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[tl;dr: woolgathering that's likely to be outdated in seven weeks.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