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Counting To Four In Duncan
[tl;dr: woolgathering that's likely to be outdated in seven weeks. tl;dr, shit's fucked, shit's weird, and it's actually weirder than it looks at first glance even from a specifically pessimistic view.]
[past commentary here]
Five major cases involving magazine capacity restrictions, assault weapon bans, or a combination thereof, are waiting on SCOTUS. This class of restrictions has been a major focus on the national stage since 1994, and while the federal ban has sunset, many state bans remain and have grown. They've become more common, have banned wider or more arbitrary classes of guns, have invoked lower capacity limits, and have provided fewer and fewer procedural protections to previous gun-owners, such that several jurisdictions now offer no grandfather clause at all. As since those procedural protections included the phrase "When dealing with guns, the citizen acts at his peril" since 1994, it's not been a space of light disagreement.
Duncan, Viramontes, Lamont, Gator's Custom Guns, and Grant are all requesting certiorari before the Supreme Court, covering bans on firearm magazines or various rifles. Gators, Duncan, and Viramontes are at 13+ relists (aka from December 5th). Lamont and Grant are at 8+ (aka from February 20th). I'll be using Duncan as a shorthand, here, as while it's always possible that one of the other cases will end up The Important One, it's at least recognizable name. The current SCOTUS session will continue with seven more conferences, ending at the tail of June.
It takes four votes at SCOTUS to grant certiorari. A grant is by no means a win on the merits. It's not even a guarantee of a decision on the merits: cases can have certiorari granted only for an immediate remand, or later dismissal as improvidently granted. It's just the most basic opportunity.
And a request for certiorari is a process. A large portion of requests aren't granted or denied at their first hearing. Instead, the interesting cases are relisted, reviewed for a week or two, and then either granted or denied. Classically, a few relists are a good sign for a case's odds.
But there's a limit, there. The case with the single greatest number of previous relists before a certiorari grant and full merits review is Masterpiece Cakeshop at, depending on how you count, 12-14. It was a pretty extreme outlier in many ways, quite a large number of which don't make the comparison happy for gun rights proponents. Bostock had 10 or 11 at grant, depending on how you count it: less than Duncan, and with clearer alternative cases. Otherwise the normal course, to borrow from SCOTUSblog, "[l]ess is more with relists". Snope got 15, and then denied. This session's highest-relist case, Smith v. Scott, received an extremely unusual 17 relists... to be granted, vacated, and remanded, not reviewed on the merits. That's an avenue that is useless for Duncan specifically, where a past GVR just resulted in the 9th Circuit rubberstamping their original logic (along with some procedural gimmicks), and where none of the hardware cases have an obvious vehicle to justify further review. That gets even worse for a cluster of cases like this, where granting one and denying others means that whatever merits decision SCOTUS gives will be quickly cabined to only that specific case's bounds.
Normally, talking about requests for certiorari runs into problems because there are just so damn many options. SCOTUS only has mandatory jurisdiction over a tiny number of cases, grants optional cert to only a similarly tiny number of others, and can choose to grant or deny certiorari for any reason or no reason at all. Some cases with minor disagreements and esoteric scope get immediate grants, others with massive breadth and serious disconnects get juggled and dropped or just dropped, and when death penalty or habeas corpus cases are involved the rules easily exceed the scope of this conversation. Everything from whether a response is requested to how quickly the first conference is scheduled can mean something or nothing. There's a small industry of tea-leaf readers who really like being humiliated, because it's not a job with great success rates on those predictions.
Here, though, a wide breadth of the normal options are overdetermined away:
Worse still, many of the 'alternative' explanations -- the ones that don't match to 'justice is blind', but everyone accepts happens -- don't fit, either:
excuseexplanation since well before Heller: a premature case can leave residue that would destroy entire movements. But there's little, if any, chance of that here. Forget the question of adherence to the Second Amendment: a reversal of Heller or Bruen would require Roberts and one other judge to explicitly overturn a recent major case they signed on. If he's in the majority, Roberts would have to specifically assign the opinion to the judge writing that. He'd rather eat glass.Some writers have also proposed a model of SCOTUS relisting to consider the very short-lived circuit split in Benson. But that decision came on March 5th, Washington DC filed a motion to "Suspend Precedential Status of Opinion Pending Petition for Rehearing En Banc" the very next day, and the court granted a petition for rehearing en banc on April 22nd. There was no change to the relist cadence, and now that en banc appeal is schedule the circuit split no longer exists, it's near-certain that en banc court will overturn the lower court decision. It's also just a messy case for a bunch of more pragmatic reasons, not least of all that it only applies in Washington DC, and only for a law that the feds are saying that don't plan to enforce.
There aren't many options left.
Politics and optics are the simple and ugly explanation. It's also one hard to square with individual decisions. It's trivial to explain why SCOTUS as a whole, or Roberts, might want to punt a case as long as possible. It's hard to understand why a 1-2-3-4 count ending in Kavanaugh or Gorsuch or even Barretts makes a decision on optics, and decides that decision results in a weekly announcement such that they're not moving yet.
To spell it out, the court can't relist indefinitely. Whatever political cost is coming from grant or denial will happen no matter how many times the cases are relisted. Each relist makes the cases more noteworthy, and if any one gets held over a session, it becomes even more noteworthy. Meanwhile, a denial or grant happens once. Certiorari votes are anonymous and aren't even recorded publicly. Neither grant, nor denial, nor GVR, are written down by name and voting record. There's no way to treat one choice as distributed and one as personal. The impacts are the same: the relists just add to the impact.
Snope was not the first hardware case to request certiorari from SCOTUS. Harrel v. Raoul was 2024, and Friedman v. City of Highland Park was 2015. The 15 relists are no small part of why Snope is radioactive and Raoul was just annoying. The wait doesn't look good, and it doesn't make the eventual grant or denial look better.
A long dissent from denial is still possible: Justice Thomas can write some shelf-busting pieces when he wants, or Kavanaugh could be trying to baffle with volume where he couldn't dazzle with brilliance in Snope. Not encouraging to have a member of SCOTUS just outright bullshit in a Statement Regarding Denial of Certiorari, but if the line between politicians and judges gets fuzzier, it shouldn't be a surprise.
Stable equilibrium is the weirdest one. It takes four to grant certiorari. Six, in effect, thus can deny it, though there's a little weirdness on that since one justice can hold or reschedule a request. It takes five to win a case. This leads to the somewhat bizarre scenario where there may be enough justices available to grant and win a case in one direction, but not enough to deny certiorari the other. Another not-fun thought for gun advocates, since in this scenario it implies that there could be five justices waiting to neuter a theoretical pro-gun ANJRPC even if they can't actually refuse Duncan, but it has an unpleasant amount of explanatory power.
Unknown/Other is, unfortunately, the last refuge of scoundrels. There's some internal process we can't know about, there's some special case, there's some unusual deal-making happening, or some other invisible and/or novel process. This could, by definition, mean anything, and could just as easily resolve at any time, or never.
It's also, in a morbid sense, the most damning. These cases hold the rights of tens of millions of people in balance. That's just a fermi estimate of the people in those areas with lawful-but-now-banned guns. For California alone, hundreds of thousands of people will become felons overnight for the bare ownership of simple magazines that they purchased lawfully while relying on the protection of a federal court order, and there is no grandfather clause, and it's not the only example. And for each and every one, the process has devolved to a question mark, and has been for over a decade.
There's an old saying that a right delayed is a right denied, but you don't need to rely on aphorisms, here: in a majority of the United States, the Second Amendment is a dead or near-dead letter. That's not just relevant for assault weapons or big magazines: it's let the Second Circuit ban stun guns and undermine the Fourth Amendment. Dexter Taylor is still in prison. Heller still can't register the firearm from Heller I, and all Benson demonstrates is that to have a chance he'd need to break the law, be arrested, and imprisoned first. Percolation has come at the cost of long-standing and irreparable harm. There's longstanding precedent that the court recognizes infringement of rights themselves as irreparable harm, and the reality is that they don't, here.
I don't want to overstate my pessimism, here. In the immediate aftermath of Snope, I'd said "To be blunt: this SCOTUS will not be address the AR-15 issue in 'the next Term or two'", but 0 isn't a probability. If you absolutely forced me, I'd still put a 20% chance of a grant on one of these five cases, either this session or by holding them over to the next session (though the holdover itself would be a further unusual step). That's a lot lower than the professional tea-leaf readers. Doesn't make their models wrong, even if I get (unlucky). Doesn't help that they've either overlooked, or not included, much of this analysis.
I think you're missing my go-to explanation. The conservatives on the Supreme Court want there to be a right to keep and bear arms for legal debating society reasons; it fits their judicial philosophy. However, except Thomas, none of the justices actually want people to be able to own and carry weapons. They are perfectly happy to let anti-gun circuit courts do the dirty work of reinterpreting Bruen into nothingness, and to not correct them (though they do correct the Fifth Circuit when it takes gun rights seriously)
In fact, the law of the land now is not Bruen but Rahimi, specifically the part of Rahimi which noted that there was historical precedent for laws against going armed to the terror of the public. And what "going armed to the terror of the public" is, is entirely up to the several states. Combine that with the 3D printing cases, and what the 2nd Amendment effectively says is "Notwithstanding any other part of this Constitution, the power of Congress and the several States to regulate anything to do with arms shall not be questioned." And this is as pro-gun a court as we're likely to ever get ever get. The Second Amendment is done; that's all folks.
I mean, the supreme court also fails to stop Colorado from bringing masterpiece cakeshop in every few years. It's not a 'gun control' issue, it's a 'stopping blue states from treading on people is very hard' problem.
They didn't try in that case either. Instead of finding that "No, the states may not force a baker to bake a trans cake", they found that the Colorado Civil Rights Commission was too obviously biased when it did the forcing. That's just asking for a repeat.
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Playing devil's advocate rather than staking out a personal position here - nor am I saying that anti-guns regulations are compliant with the following - but, stray thought: couldn't you argue there's a difference between the right to own firearms and the right to carry firearms? Maintaining a broad right to keep firearms in your own home, but restricting your ability to carry them in everyday life, seems potentially in the spirit of the Second Amendment if you understand it in terms of a people's insurance against tyranny. If it comes to a revolt, then you can take the guns out of the basement and ignore the regulations about whether you're allowed to carry them in public; if you aren't participating in a mass revolt against an unjust government then it's not constitutionally important whether you can carry them around or not, so long as you are allowed to have them in reserve in case of a revolution.
This is the part people almost never highlight that’s even more important than emphasizing one’s right to a firearm for self-defense. A right to overthrow the government is written into the second amendment. Makes it difficult to determine where the clear dividing line is between a warranted insurrection (no such thing in the eyes of the government) and sedition.
I don't think this makes sense. The technical ability to do something and social/legal permission to do it are separate. The anti-tyranny interpretation of the second amendment is that private citizens (and state militias) have the right to attempt to maintain the technical ability to overthrow the government. The reason why this is a dubious idea is that the government has both the right and the obligation (under the guarantee clause and general principles) to maintain the technical ability to defeat a rebellion. A right to try to do something where failure should guaranteed is not a useful right.
But social permission to overthrow the government is something that you just don't get. All governments can and should protect their own existence, including by punishing unsuccessful attempts to overthrow them.
The founding fathers knew they were traitors and would be hanged for it if the French took too long to show up.
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IMO some people treat the Civil War as if it was an Amendment to the Constitution. The Federal Government crushing a rebellion ended the part of the 2nd Amendment giving a right to insurrection. Especially people on the left seem to imply that the Civil War settled that interpretation of the 2nd Amendment. Though they also did not take the time to write out an amendment banning the right to have arms for insurrection. It would have made so many of these gun questions easier today.
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Which is in actual fact a right to overthrow the people, which necessarily means it's a right to be a military threat to your neighbor, anywhere you might go. (Blue is correct that "stand your ground" means this.) Just like 1A is the right to be a social threat to them, and just like 4A is the right to not have to deal with your neighbor's fishing trips because he believes you're doing blatantly illegal things (even if it is very obvious that you are indeed breaking the law).
This generally makes even liberals uncomfortable, because it all of a sudden means that they're relying on their neighbor's good will not to shoot them. If the only thing that keeps you from dying on the road is the unwillingness of other drivers to cross the center line and kill you, then "unwillingness" is doing a lot of heavy lifting, and everyone generally understands that encouraging deployment of the Final Argument of Kings can/will lead to defect/defect spirals.
Mass shootings (in the case where they're workplace violence) make people very uncomfortable (in a way gang violence doesn't, but that's generally because it's confined to certain areas and considered a lost cause) because it's very clearly their own private civil war. Some fight it for nihilism, others fight it because they're So Oppressed about Current Problem, but this is in fact what they are doing and why. And sometimes the soldiers (on either side) look like this.
People like to say "overthrow the government", as if the government wasn't following the wishes of the people. A majority of people in the US (and most other nations) are of the belief that the people can do no wrong- in other words, they have sovereign immunity. A mad king with 100 million heads is just as destructive as a mad king with one- actually, even more so, because a decapitation strike against the former is indistinguishable from a genocide (Israel/Hamas being a good and recent example).
But peoples have been wrong all the time. The vast majority of peoples of the West (and East, for that matter) were pretty famously wrong in 2020-2022 when they caused runaway inflation and trillions of dollars in economic destruction because they were absolutely hysterical about the uncommon cold. It is possible that threat of paramilitary action kept some People saner than others.
Do you happen to know who that kid is? Just curious.
John Clem would be my guess...
Yes, that appears to be correct. Thanks!
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Which is ironic because they’re usually the party that believes in the innate peacefulness of humanity and the supposed natural harmony that exists between distant groups. It’s strange to me that liberals seem to be the only group of people I regularly encounter that honestly believes they aren’t an in-group, let alone one that also has an out-group bias like everyone else.
I don’t usually involve myself in these discussions anymore because they’ve been discussed to death and rehashed endlessly. I used to partake in them quite frequently. Now? Hardly. To me the solutions have already been found, they’ve been known, but the people don’t want to face reality. That’s all there is to it.
Take a concept the left loves so much like “diversity” (which, I’m all in favor of, to a point, even most conservatives are). Well what’s wrong with how they conceptualize it?
Diversity is a source of conflict within institutions and therein, societies. Conflicts impede institutions insofar as it inhibits them to performing their proper functions; and that’s even if one doesn’t adopt the goal of artificially promoting it. If a school is divided by conflict it can’t teach as well as a harmonious one. An army divided can’t fight as well as a unified one. A society riven by conflict is a less pleasant place to live than a peaceful one. You don’t have to be a philosopher to understand this. This is common sense.
The idea that any society or institution is improved by large-scale diversity is an aberration of the late 20th and early 21st centuries. There is ‘no’ serious political philosopher or statesman of the past would have entertained the idea for a moment. The entire goal of politics is to create social order and harmony. Basically, it’s the problem of getting along with one another. Social life has to deliver net benefits to its participants, or people will go their separate ways, and society will collapse. Straight up. But beyond that, since we’re not just selfish individualists, you have to cultivate social responsibility and investment, so people work to better society and are actually willing to sacrifice to ensure that it’s preserved and perpetuated.
Those are the great problems of politics, creating social harmony and a sense of an identification with the body politic, responsibility to the body politic, willingness to lay down one’s life for the body politic. Now tell me, does diversity help with those goals?
The prevailing dogma is that diversity will strengthen literally everything. Presumably it means every institution touched by diversity will perform its function better. Neighborhoods will be better places to live. Governments will better promote justice and harmony. Schools will better educate and train students. Hospitals will better heal the sick, etc. But this makes zero sense. Every institution is defined by its goals. So to function properly, every institution has to find people who are good at promoting its goals. Teachers have to teach. Firemen have to fight fires. Soldiers have to fight enemies, etc. The primary criterion for hiring and promoting people in any institution is ability to contribute to the institution’s purpose. No institution can be improved by introducing competing criteria of success, like diversity.
This is why as soon as diversity becomes the “greatest strength” of any institution, people will naturally lower its proper standards of success to promote diversity. And that’s why too much diversity isn’t a strength, it’s a weakness. But don’t for a second think you can’t also go overboard in the other direction. Diversity is a good ‘if’ it contributes to the institutional goals of society. It is not an intrinsic good.
To give an example, in academia, economics halls have often been assailed for being far too insular and siloizing itself from the discourse with other academic disciplines. This is led to an environment where economists spend far too much tinkering around with mathematically abstract economic models that bear little resemblance to reality. The solution for this wasn’t to encourage more English majors to enter into economics courses. It was to demand economists have an interface with businessmen to bring theory and practice together. And it led to projects like The Atlas of Economic Complexity.
This has been overwhelmingly true for most of history. One accolade I’ll give to democracies over the kinds of systems I’m more palatable to is that democracies have proven themselves to be the most sustainable political system of the future thus far. Maybe that’ll continue to change with time though.
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In addition to the other issues other writers have mentioned, the Duncan cluster here is related to bare ownership, in some cases long-standing ownership without a grandfather clause, and has not resulted in a fire lighting under SCOTUS's tail. VanDerStok was not a carry case, either.
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You could, but the Second Amendment says "keep and bear arms". Almost like they anticipated this sort of thing. Anyway, in New Jersey I am allowed neither, and SCOTUS is OK with that, as they have been with Glock and AR-15 and magazine bans.
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In the Second Amendment the two rights ("to keep and bear arms") are listed together.
Well, quite, but they are still distinct; if only one is abolished then the Amendment has only been halved, not made obsolete altogether.
If you can abolish one (presumably arguing that "bear" != "carry"!?), then there's no reason the next guy can't abolish the other on some similar pretext.
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Or, framed slightly differently, SCOTUS interprets the second amendment as permitting states to broadly regulate citizen ownership and use of firearms as they see fit, much like they now do with, say, abortion. The intention was always that Texas and Idaho might have vastly more permissive firearms legislation than California and New Jersey.
SCOTUS recognizes that the equilibrium where the public and elected representatives and elected governments in many of the richest and most populous (blue) states are prevented from legislating their own domestic in-state firearms policy (which does not relate to core federal government spheres like defense, border control, foreign policy, interstate commerce or central banking) against their will is unstable and will, at some point, result in the court being packed and the US’ brief experiment in comparatively greater freedoms reverting to the current European/Canadian/Australian model, not just when it comes to gun ownership but in every other case too.
The same motivation to accommodate local political sentiment, for example, is what struck down mandatory gerrymandering of black-majority districts in some southern states that was forced upon them, and what struck down Roe.
When you boil it down, the question is over where the power is kept and how one accesses it.
Your claim is that Blue States can't be bound by the Constitution if they disagree with those restrictions, because otherwise they'll overthrow the system. If this is an accurate description, then to the extent that Reds wish to have their own access to power, the key to accessing it is to present a similar threat of disastrous consequences unless their preferred carve-outs are granted.
One notes that establishing sufficient threats probably results in less stability for the system overall, not more, but human collectives have never been all that good at math.
As has been pointed out many times before, Black-Majority districts and overturning Roe are examples of ending blue impositions on red areas. We still have never had Red constitutional impositions on Blue areas, while we've had the reverse for many decades running, and still have many active. "We'll consider gradually ramp down our abuses of your autonomy, on the understanding that you will never, ever get to abuse our autonomy in any way" is not an attractive pitch for the side that has been relentlessly abused for many decades.
Kind of off topic but in regards to Louisiana v. Callais and the redistricting wars; Is it just me or did the media drop the subjects once it started to look like Tennessee might actually gain a black congressmember as a result of thier redraw?
It was all over my feed for a week, Tennessee published their revised map, and then crickets.
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While I broadly am inclined to agree with the overall thrust of your argument, this is not true. If you want to split hairs on "constitutional" then we'd have to agree on a definition of that to create a boundary of what counts. But off the top of my head of Court Cases, and Federal laws that Reds have imposed on Blues, there are many:
The Red tribe is not some innocent victim in this arena, the give as good as they get.
This is kinda a weird grab-bag. I don't think your point is wrong, per say, but the examples don't really fit at first glance.
I'm in a hurry so can't check precise details, but Janus is a union case and most unions are creations of federal law under the NLRA: Complaining about federal regulation allowing free speech or free association is kinda a 'get your government out of my medicaid' model.Nope, strike that; public sector side of AFSCME. I guess that does fit on the edges, although the financing and funding model is still a little fuzzy.Same for DADT, except even more, since the military isn't very Blue Tribe and it only applied there (and with some limited exceptions). DOMA only applied at the federal government level, and specifically didn't stop states from recognizing gay marriages locally.
Masterpiece Cake Shop just (infamously) held that a civil rights law's administrative bureau couldn't be openly hostile to the religious nature of its defendants.
Maybe 303 Creative/Espinoza/Carson/SFFA? But those are all antidiscrimination laws that progressives claim to champion; the main thread in each case was the neutral application of a longstanding rule that had been used for Blue Tribe ends at length. Even accepting the framework as 'laws that Reds have imposed on Blues', rather than 'laws that Reds have made sure didn't apply solely against Reds', they definitely can't be give as good as they got, given the wide scope these antidiscrimination laws have in Blue-friendly contexts.
I am just a legal layman, so I defer to you on some of the more technical minutiae. Many of these might be weaker because I personally agree with the red side of them. Trying to be fair forces me to argue for positions that I don't really agree with. But I do believe that this one-sided victimizing of Red-tribe belief is missing the forest for the trees.
But it refused to recognize state marriages as marriages, creating a double tier scheme where you were married in NY but not federally. I think explicitly refusing to recognize an official state sanctioned marriage and conferring those benefits would be an imposition. I think my scaffolding around this is that if Texas doesn't want to recognize a NY gay marriage, that's fine, its their prerogative. But if the federal government want to say the NY marriage is invalid federally they are denying the state's ability to officiate legal marriages according to the state's-populations desire. That's a legal imposition of values from 1 tribe to another.
I think Masterpiece is a weak example.
303 Creative still functions as a federal constitutional carveout from Colorado’s LGBTQ anti-discrimination law. Even if it applies a formally neutral First Amendment rule. Colorado is requiring a business that sells wedding websites to sell the same product to same-sex couples that it sells to opposite-sex couples.
Espinoza was about the state is trying to keep public money from flowing to religious institutions, consistent with its own church-state separation rule. That is a neutral rule being violated by another neural rule: the Free Exercise Clause. But the outcome was that the Red-tribe favored rule over-rode the Blue-tribe favored rule.
Carson is essentially similar in that Maine wanted to provide the rough equivalent of a secular public education for students who lack a local public school via a tuition reimbursement. And the court ruled that that was discriminatory towards religious students and institutions. This essentially hits the feeling of "We are being forced to subsidize something we morally oppose." This is probably pretty neutral if there are equivalent examples of conservative states being forced to subsidize things they reject. But off the top of my head, no conservative state has been forced to fund Planned Parenthood with its own money. (Medicaid does not count as it is a joint federal-state program) I think this one is a pretty strong example.
I think SFFA gets more into the weeds on what constitutes "Blue Tribe", as its a liberal vs progressive ideological fault line. It's not as clean but progressives are not really the anti-discrimination party, they are a racial/minority-spoils party. So idk if you can argue that they champion the anti-discrimination laws unless you autistically adhere to the definitions. SFFA is more like “a conservative/colorblind theory" of equality imposed over a "progressive/anti-subordination" theory of equality. It's a good comparison to the Voting Rights Act imposition.
This... gets messy, then. The underlying motivation for DOMA was Baehr v. Mike, the perception that the Full Faith and Credit Clause would require every state to instantly recognize the potential one-state gay marriages, and was signed into law by Bill Clinton with large bipartisan support. That makes it a very awkward fit into "Red Tribe vs Blue Tribe". Even assuming that frame, the federal benefits of marriage are limited and primarily focused to domains (tax deducations, military benefits) that don't match the normal personal/government-provided divide. State-married people under DOMA would still get state-specific benefits. It's not clear that there was any other equilibrium short of a) some consistent agreement that no one attempt those cases, cfe Windsor, or b) Red Tribe getting squished by
Blue TribeThree Gay Couples From Hawaii Specifically.If you put it like that, it sounds like SCOTUS stopped a Blue Tribe state squishing a Red Tribe person. I get what you're trying to motion toward, but there's not really a level of specificity where this was some new first step -- either there's a long series of First Amendment association cases that overturned Red Tribe laws predating this matter by decades and using this exact avenue, or there's a lot of anti-discrimination laws that required exactly this sort of active behavior targeting Red Tribers.
You're not going to find lawsuits, but the ACA required all states accepting funds to support gender therapy and any state accepting medicaid expansion plans to cover preventive contraceptive services. There was actually a big mess just last year about trying to throw (some) Planned Parenthood programs out. And before that there was the thing with the nuns? The biggest case was Pennsylvania, so purple state, but there were a bunch of follow-ons in deep red states. I'd normally put that in the marginal 'well, it is federal funding' bin, but there's a bunch of complex rules with matching state funds and punitive efforts for those states that didn't join, so it's still a pretty good if imperfect match.
But more generally yes, there were and are quite a lot of things like that.
But the rule in SFFA -- don't discriminate in education by race -- was used and is used very aggressively against Red Tribers first. It's famous for it! A President literally sent the national guard in over it. Even if you want to salami-slice the liberals, the progressives still use the very precise rule here to do everything from review college admissions programs to demand that Red Tribe elementary schools spend enormous amounts of money on ESL training. There was over fifty years of this before SFFA. There's a fair argument that it's not popular among the Blue Tribe normies (there was famously a California constitutional amendment prohibiting it... which immediately was ignored), but it's still a Blue Tribe rule that was used to smash Red Tribers long before the Red Tribe picked it up.
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By this reasoning any Red-friendly ruling is an "imposition".
Only so much as the original argument makes any Blue-Friendly ruling applied in a Federalist manner an “imposition” on the Red-Tribe.
Your "impositions" don't mandate that states do something. They mandate that states cannot do something that restricts other people. Counting that as an imposition strips the idea of meaning because that means that everything the Federal government does is an imposition. The original argument is not along those lines because it also involves telling the states to refrain from doing something to other people (Democrat-friendly gerrymandering).
Your own argument is nonsensical
and
Are the same thing...
Both are telling the states not to do something. Both are by definition, an imposition: the action or process of imposing something or of being imposed. The Federal government is imposing laws that affect the states to deny them ability to govern how their populous wants to. It is one Tribe, "imposing" on the other.
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That's a plausible story, albeit one that's a fulfillment of FCFromSSC's "The Constitution is dead", though it still runs into some issues as a model:
More immediately, it also doesn't explain the pattern here. If there's nine votes to deny the Duncan cluster because they have very strong view of federalism, it doesn't get a relist. If eight, or seven, or six votes to deny the Duncan cluster exist, a handful of relists happen while Justice Thomas writes a barn-burner dissent, but if he's writing too slow, they can call his bluff at any time and force the vote. What are they gonna do, piss him off more than Roberts pissing on Bruen?
That's the weird, and noteworthy, and inexplicable part. Any model that predicts a denial of certiorari needs to explain why that didn't happen three months ago. The court could have punted all these cases, gunnies would complain a little, and that would just be another step in a pattern that's been around for decades. Instead, they've spent six months contemplating a set of cases that have been on their radar for over a year. Indeed, the standard argument from court listeners is that Kavanaugh is the marginal vote, and he's the one that's going to be the most badly humiliated by those whole process given Snope, and it's only going to be more humiliating the longer the relist cycle goes.
Similarly, any model that predicts a grant needs to explain why that didn't happen in early April. If a grant happens in the 13+ cases, it's a arguably a record; if it happens in two weeks, it's unarguably so. If a grant happens in multiple 13+ cases, it's even more extraordinary. And those are the cases with the best vehicles! And a denial for Duncan while granting cert in Lamont is even weirder, since there's no plausible story where Lamont's lower case is bad law but Duncan is a-okay, and denying in Duncan cements its law and demands hundreds of thousands of people give up property they lawfully purchased under a legitimate court order. Even if the court needed the later cases and is struggling over vehicle questions, 8+ relists is still a massive outlier, and it's all the greater an outlier for having considered these cases a year before they came to the court.
Why? is a serious question, here.
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A Texas resident can go to New Jersey and lawfully purchase an abortion. A New Jersey resident cannot go to Texas and lawfully purchase a gun. Not even if they don't take it back to New Jersey.
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But that's not really framed differently, especially in context of, I dunno, 1A. That's been held to protect citizens of [every] state from State government overreach, which is why it's a problem that 2A isn't treated the same way.
Not that 1A doesn't get threatened in things like the DefDist case, which is Blue states trying to make law for the rest of the nation; I see no reason that an election or an appointment shouldn't have consequences when Blue states lose them and "but muh court packing" is special pleading.
The First Amendment as it is today is a product of the mid-late 20th century and, ironically given its current ideological stance, the ACLU. For the vast majority of American history it was never interpreted as preventing individual states from banning various kinds of speech, including under very broad definitions of obscenity. The current interpretation arguably only exists because of liberalism. A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.
If we are doing constitutional history (as the originalist movement says we should be) this is the key point. The people who wrote the Constitution in 1789 didn't think it needed a Bill of Rights at all because the Constitution didn't grant the federal government the kinds of power that a Bill of Rights was needed to restrict, and the people who ratified the Constitution and Bill of Rights (which they added because they quite properly didn't trust the feds on that point) definitely didn't want the Bill of Rights to be enforceable against the States.
Some of the rights in the Bill of Rights are rights the framers considered fundamental, so as well as putting them in the BoR they also wrote them into their state constitutions. Free speech and criminal juries are the classic examples*. But some of the BoR is about federalism, not fundamental rights. In particular, the Establishment clause was pure federalism (most states had state-level established religions in 1789, although not for long afterwards) and the 2nd amendment was mostly federalism (most states had some kind of RKBA in their state constitutions, but nothing as broad as the right protected against the feds by the 2nd amendment - the framers wanted the states to have the right to regulate their own militias).
The fundamental rights protected by the Bill of Rights should have become enforceable against the States under the Privileges and Immunities clause of the 14th amendment (turned into an inkblot by the Gilded Age SCOTUS in the Slaughterhouse cases) and actually did under civil rights era substantive due process doctrine.
That would be dubiously faithful to the Constitutional text given that the 14th amendment exists in a way it didn't at the founding. It would also be lousy policy given the availability of forum-shopped strategic lawsuits against online speech. But the weak version of this claim is correct - a serious originalist Court would need to think about how to mesh the founding-era understanding of the Bill or Rights as a backstop to federalism as much as to fundamental rights with the 14th amendment requirement to protect citizens' rights against overweening state government, and the only justice who has even tried to do that is Thomas in his Establishment clause dissents. The fact that the substantive due process approach to incorporation that the Court had to adopt in order to avoid publicly calling out Slaughterhouse as a Dredd Scott tier mistake is intellectually incoherent doesn't help.
* SCOTUS has never enforced the 7th amendment requirement for civil juries against the states - I'm not sure how this relates to founding-era practice.
Nothing in the 2nd Amendment implies it's only a limitation on the Federal government. It's frankly bizarre to flip the readings of the 1st and the 2nd in this manner; the 1st specifically is written to prohibit Congress from taking an action, whereas the 2nd specifically says the rights of the people to keep and bear arms shall not be abridged period, with no mention of who specifically is prohibited from abridging their rights.
The original intention of the whole Bill of Rights was that it was a limitation on the Federal government only. For SCOTUS to interfere in the internal affairs of a state in the name of enforcing the federal Bill of Rights would have been an unacceptable abridgement of state sovereignty according to both the Federalists and the Anti-Federalists.
I think the preambulatory clause of the 2nd amendment has something to do with the intended meaning - it would be odd if it was a pure rhetorical flourish on the part of the 1st Congress. The obvious interpretation of "A well-regulated militia being necessary to the security of a free State" is that the drafters of the 2nd amendment expected someone to be regulating the militia, and given the structure of the original constitution, the power to regulate the militia is shared between Congress and the states, and founding-era practice was that the power retained by the states included powers that the modern 2nd amendment movement would prefer the states not to have.
Part of the problem here is that there isn't a standard originalist theory of how the Bill of Rights became incorporated against the States. The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress. In practice originalist thought cashes out as "the 1860s Congress intended to reach back in time and impose a 1790s understanding of the Bill of Rights on the States" which usually leads to coherent law even if it doesn't make sense as political history. But it doesn't give a clear answer in cases where the 1790's understanding of the Bill of Rights doesn't make sense without federalism, like the Establishment clause, or the carefully negotiated compromise about who controlled the militia. Local byelaws against going armed in urban areas were a lot rarer in 1790s America than in the UK (where they were ubiquitous) but nobody at the time thought they were constitutionally problematic (except in Vermont, which had a much broader RKBA clause in its early state constitution than the other states), ditto state-level bans on gun ownership by free blacks if you want a less happy precedent.
The other problem is that handguns that actually worked were not available at the time of the founding, so applying the 1790's understanding of the RKBA to the most important questions in modern gun policy (which are largely about routine concealed carry of handguns) involves somewhat strained hypotheticals.
There are some law review articles arguing why Slaughterhouse was correctly decided, which even if not persuasive, marshal some interesting evidence against the now-common position that Slaughterhouse was beyond wrong.
Rehabilitating the Slaughterhouse Cases by Maltz
Privileges or Immunities by Hamburger
The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Lash (book, not article)
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True; hate speech as broad exception has been the Dem [read: conservative] cause/excuse for doing so for as long as I can remember, and a good chunk of 1A cases have already gone down that way.
However, the court isn't muscularly liberal on 2A as Red was hoping (for the same kind of advancement and cultural shift that it would force on Blue states as the incorporation on 1A was for Red states back then- turns out a sizeable minority in Blue states actually want guns, perhaps to protect themselves against the obvious consequences of Blue policies?), and that's still the central issue here.
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That's definitely a model and it does explain an anti-gun court that doesn't just grant-and-eviscerate all the time, but I'm kinda filing it under 'Thomas is writing a dissent', and there's still not enough there to explain the relist count. Thomas can write very long dissents, but especially if the other eight (or even seven) justices were never going to take Bruen seriously, he has all the more recent to write that long dissent as soon as Snope dropped last year. If he's not and knows he's not persuading them, the relists do nothing.
Conversely, if Thomas is getting something non-obvious out of it, why wouldn't the majority just GVR, per curium, or give a long angels-on-pin-head meaningless opinion? Roberts never has to assign the opinion to Thomas against post-Bruen, and even if he did, it clearly didn't do anything.
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