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Culture War Roundup for the week of May 11, 2026

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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[tl;dr: woolgathering that's likely to be outdated in seven weeks.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:

  • SCOTUS refuses cases where four justices can't agree to hear on the merits. That's what the certiorari vote is. Here, though, we know four justices have declared that this is a matter that SCOTUS should hear soon: the three dissenters (Thomas, Alito, Gorsuch) in Snope did so by dissenting, and Kavanaugh specifically claimed "this Court should and presumably will address the AR–15 issue soon, in the next Term or two". Kavanaugh listed Lamont and Viramontes as two specific examples: it makes no sense to point to them, and then not know if they're worth granting or denying cert. And it's not like he can be waiting on the other three in his list:ANJRPC is waiting on SCOTUS to deliver Wolford and Hemani, Capen is three or four years away from getting to SCOTUS, and Miller is stayed until Duncan finishes.
  • SCOTUS (sometimes) refuses cases where lower courts are 'percolating'. That was a thin fig leaf in Snope, and it's since become transparent. Even if Kavanaugh's list was only of court cases that would inform SCOTUS, rather than specific ones to grant cert, Viramontes, Capen, Lamont_, and Miller have all resulted in court opinions turning Bruen into a dead letter.
  • SCOTUS (sometimes) refuses cases where the lower court action is appealable, but not final. For Gators, Duncan, and Viramontes this is the last opportunity. If denied, they're not coming back. Grant and Lamont are decisions on a preliminary injunction, but if denied these cases won't make it back to SCOTUS return for three or more years. And if interlocutory appeals were a genuine problem Kavanaugh wouldn't have highlighted Lamont or Capen by name: they were preliminary injunction cases years from their final judgement.
  • SCOTUS (sometimes) refuses cases even where the legal question is important, but where some specific detail of the case's factual history makes it awkward, inopportune, or ugly, especially where a better alternative vehicle is coming up. Here, we have a wide variety of options, and while no case is ever genuinely simple, there's enough variety that the court can easily pick one as multifaceted or straightforward as it wants. Meanwhile, of Kavanaugh's list in Snope, only ANJRPC v. Platkin will be up for certiorari on final judgement next session, and has wide overlap with existing options. The only other new serious challenge is Benson v. US, and that overlaps almost entirely with existing cases.
  • SCOTUS (sometimes) relists cases where another case on the same topic is being actively decided, to later grant-vacate-remand the case. In theory, this saves judicial resources, so that SCOTUS does not have to give the same decision in multiple sequential cases. But the only relevant Second Amendment cases are Hemani (prohibited person) and Wolford (sensitive places), neither of which are related to the topic of firearms hardware bans. Worse, Duncan in particular has been GVR'd before, after Bruen, which did have significant topic overlap and wrote the specific framework Duncan was supposed to use... and just resulted in procedural hijinks and a near-identical decision from the lower courts. No plausible dicta in a prohibited person or sensitive places case (or combination of the above) will change the 9th Circuit's behavior.
  • SCOTUS (sometimes) refuses or relists cases where lower courts are deciding a substantially similar question and likely to release a decision very soon. The only remaining relevant court case here is ANJRPC. It's near-certainly not going to issue before both Hemani and Wolford drop, though, and SCOTUS knows it, and SCOTUS controls when those two cases were heard and when their opinions will release (very late May, June, or July). These cases can't have gotten relisted since December for a lower-court opinion that wouldn't come for months, and may not come before the last conference of the session. SCOTUS doesn't have to keep relisting a case if it's waiting on some external information; it clearly didn't do so here.
  • SCOTUS (sometimes) relists cases when deciding a topically similar case. But Wolford was argued January 20th, Hemani was argued March 2nd. Still not compatible with the relist scheduling.
  • SCOTUS (sometimes) relists cases when trying to select which one of a cluster to make the lead case, or which to grant and which to deny. But these cases have been and on the radar for over a year, and their traits aren't changing by the week: the constant relists don't fit that model.

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:

  • Justices don't want to grant cert in big cases that they know they'll lose big (aka 'big defensive denial'). This has been the perennial excuse explanation 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.
  • Justices may not want to grant cert in cases where they know they'll get a small loss, or a half-assed and incomplete victory (aka 'little defensive denial'). This is the Rahimi problem, where the case doesn't overturn precedent, but it does entrench new exceptions to the Second Amendment. Roberts did exactly that in Rahimi. But Rahimi did get certiorari, it didn't change the cert vote for Hemani, and the results of a Duncan decision along similar lines are already baked-in: every circuit likely to see a hardware ban already has standing precedent neutering Bruen. The worst-case plausible scenario for rolling the dice is the same as not rolling the dice at all. More confusing still, if Roberts and Barrett were willing to do that, there's strong support from the progressive wing of SCOTUS to trim back Bruen and/or Heller, and that's not happening either.
  • One proposed explanation is that the Snope three and Kavanaugh want to avoid granting certiorari to a case that would neuter other upcoming cases. But that doesn't work, either. If five justices are willing to sign onto a decision in Duncan that will neuter any upcoming pro-gun decision, the same five are willing to grant certiorari and overturn those upcoming pro-gun decisions whenever they actually happen.
  • Delaying doesn't even save the opinions from any relevant lower-court case: Duncan will not be getting oral arguments before ANJRPC's en banc opinion issues; even assuming that opinion is pro-gun, a grant today only determines whether SCOTUS is deciding Duncan informed by that opinion, or ANJRPC to overturn it directly. And, of course, ANJRPC may well get an anti-gun ruling, anyway, at which point there's nothing for an anti-gun Duncan to disturb.
  • Justices may want to delay until a better court composition is available. But there's little, if any, chance that will happen here: the two oldest members of the court are on the dissent from denial of Snope, and Alito in particular is already getting calls to retire because of it.
  • Justices may want to delay until a less politically sensitive environment is available. But a grant now means a case being held in early 2027. The environment isn't getting any less sensitive in 2028 or 2029.
  • Justices may want to delay until a less politically charged environment is available, in what I've criticized as "look, we didn't vindicate their fake rights or your real ones". But the cases lining up for 2028 and 2029, don't look great here, either, and it's far from clear the court's ever going to have a quiet season.
  • Justices may want to delay to firm up their own positions, or persuade colleagues to shared positions, or to gather information. But this is a case that's been explicitly on their radar for a year now, been to SCOTUS once before in 2022, on a topic that's had national relevance since 1994. There's nothing happening now that didn't happen when talking Snope. The typical proposal is Kavanaugh or Thomas trying to persuade Barrett, here, but that only works if there's something they can only persuade her while relisting and not between grant and decision, and that if they fail to persuade her there's something they're protecting by waiting. Neither applies here: the justices aren't kept isolated between conferences or court sessions, and Bruen is a dead letter without further SCOTUS intervention.
  • Justices may relist a case repeatedly when writing a dissent from denial of certiorari. Morbid thought if you own a Freedom Week gun and live in California, but worth spelling out. Yet I'm pretty skeptical that it would take Justice Thomas six months to finish figuratively tearing apart the court's center or trying to build new frameworks, and in a world where Bruen is a dead letter, it's not clear anything he'd write here could matter, and he has to know that. Worse yet, if he knew he was going to be Snoped again, he could and would have started writing the broad strokes a year ago. Any justice writing today is writing in the shadow of Snope, and if the vote breakdown is remotely similar, then the every justice knew something like this was coming and had time to prepare.
  • A specific justice might have changed their mind. Kavanaugh said the court should grant certiorari for a case like this, in this time period, but he said that a year ago. Yet that's hard to believe. Kavanaugh has said assault weapon bans were unconstitutional and should be reviewed by SCOTUS since Heller II in 2011, and again in his statement regarding Snope just last year. What would change his mind in 11 months? What would change Alito, or Thomas, or Gorsuch?

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.

Am I rare conservative that just doesn’t care much about gun rights?

The big issue to me with gun rights is the 2nd Amendment seems very clear to me.

“ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The words seem very clear to me “shall not be infringed”. This isn’t Roe where you’re finding some abortion right in a right to privacy. And the right to privacy isn’t even explicit in the constitution.

If you do not only textual meaning but look at context at the time then it seems clear to me it’s not just personal weapons, but the right to have the arms to challenge Washington DC and fight the US military. If the Koch brothers wanted nukes I think the Constitution is very clear that they are allowed to have nuclear weapons. But context of the time the writers were a bunch of rebels who became patriots when they won. That would seem to strongly imply that the rebels would support full arsenal of weapons to fight their own government.

This is just another sign to me that the SC is just a Senate. Koch Bros (or Soros or other rich guy) wanting Nukes would be obviously unpopular. And we on nukes we would be able to pass a Constitutional Amendment. And we should. It would be interesting if we could get an amendment passed banning tanks etc.

Now to actual throw a little heat. I’ve considered just accepting the SC is a Senate and adopting a common good philosophy for law. Nobody enforces the text of the constitution and I think this would largely eliminate most issues with guns:

  1. Blacks can not own guns. Straight to jail if you have one. The 54% of murders coming from this group would seem to indicate this is good. I can probably drop their murder rate by 75% with this. We can do DNA testing here with like <20% African DNA as a cutoff. Might give them a carve-out for true hunting rifles. I feel fine saying that as a community they’ve proven guns are very bad for them.

  2. Under 25 can not own guns. This takes away most of the school shootings. Rittenhouse seems like he can properly own a gun but whatever blanket age works better. Most mass shootings would be eliminated except the very rare case where someone super competent does it like the Vegas shooting.

  3. Koch types can’t own nukes. I would likely also ban tanks and real military hardware. This kills the 98% of the ability of citizens to preserve a free state thru insurrection, but feels practical.

  4. Everyone else gets to own for the most part whatever they want. Some severe criminal penalties for not properly storing your guns if your kid goes off and shoots up a school.

You would be left with a bunch of suicides by mostly 60 year old white men, but that doesn’t have huge externalities.

Some kind of mental health rule would be a nice to have, but I’ve got no idea how to implement it that would be abused. Age/race restrictions are easy to enforce. Complexity allows the beauracracy to play games.

I think from a common good philosophy my rules would eliminate 80% of Americas gun problems while maintaining a general right for the public to own guns.

I agree that the Constitution is dead and America being a creedal nation is largely false. Part of the creed and by Constitutional design is that one of the checks on the power of DC is an explicitly designed right to tell DC to fuck off because everyone has guns and your not coming to “City/Wilderness” to enforce this law because we got 100k men with guns. That is what is meant by “security of a free state”. A right to rebellion was in the Constitution.

If "people [you] consider subhuman don't get to" is an exception to a right, it's not a right. Remember, these groups are also overwhelmingly victims of violent crime, and that'll be true gun or no gun. They're also, overwhelmingly, the soldiers you'd have for your rebellion.

Also, "subhumans" is "the whole of Red" from Blue's perspective anyway, which is why the complete lack of compromise is optimal for you/them.

Koch types can’t own nukes.

Too late; Elon Musk's business is ICBMs.

race restrictions are easy to enforce

family_guy_ok_not_ok.jpg

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