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Notes -
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.
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.
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.
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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