The DOJ’s Surprising Response to two Machine Gun Cert Petitions

The United States typically does one of two things in response to a cert petition. It either files a short response in opposition that is either boilerplate, or it does not file a response. The end result is the same, the cert petition is denied.

In the case of Isaiah Jaqjan Fisher, Petitioner v. United States1 a justice (probably Justice Thomas) requested a response. The Question Presented to the Justices to decide is “Whether the federal statute that prohibits the possession of machineguns, 26 U.S.C. 584, violates the Second Amendment.”

Instead of the government’s typical boilerplate response saying that the petition should be denied, the government’s response was, in relevant part:

“Petitioner contends…that the federal statute prohibiting the possession of a machinegun, 18 U.S.C. 922(o), violates the Second Amendment. He requests…that this Court hold his petition for a writ of certiorari pending the resolution of Viramontes v. Cook County, cert. granted, No. 25-238 (June 30, 2026), and Grant v. Higgins, cert. granted, No. 25-566 (June 30, 2026), which present the question whether bans on the possession of AR-15 rifles violate the Second Amendment. The government agrees that Viramontes and Grant could affect the proper disposition of this case and that the petition should accordingly be held pending the resolution of those cases.”

The other machine gun case is Jamaion Wilson, Petitioner v. United States.2 The two Questions Presented are:

“First, whether the Fifth Circuit’s continued reliance on Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) and refusal to require the government to prove a historical tradition of firearm regulation under this Court’s Second Amendment framework conflicts with N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)?

Second, should the Court hold this petition pending the outcome of Viramontes v. Cook County, No. 25-238 (U.S. Jun. 30, 2026), and Grant v. Higgins, No. 25-566 (U.S. Jun. 30, 2026), given lower courts’ determinations that for Second Amendment purposes, AR-15’s are indistinguishable from M16 machineguns?”

The government did not respond to the first question and waived any further response to the cert petition unless the Court requests a response.

To the best of my knowledge, the government has never before requested that a machine gun cert petition be held.

I have no doubt that the Supreme Court does not want to decide the questions presented. However, given that the government has asked the Court to hold the cases, they will be held. And once we have a decision in the two “assault rifle” ban cases next year, the Court will GVR the petitions, which is to say they will Grant the petitions, Vacate the decisions of the lower courts, and Remand them back to the lower courts for a do-over consistent with its decision in Viramontes v. Cook County and Grant v. Higgens.

Given that Fisher is out of the Fourth Circuit Court of Appeals, and Wilson is out of the Fifth Circuit Court of Appeals, the Fourth Circuit will do what it always does (reaffirm its prior decision) and the Fifth Circuit will conduct a good-faith rehearing of its prior decision.

Both petitions have been distributed to the Long Conference on September 28, 2026. A decision in Viramontes and Grant will likely be published in June of 2027.