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Okay, overthought this a lot harder while shepherding some students, and there's an option that does have a stupid amount of explanatory power. It's not that SCOTUS necessarily cares what the Third Circuit says or even does.
It's that SCOTUS wants ANJRPC in their hands for procedural reasons.
The Third Circuit's been writing ANJRPC for several months. There's a tiny chance it could end up pro-gun, but not much, and given Bove and its own internal characteristics, it'd not be a great vehicle. In the more plausible case, it's an anti-gun or messy decision, and then it has nothing going for it as a vehicle that Snope or Duncan didn't on magazines, and if SCOTUS wanted the , it could consolidate Duncan and Lamont or Viramontes. It still takes about two months to dial it up to fully brief a request for certiorari, and that's assuming no one delays. So it can't be something they're waiting to grant for this term, and if it doesn't drop until late October/November -- absolutely plausible given Koons -- it's possible it won't drop in time to fully brief and argue next term, either. That would put it directly into the 2028 primary season.
But if SCOTUS grants Duncan or a sibling case, ANJPRC freezes. That's not a strictly required, but it'd be the default option, and enough judges in the Third Circuit will want to do that. But that means that there's an almost-complete opinion that's sitting on the shelves for the year-plus timeframe on top of the current several months. No matter what ANJRPC's logic or decision is, it's not something SCOTUS wants coming out mere months after a pro-gun Duncan does: if the 3CA was going to defy SCOTUS before, now there's a lot of incentive to doing it again right away with a handful of references to Duncan's new test scattered in, so it can't be easily GVR'd, either requiring a grant with per curiam or letting it slip.
That actually gets a little worse because of "zombie precedent". Once a case is final, its specific topic is foreclosed from further review by lower courts. The standard form of this is the Locke v. Davey. Locke is a very specific SCOTUS case on education grants being able to exclude religious topics, and it's almost-certainly bad law given Espinoza, Carson, and Trinity Lutheran. But it's not been explicitly overruled, and for various procedural reasons there's almost no chance it'll ever get up to SCOTUS for years, and even if a test case comes up SCOTUS doesn't have to grant. That means any other court facing the same question is bound to just say no, not give opportunities to develop the record, and at most just say 'X precedent is bad' in a dissent or concurrence.
But this problem applies to en banc cases. En banc review is supposed to be exceptional, and anyone challenging binding precedent from an en banc court has the same gamble as someone aiming for review from SCOTUS.
And it's worse in gun cases, because they're so heavily bound to facts. Duncan and Gator's Custom Guns might be about magazines, but any SCOTUS holding will only be about 10-round magazine limits. Viramontes and Grant might be about assault weapons, but any SCOTUS holding will only be about their specific assault weapons laws. In front of fair courts, this shouldn't be read to ridiculous bounds: as I'm found of pointing out, Lawrence v. Texas did not leave lower courts uncertain about whether the state could ban handjobs. If you don't have fair courts, though, it's a big problem.
So... the three dissenters and Kavanaugh, if they genuinely believe these laws are unconstitutional, can't win by just granting one case and writing a really strong doctrine. They need a posture where they won't be inviting defiance from lower courts the very next month. At the same time, they can't just wait to take the last court case to arrive, because any precursor will be embedded into the circuit courts.
The interesting aspect is that you can read Bruen as kinda a prototype for this approach. The original NYSRPA I case was tactically mooted at the last second, in a form that arguably should have continued under normal mootness doctrine. Notably, _Kavanaugh wrote separately in NYSRPA I:
Compare the Snope:
NYSRPA I had lined up ten cases on hold, six of them about other carry laws, in the 1st, 3rd, and 7th Circuits. Bruen itself only had one carry law, Young v. Hawaii, and then the three firearms hardware cases: ANJRPC, Duncan, and Bianchi (nee Snope). Young had a weird and complicated aftermath: after remand, Hawaii tactically mooted the original law only to replace it with a 'sensitive places' one along with some punishing carry requirements, and then gun rights orgs promptly filed a follow-up lawsuit...
Which is Wolford. In front of SCOTUS right now, albeit only on the single worst part of the sensitive places doctrine.
So all of SCOTUS has to be intensely aware of how much direct defiance lower courts have enabled, because they're writing on it and circling the last drafts literally this session and figuratively now. Whether that means they're going to do anything about it is a harder question. I'm not optimistic: SCOTUS punted on Antonyuk v. James last year after GVRing a precursor post-Rahimi, if only on preliminary injunction, and did limit Wolford to the 'vampire rule' that even Antonyuk didn't accept. But it's at least plausible.
In this model, SCOTUS is trying to line up as broad a jurisdiction of , to grant one or more, and then GVR the rest after the holding with aggressive language and some less-figurative-than-normal circuit riding.
I don't really believe this theory with any confidence. It requires at least four and probably five members of SCOTUS to be coordinating at a pretty high level, to be aware and willing to engage with the depth of the Locke problem here and not elsewhere. Alito specifically would have had to make some pointed references at the Third Circuit about actually making en banc decisions in a recent timeframe (and not gotten active resistance in return, but this has been an general issue for them). Snope and OST were outright denied, and doing so means that there's two circuits that challenging these laws post-Duncan is going to be a mess, and the Fourth Circuit in particular is going to be prominent for Virginia reasons that SCOTUS may or may not have realized a year ago. There's a lot of moving parts and epicycles.
It's copium.
But it does have a weird amount of explanatory power. The Snope trio and Kavanaugh could vote to grant cert at any time, and might do so if ANJRPC delays too long, but they benefit from waiting specifically on pre-grant event updates, unlike negotiation, information, or defensive denial theories. Roberts can't try to push a grant vote even if he wanted to put ANJRPC and Bove in timeout, because the alternative of explicit defiance on a major holding just months before election season and magnified by an explicitly partisan judge is much worse from an instutitionalist perspective. Barrett has similar motivations to Roberts if she doesn't want the case, if she does, she's joining the Snope trio too. The progressive three don't try to force a grant vote because they don't see it as politically useful to radicalize people on gun politics during primary or electoral season, either out of principles or pragmatics. The relist cadance makes sense because ANJRPC could genuinely just get released at any time, even if it's probably not dropping before Wolford, and the grant coalition wants the case cluster to be high-profile and both to keep the Third Circuit on notice and as a statement that SCOTUS won't ignore cases just because of procedural hi-jinks.
And it is testable. A bulk denial means that this theory is hilariously wrong, a grant of one or more cases before ANJRPC drops is weak counterevidence, a grant in the first two or three conferences after ANJRPC drops is pretty strong evidence, and holding over the whole cluster from one session to another is moderate evidence (but at least explicable!).
Still give it less than 5% odds, and that's optimistic.
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