@wemptronics comments on "Culture War Roundup for the week of June 2, 2025

Culture War Roundup for the week of June 2, 2025

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gattsuru 3d ago · Edited 3d ago

Snope v. Bonta has dropped like a gravestone:

The State of Maryland prohibits ownership of AR–15s, the most popular civilian rifle in America. Md. Crim. Law Code Ann. §4–303(a)(2) (2025). This petition presents the question whether this ban is consistent with the Second Amendment. The Fourth Circuit held that it is, reasoning that AR–15s are not “arms” protected by the Second Amendment. Bianchi v. Brown, 111 F. 4th 438, 448 (2024) (en banc). I would grant certiorari to review this surprising conclusion.

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.

Given that millions of Americans own AR–15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR–15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller. See Heller v. District of Columbia, 670 F. 3d 1244, 1286–1288 (CADC 2011) (Kavanaugh, J., dissenting). If so, then the Fourth Circuit would have erred by holding that Maryland’s ban on AR–15s complies with the Second Amendment.

Under this Court’s Second Amendment precedents, moreover, it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller.

Again, would be a great opinion! It's not one, either. Instead:

Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. [ed: list of cases moved] Opinions from other Courts of Appeals should assist this Court’s ultimate decisionmaking on the AR–15 issue. 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.

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".

Capen v. Campbell: The last decision was an appeals court holding "Appellants have failed to demonstrate that they are likely to succeed on the merits of either of their assault weapons- or LCM-related challenges." No preliminary injunction, basically zero percent chance of success at trial.
National Assn. for Gun Rights v. Lamont: On preliminary injunction, "Plaintiffs have failed to show their likelihood of success on the merits, and so the Court need not reach the remaining preliminary injunction factors." Oral arguments were in October 2024; we don't have the final opinion (because fuck you, that's why).
Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin: Hey, finally one with a progun trial decision, if only to the most limited extent (specifically only the Colt AR-15, and not an LCM ban that violated the takings clause) - and it's stayed on appeal. There's a separate issue that two terms won't be enough, given that this doesn't have oral args scheduled until the end of this month and the chance of en banc, but by the time we're asking whether New Jersey can ban Very Specifically Colt's Version Of The AR-15, we've already lost the plot.
Viramontes v. County of Cook: "For the foregoing reasons, the court grants Defendants’ motion for summary judgment and denies Plaintiffs’ "; aka the "AR15s are like M16s, right?" case. Oral arguments on appeal were November of 2024. Most likely to get a progun ruling (if only because Easterbrook apparently forgot to set his alarm that day), barring some weird procedural detour, but it's also in a bizarre procedural position because the Cook County ban in question was augmented, after the suit was filed, by a broader state-level ban... that SCOTUS also already punted on.
Miller v. Bonta: hahahahaha, it's the Ninth Circuit, it has a snowball's chance in hell. Maybe we'll get another VanDyke youtube video? Haha, funny meme, yes? Except it's also been stayed since 2024, after original oral arguments, pending resolution of a case that dropped in March of this year, we don't have an opinion from it, and it's the fucking Ninth Circuit so there's literally no possibility of it escaping the en banc process with a progun result.

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.

Context

wemptronics gattsuru 2d ago · Edited 2d ago

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.

Thoroughlygruntled wemptronics 1d ago

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.

gattsuru wemptronics 2d ago

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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