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[tl;dr: woolgathering that's likely to be outdated in seven weeks.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