sought to preclude,” Schmutter wrote.
Prior to concluding the brief, it was further stated that: “Finally, since Bruen holds that a law regulating conduct covered by the Second Amendment’s plain text is presumptively unconstitutional, the absence of a historical analogue is ‘dispositive against the government.’ - J. Joel Alicea, Bruen Was Right.”
There’s no doubt that lower courts have been blatantly ignoring what’s already been established in Heller, McDonald, and now Bruen. The courts and jurisdictions that have been in opposition to the removal of restrictions are acting sophomoric, on a good day. Their reasoning and actions are akin to a child saying their parent has a foul mouth because they say “damn it” when they stub their toe. In both instances, it’s saccharine and insincere to draw the parallels that are being made. This amicus points that out, but much more eloquently.
Schmutter joined Cam on today's Bearing Arms' Cam & Company to discuss these amicus briefs in more detail, and you should check it out in the video window below.
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