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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.
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.
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.
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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