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PaperclipPerfector  21d ago (text post)   24012 thread views

Culture War Roundup for the week of May 11, 2026

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Counting To Four In Duncan

[tl;dr: woolgathering that's likely to be outdated in seven weeks. tl;dr, shit's fucked, shit's weird, and it's actually weirder than it looks at first glance even from a specifically pessimistic view.]

[past commentary here]

Five major cases involving magazine capacity restrictions, assault weapon bans, or a combination thereof, are waiting on SCOTUS. This class of restrictions has been a major focus on the national stage since 1994, and while the federal ban has sunset, many state bans remain and have grown. They've become more common, have banned wider or more arbitrary classes of guns, have invoked lower capacity limits, and have provided fewer and fewer procedural protections to previous gun-owners, such that several jurisdictions now offer no grandfather clause at all. As since those procedural protections included the phrase "When dealing with guns, the citizen acts at his peril" since 1994, it's not been a space of light disagreement.

Duncan, Viramontes, Lamont, Gator's Custom Guns, and Grant are all requesting certiorari before the Supreme Court, covering bans on firearm magazines or various rifles. Gators, Duncan, and Viramontes are at 13+ relists (aka from December 5th). Lamont and Grant are at 8+ (aka from February 20th). I'll be using Duncan as a shorthand, here, as while it's always possible that one of the other cases will end up The Important One, it's at least recognizable name. The current SCOTUS session will continue with seven more conferences, ending at the tail of June.

It takes four votes at SCOTUS to grant certiorari. A grant is by no means a win on the merits. It's not even a guarantee of a decision on the merits: cases can have certiorari granted only for an immediate remand, or later dismissal as improvidently granted. It's just the most basic opportunity.

And a request for certiorari is a process. A large portion of requests aren't granted or denied at their first hearing. Instead, the interesting cases are relisted, reviewed for a week or two, and then either granted or denied. Classically, a few relists are a good sign for a case's odds.

But there's a limit, there. The case with the single greatest number of previous relists before a certiorari grant and full merits review is Masterpiece Cakeshop at, depending on how you count, 12-14. It was a pretty extreme outlier in many ways, quite a large number of which don't make the comparison happy for gun rights proponents. Bostock had 10 or 11 at grant, depending on how you count it: less than Duncan, and with clearer alternative cases. Otherwise the normal course, to borrow from SCOTUSblog, "[l]ess is more with relists". Snope got 15, and then denied. This session's highest-relist case, Smith v. Scott, received an extremely unusual 17 relists... to be granted, vacated, and remanded, not reviewed on the merits. That's an avenue that is useless for Duncan specifically, where a past GVR just resulted in the 9th Circuit rubberstamping their original logic (along with some procedural gimmicks), and where none of the hardware cases have an obvious vehicle to justify further review. That gets even worse for a cluster of cases like this, where granting one and denying others means that whatever merits decision SCOTUS gives will be quickly cabined to only that specific case's bounds.

Normally, talking about requests for certiorari runs into problems because there are just so damn many options. SCOTUS only has mandatory jurisdiction over a tiny number of cases, grants optional cert to only a similarly tiny number of others, and can choose to grant or deny certiorari for any reason or no reason at all. Some cases with minor disagreements and esoteric scope get immediate grants, others with massive breadth and serious disconnects get juggled and dropped or just dropped, and when death penalty or habeas corpus cases are involved the rules easily exceed the scope of this conversation. Everything from whether a response is requested to how quickly the first conference is scheduled can mean something or nothing. There's a small industry of tea-leaf readers who really like being humiliated, because it's not a job with great success rates on those predictions.

Here, though, a wide breadth of the normal options are overdetermined away:

  • SCOTUS refuses cases where four justices can't agree to hear on the merits. That's what the certiorari vote is. Here, though, we know four justices have declared that this is a matter that SCOTUS should hear soon: the three dissenters (Thomas, Alito, Gorsuch) in Snope did so by dissenting, and Kavanaugh specifically claimed "this Court should and presumably will address the AR–15 issue soon, in the next Term or two". Kavanaugh listed Lamont and Viramontes as two specific examples: it makes no sense to point to them, and then not know if they're worth granting or denying cert. And it's not like he can be waiting on the other three in his list:ANJRPC is waiting on SCOTUS to deliver Wolford and Hemani, Capen is three or four years away from getting to SCOTUS, and Miller is stayed until Duncan finishes.
  • SCOTUS (sometimes) refuses cases where lower courts are 'percolating'. That was a thin fig leaf in Snope, and it's since become transparent. Even if Kavanaugh's list was only of court cases that would inform SCOTUS, rather than specific ones to grant cert, Viramontes, Capen, Lamont_, and Miller have all resulted in court opinions turning Bruen into a dead letter.
  • SCOTUS (sometimes) refuses cases where the lower court action is appealable, but not final. For Gators, Duncan, and Viramontes this is the last opportunity. If denied, they're not coming back. Grant and Lamont are decisions on a preliminary injunction, but if denied these cases won't make it back to SCOTUS return for three or more years. And if interlocutory appeals were a genuine problem Kavanaugh wouldn't have highlighted Lamont or Capen by name: they were preliminary injunction cases years from their final judgement.
  • SCOTUS (sometimes) refuses cases even where the legal question is important, but where some specific detail of the case's factual history makes it awkward, inopportune, or ugly, especially where a better alternative vehicle is coming up. Here, we have a wide variety of options, and while no case is ever genuinely simple, there's enough variety that the court can easily pick one as multifaceted or straightforward as it wants. Meanwhile, of Kavanaugh's list in Snope, only ANJRPC v. Platkin will be up for certiorari on final judgement next session, and has wide overlap with existing options. The only other new serious challenge is Benson v. US, and that overlaps almost entirely with existing cases.
  • SCOTUS (sometimes) relists cases where another case on the same topic is being actively decided, to later grant-vacate-remand the case. In theory, this saves judicial resources, so that SCOTUS does not have to give the same decision in multiple sequential cases. But the only relevant Second Amendment cases are Hemani (prohibited person) and Wolford (sensitive places), neither of which are related to the topic of firearms hardware bans. Worse, Duncan in particular has been GVR'd before, after Bruen, which did have significant topic overlap and wrote the specific framework Duncan was supposed to use... and just resulted in procedural hijinks and a near-identical decision from the lower courts. No plausible dicta in a prohibited person or sensitive places case (or combination of the above) will change the 9th Circuit's behavior.
  • SCOTUS (sometimes) refuses or relists cases where lower courts are deciding a substantially similar question and likely to release a decision very soon. The only remaining relevant court case here is ANJRPC. It's near-certainly not going to issue before both Hemani and Wolford drop, though, and SCOTUS knows it, and SCOTUS controls when those two cases were heard and when their opinions will release (very late May, June, or July). These cases can't have gotten relisted since December for a lower-court opinion that wouldn't come for months, and may not come before the last conference of the session. SCOTUS doesn't have to keep relisting a case if it's waiting on some external information; it clearly didn't do so here.
  • SCOTUS (sometimes) relists cases when deciding a topically similar case. But Wolford was argued January 20th, Hemani was argued March 2nd. Still not compatible with the relist scheduling.
  • SCOTUS (sometimes) relists cases when trying to select which one of a cluster to make the lead case, or which to grant and which to deny. But these cases have been and on the radar for over a year, and their traits aren't changing by the week: the constant relists don't fit that model.

Worse still, many of the 'alternative' explanations -- the ones that don't match to 'justice is blind', but everyone accepts happens -- don't fit, either:

  • Justices don't want to grant cert in big cases that they know they'll lose big (aka 'big defensive denial'). This has been the perennial excuse explanation since well before Heller: a premature case can leave residue that would destroy entire movements. But there's little, if any, chance of that here. Forget the question of adherence to the Second Amendment: a reversal of Heller or Bruen would require Roberts and one other judge to explicitly overturn a recent major case they signed on. If he's in the majority, Roberts would have to specifically assign the opinion to the judge writing that. He'd rather eat glass.
  • Justices may not want to grant cert in cases where they know they'll get a small loss, or a half-assed and incomplete victory (aka 'little defensive denial'). This is the Rahimi problem, where the case doesn't overturn precedent, but it does entrench new exceptions to the Second Amendment. Roberts did exactly that in Rahimi. But Rahimi did get certiorari, it didn't change the cert vote for Hemani, and the results of a Duncan decision along similar lines are already baked-in: every circuit likely to see a hardware ban already has standing precedent neutering Bruen. The worst-case plausible scenario for rolling the dice is the same as not rolling the dice at all. More confusing still, if Roberts and Barrett were willing to do that, there's strong support from the progressive wing of SCOTUS to trim back Bruen and/or Heller, and that's not happening either.
  • One proposed explanation is that the Snope three and Kavanaugh want to avoid granting certiorari to a case that would neuter other upcoming cases. But that doesn't work, either. If five justices are willing to sign onto a decision in Duncan that will neuter any upcoming pro-gun decision, the same five are willing to grant certiorari and overturn those upcoming pro-gun decisions whenever they actually happen.
  • Delaying doesn't even save the opinions from any relevant lower-court case: Duncan will not be getting oral arguments before ANJRPC's en banc opinion issues; even assuming that opinion is pro-gun, a grant today only determines whether SCOTUS is deciding Duncan informed by that opinion, or ANJRPC to overturn it directly. And, of course, ANJRPC may well get an anti-gun ruling, anyway, at which point there's nothing for an anti-gun Duncan to disturb.
  • Justices may want to delay until a better court composition is available. But there's little, if any, chance that will happen here: the two oldest members of the court are on the dissent from denial of Snope, and Alito in particular is already getting calls to retire because of it.
  • Justices may want to delay until a less politically sensitive environment is available. But a grant now means a case being held in early 2027. The environment isn't getting any less sensitive in 2028 or 2029.
  • Justices may want to delay until a less politically charged environment is available, in what I've criticized as "look, we didn't vindicate their fake rights or your real ones". But the cases lining up for 2028 and 2029, don't look great here, either, and it's far from clear the court's ever going to have a quiet season.
  • Justices may want to delay to firm up their own positions, or persuade colleagues to shared positions, or to gather information. But this is a case that's been explicitly on their radar for a year now, been to SCOTUS once before in 2022, on a topic that's had national relevance since 1994. There's nothing happening now that didn't happen when talking Snope. The typical proposal is Kavanaugh or Thomas trying to persuade Barrett, here, but that only works if there's something they can only persuade her while relisting and not between grant and decision, and that if they fail to persuade her there's something they're protecting by waiting. Neither applies here: the justices aren't kept isolated between conferences or court sessions, and Bruen is a dead letter without further SCOTUS intervention.
  • Justices may relist a case repeatedly when writing a dissent from denial of certiorari. Morbid thought if you own a Freedom Week gun and live in California, but worth spelling out. Yet I'm pretty skeptical that it would take Justice Thomas six months to finish figuratively tearing apart the court's center or trying to build new frameworks, and in a world where Bruen is a dead letter, it's not clear anything he'd write here could matter, and he has to know that. Worse yet, if he knew he was going to be Snoped again, he could and would have started writing the broad strokes a year ago. Any justice writing today is writing in the shadow of Snope, and if the vote breakdown is remotely similar, then the every justice knew something like this was coming and had time to prepare.
  • A specific justice might have changed their mind. Kavanaugh said the court should grant certiorari for a case like this, in this time period, but he said that a year ago. Yet that's hard to believe. Kavanaugh has said assault weapon bans were unconstitutional and should be reviewed by SCOTUS since Heller II in 2011, and again in his statement regarding Snope just last year. What would change his mind in 11 months? What would change Alito, or Thomas, or Gorsuch?

Some writers have also proposed a model of SCOTUS relisting to consider the very short-lived circuit split in Benson. But that decision came on March 5th, Washington DC filed a motion to "Suspend Precedential Status of Opinion Pending Petition for Rehearing En Banc" the very next day, and the court granted a petition for rehearing en banc on April 22nd. There was no change to the relist cadence, and now that en banc appeal is schedule the circuit split no longer exists, it's near-certain that en banc court will overturn the lower court decision. It's also just a messy case for a bunch of more pragmatic reasons, not least of all that it only applies in Washington DC, and only for a law that the feds are saying that don't plan to enforce.

There aren't many options left.

Politics and optics are the simple and ugly explanation. It's also one hard to square with individual decisions. It's trivial to explain why SCOTUS as a whole, or Roberts, might want to punt a case as long as possible. It's hard to understand why a 1-2-3-4 count ending in Kavanaugh or Gorsuch or even Barretts makes a decision on optics, and decides that decision results in a weekly announcement such that they're not moving yet.

To spell it out, the court can't relist indefinitely. Whatever political cost is coming from grant or denial will happen no matter how many times the cases are relisted. Each relist makes the cases more noteworthy, and if any one gets held over a session, it becomes even more noteworthy. Meanwhile, a denial or grant happens once. Certiorari votes are anonymous and aren't even recorded publicly. Neither grant, nor denial, nor GVR, are written down by name and voting record. There's no way to treat one choice as distributed and one as personal. The impacts are the same: the relists just add to the impact.

Snope was not the first hardware case to request certiorari from SCOTUS. Harrel v. Raoul was 2024, and Friedman v. City of Highland Park was 2015. The 15 relists are no small part of why Snope is radioactive and Raoul was just annoying. The wait doesn't look good, and it doesn't make the eventual grant or denial look better.

A long dissent from denial is still possible: Justice Thomas can write some shelf-busting pieces when he wants, or Kavanaugh could be trying to baffle with volume where he couldn't dazzle with brilliance in Snope. Not encouraging to have a member of SCOTUS just outright bullshit in a Statement Regarding Denial of Certiorari, but if the line between politicians and judges gets fuzzier, it shouldn't be a surprise.

Stable equilibrium is the weirdest one. It takes four to grant certiorari. Six, in effect, thus can deny it, though there's a little weirdness on that since one justice can hold or reschedule a request. It takes five to win a case. This leads to the somewhat bizarre scenario where there may be enough justices available to grant and win a case in one direction, but not enough to deny certiorari the other. Another not-fun thought for gun advocates, since in this scenario it implies that there could be five justices waiting to neuter a theoretical pro-gun ANJRPC even if they can't actually refuse Duncan, but it has an unpleasant amount of explanatory power.

Unknown/Other is, unfortunately, the last refuge of scoundrels. There's some internal process we can't know about, there's some special case, there's some unusual deal-making happening, or some other invisible and/or novel process. This could, by definition, mean anything, and could just as easily resolve at any time, or never.

It's also, in a morbid sense, the most damning. These cases hold the rights of tens of millions of people in balance. That's just a fermi estimate of the people in those areas with lawful-but-now-banned guns. For California alone, hundreds of thousands of people will become felons overnight for the bare ownership of simple magazines that they purchased lawfully while relying on the protection of a federal court order, and there is no grandfather clause, and it's not the only example. And for each and every one, the process has devolved to a question mark, and has been for over a decade.

There's an old saying that a right delayed is a right denied, but you don't need to rely on aphorisms, here: in a majority of the United States, the Second Amendment is a dead or near-dead letter. That's not just relevant for assault weapons or big magazines: it's let the Second Circuit ban stun guns and undermine the Fourth Amendment. Dexter Taylor is still in prison. Heller still can't register the firearm from Heller I, and all Benson demonstrates is that to have a chance he'd need to break the law, be arrested, and imprisoned first. Percolation has come at the cost of long-standing and irreparable harm. There's longstanding precedent that the court recognizes infringement of rights themselves as irreparable harm, and the reality is that they don't, here.

I don't want to overstate my pessimism, here. In the immediate aftermath of Snope, I'd said "To be blunt: this SCOTUS will not be address the AR-15 issue in 'the next Term or two'", but 0 isn't a probability. If you absolutely forced me, I'd still put a 20% chance of a grant on one of these five cases, either this session or by holding them over to the next session (though the holdover itself would be a further unusual step). That's a lot lower than the professional tea-leaf readers. Doesn't make their models wrong, even if I get (unlucky). Doesn't help that they've either overlooked, or not included, much of this analysis.

The best model may be "the court is roughly what people say it is, plus some random noise or random walks" (it wouldn't literally be random, but it would be unpredictable).

The court being unpredictable is definitely right, but it's the sort of explanation that doesn't really explain anything. There's a very small number of people making specific concrete actions in ways that seem to directly undermine their own interests. "They're cowards" or "they have the 2a" doesn't explain it, because cowards or the liberals could have just denied in November. That's kinda the point of the post above; the normal explanations don't actually match the behavior we're seeing with.

I mean, I guess you can go with the process where SCOTUS joins the other two branches of government as being lead by insane people, and that does fit, but not very optimistic.

Isn't the more parsimonious explanation that the Court wants to see what the En Banc 3CA does with ANJRPC.

There's an old saying that a right delayed is a right denied

There's another one, which is that the law is moved by people more patient than you or I.

Isn't the more parsimonious explanation that the Court wants to see what the En Banc 3CA does with ANJRPC.

Okay, overthought this a lot harder while shepherding some students, and there's an option that does have a stupid amount of explanatory power. It's not that SCOTUS necessarily cares what the Third Circuit says or even does.

It's that SCOTUS wants ANJRPC in their hands for procedural reasons.

The Third Circuit's been writing ANJRPC for several months. There's a tiny chance it could end up pro-gun, but not much, and given Bove and its own internal characteristics, it'd not be a great vehicle. In the more plausible case, it's an anti-gun or messy decision, and then it has nothing going for it as a vehicle that Snope or Duncan didn't on magazines, and if SCOTUS wanted the , it could consolidate Duncan and Lamont or Viramontes. It still takes about two months to dial it up to fully brief a request for certiorari, and that's assuming no one delays. So it can't be something they're waiting to grant for this term, and if it doesn't drop until late October/November -- absolutely plausible given Koons -- it's possible it won't drop in time to fully brief and argue next term, either. That would put it directly into the 2028 primary season.

But if SCOTUS grants Duncan or a sibling case, ANJPRC freezes. That's not a strictly required, but it'd be the default option, and enough judges in the Third Circuit will want to do that. But that means that there's an almost-complete opinion that's sitting on the shelves for the year-plus timeframe on top of the current several months. No matter what ANJRPC's logic or decision is, it's not something SCOTUS wants coming out mere months after a pro-gun Duncan does: if the 3CA was going to defy SCOTUS before, now there's a lot of incentive to doing it again right away with a handful of references to Duncan's new test scattered in, so it can't be easily GVR'd, either requiring a grant with per curiam or letting it slip.

That actually gets a little worse because of "zombie precedent". Once a case is final, its specific topic is foreclosed from further review by lower courts. The standard form of this is the Locke v. Davey. Locke is a very specific SCOTUS case on education grants being able to exclude religious topics, and it's almost-certainly bad law given Espinoza, Carson, and Trinity Lutheran. But it's not been explicitly overruled, and for various procedural reasons there's almost no chance it'll ever get up to SCOTUS for years, and even if a test case comes up SCOTUS doesn't have to grant. That means any other court facing the same question is bound to just say no, not give opportunities to develop the record, and at most just say 'X precedent is bad' in a dissent or concurrence.

But this problem applies to en banc cases. En banc review is supposed to be exceptional, and anyone challenging binding precedent from an en banc court has the same gamble as someone aiming for review from SCOTUS.

And it's worse in gun cases, because they're so heavily bound to facts. Duncan and Gator's Custom Guns might be about magazines, but any SCOTUS holding will only be about 10-round magazine limits. Viramontes and Grant might be about assault weapons, but any SCOTUS holding will only be about their specific assault weapons laws. In front of fair courts, this shouldn't be read to ridiculous bounds: as I'm found of pointing out, Lawrence v. Texas did not leave lower courts uncertain about whether the state could ban handjobs. If you don't have fair courts, though, it's a big problem.

So... the three dissenters and Kavanaugh, if they genuinely believe these laws are unconstitutional, can't win by just granting one case and writing a really strong doctrine. They need a posture where they won't be inviting defiance from lower courts the very next month. At the same time, they can't just wait to take the last court case to arrive, because any precursor will be embedded into the circuit courts.

The interesting aspect is that you can read Bruen as kinda a prototype for this approach. The original NYSRPA I case was tactically mooted at the last second, in a form that arguably should have continued under normal mootness doctrine. Notably, _Kavanaugh wrote separately in NYSRPA I:

... I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

Compare the Snope:

In short, under this Court’s precedents, the Fourth Circuit’s decision is questionable.... Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.

NYSRPA I had lined up ten cases on hold, six of them about other carry laws, in the 1st, 3rd, and 7th Circuits. Bruen itself only had one carry law, Young v. Hawaii, and then the three firearms hardware cases: ANJRPC, Duncan, and Bianchi (nee Snope). Young had a weird and complicated aftermath: after remand, Hawaii tactically mooted the original law only to replace it with a 'sensitive places' one along with some punishing carry requirements, and then gun rights orgs promptly filed a follow-up lawsuit...

Which is Wolford. In front of SCOTUS right now, albeit only on the single worst part of the sensitive places doctrine.

So all of SCOTUS has to be intensely aware of how much direct defiance lower courts have enabled, because they're writing on it and circling the last drafts literally this session and figuratively now. Whether that means they're going to do anything about it is a harder question. I'm not optimistic: SCOTUS punted on Antonyuk v. James last year after GVRing a precursor post-Rahimi, if only on preliminary injunction, and did limit Wolford to the 'vampire rule' that even Antonyuk didn't accept. But it's at least plausible.

In this model, SCOTUS is trying to line up as broad a jurisdiction of , to grant one or more, and then GVR the rest after the holding with aggressive language and some less-figurative-than-normal circuit riding.

I don't really believe this theory with any confidence. It requires at least four and probably five members of SCOTUS to be coordinating at a pretty high level, to be aware and willing to engage with the depth of the Locke problem here and not elsewhere. Alito specifically would have had to make some pointed references at the Third Circuit about actually making en banc decisions in a recent timeframe (and not gotten active resistance in return, but this has been an general issue for them). Snope and OST were outright denied, and doing so means that there's two circuits that challenging these laws post-Duncan is going to be a mess, and the Fourth Circuit in particular is going to be prominent for Virginia reasons that SCOTUS may or may not have realized a year ago. There's a lot of moving parts and epicycles.

It's copium.

But it does have a weird amount of explanatory power. The Snope trio and Kavanaugh could vote to grant cert at any time, and might do so if ANJRPC delays too long, but they benefit from waiting specifically on pre-grant event updates, unlike negotiation, information, or defensive denial theories. Roberts can't try to push a grant vote even if he wanted to put ANJRPC and Bove in timeout, because the alternative of explicit defiance on a major holding just months before election season and magnified by an explicitly partisan judge is much worse from an instutitionalist perspective. Barrett has similar motivations to Roberts if she doesn't want the case, if she does, she's joining the Snope trio too. The progressive three don't try to force a grant vote because they don't see it as politically useful to radicalize people on gun politics during primary or electoral season, either out of principles or pragmatics. The relist cadance makes sense because ANJRPC could genuinely just get released at any time, even if it's probably not dropping before Wolford, and the grant coalition wants the case cluster to be high-profile and both to keep the Third Circuit on notice and as a statement that SCOTUS won't ignore cases just because of procedural hi-jinks.

And it is testable. A bulk denial means that this theory is hilariously wrong, a grant of one or more cases before ANJRPC drops is weak counterevidence, a grant in the first two or three conferences after ANJRPC drops is pretty strong evidence, and holding over the whole cluster from one session to another is moderate evidence (but at least explicable!).

Still give it less than 5% odds, and that's optimistic.

There's another one, which is that the law is moved by people more patient than you or I.

It might have been persuasive a year ago.

Isn't the more parsimonious explanation that the Court wants to see what the En Banc 3CA does with ANJRPC.

That's the popular explanation. As soon as SCOTUS grants cert for any hardware case, ANJRPC freezes; thus SCOTUS has to hold certiorari votes until ANJRPC releases.

But the timeline kinda breaks down. SCOTUS has seven conferences (including today) left in this session: that's a public schedule, they don't change it, and while it's technically possible to hold cases over from one conference to another, it's rare. As far as I can tell, it's literally unprecedented to have a cluster of cases with this many relists held over from one session to another, or for even one case with this many relists and a broad constitutional right applications (rather than a capital case) to be held over. So there's a strict timeline where some decision, to grant, deny, or hold over, has to happen on June 25th, to be published June 29th, or in the immediately following unofficial clean up conference (typically the last week of June or the first week of July).

ANJRPC had oral arguments October 15, 2025. In theory, the Third Circuit sets an aspirational goal of 120 days between oral arguments and decision, but that's a joke, especially in en banc or politically contentious discussions. We didn't get an ANJRPC opinion in January. In practice, a typical case in this class of discussion would take six to ten months, and this isn't a typical case. It's a consolidation of three different cases (ANJRPC was mostly about magazines, Cheeseman on assault firearms and licensing, Ellman on assault firearms and the 'substantially similar'), ANJRPC itself was previously GVR'd by SCOTUS, an underlying district court decision was an absolute charlie-foxtrot that cabined the matter to one specific model of rifle, so on. ANJRPC-the-organization is hoping on June 30th, aka 'too late' for SCOTUS.

There's also very strong incentive for the Third Circuit to not issue a decision until after Wolford is issued. The case itself isn't likely to matter much, since Wolford is a sensitive places case and probably a pretty limited one focused on the vampire rule, but no matter what direction ANJRPC goes they don't want an immediate GVR to review in light of Wolford. But Wolford had oral arguments January 20th, 2026. And while SCOTUS moves faster than the Third Circuit, and determines when Wolford is issued, most courtwatchers are predicting the last week of May or mid-June. Even if Wolford's opinion releases in May 21st, and it has little relevant dicta, the Third Circuit would be rushed to publish before June 25th. If Wolford isn't going to issue until June 11th -- and SCOTUS can estimate that better than we can! -- then there's zero chance.

((If ANJRPC gets enough votes to go in a pro-gun direction, there's also a nontrivial chance that a judge on the dissent could be hold the case up just to delay things even if Wolford dropped today. There's precedent for that in the 4th Circuit.))

That's weirder still because SCOTUS has a procedure for silently holding certiorari grants if they're waiting on some other actor, even after the question was fully briefed. ANJPRC's last go-around is actually an example, here: it was held in abeyance from August 25, 2021 to June 29, 2022. And that can happen for pretty arbitrary reasons: other relevant cases SCOTUS are hearing is the most common, but possible settlement agreements or waiting for lower court opinions both happen.

Now, SCOTUS doesn't have to do that. But if SCOTUS knew in December that they weren't going to grant or deny for six-plus months, relisting the cases for every following conference just makes these cases higher-profile, and the tension is only heightened by Snope's aftermath. At minimum, it makes no sense to have scheduled Duncan in November, months before Wolford even had oral arguments.

The current holding pattern is worse than any alternative for any judge that wouldn't grant cert outright. Snope itself would have just filed away in the increasing pile of Funny Thomas Dissents like Harrel v. Raoul if it had died at seven relists rather, and might not have even registered on even gunnie-legal-sphere radars if it died at the first conference. It'd still be humiliating for Kavanaugh to deny cert when he specifically highlighted a couple of these cases, and it's only getting more humiliating with each relist.

There's also a very ugly and very political argument about whether Roberts, of all people, wants ANJRPC to issue any opinion at all before SCOTUS can see the case again. The elephant in the room is Emil Bove, who was appointed just before the Third Circuit pulled the case up for en banc review before judgement. He's contentious and perceived as a Trump hatchetman. He's also basically the only chance the case has for a Bruen-compatible result, and it's a long shot.

It's also the last of the post-Bruen GVRs.

There's not really many good options from the institutionalist perspective. And Roberts is nothing if not an institutionalist.

  • If ANJRPC upholds the various gun bans, or sets a sizable majority outside of the category of being "arms in common use", you don't need to be The_Nybbler to see that the lower courts are in full revolt. That's the default case, since that's what the lower courts did last time around, and there's been more Biden appointees added to the en banc panel than Trump ones. Roberts (and Kavanaugh) gets no new information but that they've been burned, and Roberts specifically doesn't want that information to be highly publicized.
  • If ANJRPC faithfully applies Bruen, even if it doesn't strike down all or even a majority of the laws, by a slim margin, it widely telegraphs that the only way to get progressive-leaning circuits to follow the law is to appoint Literally Donald Trump's lawyer. That kills the blue slip system, it burns a massive amount of credibility for the institutionalist project, and it fulfills the very criticisms of the Federalist Society approach that Trump brought as support for Bove. Then SCOTUS either has to throw the inevitable appeal on the docket as soon as possible, GVR in light of a case that's now dropping late in 2027, or risk having oral arguments and a major gun control opinion drop during the middle of the 2028 election season, either in ANJRPC or from a late-granted case in this cluster being held over for a year. Even just permanently punting on hardware bans, and making Snope's statement into an overt lie, looks pretty bad for the court as an institution. And to do that, Roberts has to talk Kavanaugh into abandoning hardware cases, permanently.
  • If ANJRPC is a mess -- an order with six different not-quite controlling opinions, remanding back to the lower court for fact-finding that doesn't exist, one of those 'x joins y for I-A and III-z but not the rest of the opinion' things -- it gets even worse, as now either the lower courts are so partisan that they can't handle a long-standing case in a consistent way, or so partisan that they can't even figure out how to defy Bruen, or they're genuinely confused by Bruen. That cordons off any later attempt to 'refine' Bruen: it spells out that it isn't happening throughout the country. Another one of those 'Roberts would rather chew glass' things.

Am I rare conservative that just doesn’t care much about gun rights?

The big issue to me with gun rights is the 2nd Amendment seems very clear to me.

“ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The words seem very clear to me “shall not be infringed”. This isn’t Roe where you’re finding some abortion right in a right to privacy. And the right to privacy isn’t even explicit in the constitution.

If you do not only textual meaning but look at context at the time then it seems clear to me it’s not just personal weapons, but the right to have the arms to challenge Washington DC and fight the US military. If the Koch brothers wanted nukes I think the Constitution is very clear that they are allowed to have nuclear weapons. But context of the time the writers were a bunch of rebels who became patriots when they won. That would seem to strongly imply that the rebels would support full arsenal of weapons to fight their own government.

This is just another sign to me that the SC is just a Senate. Koch Bros (or Soros or other rich guy) wanting Nukes would be obviously unpopular. And we on nukes we would be able to pass a Constitutional Amendment. And we should. It would be interesting if we could get an amendment passed banning tanks etc.

Now to actual throw a little heat. I’ve considered just accepting the SC is a Senate and adopting a common good philosophy for law. Nobody enforces the text of the constitution and I think this would largely eliminate most issues with guns:

  1. Blacks can not own guns. Straight to jail if you have one. The 54% of murders coming from this group would seem to indicate this is good. I can probably drop their murder rate by 75% with this. We can do DNA testing here with like <20% African DNA as a cutoff. Might give them a carve-out for true hunting rifles. I feel fine saying that as a community they’ve proven guns are very bad for them.

  2. Under 25 can not own guns. This takes away most of the school shootings. Rittenhouse seems like he can properly own a gun but whatever blanket age works better. Most mass shootings would be eliminated except the very rare case where someone super competent does it like the Vegas shooting.

  3. Koch types can’t own nukes. I would likely also ban tanks and real military hardware. This kills the 98% of the ability of citizens to preserve a free state thru insurrection, but feels practical.

  4. Everyone else gets to own for the most part whatever they want. Some severe criminal penalties for not properly storing your guns if your kid goes off and shoots up a school.

You would be left with a bunch of suicides by mostly 60 year old white men, but that doesn’t have huge externalities.

Some kind of mental health rule would be a nice to have, but I’ve got no idea how to implement it that would be abused. Age/race restrictions are easy to enforce. Complexity allows the beauracracy to play games.

I think from a common good philosophy my rules would eliminate 80% of Americas gun problems while maintaining a general right for the public to own guns.

I agree that the Constitution is dead and America being a creedal nation is largely false. Part of the creed and by Constitutional design is that one of the checks on the power of DC is an explicitly designed right to tell DC to fuck off because everyone has guns and your not coming to “City/Wilderness” to enforce this law because we got 100k men with guns. That is what is meant by “security of a free state”. A right to rebellion was in the Constitution.

can not own guns

Banning ownership of something for a certain group is very hard to do if that thing is abundant in society. Your suggestions seem to imply that 'not allowed a gun' = 'cannot get hold of a gun'.

Case in point, teenagers are not allowed to own or carry knives in the UK. This law is completely useless at stopping teenage stabbings, because literally every teenager can grab a paring knife from his parents' kitchen before he goes out (plus laws against possession aren't actually enforced).

By contrast, even hardened adult criminals in the UK rarely use handguns, because they are genuinely hard to get hold of. Because there are no legal reasons to anyone to own a handgun (even most police don't have them) there simply aren't many guns for criminals to use.

If the Koch brothers wanted nukes I think the Constitution is very clear that they are allowed to have nuclear weapons.

My interpretation is that the phrase, "A well regulated Militia, being necessary to the security of a free State," modifies the noun arms, not the noun people. So all of "the people", regardless of whether or not they are part of the militia, get to bear arms, but the "arms" that they have the right to bear are militia arms, i.e. infantry weapons. This means that both you and the Koch brothers get to own assault rifles, RPGs, light machine guns, and mortars, but neither of you can own tanks, attack helicopters, or nuclear warheads.

How does “infantry arms” maintain the security of a free state today? If Russia invades some guy with a machine gun (which is illegal) isn’t repelling Russia.

No, but 5 million guys with machine guns, heavily dispersed within and able to hide among the civilian population, supporting 2-3 million regular and reserve soldiers with access to tanks and planes and warships can.

Do you really think the 2nd Amendment though is assuming they have the support of a state-level army? And it’s not a need to do it themselves?

I believe the words are fairly clear in the amendment. Though current jurisprudence does not give them access to even machine guns. I think the amendment is fairly clear that preserving liberty necessitates the civilian population can do state level violence.

But to be honest I think the enemy the 2a has in mind is DC. The only argument I see for excluding that part of 2A is an argument that the Civil War was some kind of common law precedence refuting that right. But they never codified it.

You're the one who posited a Russian invasion. I'm pretty sure the militias and the regular military would be on the same team in that situation.

If you want to say that civilians with small arms couldn't stand up to a tyrannical government that had the full support of the American armed forces, I also think that's wrong. 0.5% of the population wielding (mostly) small arms, actively supported by another 2-3%, is enough to make a region virtually ungovernable by an occupying force. Just look at Afghanistan.

Clearing out insurgents door-to-door is about as difficult, dangerous, and expensive as war gets. A few rifles and some homemade explosives make every single street a potential canyon of death ambush location. No officer or politician can stand outside or too near a window in a city for fear of snipers, outside of locked down compounds.

I don't think you're giving the Framers enough credit here. Tech has changed since 1787, but the fundamental unit of political power is still a man with a rifle. Aircraft carriers full of fighter jets are great at blowing shit up, but they can't operate a checkpoint or go on patrol through suburban neighborhoods.

Do remember that the modern soldier's response (as opposed to the policeman's response) to enemies in a house isn't "run up to the house and clear it". It's "call in fires to destroy the house". There are reasons that the Viet Cong and the Taliban had most of their hideouts underground.

If you would have a regime where Tyler Robinson is allowed to buy a gun and Clarence Thomas is not, than I do not believe that you are a "Conservative" in any meaningfully American sense of the word.

You stand in opposition to not just the United States Constitution but to the very principles and ideals upon which this nation was founded.

You are who conservatives are trying to conserve against.

This is a very funny comment. And I hope you can see why.

I would be interested to hear why you think it's "funny".

Conservative means to keep things how they were.

Clarence Thomas wasn’t allowed to own a gun when this country was founded. And my gut says forgetting slavery (which many wanted rid of) the northerners would have laughed at the idea of army the negro population.

Conservative means to keep things how they were.

You need to read more Burke and Chesterton.

While there are certainly debates about whether conservatism is more of a temperament or an ideology, usually conservatism is a little more broad than just keeping things how they were.

In the United States, most conservatives worthy of the name are trying to conserve the founding, little-l liberal ideals of the Revolutionary War. It is part of what sets American conservatives apart from the blood and soil conservatives of Europe.

Words can clearly have more than one meaning. There is a chestertons fence conservatism where you don’t exactly know why the fence was there but maybe you shouldn’t tear it down because that fence is doing something important that you don’t understand.

Conservative means to keep things how they were.

No that's not what that "Conservative" means, that's what historically revisionist Marxists like Howard Zinn and Noam Chomsky like to claim it means when straw-manning their opposition. A conservative is someone who has some specific thing that they are trying to conserve. That is the etymological root of the word.

Now within a given context that "specific thing" may be "the Status Quo", but within the context of US politics the thing that "conservatives" are broadly understood to be "conserving" are the constitutional order and the ideals put forth by the founding fathers in the Declaration of Independence.

Ok so you’re just picking and choosing what is “ok” to conservative. Kind of like how a progressive changes the meaning of the world. You like things one way and want to call that “conservative”.

But the ideals in the constitution included a ban on black people from owning guns. I think the founding fathers made a mistake on the whole slave thing. But you can make a solid common good argument that they were in fact correct banning gun ownership for blacks. 50% of founding fathers plus or minus supported slavery. Well north of 90% were likely against gun ownership.

I think it’s fine if you think your limiting rights to black people is a bad thing and mostly agree with that, but it 100% fits with a conservative philosophy.

Ok so you’re just picking and choosing what is “ok” to conserve?

Yes_Chad.jpg and I believe that a overwhelming majority of US Conservatives would agree with my take on your proposal.

But the ideals in the constitution included a ban on black people from owning guns.

Please, quote me the article and the paragraph in the Constitution, or the relevant line in the Declaration or Federalist Papers.

Also please stop trying to pretend that you suddenly "mostly agree" with me that limiting rights to black people is a bad thing, if you sincerely believed that, you wouldn't be arguing the point in the first place.

More comments

There's multiple major issues with this.

  1. The US is supposed to be an individualist nation where personal responsibility is the key factor. If you are innocent, you do not have your rights infringed. Dismantling this concept means destroying a key piece of America and will have knock on effects.

  2. Once you do start just infringing on rights, then the path has been opened to infringe even more. There are some that are riskier than others here, a ban on gun ownership from convicted felons is harder to scale up. But a ban on "Group with X% risk" is incredibly easy to transform into "Group with Y% (y<x) risk is now also included". If you won't tolerate 40% risk, then why tolerate 35? If you won't tolerate 35%, then why not crack down on 30%? Gun rights groups know this and speak out against firearms bans of minority groups.

  3. Most gun crimes are not done with legally owned guns to begin with and therefore cracking down on legal ownership doesn't really have too much an effect except in the indirect sense of preventing irresponsible or corrupt owners/sellers from being a source of illegal guns. But if that is the basis of the argument, then anyone who leaves a gun in a car or sitting on the countertop or whatever else should also be held responsible then.

Honestly I just wanted to have fun with courts making up law on (1) but it does seem from a common good perspective that could make America a lot safer.

(2) In my opinion the 2nd Amendment passed by slippery slope arguments a long time ago. I think it guarantees tanks. They’ve banned hand guns. I don’t even like guns. Just my autism seems evident to me the amendment guaranteed a right to do nation-state level violence. I think the words are already being ignored. (3) we can prosecute illegal transfers and not safely taking care of guns.

Words on paper have no power of law if the government just ignores them which is what I believe has happened with the 2nd. Perhap for good reasons they ignore them.

(2) In my opinion the 2nd Amendment passed by slippery slope arguments a long time ago. I think it guarantees tanks. They’ve banned hand guns. I don’t even like guns. Just my autism seems evident to me the amendment guaranteed a right to do nation-state level violence

I'm not sure that's true, why should we interpret a nuke under the right to bear arms to begin with? Nuclear weapons are a modern creation and thus we could easily claim they are exist in a different category than conventional arms and thus not under the protections even by a purely textual reading.

  • (3) we can prosecute illegal transfers and not safely taking care of guns.

Illegal transfers are already illegal! Stealing guns out of someone's car is already illegal!

The inclusion of “necessity to preserve a free state”, the founders be rebels, an early act in the war was securing cannons. I think all these point in the direction that the amendment wasn’t just to protect yourself from your neighbor but to wage war against the sovereign or an invasionary force. All of that would include full military capability. There is no better weapon at preventing occupation than nukes.

You do not need to speculate about rebel weapons that much. Lexington and Concord was triggered by an attempt by the British to seize colonial military supplies including cannons. Either British actions were legitimate (which calls into question the existence of the US) or were not (in which case private ownership of weapons of war is a-ok).

I agree. Personally I think the 2nd Amendment is perhaps the most specific of all rights in the constitution. Its true meaning as written and understood by the crafters is as expansive as the commerce clause has become in practice.

To me the only way you could limit its power would be to argue the bill of rights as a whole does not apply to states. That’s a better argument for limiting its scope. But that would change a lot of other jurisprudence.

If the 2nd Amendment was interpreted correctly I think it would be the only amendment we could actually get a bipartisan amendment passed right now to limit its scope.

As written America has a right to wage war on Iran to prevent them from getting nukes but no right to stop an Iranian dual citizen from buying a nuke in the US.

This is plausible for land-based weapons, but the Letters of Marque power (which implies that private citizens cannot legally operate warships without a letter of marque) and the prohibition on state navies (which would be nugatory if the states could support private navies) only make sense if the 2nd amendment did not cover naval weapons.

You could own a warship in 1790, you just couldn't use it for war.

A letter of marque and reprisal is an authorization to engage in commerce raiding, not to arm one's merchant ship.

If "people [you] consider subhuman don't get to" is an exception to a right, it's not a right. Remember, these groups are also overwhelmingly victims of violent crime, and that'll be true gun or no gun. They're also, overwhelmingly, the soldiers you'd have for your rebellion.

Also, "subhumans" is "the whole of Red" from Blue's perspective anyway, which is why the complete lack of compromise is optimal for you/them.

Koch types can’t own nukes.

Too late; Elon Musk's business is ICBMs.

race restrictions are easy to enforce

family_guy_ok_not_ok.jpg

I share your frustration generally with the failure of SCOTUS to fix this continuing issue. As a gun owning Blue state resident this is a constant thorn in my side. However, its not really that big of a thorn in my side, which SCOTUS knows. They have ruled enough such that I can, with a fairly modest course every few years, have my gun on me and in my car.

The real problem lies at the other side of crime. Blue states have crippled themselves on policing real crime as opposed to the bogeyman of guns. In Illinois it is not unrealistic that if you robbed a woman of her purse while threatening to kill her on the train that you would merely get 2 years of probation. If you had a gun, it is, again, not unrealistic you'd get just 6 years of prison. The only anti-crime lever they use is the anti-gun one, so if someone has a gun, they all the sudden face felony charges if they didn't follow these arcane set of rules. And this gets wielded even by liberal prosecutors because, often, guns are worse than being mean to minorities.

So sometimes even Republican gun owners in Blue states kind of like the anti-gun laws because its basically the only way they can safely got to the zoo. Its not like SCOTUS has some power to ensure California prosecutors are forced to prosecute criminal bums who smoke crack on the public way while wielding a gun.

I don't know if you've noticed, but the blue states are getting worse. Even the already-awful New Jersey. And Virginia shows that as soon as a state turns blue, you get ALL the gun control.

Crime isn't really relevant. The issues aren't even connected for the anti-gun side; they never really have been, crime was always an excuse to ban guns for them. But now they barely pretend.

The problem for the pro-gun side is there isn't much of a pro-gun constituency. You've got the 40% hard-core anti-gunners. And then you've got the squishy reasonable-gun-control conservatives, who will never find a bit of gun control they find unreasonable. The Second Amendment people are loud but a distinct minority.

he problem for the pro-gun side is there isn't much of a pro-gun constituency. You've got the 40% hard-core anti-gunners. And then you've got the squishy reasonable-gun-control conservatives, who will never find a bit of gun control they find unreasonable. The Second Amendment people are loud but a distinct minority.

This was exactly the situation of let's say gay marriage where the support in 80s and 90s was only 10% with huge part of the population opposing. The activists were not against using state courts and ultimately in 2015 even SCOTUS decision to ram that thing through many times without gay marriage actually having a popular support. Then all it took was several decades of culture waring and suddenly it is now a new normal. Similar things happened also in Europe, often it was using literal slippery slope such as in Austria where they approved of registered partnership only for Austrian constitutional court to decree that existence of registered partnership was basically unconstitutional and discriminatory and that it should be turned into gay marriage with everything including adoptions etc. No popular vote or law passed specifically to turn this millennia old institution.

Recently I am actually a huge fan of this tactic, the left used it all the time: do not be afraid to be brazen. Ask for ability to privately own tanks and missile systems and then just meet in the middle with the left to allow machine guns and RPGs. I think that there is also additional value there even if you are not that much of a pro-gun person - just by focusing on this topic it takes energy out of other stuff so you can go after other things such as gay marriage or education or some such. Additionally wage open legal warfare by every means possible even on topics that are supposedly settled, and also wage culture war. Do not be afraid to infiltrate and turn around existing movement - e.g. homeschooling movement that started as countercultural hippie thing was basically taken over by religious right by 1990s. Things like that.

It seems like a pipedream now, but I think it can be quite successful. I think something similar happened with COVID - I think that the "antivaxx" supposed extremes really blunted some of the actually extreme things that happened around the world. I believe that the politicians genuinely feared them such as when street riots in Netherlands prevented more fascist vaccine passports, Canadian convoy definitely sped up cancelling lockdowns in some states and it actually even worked in China where they reverted their longstanding Zero COVID policies. These "extremists" and "crazies" are often the unsung heroes of rightist causes, such as recently with multidecade win in Roe vs Wade or pushback against trans agenda. The left realizes that they can accommodate them, and they actually even openly sung songs to them and they turn it to eleven. Crazies are now mainstream and they accommodate even outright terrorist such as Weathermen and find safe haven for them at universities and think-tanks.

The gay marriage people were part of the juggernaut that held the institutions. The Second Amendment people do not; in fact, the institutions oppose them. Even conservative institutions (aside from specifically 2nd amendment ones) aren't pro-gun.

This isn't really a thing the supreme court can solve. When states really want to make life harder for people, they succeed. Masterpiece cakeshop just keeps winning court cases, but it's probably cold comfort at this point.

The Supreme Court isn't even trying. And they were able to solve segregation, I noticed.

The Supreme Court did not solve segregation, multiple presidents bringing the full force of the federal government to bear on southern states did. The supreme court merely provided political cover.

The Supreme Court is not providing cover of any sort to prospective gun owners in blue states.

And this gets wielded even by liberal prosecutors because, often, guns are worse than being mean to minorities.

I have a funny story for you.

As a gun owning Blue state resident this is a constant thorn in my side. However, its not really that big of a thorn in my side, which SCOTUS knows.

If Gardner had gotten review, I'd care less. If Adamiak wasn't a felon praying for a pardon, I'd care less. If Dexter Taylor wasn't in prison -- and going to be in prison longer than a man who beat someone to death with a megaphone, or that guy who shot at police, or both of them combined -- I'd care less.

[edit: correction, Gardner is a misdemeanant]

SCOTUS has defied all its normal rules about procedural posture to protect the rights of an illegal immigrant in six hours on a holiday weekend. There's a world where that says something about rights, and another world where it says something about illegal immigrants.

I think you're missing my go-to explanation. The conservatives on the Supreme Court want there to be a right to keep and bear arms for legal debating society reasons; it fits their judicial philosophy. However, except Thomas, none of the justices actually want people to be able to own and carry weapons. They are perfectly happy to let anti-gun circuit courts do the dirty work of reinterpreting Bruen into nothingness, and to not correct them (though they do correct the Fifth Circuit when it takes gun rights seriously)

In fact, the law of the land now is not Bruen but Rahimi, specifically the part of Rahimi which noted that there was historical precedent for laws against going armed to the terror of the public. And what "going armed to the terror of the public" is, is entirely up to the several states. Combine that with the 3D printing cases, and what the 2nd Amendment effectively says is "Notwithstanding any other part of this Constitution, the power of Congress and the several States to regulate anything to do with arms shall not be questioned." And this is as pro-gun a court as we're likely to ever get ever get. The Second Amendment is done; that's all folks.

I mean, the supreme court also fails to stop Colorado from bringing masterpiece cakeshop in every few years. It's not a 'gun control' issue, it's a 'stopping blue states from treading on people is very hard' problem.

They didn't try in that case either. Instead of finding that "No, the states may not force a baker to bake a trans cake", they found that the Colorado Civil Rights Commission was too obviously biased when it did the forcing. That's just asking for a repeat.

And what "going armed to the terror of the public" is, is entirely up to the several states. (…) The Second Amendment is done; that's all folks.

Playing devil's advocate rather than staking out a personal position here - nor am I saying that anti-guns regulations are compliant with the following - but, stray thought: couldn't you argue there's a difference between the right to own firearms and the right to carry firearms? Maintaining a broad right to keep firearms in your own home, but restricting your ability to carry them in everyday life, seems potentially in the spirit of the Second Amendment if you understand it in terms of a people's insurance against tyranny. If it comes to a revolt, then you can take the guns out of the basement and ignore the regulations about whether you're allowed to carry them in public; if you aren't participating in a mass revolt against an unjust government then it's not constitutionally important whether you can carry them around or not, so long as you are allowed to have them in reserve in case of a revolution.

If it comes to a revolt, then you can take the guns out of the basement and ignore the regulations about whether you're allowed to carry them in public; if you aren't participating in a mass revolt against an unjust government then it's not constitutionally important whether you can carry them around or not, so long as you are allowed to have them in reserve in case of a revolution.

This is the part people almost never highlight that’s even more important than emphasizing one’s right to a firearm for self-defense. A right to overthrow the government is written into the second amendment. Makes it difficult to determine where the clear dividing line is between a warranted insurrection (no such thing in the eyes of the government) and sedition.

A right to overthrow the government is written into the second amendment.

I don't think this makes sense. The technical ability to do something and social/legal permission to do it are separate. The anti-tyranny interpretation of the second amendment is that private citizens (and state militias) have the right to attempt to maintain the technical ability to overthrow the government. The reason why this is a dubious idea is that the government has both the right and the obligation (under the guarantee clause and general principles) to maintain the technical ability to defeat a rebellion. A right to try to do something where failure should guaranteed is not a useful right.

But social permission to overthrow the government is something that you just don't get. All governments can and should protect their own existence, including by punishing unsuccessful attempts to overthrow them.

The founding fathers knew they were traitors and would be hanged for it if the French took too long to show up.

IMO some people treat the Civil War as if it was an Amendment to the Constitution. The Federal Government crushing a rebellion ended the part of the 2nd Amendment giving a right to insurrection. Especially people on the left seem to imply that the Civil War settled that interpretation of the 2nd Amendment. Though they also did not take the time to write out an amendment banning the right to have arms for insurrection. It would have made so many of these gun questions easier today.

A right to overthrow the government

Which is in actual fact a right to overthrow the people, which necessarily means it's a right to be a military threat to your neighbor, anywhere you might go. (Blue is correct that "stand your ground" means this.) Just like 1A is the right to be a social threat to them, and just like 4A is the right to not have to deal with your neighbor's fishing trips because he believes you're doing blatantly illegal things (even if it is very obvious that you are indeed breaking the law).

This generally makes even liberals uncomfortable, because it all of a sudden means that they're relying on their neighbor's good will not to shoot them. If the only thing that keeps you from dying on the road is the unwillingness of other drivers to cross the center line and kill you, then "unwillingness" is doing a lot of heavy lifting, and everyone generally understands that encouraging deployment of the Final Argument of Kings can/will lead to defect/defect spirals.

Mass shootings (in the case where they're workplace violence) make people very uncomfortable (in a way gang violence doesn't, but that's generally because it's confined to certain areas and considered a lost cause) because it's very clearly their own private civil war. Some fight it for nihilism, others fight it because they're So Oppressed about Current Problem, but this is in fact what they are doing and why. And sometimes the soldiers (on either side) look like this.

People like to say "overthrow the government", as if the government wasn't following the wishes of the people. A majority of people in the US (and most other nations) are of the belief that the people can do no wrong- in other words, they have sovereign immunity. A mad king with 100 million heads is just as destructive as a mad king with one- actually, even more so, because a decapitation strike against the former is indistinguishable from a genocide (Israel/Hamas being a good and recent example).

But peoples have been wrong all the time. The vast majority of peoples of the West (and East, for that matter) were pretty famously wrong in 2020-2022 when they caused runaway inflation and trillions of dollars in economic destruction because they were absolutely hysterical about the uncommon cold. It is possible that threat of paramilitary action kept some People saner than others.

And sometimes the soldiers (on either side) look like this.

Do you happen to know who that kid is? Just curious.

John Clem would be my guess...

Yes, that appears to be correct. Thanks!

This generally makes even liberals uncomfortable, because it all of a sudden means that they're relying on their neighbor's good will not to shoot them. If the only thing that keeps you from dying on the road is the unwillingness of other drivers to cross the center line and kill you, then "unwillingness" is doing a lot of heavy lifting, and everyone generally understands that encouraging deployment of the Final Argument of Kings can/will lead to defect/defect spirals.

Which is ironic because they’re usually the party that believes in the innate peacefulness of humanity and the supposed natural harmony that exists between distant groups. It’s strange to me that liberals seem to be the only group of people I regularly encounter that honestly believes they aren’t an in-group, let alone one that also has an out-group bias like everyone else.

I don’t usually involve myself in these discussions anymore because they’ve been discussed to death and rehashed endlessly. I used to partake in them quite frequently. Now? Hardly. To me the solutions have already been found, they’ve been known, but the people don’t want to face reality. That’s all there is to it.

Take a concept the left loves so much like “diversity” (which, I’m all in favor of, to a point, even most conservatives are). Well what’s wrong with how they conceptualize it?

Diversity is a source of conflict within institutions and therein, societies. Conflicts impede institutions insofar as it inhibits them to performing their proper functions; and that’s even if one doesn’t adopt the goal of artificially promoting it. If a school is divided by conflict it can’t teach as well as a harmonious one. An army divided can’t fight as well as a unified one. A society riven by conflict is a less pleasant place to live than a peaceful one. You don’t have to be a philosopher to understand this. This is common sense.

The idea that any society or institution is improved by large-scale diversity is an aberration of the late 20th and early 21st centuries. There is ‘no’ serious political philosopher or statesman of the past would have entertained the idea for a moment. The entire goal of politics is to create social order and harmony. Basically, it’s the problem of getting along with one another. Social life has to deliver net benefits to its participants, or people will go their separate ways, and society will collapse. Straight up. But beyond that, since we’re not just selfish individualists, you have to cultivate social responsibility and investment, so people work to better society and are actually willing to sacrifice to ensure that it’s preserved and perpetuated.

Those are the great problems of politics, creating social harmony and a sense of an identification with the body politic, responsibility to the body politic, willingness to lay down one’s life for the body politic. Now tell me, does diversity help with those goals?

The prevailing dogma is that diversity will strengthen literally everything. Presumably it means every institution touched by diversity will perform its function better. Neighborhoods will be better places to live. Governments will better promote justice and harmony. Schools will better educate and train students. Hospitals will better heal the sick, etc. But this makes zero sense. Every institution is defined by its goals. So to function properly, every institution has to find people who are good at promoting its goals. Teachers have to teach. Firemen have to fight fires. Soldiers have to fight enemies, etc. The primary criterion for hiring and promoting people in any institution is ability to contribute to the institution’s purpose. No institution can be improved by introducing competing criteria of success, like diversity.

This is why as soon as diversity becomes the “greatest strength” of any institution, people will naturally lower its proper standards of success to promote diversity. And that’s why too much diversity isn’t a strength, it’s a weakness. But don’t for a second think you can’t also go overboard in the other direction. Diversity is a good ‘if’ it contributes to the institutional goals of society. It is not an intrinsic good.

To give an example, in academia, economics halls have often been assailed for being far too insular and siloizing itself from the discourse with other academic disciplines. This is led to an environment where economists spend far too much tinkering around with mathematically abstract economic models that bear little resemblance to reality. The solution for this wasn’t to encourage more English majors to enter into economics courses. It was to demand economists have an interface with businessmen to bring theory and practice together. And it led to projects like The Atlas of Economic Complexity.

People like to say "overthrow the government", as if the government wasn't following the wishes of the people.

This has been overwhelmingly true for most of history. One accolade I’ll give to democracies over the kinds of systems I’m more palatable to is that democracies have proven themselves to be the most sustainable political system of the future thus far. Maybe that’ll continue to change with time though.

Couldn't you argue there's a difference between the right to own firearms and the right to carry firearms?

In addition to the other issues other writers have mentioned, the Duncan cluster here is related to bare ownership, in some cases long-standing ownership without a grandfather clause, and has not resulted in a fire lighting under SCOTUS's tail. VanDerStok was not a carry case, either.

couldn't you argue there's a difference between the right to own firearms and the right to carry firearms?

You could, but the Second Amendment says "keep and bear arms". Almost like they anticipated this sort of thing. Anyway, in New Jersey I am allowed neither, and SCOTUS is OK with that, as they have been with Glock and AR-15 and magazine bans.

Maintaining a broad right to keep firearms in your own home, but restricting your ability to carry them in everyday life, seems potentially in the spirit of the Second Amendment if you understand it in terms of a people's insurance against tyranny.

In the Second Amendment the two rights ("to keep and bear arms") are listed together.

Well, quite, but they are still distinct; if only one is abolished then the Amendment has only been halved, not made obsolete altogether.

If you can abolish one (presumably arguing that "bear" != "carry"!?), then there's no reason the next guy can't abolish the other on some similar pretext.

Or, framed slightly differently, SCOTUS interprets the second amendment as permitting states to broadly regulate citizen ownership and use of firearms as they see fit, much like they now do with, say, abortion. The intention was always that Texas and Idaho might have vastly more permissive firearms legislation than California and New Jersey.

SCOTUS recognizes that the equilibrium where the public and elected representatives and elected governments in many of the richest and most populous (blue) states are prevented from legislating their own domestic in-state firearms policy (which does not relate to core federal government spheres like defense, border control, foreign policy, interstate commerce or central banking) against their will is unstable and will, at some point, result in the court being packed and the US’ brief experiment in comparatively greater freedoms reverting to the current European/Canadian/Australian model, not just when it comes to gun ownership but in every other case too.

The same motivation to accommodate local political sentiment, for example, is what struck down mandatory gerrymandering of black-majority districts in some southern states that was forced upon them, and what struck down Roe.

SCOTUS recognizes that the equilibrium where the public and elected representatives and elected governments in many of the richest and most populous (blue) states are prevented from legislating their own domestic in-state firearms policy (which does not relate to core federal government spheres like defense, border control, foreign policy, interstate commerce or central banking) against their will is unstable and will, at some point, result in the court being packed and the US’ brief experiment in comparatively greater freedoms reverting to the current European/Canadian/Australian model, not just when it comes to gun ownership but in every other case too.

When you boil it down, the question is over where the power is kept and how one accesses it.

Your claim is that Blue States can't be bound by the Constitution if they disagree with those restrictions, because otherwise they'll overthrow the system. If this is an accurate description, then to the extent that Reds wish to have their own access to power, the key to accessing it is to present a similar threat of disastrous consequences unless their preferred carve-outs are granted.

One notes that establishing sufficient threats probably results in less stability for the system overall, not more, but human collectives have never been all that good at math.

The same motivation to accommodate local political sentiment, for example, is what struck down mandatory gerrymandering of black-majority districts in some southern states that was forced upon them, and what struck down Roe.

As has been pointed out many times before, Black-Majority districts and overturning Roe are examples of ending blue impositions on red areas. We still have never had Red constitutional impositions on Blue areas, while we've had the reverse for many decades running, and still have many active. "We'll consider gradually ramp down our abuses of your autonomy, on the understanding that you will never, ever get to abuse our autonomy in any way" is not an attractive pitch for the side that has been relentlessly abused for many decades.

Kind of off topic but in regards to Louisiana v. Callais and the redistricting wars; Is it just me or did the media drop the subjects once it started to look like Tennessee might actually gain a black congressmember as a result of thier redraw?

It was all over my feed for a week, Tennessee published their revised map, and then crickets.

never had Red constitutional impositions on Blue areas

While I broadly am inclined to agree with the overall thrust of your argument, this is not true. If you want to split hairs on "constitutional" then we'd have to agree on a definition of that to create a boundary of what counts. But off the top of my head of Court Cases, and Federal laws that Reds have imposed on Blues, there are many:

  • Janus v. AFSCME regulated public sector unions and was imposed on pro union-labor oriented states
  • Masterpiece Cake shop enforced conservative views on the freedom of speech/religion on Prog states
  • 303 Creative LLC v. Elenis, same thing
  • Students for Fair Admissions v. Harvard/UNC, Progs clearly want to engage in race-conscious affirmative action,
  • Defense of Marriage Act (DOMA), prevented the federal government from recognizing same-sex marriages and conferring the benefits of marriage
  • Don't Ask Don't Tell federal stature 10 U.S.C. § 654
  • Espinoza v. Montana and Carson v. Makin, vaguely forces Blue-tribe states to fund religious schools, by preventing the states from exempting them from school-choice or public aid programs

The Red tribe is not some innocent victim in this arena, the give as good as they get.

This is kinda a weird grab-bag. I don't think your point is wrong, per say, but the examples don't really fit at first glance.

I'm in a hurry so can't check precise details, but Janus is a union case and most unions are creations of federal law under the NLRA: Complaining about federal regulation allowing free speech or free association is kinda a 'get your government out of my medicaid' model. Nope, strike that; public sector side of AFSCME. I guess that does fit on the edges, although the financing and funding model is still a little fuzzy.

Same for DADT, except even more, since the military isn't very Blue Tribe and it only applied there (and with some limited exceptions). DOMA only applied at the federal government level, and specifically didn't stop states from recognizing gay marriages locally.

Masterpiece Cake Shop just (infamously) held that a civil rights law's administrative bureau couldn't be openly hostile to the religious nature of its defendants.

Maybe 303 Creative/Espinoza/Carson/SFFA? But those are all antidiscrimination laws that progressives claim to champion; the main thread in each case was the neutral application of a longstanding rule that had been used for Blue Tribe ends at length. Even accepting the framework as 'laws that Reds have imposed on Blues', rather than 'laws that Reds have made sure didn't apply solely against Reds', they definitely can't be give as good as they got, given the wide scope these antidiscrimination laws have in Blue-friendly contexts.

I am just a legal layman, so I defer to you on some of the more technical minutiae. Many of these might be weaker because I personally agree with the red side of them. Trying to be fair forces me to argue for positions that I don't really agree with. But I do believe that this one-sided victimizing of Red-tribe belief is missing the forest for the trees.

DOMA only applied at the federal government level, and specifically didn't stop states from recognizing gay marriages locally

But it refused to recognize state marriages as marriages, creating a double tier scheme where you were married in NY but not federally. I think explicitly refusing to recognize an official state sanctioned marriage and conferring those benefits would be an imposition. I think my scaffolding around this is that if Texas doesn't want to recognize a NY gay marriage, that's fine, its their prerogative. But if the federal government want to say the NY marriage is invalid federally they are denying the state's ability to officiate legal marriages according to the state's-populations desire. That's a legal imposition of values from 1 tribe to another.

I think Masterpiece is a weak example.

303 Creative still functions as a federal constitutional carveout from Colorado’s LGBTQ anti-discrimination law. Even if it applies a formally neutral First Amendment rule. Colorado is requiring a business that sells wedding websites to sell the same product to same-sex couples that it sells to opposite-sex couples.

Espinoza was about the state is trying to keep public money from flowing to religious institutions, consistent with its own church-state separation rule. That is a neutral rule being violated by another neural rule: the Free Exercise Clause. But the outcome was that the Red-tribe favored rule over-rode the Blue-tribe favored rule.

Carson is essentially similar in that Maine wanted to provide the rough equivalent of a secular public education for students who lack a local public school via a tuition reimbursement. And the court ruled that that was discriminatory towards religious students and institutions. This essentially hits the feeling of "We are being forced to subsidize something we morally oppose." This is probably pretty neutral if there are equivalent examples of conservative states being forced to subsidize things they reject. But off the top of my head, no conservative state has been forced to fund Planned Parenthood with its own money. (Medicaid does not count as it is a joint federal-state program) I think this one is a pretty strong example.

I think SFFA gets more into the weeds on what constitutes "Blue Tribe", as its a liberal vs progressive ideological fault line. It's not as clean but progressives are not really the anti-discrimination party, they are a racial/minority-spoils party. So idk if you can argue that they champion the anti-discrimination laws unless you autistically adhere to the definitions. SFFA is more like “a conservative/colorblind theory" of equality imposed over a "progressive/anti-subordination" theory of equality. It's a good comparison to the Voting Rights Act imposition.

I think my scaffolding around this is that if Texas doesn't want to recognize a NY gay marriage, that's fine, its their prerogative. But if the federal government want to say the NY marriage is invalid federally they are denying the state's ability to officiate legal marriages according to the state's-populations desire.

This... gets messy, then. The underlying motivation for DOMA was Baehr v. Mike, the perception that the Full Faith and Credit Clause would require every state to instantly recognize the potential one-state gay marriages, and was signed into law by Bill Clinton with large bipartisan support. That makes it a very awkward fit into "Red Tribe vs Blue Tribe". Even assuming that frame, the federal benefits of marriage are limited and primarily focused to domains (tax deducations, military benefits) that don't match the normal personal/government-provided divide. State-married people under DOMA would still get state-specific benefits. It's not clear that there was any other equilibrium short of a) some consistent agreement that no one attempt those cases, cfe Windsor, or b) Red Tribe getting squished by Blue Tribe Three Gay Couples From Hawaii Specifically.

303 Creative still functions as a federal constitutional carveout from Colorado’s LGBTQ anti-discrimination law. Even if it applies a formally neutral First Amendment rule. Colorado is requiring a business that sells wedding websites to sell the same product to same-sex couples that it sells to opposite-sex couples.

If you put it like that, it sounds like SCOTUS stopped a Blue Tribe state squishing a Red Tribe person. I get what you're trying to motion toward, but there's not really a level of specificity where this was some new first step -- either there's a long series of First Amendment association cases that overturned Red Tribe laws predating this matter by decades and using this exact avenue, or there's a lot of anti-discrimination laws that required exactly this sort of active behavior targeting Red Tribers.

Espinoza... Carson... This is probably pretty neutral if there are equivalent examples of conservative states being forced to subsidize things they reject. But off the top of my head, no conservative state has been forced to fund Planned Parenthood with its own money.

You're not going to find lawsuits, but the ACA required all states accepting funds to support gender therapy and any state accepting medicaid expansion plans to cover preventive contraceptive services. There was actually a big mess just last year about trying to throw (some) Planned Parenthood programs out. And before that there was the thing with the nuns? The biggest case was Pennsylvania, so purple state, but there were a bunch of follow-ons in deep red states. I'd normally put that in the marginal 'well, it is federal funding' bin, but there's a bunch of complex rules with matching state funds and punitive efforts for those states that didn't join, so it's still a pretty good if imperfect match.

But more generally yes, there were and are quite a lot of things like that.

I think SFFA gets more into the weeds on what constitutes "Blue Tribe", as its a liberal vs progressive ideological fault line. It's not as clean but progressives are not really the anti-discrimination party, they are a racial/minority-spoils party.

But the rule in SFFA -- don't discriminate in education by race -- was used and is used very aggressively against Red Tribers first. It's famous for it! A President literally sent the national guard in over it. Even if you want to salami-slice the liberals, the progressives still use the very precise rule here to do everything from review college admissions programs to demand that Red Tribe elementary schools spend enormous amounts of money on ESL training. There was over fifty years of this before SFFA. There's a fair argument that it's not popular among the Blue Tribe normies (there was famously a California constitutional amendment prohibiting it... which immediately was ignored), but it's still a Blue Tribe rule that was used to smash Red Tribers long before the Red Tribe picked it up.

By this reasoning any Red-friendly ruling is an "imposition".

Only so much as the original argument makes any Blue-Friendly ruling applied in a Federalist manner an “imposition” on the Red-Tribe.

Your "impositions" don't mandate that states do something. They mandate that states cannot do something that restricts other people. Counting that as an imposition strips the idea of meaning because that means that everything the Federal government does is an imposition. The original argument is not along those lines because it also involves telling the states to refrain from doing something to other people (Democrat-friendly gerrymandering).

Your own argument is nonsensical

They mandate that states cannot do something that restricts other people.

and

it also involves telling the states to refrain from doing something to other people

Are the same thing...

Both are telling the states not to do something. Both are by definition, an imposition: the action or process of imposing something or of being imposed. The Federal government is imposing laws that affect the states to deny them ability to govern how their populous wants to. It is one Tribe, "imposing" on the other.

More comments

That's a plausible story, albeit one that's a fulfillment of FCFromSSC's "The Constitution is dead", though it still runs into some issues as a model:

  • the court has not been quick to strike down federal regulations on gun ownership, either, nor have they accepted cases clearly within federalist bounds (eg Gardner).
  • there was 49+ years of Roe, which heavily controlled state abortion law. The sudden discovery of federalism only once real rights could be protected instead of made-up ones actually makes it worse.

More immediately, it also doesn't explain the pattern here. If there's nine votes to deny the Duncan cluster because they have very strong view of federalism, it doesn't get a relist. If eight, or seven, or six votes to deny the Duncan cluster exist, a handful of relists happen while Justice Thomas writes a barn-burner dissent, but if he's writing too slow, they can call his bluff at any time and force the vote. What are they gonna do, piss him off more than Roberts pissing on Bruen?

That's the weird, and noteworthy, and inexplicable part. Any model that predicts a denial of certiorari needs to explain why that didn't happen three months ago. The court could have punted all these cases, gunnies would complain a little, and that would just be another step in a pattern that's been around for decades. Instead, they've spent six months contemplating a set of cases that have been on their radar for over a year. Indeed, the standard argument from court listeners is that Kavanaugh is the marginal vote, and he's the one that's going to be the most badly humiliated by those whole process given Snope, and it's only going to be more humiliating the longer the relist cycle goes.

Similarly, any model that predicts a grant needs to explain why that didn't happen in early April. If a grant happens in the 13+ cases, it's a arguably a record; if it happens in two weeks, it's unarguably so. If a grant happens in multiple 13+ cases, it's even more extraordinary. And those are the cases with the best vehicles! And a denial for Duncan while granting cert in Lamont is even weirder, since there's no plausible story where Lamont's lower case is bad law but Duncan is a-okay, and denying in Duncan cements its law and demands hundreds of thousands of people give up property they lawfully purchased under a legitimate court order. Even if the court needed the later cases and is struggling over vehicle questions, 8+ relists is still a massive outlier, and it's all the greater an outlier for having considered these cases a year before they came to the court.

Why? is a serious question, here.

Or, framed slightly differently, SCOTUS interprets the second amendment as permitting states to broadly regulate citizen ownership and use of firearms as they see fit, much like they now do with, say, abortion.

A Texas resident can go to New Jersey and lawfully purchase an abortion. A New Jersey resident cannot go to Texas and lawfully purchase a gun. Not even if they don't take it back to New Jersey.

But that's not really framed differently, especially in context of, I dunno, 1A. That's been held to protect citizens of [every] state from State government overreach, which is why it's a problem that 2A isn't treated the same way.

Not that 1A doesn't get threatened in things like the DefDist case, which is Blue states trying to make law for the rest of the nation; I see no reason that an election or an appointment shouldn't have consequences when Blue states lose them and "but muh court packing" is special pleading.

The First Amendment as it is today is a product of the mid-late 20th century and, ironically given its current ideological stance, the ACLU. For the vast majority of American history it was never interpreted as preventing individual states from banning various kinds of speech, including under very broad definitions of obscenity. The current interpretation arguably only exists because of liberalism. A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.

If we are doing constitutional history (as the originalist movement says we should be) this is the key point. The people who wrote the Constitution in 1789 didn't think it needed a Bill of Rights at all because the Constitution didn't grant the federal government the kinds of power that a Bill of Rights was needed to restrict, and the people who ratified the Constitution and Bill of Rights (which they added because they quite properly didn't trust the feds on that point) definitely didn't want the Bill of Rights to be enforceable against the States.

Some of the rights in the Bill of Rights are rights the framers considered fundamental, so as well as putting them in the BoR they also wrote them into their state constitutions. Free speech and criminal juries are the classic examples*. But some of the BoR is about federalism, not fundamental rights. In particular, the Establishment clause was pure federalism (most states had state-level established religions in 1789, although not for long afterwards) and the 2nd amendment was mostly federalism (most states had some kind of RKBA in their state constitutions, but nothing as broad as the right protected against the feds by the 2nd amendment - the framers wanted the states to have the right to regulate their own militias).

The fundamental rights protected by the Bill of Rights should have become enforceable against the States under the Privileges and Immunities clause of the 14th amendment (turned into an inkblot by the Gilded Age SCOTUS in the Slaughterhouse cases) and actually did under civil rights era substantive due process doctrine.

A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.

That would be dubiously faithful to the Constitutional text given that the 14th amendment exists in a way it didn't at the founding. It would also be lousy policy given the availability of forum-shopped strategic lawsuits against online speech. But the weak version of this claim is correct - a serious originalist Court would need to think about how to mesh the founding-era understanding of the Bill or Rights as a backstop to federalism as much as to fundamental rights with the 14th amendment requirement to protect citizens' rights against overweening state government, and the only justice who has even tried to do that is Thomas in his Establishment clause dissents. The fact that the substantive due process approach to incorporation that the Court had to adopt in order to avoid publicly calling out Slaughterhouse as a Dredd Scott tier mistake is intellectually incoherent doesn't help.

* SCOTUS has never enforced the 7th amendment requirement for civil juries against the states - I'm not sure how this relates to founding-era practice.

Nothing in the 2nd Amendment implies it's only a limitation on the Federal government. It's frankly bizarre to flip the readings of the 1st and the 2nd in this manner; the 1st specifically is written to prohibit Congress from taking an action, whereas the 2nd specifically says the rights of the people to keep and bear arms shall not be abridged period, with no mention of who specifically is prohibited from abridging their rights.

The original intention of the whole Bill of Rights was that it was a limitation on the Federal government only. For SCOTUS to interfere in the internal affairs of a state in the name of enforcing the federal Bill of Rights would have been an unacceptable abridgement of state sovereignty according to both the Federalists and the Anti-Federalists.

I think the preambulatory clause of the 2nd amendment has something to do with the intended meaning - it would be odd if it was a pure rhetorical flourish on the part of the 1st Congress. The obvious interpretation of "A well-regulated militia being necessary to the security of a free State" is that the drafters of the 2nd amendment expected someone to be regulating the militia, and given the structure of the original constitution, the power to regulate the militia is shared between Congress and the states, and founding-era practice was that the power retained by the states included powers that the modern 2nd amendment movement would prefer the states not to have.

Part of the problem here is that there isn't a standard originalist theory of how the Bill of Rights became incorporated against the States. The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress. In practice originalist thought cashes out as "the 1860s Congress intended to reach back in time and impose a 1790s understanding of the Bill of Rights on the States" which usually leads to coherent law even if it doesn't make sense as political history. But it doesn't give a clear answer in cases where the 1790's understanding of the Bill of Rights doesn't make sense without federalism, like the Establishment clause, or the carefully negotiated compromise about who controlled the militia. Local byelaws against going armed in urban areas were a lot rarer in 1790s America than in the UK (where they were ubiquitous) but nobody at the time thought they were constitutionally problematic (except in Vermont, which had a much broader RKBA clause in its early state constitution than the other states), ditto state-level bans on gun ownership by free blacks if you want a less happy precedent.

The other problem is that handguns that actually worked were not available at the time of the founding, so applying the 1790's understanding of the RKBA to the most important questions in modern gun policy (which are largely about routine concealed carry of handguns) involves somewhat strained hypotheticals.

The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress.

There are some law review articles arguing why Slaughterhouse was correctly decided, which even if not persuasive, marshal some interesting evidence against the now-common position that Slaughterhouse was beyond wrong.

Rehabilitating the Slaughterhouse Cases by Maltz
Privileges or Immunities by Hamburger
The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Lash (book, not article)

A muscular conservative court would roll it back

True; hate speech as broad exception has been the Dem [read: conservative] cause/excuse for doing so for as long as I can remember, and a good chunk of 1A cases have already gone down that way.

However, the court isn't muscularly liberal on 2A as Red was hoping (for the same kind of advancement and cultural shift that it would force on Blue states as the incorporation on 1A was for Red states back then- turns out a sizeable minority in Blue states actually want guns, perhaps to protect themselves against the obvious consequences of Blue policies?), and that's still the central issue here.

That's definitely a model and it does explain an anti-gun court that doesn't just grant-and-eviscerate all the time, but I'm kinda filing it under 'Thomas is writing a dissent', and there's still not enough there to explain the relist count. Thomas can write very long dissents, but especially if the other eight (or even seven) justices were never going to take Bruen seriously, he has all the more recent to write that long dissent as soon as Snope dropped last year. If he's not and knows he's not persuading them, the relists do nothing.

Conversely, if Thomas is getting something non-obvious out of it, why wouldn't the majority just GVR, per curium, or give a long angels-on-pin-head meaningless opinion? Roberts never has to assign the opinion to Thomas against post-Bruen, and even if he did, it clearly didn't do anything.

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