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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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