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Snope v. Bonta has dropped like a gravestone:
That'd be a great opinion. It's not one.
Only Thomas, Alito, and Gorsuch have dissented from the denial of certiorari, which means that there is no Snope case now. This was final judgement (specifically, dismissal of the lawsuit), there are no other appeals, and there is no other chances. Maryland has banned a wide array of very common firearms, with vague definitions, the lower courts have held that these guns aren't even guns nevermind protected by the Second Amendment, and SCOTUS has punted. While Maryland's law here includes a grandfather registration clause, the circuit has already held that such clauses are unnecessary, none of the takings clause people cared, and SCOTUS punted. Binding law in the 4th Circuit holds that a firearm is not an arm.
It's also a case that has been rife with bad behavior from the lower courts; Thomas's dissent emphasizes the logical flaws, but I'll point out that under the name Bianchi this is the case that was held for over a year by a single judge on the appeals court who didn't file a dissent. There will be no percolation; 2A-favorable analysis of these laws will not be allowed to reach SCOTUS, and it will be smothered before en banc whenever possible.
Kavanaugh wrote an interesting ... concurrence? Dissental?
Pile of bullshit? Statement. The record calls it a statement. This is particularly interesting because it only takes four to give certiorari; he literally could not write a dissent.Again, would be a great opinion! It's not one, either. Instead:
Why? Because fuck you, that's why. Roberts and Barrett, as typical for the majority in denials of cert, have no comment.
Kavanaugh gives a list of lower circuit cases that "should assist this Court's decision-making".
To be blunt: this SCOTUS will not be address the AR-15 issue in "the next Term or two". There will be no grand cases from the lower courts with a serious investigation of the Second Amendment ramifications that split the baby some perfect way. There will always be some excuse why a specific case wasn't the ideal vehicle, or why some new one that's just reached oral args is the better vehicle later, or why some specific law wasn't the best demonstration. Optimistically, Kavanaugh got a promise from John "Article III is <Not> Worth A Dollar" Roberts and will find out how much that promise is worth; pessimistically, Kavanaugh's a politician wearing robes and this is what he says to get readers (especially the sort that might make unscheduled visits to his house) to believe what he wants them to believe. Eventually, Thomas and Alito will retire, and either we're going to get much worse judges from a technical side who can actually make a fucking decision that matters when it shocks the conscience of the Amtrak world, even if that means they'll also bark on command when Trump asks, or a Dem president will get those seats, and either way, the conservative legal movement and anything deeper than a pretext of originalism will go the way of the dinosaur.
Meanwhile, the plaintiffs here get nothing. They will be out years of their lives trying to bring this case, and tens or hundreds of thousands of dollars in legal fees and attorney's costs. They will either have moved from Maryland, or gotten rid of any 'assault weapon' that they once owned, or never been allowed to buy one. A decision in a term or two will not protect Ocean State Tactical, another (pre-final-judgment) case SCOTUS denied cert on today, from being just as completely fucked over. Even should SCOTUS find their balls or be delivered new ones and eventually issue a pro-gun ruling, most circuits have standing orders that only recognize the most complete and on-point decision from SCOTUS as overruling circuit precedent, and the one exception is the 9th Circuit (and with a "when we like it" rule). SCOTUS has happily demonstrated, for the better part of a decade, that they will not smack wrists over that. Anti-gun lower courts will take this as an affirmance in the meantime.
It's not even as though guns are the only matter here: SCOTUS has similarly punted on the question of But It's Mean on Free Speech. Hell, guns aren't even the only thing in the guns cases. The court has similarly punted on the question of whether But It's Guns on Due Process, or But It's Guns on Free Speech [see also], or But It's Guns on Court Settlements, or even But It's Guns on the very caselaw that SCOTUS thought so beyond the pale that they'd managed to scrounge up a 9-0 before.
And, of course, there's the blaring siren in the room. As Thomas points out, SCOTUS has punted on this very specific legal question for over a decade post-Heller, while claiming a right delayed is a right denied. SCOTUS has a case covering the type of gun Heller was trying to bring in Heller I, it's listed for conference for Thursday, it's been over a decade, and they're gonna deny it, 99.9999%. And where I'd once point out that it's been longer since Heller than it was from Lawrence v. Texas to Obergefell, and Dick Heller still can't register (lol) the actual gun from his original case, I'm instead going to something a little more specific and recent. SCOTUS defied all its normal rules about procedural posture to protect the rights of an illegal immigrant in six hours on a holiday weekend. That's what SCOTUS cares about, and for every single court case they punt on in my lifetime -- whether challenges to a law like this, or people sitting in prison like Dexter Taylor -- this the standard they've set, and then forgot as soon as a normal citizen who hasn't beaten their wife got involved. Every single second longer than six hours, for cases that have 'percolated' for years.
Some peoples rights need be resolved right away, and others can wait and wait and wait.
Viramontes Has Dropped
It's a three-page read, but to summarize: Viramontes has not demonstrated sufficiently that an AR15 is different than an M16. What could prove such a thing? What is required to prove such a thing? The court does not feel it necessary to even hint. Why did it take three grown adults several months to write three pages? Also a mystery.
Yes, Bruen explicitly said that the burden was on the government, that "The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation." Yes, it's so obvious it should be in judicial notice. Yes, the plaintiffs explicitly argued "The banned semiautomatic rifles, like all other semiautomatic firearms, fire only one round for each pull of the trigger. They are not machine guns." among a variety of other significant distinctions.
Doesn't matter.
That was one of the possible ones, except nope. Hope Kavanaugh finds it really illuminating.
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I'd like to believe Kavanaugh that this is an additional temporary set back, because it's nicer than being mad or catastrophizing.
Regarding "percolation", if a new standard is deployed, then allowing lower courts to hash out the details appeals to my common sense. Highlight the contentious, egregious violations and we get more pointed judgments. This requires the lower courts to respect precedent set by SCOTUS and enforce rights faithfully. Maybe percolation can be relied upon for 1A cases, because there remains broad consensus there. For the 2A, this is akin to a general handing orders over to his officers, having them mutiny over the orders, then going to bed with the expectation they will eventually carry out the orders they are actively mutinying over. "Second-class' right indeed. I'm not sure what the play is, or if the soft degradation of legitimacy is preferable to a sudden decapitation, but delegitimizing it remains for the individuals that consider the court employing something other than politics.
Another thing that loses me is the stated desire for circuit splits as an indicator to act. It's perverse. Should I vote in politicians that will enact unconstitutional laws that limit my rights-- in the hope that SCOTUS will then take the case to the restore the rights of myself and my fellow countrymen? I resent the fact I wasn't taught about this civic duty, nor the fact that a right cannot be vindicated until it is unequally trampled upon in different parts of the country. Delay turns into vetoes and dissent, not less.
The circuit split pseudo-requirement becomes even more frustrating when you realize that important issues are not evenly distributed geographically. Most federal land is located in the 9th circuit, and the 5th and 11th circuits (the ones most favorable to conservatives) have virtually none at all. So a lot of the 9th circuit's crazy environmentalism never gets to SCOTUS because none of the reasonable courts have jurisdiction to hear similar cases and generate a split.
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Yep. There's a !!fun!! worse-case scenario where Red Tribe groups specifically create and push the sort of worst-legal and -pragmatic case arguments possible with friendly prosecutors and 'defendants' collaborating to make the state's position crumble, a la the cy pres abuse from the Obama era. But as funny as it would be to see Guiliani dropped into new court cases just to fuck them up, the courts are no more willing to play with that than they are with honest engagement.
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While I do not know the specifics, based on priors I would guess that this involved a suspected gang member being at risk of imminent deportation to some El Salvador mega prison. As Trump's efforts to follow court orders to get people deported in such a way were sadly unsuccessful, it seems reasonable to treat these deportations as a permanent harm and prioritize these cases accordingly.
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I think the problem with the 2nd amendment is that the text allows for a wide range of interpretations. One could argue that the framers meant the small arms of the 1780s -- which were the only guns they knew about, and if a city-destroying laser gun had popped up in 1800 they might have felt different about everyone owning it. Or that they meant 'state of the art military firearms, in perpetuity', because surely nobody would beat any tyrant today with flintlock rifles. Or even that they meant weapon systems to wage war in general, from man-portable antitank weapons to stealth bombers and nukes.
Previous case law has extended 2A to cover cartridges, revolvers and semiautomatics, but not automatics or explosive weapons. As far as the original purpose of the second (to enable the population to resist a tyrant like the US did during the revolutionary war) is concerned, it is very much moot. If the tyrant fields a tank, then the Americans owning what is currently legal for them to own, AR15s or no AR15s, will lose very badly in a direct confrontation. To give them the firepower to even have a fighting chance against tanks or airplanes would also give them the power to effortlessly take out school busses or jumbo jets, and this is a trade-off which few people will favor.
It should also be pointed out that the current SCOTUS has been otherwise quite Republican-friendly. They overturned Roe (which to be fair was always a stretch) and they gave Trump immunity for basically anything he did as a president. I can assure you, the disappointment the gun nuts feel with the SCOTUS for not affirming the legality of semi-automatic AR15s is tiny compared to the disappointment the liberals feel over Dobbs.
Okay. If that's the new rule, what day of this week do you think Dexter Taylor gets his day before SCOTUS? The courts don't have a time machine; the half-decade he's going to be stuck in jail isn't going to get undone. Will Malinowski get the other half of his skull back, or his next of kin get due compensation for watching her husband die? Or will both of these cases never get close to SCOTUS?
Ah, but those have different likelihood of success, or we think they're different types of permanent, post-hoc. Which is... at best an entirely different question from prioritization and permanence. And even many of those claims are not particularly believable. AARP didn't get punted because eh, those asylum claims are probably bunk anyway.
This has not, bluntly, stopped any Blue Tribe-favored defenses or constitutional protections, many of which have not only as much or more range in interpretation, but in many cases has been completely dependent on the most expansive interpretation to even exist in a meaningful form.
I'd quibble with that description, but beyond that "we didn't get to try your Presidential candidate in federal court too much" is not especially compelling, and he's not 'my' guy.
That's nice, and all, but even assuming it's true, the ability of people to hack their own brains to be super-duper-ultra-disappointed doesn't actually give me any reason to care that they 'only' got fifty years of a made-up right blowing out not just laws across every state in the country, but even the interfaces of actual rights.
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The easy test case here is cannons: they were well-known in the 1780s, they're clearly not useful for personal defense since they're tremendously unwieldy and are only really militarily effective in a standing battle, and they've got the potential for mass casualties loaded with grapeshot or other shrapnel, or property destruction loaded with explosive shells.
So, were cannons privately owned at the time of the Constitution's writing? Did the Founding Fathers take legal steps to ban personal ownership of cannons? Doing some scanning, my tentative conclusion is that they were fine with cannons, I certainly can't find any landmark case saying "well rifles are fine, but cannons are too far". People mention private cannon manufacturers, privateers, and private artillery companies, although I will note that a lot of this seems to come out in response to Biden saying "you couldn't own a cannon during the Revolutionary War" during a speech, so it has become a culture war thing. And the Massachusetts militia gathering cannon at Concord was the kickoff of the Revolutionary War.
Rifled cannons are currently banned, but that seems to be part of the NFA in 1934, well past Founding Father influence, and smoothbore cannons appear to still be legal.
This is a good test, but it only tells us that the Founders were fine with the destructive power of grapeshot in civilian hands when it came with the costs and portability, etc of a cannon. A fragmentation grenade will have a similar destructiveness as grapeshot, but it will also have much-increased portability, will be easily concealed and vastly cheaper, and can easily operated by a single person. So the trade-offs for society are very different.
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With respect to privateers, private cannon ownership was encouraged.
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One of the coolest parts in Paine's "Common Sense" was the suggestion that we could get by without a standing navy if only we subsidized merchant ships who use some of their cargo space for cannons, to deter piracy without a dedicated navy but also to make it possible to organize a dedicated navy quickly in the event of war. The question wasn't "should people be allowed to own cannons?", it was "are we getting enough of the positive externalities of people owning cannons?"
There was a wonderful period in between the ancient "Divine Right of Kings" and the modern "Divine Right of Governments" where intellectuals seemed comfortable with the idea that governments are just made of people. Five years ago I'd hoped the left might get back to that point, since "Defund The Police (who can't be trusted) but also Ban Guns (using Police, the only ones who can be trusted with guns)" is just too clearly oxymoronic, but in hindsight my definition of "clearly" may have been overly expansive. English grammar doesn't have the concept of "transitive adverbs", which is a shame since English vocabulary has transitive adverbs.
I was going to make fun of that as spherical-cow thinking by a guy who had never seen naval service, but T-Paine actually had a slightly more complete plan.
It’s still kind of like paying truckers if they include at least one anti-tank weapon. America would have a heck of a time getting either to stand up against a serious military.
To be fair, Paine lived in a very different age. In his day, to compete in the Atlantic against the great colonial powers was not on the table for the US. If the Brits decided to invade again, a fleet to block them would not have been cost-effective. Instead, they would have been able to make uncontested landfall somewhere in North America. Of course, with a supply line spanning the Atlantic on sail ships, they would then have been at a disadvantage compared to the US in a land war.
Even today, I would argue that most of the naval forces of the US are not to keep the continental US safe from maritime invasion. Land based missile bases and a few spotter ships or planes would suffice for that.
The US navy is all about force projection. A airbase is superior to an aircraft carrier in every regard, except that you can not simply move your airbase to the South Pacific. Defending democracy on the other side of the world was probably not what Paine had in mind for the US.
To use civilian ships for warfare seems not entirely outlandish either, while purpose-designed warships will certainly offer superior performance, filling a merchant ship cannons is still a reasonable thing to do. What I am much more doubtful about is the use of turning over just some of the space on the ship to cannons. Traditionally, warships have dedicated most of their space to propulsion and armament, which is why they make very shitty merchant vessels. Smoothbore cannons do not exactly operate themselves, and the sailors will be quite busy navigating, so you need dedicated personnel to operate the guns (and the bilge pumps, for that matter). Unless you are also paying that merchant vessel to keep an extra crew of a few hundred to operate the guns, that 50 guns will be worthless.
Paying them to only carry a small fraction of the guns their ship could carry is even worse for warfare, because that means showing up to a rifle fight with a handgun. (It might still work out to scare of the occasional pirate, though.)
I think a better approach would have been to pay merchant vessels to have gunports so they can quickly be retrofitted with cannons (and the crews to man them) if the need arises.
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What could some jerks with trucks, consumer goods, and explosives do against, to pick a random example, a fleet of Tupolev bombers, right?
In theory I agree with you 100%, at least now that a serious military needs to have nuclear-tipped ICBMs.
In practice, Suez canal traffic was still down nearly 70% from 2023 Q1 to 2025 Q1, after third-world terrorist separatists took 10% of world trade hostage, because it took more than a year for a serious military to bomb them into agreeing to (not even a surrender!) a ceasefire. I do feel confused that the march of technology hasn't yet brought us to an era in which leading military superpowers can successfully pacify places like Afghanistan, with much less than a couple decades and a couple trillion dollars of effort, but here we are.
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laughs in Dari, Pashto, Vietnamese, Irish, etc
Yeah I'm sure a country full of small arms and handheld ATGMs will be a cakewalk to conquer. Good luck holding onto it though. It's just a bunch of peasants, what are they going to do against the best military in the world eh?
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It's not totally senseless, it's the equivalent of rich people and celebrities having private security and bodyguards today. "You're the guys likely to be robbed, have some defences on your ships or hire some private contractors". Something like ex-military or ex-cops setting up as private security nowadays? "Hello, you're a former privateer with a ship, a crew, and no war going on for you to plunder foreign navies. What do you do in peace time? Write to MERCHANTS-R-US for exciting new job opportunities in the field of civilian fleet protection!"
As you point out, though, in times of war this affair falls to pieces. That is when you need a professional navy with proper warships. Though maybe Paine wasn't anticipating that America would need to be going to war with anyone else after kicking out the Brits?
It also seems like in times of peace you would just get protection rackets rather than legititimate security.
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Only if they're muzzleloaded and therefore not firearms (for legal purposes). An M256 is a destructive device, and so is every shell you may get for it.
"No officer, there are no firearms in this vehicle. I do have two 18-pounders in the bed of the truck, though."
It's a bit silly, but those (unless we're talking WW1 era) are "antique firearms":
and therefore not "large caliber weapons", and therefore not "destructive devices" and therefore not "firearms" for NFA purposes.
In practice you can buy yourself one right now for upwards of $300.
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I'm pretty sure there's a 4chan greentext about urban youths' conducting a cannon-broadside drive-by shooting.
There's the infamous /k/ thread: https://desuarchive.org/k/thread/33748578/#33748578
but you may also be remembering the classic pasta: https://desuarchive.org/k/thread/23597451/#q23597742
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I think the concern is that if they rule on this case while the others are still pending (assuming they strike it down) they get one state law struck down and several others where the courts carefully craft their decision to avoid running afoul of whatever logic the Supreme Court uses to justify their decision, in which case they have to keep hearing the same kinds of cases over and over again. And even when they do rule on it, they're just going to get new legislation that tests the limits of the decision. This is what happens when you have a constitutional right that a sufficient number of states simply choose not to recognize as such; look at how many southern states kept passing more and more onerous abortion restrictions to get around Roe. The court simply doesn't have any interest in turning into the Gun Control Review Board or whatever, so they're just going to keep denying cert. Some people may wonder why they say they're too busy when they still hear tax cases and bankruptcy cases and approximately 16,000 cases per term involving the Uniform Arbitration Act, but it's because those cases involve questions that need answers, and they don't worry about state legislatures and lower courts trying to dodge their rulings.
This may seem like an unfortunate situation to gun rights advocates such as yourself, but it's better than the alternative. The entire reason the court is in this mess is because they want to preserve restrictions that almost everyone agrees are necessary, and while you personally may not care if fully automatic weapons or sawed-off shotguns are legal, as soon as there's a high profile incident with a lot of casualties, the anti-gun protests would make everything we've seen thus far look like a dress rehearsal. There's a reason that most gun-friendly NRA A+ congressmen aren't introducing bills to repeal the FFA, or the Gun Control Act of 1968, or whatever law makes post-1986 guns illegal. This doesn't even get into sales restrictions, or background checks, or any of that. At that point the argument about cosmetic features, or DFUs, or whatever go completely out the window, and whatever rights you think Heller isn't protecting are going to vanish along with Heller itself, and in the ensuing backlash states aren't going to be shy about clamping down the screws.
What if the NFA was challenged, rather than a state law?
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If we were talking background checks and 1986 machine guns, you might even have a point on the political costs. This case is about a ten-bullet magazine cap, and a ban on the AR15. These things famously were so unpopular on the federal level that they did, actually, not survive political scrutiny in 2004. That's a thing that actually happened. Concealed carry permits that aren't perverse jokes of due process cover a majority of the country, concealed carry laws that don't treat CCWers like vampires same, and both through people voting.
Five judges on the court can write a GVR faster than I can write this post. Anyone with a functioning brainstem can cut that 'gordian' knot of definition. And the court is quite happy to write sanctimonious screeds in that five minute time period defending the vital and important rights of a wifebeating illegal immigrant, face the music and political costs when yesterday an illegal immigrant lit a bunch of people on fire, and just smile on the next day like nothing happened.
They don't want to here. That's it.
EDIT: and, yes, that you have to compare a clearly-written right to one that even its proponents eventually admitted was just made up is a problem. That your 'oh no there might be a lower court case that would adjust in response' covers every single case the courts have ever heard, and hasn't stopped them from countless Blue Tribe decisions, matters. That the courts have ducked the consequences on Red Tribe matters from SFFA to 'someone wore a mean t-shirt', matters.
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This comparison irritates and mystifies me.
The right to bear arms is quite directly in 2A:
But the right to abortion is...nowhere. It's inferred from the right to privacy, which is inferred from due process (5/14A):
I'll grant that there's some legal history and subtlety around what counts as an "Arm," but that's a much smaller inferential distance than the above.
Why would "abortion, but only up to a certain point in the growth" be part of...I guess "liberty"? But, "drug legalization" somehow isn't?
In classic Mottian fashion, I'm a high decoupler in general, and on this - I'm personally anti-gun and pro abortion. But, that doesn't change that the legal footing of them is exactly opposite in strength: my desires are not constitutionally protected.
I am anti-abortion myself, but I actually think that the demand for abortion rights to be supported by the constitution is itself not supported by the constitution.:
Therefore, just because something isn't in the constitution doesn't mean people don't have a right to it. In fact it's the opposite - if something isn't in the constitution, the people by default have a right to it, and the burden of proof is on those who would say otherwise. I am fine with the result of having Roe decided by the states (it always should've been imo), but I don't much like the legal reasoning used to get there.
I wish that passage were given more weight, but I don't think it's that open-ended. It's most likely a reference to rights established by the English constitution as the authors understood it, with an emphasis on those in the Declaration of Right. It may also include some common-law rights.
If read in that light, I think it would have some radical implications. But it wouldn't establish a compelling interest test for each and every federal law.
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Isn't this a case of who, whom yet again? Depending on how you answer the question of the personhood of the fetus, it's either the right to a simple medical procedure removing some cells, or it's superseded by the right to life for a developing human being.
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Has SCOTUS jurisprudence found literally any rights to be established by the 10th amendment?
In practice, the anti-Federalists demanding an explicit enumeration of rights seem to have been right: nothing unenumerated is ever found to exist. Sorry, Hamilton stans.
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What did you think ‘states rights’ meant?
I was pretty sure it meant right to deny things to black people.
To be clear, I find this particular punt outrageous and unfair. But I don’t think “states’ rights” has been a particularly principled objection since Andrew Jackson, if ever.
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If you want talk progressives into the consequences of that rule, on such a scale that the other parts of the Constitution and its amendments get shoveled under the rug when a state disagrees, I'd... well, I'd still not want to live with it, but I'd at least not consider this comment a troll post.
As it is, there are links in my post above giving examples where the SCOTUS stomped over state rules, in ways that helped the Blue Tribe.
I support the ruling of dobbs and not Lawrence, would repeal the civil rights act if I had the power, etc. This isn’t a haha Republican hypocrites post.
Why do you think Lawrence was wrong?
Sodomy should be a crime.
Yes, forbidding people from giving food to the poor certainly ought to be a crime. (Chabad, October 2012; Tablet, November 2019)
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Why?
What was wrong with the legal reasoning in the decision?
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Okay. I think you need to make that joke a little more often before it really will hit without a lot of leadup, but I hope you have fun chasing your unicorn.
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The denial of cert is likely strategic for the conservative justices. Alito and Thomas will probably strike down the assault weapons bans but the rest (Barrett, Roberts, Gorsuch and Kavanaugh) probably couldn't get a clear 3/4 majority in favor of repealing the bans. Therefore for the ban proponent justices, it's better to deny cert and revisit until the court make-up changes, or at least until the current dissenters change their minds, rather than bringing the issue to a vote today, and have assault weapons bans be upheld.
That's be nice, but:
Barrett, Roberts, Gorsuch and Kavanaugh are all supposed to be the product of efforts to get judges that don't throw away parts of the Constitution in favor of whatever they feel like today. That's not to say that they should always be voting for the maximally Red Tribe modes, but this particular question has been a Red Tribe goal since it first entered the national field in 94; if they're not willing to defend this value seriously, it's not clear how we get anyone that will.
Kavanaugh, the man who could have placed the deciding vote, did not write out something along those lines. He told us, instead, a story about lower court cases assisting the eventual SCOTUS case on this matter, which they will not do and can not do.
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The denial of cert on L.M. v. Morrison was an incredible betrayal by Barrett (with additional mixed feelings on Gorsuch). This only confirms what many have increasingly feared. Roberts and Kavanaugh have always been establishment stooges so I know it's impossible to expect real constitutionalism from the Court, when push comes to shove, but I had hoped that a Scalia acolyte like Barrett could at least be counted on to get the important cases heard.
Yeah. On the upside, we also have Skrmetti dropping in the next couple weeks, it's near-certainly going to be a Roberts or Thomas opinion, and I'm sure they picked that case out of many available preliminary injunction cases just to affirm a denial of a preliminary injunction.
The cynical answer is the squishy center of the court is triangulating: a couple Trump cases and (maybe?) Skrmetti cost too many weirdness points, so sad, everyone else interested in vindicating their rights can go home. I find that particularly undesirable because my preferences don't exactly fall among Red Tribe Blue Tribe lines, but I'd bet someone like @WhiningCoil that does think trans minor laws are super-critical is going to see that sort of thing as 'look, we didn't vindicate their fake rights or your real ones, what do you mean blues keep coming up with new fake rights', not some even-handed application of justice.
But the even-less-optimistic one is that they just don't care. 2rafa lists ways that Barrett isn't a Red Triber, but it's not like she's been some exactly-by-the-book advocate of Catholic dogma, either. These things just don't matter to this court, and that's going to control how they apply the law. The FedSoc project insisted that they could mitigate or at least reduce the role of political currents in the judiciary in favor of a hard-hearted dedication to the raw text of the law, and the Litany of Tarksi tells us that no, they can't, and trying to find people who did gave us, 100% of the time, instead people who'd been drowned in Blue Tribe norms and expectations.
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Barrett is a liberal with Haitian children, she is left on every single issue except abortion. She is as conservative as the Pope (current or former). Her policy is just the policy of the Catholic Church, some kind of generic progressive social democracy except opposed to abortion.
I don't know why I am always surprised when someone is surprised to discover "Catholic is, indeed, Catholic".
I honestly have to laugh about this, because remember back when she was being confirmed and the rumour-mongering was about her being a member of a cult? A traditionalist cult that treated women as second-class? I don't think Dianne Feinstein was complaining about her being too liberal when she went off about the dogma lives loudly in you.
Yeah, weirdly enough the One, Holy, Catholic and Apostolic Church is not a right-wing American institution. Or a left-wing American institution. But now you guys have the pope, here's your chance to get it Chicago-style!
And the other SCOTUS Catholics?
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This is my third draft of this comment. I am trying to figure out how to articulate this clearly and with a minimum of snark.
Your first paragraph is a 100% correct critique of 2rafa’s read of Barrett. But I think your second paragraph betrays a tendency common among Roman Catholics to read current practice back into history as always having been the practice of the church, and this is mistaken. Aquinas would not have accepted Catholic social teaching – the body which has evolved since the late 19th century – as it is now. Very few Roman Catholics, and perhaps no popes, before the twentieth century would have accepted the position on the death penalty now given in the Roman catechism.
I think that a great deal of Catholic social teaching as it now exists is the product of Western modernism. At its best it can include some genuinely countercultural Christian teaching. (As a Protestant, I particularly appreciated Rome’s stand against torture when everyone else seemed to be losing his mind.) But it is not above the fray or immune to secular influences, often to its detriment.
Well, sorta the other way round. Modern social justice movement grew out of Catholic beginnings. But I was more amused by Barrett being excoriated as a liberal when she was being excoriated by the liberals for being a fundie.
Don't make me quote "Orthodoxy". Oops, too late! Chesterton is talking about Christianity as a whole, but I think it fits the case of the Church as well:
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Common knowledge coalesces day by day.
The Constitution never held power, and neither did the courts, much less the body of law supposedly founded upon and adjudicated by them. Constitutional Rights as such protect nothing. If the power to secure protection of one's rights exists, it comes from somewhere else in our socio-political constructs, and effective politics consists of isolating its location and securing that power to be wielded by one's own agents.
To the extent that this power exists outside formal structures, then effective politics consists of coordinating efforts outside those formal structures, a point so obvious as to border on tautology.
To the extent that formal political structures exist for the sole purpose of containing and channeling both power and the pursuit of that power, the above is a statement that formal political structures have evidently failed.
Or perhaps I'm wrong. I would invite "Rule of Law" proponents to explain what they see happening here, and how it fits into their general model of how sociopolitical power works.
What’s happening here is the wrong decision, just like Roe v. Wade was the wrong decision (for reference, that the Supreme Court had any business deciding the matter - I actually rather like the rule as pragmatic legislation). The law, as written, and procedures, as defined, deserve a great degree of deference. This is precisely because such deference prevents disagreements from devolving into their primal forms.
You’re coming at the whole Rule of Law thing from a bit of a strange angle, as if its proponents must view any legal decision as inherently proper and to form. It’s a little like the ol’ Pope Francis gotcha against Christians, or that post some time back about how Catholicism was obviously bunk because the wrong number of cardinals voted. A system, properly understood, is teleological in nature. That is, it has an essence which drives its character and directs its behavior, and the system is functioning as intended to the degree that it asymptomatically approaches that essence. Plato’s Forms are the obvious analogue here. Just because a chair is broken doesn’t make it not a chair; it is simply a chair that is not serving its purpose - the degree to which it is broken is the degree to which it falls short of the ideal of a comfortable single seat with a back to lean on.
So, very obviously, a legal system as implemented in reality will fall short of the ideal of the Rule of Law, for as you well know we are fallen, mortal things aspiring to immortal essence. But the reason of that ideal is to have a way of solving our differences that is more than just conflicting preferences or arbitrary whims. The Rule of Law, embodied, is a set of fundamental systems for determining what relation man has to his neighbors and the corporate body of the state, with progressively less absolute rules layered on top and a process for rectifying and managing tensions in those rules. In the abstract, it is the principle that there is real justice out there, a fair and proper way of doing things, of preventing the injustice we know all too well, which is the power of a man or a mob to crush the free out of avarice or spite. That’s the whole reason here.
So obviously there are going to be failures in such a system. There were from the beginning, there will be in the future. But calling this a suitable case for abandoning the project altogether - well, what do you think the alternative is? The only thing that has prevented gun bans in the US thus far is the Second Amendment. All our peers have long since banned guns, or put massive restrictions compared to ours. And there has been no end to efforts to eliminate them! The argument that keeps holding absolute gun control back is that the 2ndA is quite clear in its requirements. People choose to ignore it, but unless the amendment is removed, it will be a constant boon to any argument in favor of gun freedoms. But if the fig leaf goes away, the question boils down to power alone, and right now Progressives have all the institutional power and they all hate guns.
Rule of Law is not bald proceduralism to protect the powerful. Power hates rules, because rules limit the exercise of power, and prefers commands which can be totally arbitrary. Rule of Law is here for you, even if you don’t recognize it, even if you don’t support it. Rules are the way the weak organize against the strong. And speaking personally, I’ll be damned before I recognize a system that does not respect my God-given rights as being morally equal to one which does.
That is fundamentally not what is happening here. The question is not whether the Supreme court has made a good decision in this case. The question is whether the Supreme Court is capable of delivering a good decision in any case.
And to a fair degree of precision, the answer is, "No".
We have numerous examples of what an actual Supreme Court victory looks like. Desegregation enforced by Paratroopers dispersing peaceful protestors, including children, with fixed bayonets is what a Supreme Court victory looks like. Obergefell, which overnight fundamentally reshaped the law nationwide with strict enforcement and zero mercy for resistance or dissent is what a Supreme Court victory looks like. A Supreme Court victory means you get your way, and those who disagree are shit out of luck.
It turns out that Red Tribe is not allowed to have actual Supreme Court victories. Red tribe supreme court victories apply only where Red Tribe has secured unassailable political power; Blue Tribe strongholds are free to ignore the rulings at will, and it turns out that when they do so, the Court will back down rather than escalate. We have stress-tested the formal mechanisms of the Constitution and its adjudication to their limits and perhaps beyond, and they simply were not able to handle the load. That is unfortunate, but hardly unexpected. The important thing is to realize that the formal account of the system is in fact a lie, and that the necessary power will not be found here and so must be found elsewhere.
The Constitution is a scam. Perhaps it can be a useful scam, to the extent that knowledge of its insubstantiality is not yet fully general; it is likely possible to still get people to trade actual value for its paper promises. I will not be one of those people ever again, though, and you shouldn't be either.
I might agree with you on the whole, but I have to wonder if this whole gun debacle is just how lawyers work.
Brown v. Board of Education and Obergefell may both have been written precisely enough to avoid people trying to find holes to poke, whereas all these hyper specific laws around banning inanimate objects with a million different variations come pre-loaded with holes in them. Ban one, another one that's basically the same but with some small change comes into effect because millions of different variations in a field where no one drafting the laws actually knows anything. I don't see anyone wiggling out of Dobbs.
Granted, courts purposely seeing right past obvious constitutionality is pretty obvious at times, especially when they write about the "Aloha Spirit" in their rulings. We're likely doomed either way, but I wonder why it happens more to guns than it does to other red tribe endeavors.
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Okay, let’s lay Rule of Law aside for a minute. There’s a much, much more serious problem here.
First off:
What, does the recent repeal of Roe v. Wade not count? The “Blue Tribe” had pinned a huge policy platform of abortion on it, and it was totally undone. Abortion was returned to being a state legislative issue. And this is not merely in words only; there are real and meaningful differences in how states treat abortion. General opinion, and especially Democrat or Democrat-adjacent opinion, is clear that this was a major sea level change. The fact that it does not seem to register to you as a win is really, seriously bad. And I think the rest of the post makes it clear why:
It sounds like what you actually want is not the freedom to do as you wish, but the power to coerce others, and particularly to deny the other what they want. In a perfect world, I wouldn’t have to elaborate on why that’s a bad thing, and especially a bad thing for you in particular, but here we are.
First off, there’s nothing wrong with wanting things. Everyone does. There’s also nothing wrong with wanting exclusive things, wanting things that by their nature prevent someone else having something. That’s life; there’s not always enough to go around, especially of the really valuable stuff. But wanting specifically to exert your power over another is something different. Its envy, or at least, is rooted in the same. Envy is seeing what someone else has, hating them for it, and wanting to destroy it. It’s bringing someone low because you can’t stand seeing them up. What people tend to hate about the great and powerful is that they just don’t seem to care; the eggs hating how casually they get tossed in the omelette. The powerful don’t care. Things need to get done, and you can’t please everyone. Envy goes a step further. Omelette be damned; I’m going to break those fucking eggs.
Envy is a deep part of human nature, and by deep I mean base. It is the primitive ape who can’t help but see the world as zero-sum. Kill or deprive the strong man, and I’ll get more, as sure as shit rolls downhill. But as the wise of all ages have told us, we are more than that. I won’t belabor you with the spiritual and philosophical elements on why we can all of us be uplifted into greatness, the last will be first, the tardy day-laborer will get his full drachma, etc etc. I’m sure you’ve heard them all. The same goes for the economic: cooperation and interconnected systems yield greater production and profit, removing the powerful just disrupts the system and impoverishes everyone, something something communism. Nor do I need to detail how the most powerful empires rise on this positive-sum thought and perish on zero-sum dissent, Roman Empire and socii, abiyyah or whatever it’s called, you get the drift. But on the mere psychological level, envy means you will never appreciate what you have. The mere existence of another is enough to make you fly into a rage. The things you have are irrelevant compared to the comparison. And doesn’t that sound miserable?
What’s worse, it makes politics impossible. What you want is not a laundry list of items that you can get and be satisfied with. It’s specifically to remove what the other has. Who can negotiate with that? Yes, obviously the Democrats have behaved very badly. They’re naughty boys and girls and deserve to be punished for what they did. I won’t argue against that for even a second; that is MY opinion. But that has nothing to do with you. Your problem is: right now, in America, there are a lot of people who don’t really like the Democrats, they think they’re overstepping. But if they caught the idea that the Republican Party was thinking like YOU, they’d vote to suspend habeas before they voted Red. You’re scary as shit, man.
For values of "up" centered around standing on my neck, yes. Blues have insisted that the Constitution allows them to impose their values on me for my entire life. For most of my life, I accepted this because I believed our tribes were both operating within a concrete set of rules, and that honoring appeals to those rules by my opponents would ensure that my own appeals to those rules would likewise be honored. This belief is no longer supportable by the available evidence. All value expended in preserving "Constitutional norms" by my side was wasted for zero benefit. Blues will never accept Constitutional limits on their desires, and the Constitutional machine observably does not have sufficient horsepower to force them to do so.
My prescription remains the same as it has for some years now: a national divorce is the least-worst option available to us. Blues and Reds are not capable of living together, nor of sharing power with each other; attempts to do so will inevitably lead to constant escalation of conflict ending in large-scale fratricide. All attempts to arrest the escalation spiral to-date have failed, often at the cost of the social and political tools used in the attempt. Our institutions, structures and norms were designed to operate in an environment of values-coherence; that environment no longer exists, and it is the height of foolishness to fail to recognize this fact.
For those seeking additional context:
None of this is new, surprising, or unexpected. I and others saw it coming a long way off. Some of us see what's coming next a long way off too. If you are a Blue living among Reds or a Red living among Blues, you should move.
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Roe v Wade is repealed and it is left up to the states, Obergefell passes, and federal dictate is declared.
This is an easy distinction to notice, not sure why it is being missed.
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He did specify:
This is, in fact, written to exclude Dobbs.
His claim and complaint is that Blue strongholds are violating the rights of those Reds unlucky enough to live in them, and that there is no real redress for this. This... is not about wanting to hurt people. You've got a pretty-good speech there, but it's misaimed.
I feel I should note that there's a key and often-subtle distinction in Craven's posts (though it's not the main thing you're misreading here), which is the distinction between "due to this the Blue Tribe should be shot in the streets" and "enough Reds will notice this logic that the Blue Tribe will be shot in the streets". He's cooled down enough these days that he's doing the latter - warning of civil war, not trying to incite it. He, like me, is a recovering hothead (though to be clear, I'm a Grey hothead, not a Red one).
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No. The Red-equivalent of RvW would be for abortion to be banned in all states for the next 50 years. Putting an end to Blue imposition of their values on everyone is not the same.
So exactly as he said.
"The ability to coerce others " is exactly how Blues have wielded the Constitution for more than half a century, and arguably much, much longer. There was a time when I and others like me were foolish enough to believe that this was acceptable, because this was a power that both tribes shared equally: we must respect the enforcement of their rights against our desires, because they must accept the enforcement of our rights against their desires.
We now have conclusive proof that they will never accept the enforcement of our rights against their desires. Claims to the contrary were lies.
For further elaboration, see above.
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There is no other form political power comes in. Even negative freedoms are specifically rules that deny some people what they want.
Asking for politics that are not coercitive is a ridiculous standard that not even anarchists abide by.
Yes, but the form of the justification is important in maintaining a functional liberty-minded society, in which the social contract is something like "You and I probably have different ideas and values as to how we should live our lives, so let's just agree on a minimal set of coercive laws so that we can be peaceful neighbors."
Now functionally, in practice, there can be severe disagreements as to what should be part of the minimum set of laws; there's non-ridiculous arguments to be made that allowing people to stockpile a military arsenal can make their neighbor fearful and not able to coexist peacefully, or that someone removing "just a clump of cells" is depriving a being of life. But they're couched as arguments over what is the minimum set of laws to allow diverse viewpoints and lifestyles. Even if in practice they can be the same, they are not presented as a naked "Ok, now that I have the backing of a majority you better adopt the lifestyle I want you to have or else..." I guess in a spirited debate it's possible to accuse the other side of doing it. But to resort to unironically, unashamedly doing it is crossing some serious lines.
Because at that point, the polite covenent of let's just be neighbors and leave one another alone is irreparably broken.
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This level of victory really requires winning two (or really three, in this case) of the branches of government. Roberts has no divisions directly: those paratroopers appear at the behest of the President (nationalizing them from the Governor, representing the counterparty in this case) to enforce the court order.
I suspect Trump could call in the NY National Guard to protect the Columbia library and it's Jewish students, but he hasn't as actually done so.
Under present conditions, this level of victory is what is known colloquially as a "coup-complete problem". We had ample demonstration of how Blue Tribe reacted to the president attempting to enforce what one might have imagined would be relatively uncontroversial laws like "don't burn down a federal courthouse" via armed federal agents during the BLM riots.
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That might be the case if we were talking about mistakenly making the wrong decision. If the decisions were made maliciously, and in the case of both Roe, and this one, they quite obviously were, the law and procedures deserve active contempt, not deference.
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It’s true if any system of laws. They aren’t magic formulas like somebody just declares you have free speech and therefore you cannot face legal consequences for speech. It’s always a power game, and if the elites of society want to, they can simply refuse to allow free speech. It’s historically rare that people themselves can force the issue and generally happens when for whatever reason the people have equal power to the elites. In the 18th century, it was because everyone had access to basically military equipment. The British military had muskets and horses, and the colonies had the same technology. In other eras it was because the government was weak or the military sided against the elites. I accept this reality. Unless you’re pretty high up in the hierarchy, or doing something critical to the elite’s success, you pretty much exist at the mercy of the elites and while some systems are more pleasant than others, the grip of power over you always exists.
It seems you are appealing to an "is" and handwaving the "ought". As it happens, I disagree profoundly with your assessment of the "is"; it does not seem to me that "Elites" are in a position to impose their will on people like me indefinitely, and it seems likely to me that my tribe is well-positioned to press the issue at some length. If I had persuasive evidence to the contrary, that would be a rather different conversation, but it seems to me that the "ought" half of the question deserves analysis.
Actually, the power structure is pretty tilted away from the median person in most societies. The media can create your Overton Window for you. They can pressure you by removing access to the basics of life — for example if you say something too far from normal, you will probably lose your job. Beyond that, physical revolution is pretty much impossible unless the state massively collapses or the military joins the coup as the military has access to much better equipment, training, intelligence, and has many more soldiers than any insurgent forces combined could manage. That’s just reality.
And furthermore, it’s the historical norm. Successful revolution is rare, and most end up being worse than the thing they opposed in the first place. For 90% of human history, the norm was an aristocratic system often headed by a monarch or emperor, and the system didn’t ever bother to ask what you actually wanted. Henry VIII didn’t take a poll or hold an election before forming the Church of England. The British subjects went to bed Catholic and woke up Anglicans. You’d wake up one morning to find that you were at war, and you were drafted. Or that your new ruler was named Paul instead of John. That’s what happened in most societies for most of history— power struggles and dynasties, not elections. And your opinion was irrelevant.
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I'm not a "Rule of Law" proponent by your definition. Don't know if anyone is. Didn't we all hear the old saying about postcolonial Africa "one person, one vote, once?"
What's going on here is that some people want the court to say to the blue tribe "look, Alabama can ban abortion but Maryland can't ban AR-15s. Sorry, it turns out that this document you had no role in drafting and never agreed to happens to protects the rights the red tribe likes but not the rights you like. If you don't like it there's really nothing you can do, since it takes 3/4s of state legislators to amend and you're not going to get that." Would the Blue Tribe respect this status quo? Justices have to ask themselves that.
The Blue Tribe does, in fact, respect and demand that status quo when it touches anything that they like. SCOTUS has, in fact, bent over backwards just within the last month to provide a number of Blue-Tribe-friendly alms. There was, in fact, a pretty sizable army of progressives who spent literally decades telling us how important is what that we'd be tied by rules set before the game started, and the Red Tribe bent over or was bent over to match it. There was, in fact, a pretty sizable number of compelling arguments against a clear set of legal norms and rules following clearly-established plain-text law, which favored no side and were not familiar with the particular quarrels of the day.
((The blue tribe has, in fact, spent thirty years yelling at me, personally, about how I signed the unwritten social contract by existing, and thus must play their games.))
I'd like those Constitutional Process rules to still exist! But it doesn't, and it hasn't for a while, and it's not clear anyone in power particularly wants to let it.
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I prefer ‘one man, one vote- the president for life is the man, and he has the vote’.
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Your description of the situation is so perfectly inverted that there is no point in even attempting to argue the object level. I'll simply note that attempting to use the Constitution in the way you claim people are attempting to use it would be obviously disastrous, and no quicker way to destroy any remaining respect for the document can be imagined.
You asked "what are they thinking?" I answered.
I did not, in fact, ask "what are they thinking", or anything analogous to it. I invited moderates who are still invested in the present system to lay out their defense of this newest iteration of the pattern.
As one of those moderates, I don't see the problem here. The rule of law imposes no requirement on the Supreme Court to hear appeals, and doesn't require any justification for a decision to hear or not to hear a case.
Does the rule of law also impose no requirement that a court of appeals give an actual decision, rather than a member of that court sit on a dissent for the better part of a year while fast-pacing a competing case with a panel draw said judge preferred?
Because SCOTUS just condoned that, too, here.
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the problem is a status quo where what the conservative wing of the forum sees as an imposition on constitutional rights continues, and the forum one would go for redress of those wrongs continually punts on fixing this despite multiple electoral victories having led to it being comprised of justices whom one would've thought would think it important to rule on this.
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You've replied to a filtered comment.
Why can't I read filtered comments? Not directed at you per se.
Comments are filtered for posters who have not achieved sufficient cumulative upvotes. This is legacy code baked into the Drama code that this site is built on, and no one knows how or has the time to fix it. When a comment is filtered, it's invisible to regular users but visible to mods, with the only indication being an extra "approve" item on the row of small, greyed-out text at the bottom of each comment. it's very easy to miss when you're reading the new comments stream. We approve good faith comments as soon as we're aware of them, but they're very easy to miss.
What's the link to the source code? At the very least, I could make the approve link big and red.
Link
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But the guy has 170 comments!? Can't you whitelist him somehow? Or should I manually give him 170 upvotes?
you (and others!) can manually give him upvotes, and hopefully he'll eventually get out of the filter. This would in fact be greatly appreciated.
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(reposting to alert of major correction)
The moderators can use custom CSS to make the approve button more visible. For example,
[data-bs-target="#reportCommentModal"]{font-size:2em!important;}makes the report button twice as big as the other buttons. (Not being a moderator, I don't know what selector will make the approve button bigger. I'm just using the report button as an example. From looking at the code, I think it might be something like[id^=approve].)Let me try this. Thanks much!
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Only mods can read filtered comments. That's why they don't notice they are filtered.
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Blackman at the Volokh Conspiracy: Justice Kavanaugh to Second Amendment: We're Really Busy Now, Come Back In A Year Or Two
I woke up today and didn't have "read Josh Blackman being too charitable to the squishy center of the court" on my to-do list.
Well what did you have on your to-do list?
Uh... here, I still owe amadanb a response to this post, but I'm kinda struggling to do so without just throwing up a giant pile of links to compare-and-contrast that I don't think amadan will find very persuasive. Had some work, teaching some students basic network communications in Java and databinding in C#/WPF. Grocery shopping, and trying to figure out a parts list for a hobby project pcb (still not done, godsdamnit digikey).
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