Why the Third Circuit Is Sitting on the Cheeseman and Koons Cases — They’re Waiting for SCOTUS

June 19, 2026
11:10 am

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The Third Circuit’s decision to park the Cheeseman and Koons challenges rather than issue rulings is a textbook example of judicial triage: the judges know that any opinion they hand down today could be rendered academic the moment the Supreme Court clarifies the scope of the sensitive-places doctrine in the next major carry case. By staying their hand, the circuit avoids the embarrassment of having to walk back a broad pro-carry holding or, conversely, of green-lighting restrictions that SCOTUS might soon deem unconstitutional. For the 2A community this is both frustrating and strategically useful; delay keeps the cases alive as live ammunition for the next cert petition, and it signals to lower courts nationwide that the post-Bruen landscape is still unsettled enough to warrant caution before locking in new restrictions. What makes the maneuver especially telling is how it exposes the post-Bruen incentive structure. Circuits that lean anti-carry are discovering that writing sweeping opinions against shall-issue permitting or sensitive-place bans risks an embarrassing reversal once the Justices weigh in on the historical-analogue test; circuits friendly to the right to bear arms are equally wary of handing gun-control advocates a vehicle to seek review and potentially narrow Bruen itself. The result is a de-facto holding pattern that effectively preserves the status quo while the Supreme Court finishes calibrating just how far its history-and-tradition standard will stretch. For activists and litigants, the lesson is clear: the real battlefield has shifted upward, and every day the Third Circuit stalls is another day of breathing room for permitless carry and legal challenges to gun-free zones. Strategically, the pause also keeps public pressure on the Justices. Each month that Cheeseman and Koons sit dormant underscores how many lower courts are essentially punting rather than applying Bruen in good faith, a fact that can be cited in future cert-stage filings to show the need for further guidance. It also buys time for empirical data—shall-issue adoption rates, crime statistics in sensitive places, and compliance costs—to accumulate and inform the historical-analogue debate when the cases finally reach One First Street. In short, the Third Circuit’s wait-and-see posture is less about docket management than about acknowledging that the Second Amendment’s next chapter will be written in Washington, not Philadelphia.

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What makes the maneuver especially telling is how it exposes the post-Bruen incentive structure. Circuits that lean anti-carry are discovering that writing sweeping opinions against shall-issue permitting or sensitive-place bans risks an embarrassing reversal once the Justices weigh in on the historical-analogue test; circuits friendly to the right to bear arms are equally wary of handing gun-control advocates a vehicle to seek review and potentially narrow Bruen itself. The result is a de-facto holding pattern that effectively preserves the status quo while the Supreme Court finishes calibrating just how far its history-and-tradition standard will stretch. For activists and litigants, the lesson is clear: the real battlefield has shifted upward, and every day the Third Circuit stalls is another day of breathing room for permitless carry and legal challenges to gun-free zones.

Strategically, the pause also keeps public pressure on the Justices. Each month that Cheeseman and Koons sit dormant underscores how many lower courts are essentially punting rather than applying Bruen in good faith, a fact that can be cited in future cert-stage filings to show the need for further guidance. It also buys time for empirical data—shall-issue adoption rates, crime statistics in sensitive places, and compliance costs—to accumulate and inform the historical-analogue debate when the cases finally reach One First Street. In short, the Third Circuit’s wait-and-see posture is less about docket management than about acknowledging that the Second Amendment’s next chapter will be written in Washington, not Philadelphia.

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