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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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