This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
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.
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link