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PaperclipPerfector  7mo ago (text post)   21303 thread views

Culture War Roundup for the week of October 9, 2023

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Duncan v. Bonta drops, again:

Here, a stay is appropriate.

First, we conclude that the Attorney General is likely to succeed on the merits. In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court reiterated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” 142 S. Ct. 2111, 2128 (2022) (quoting Dist. of Columbia v. Heller, 554 U.S. 570, 626 (2008)). The Attorney General makes strong arguments that Section 32310 comports with the Second Amendment under Bruen. Notably, ten other federal district courts have considered a Second Amendment challenge to large-capacity magazine restrictions since Bruen was decided. Yet only one of those courts—the Southern District of Illinois—granted a preliminary injunction, finding that the challenge was likely to succeed on the merits.

It's not surprising to find the 9th Circuit finding in favor of a gun control law at en banc, though some people are surprised that the vote was the exact same as before SCOTUS sent it back down. No firebreathing VanDyke dissent this time, and while it's somewhat funny that I can predict exactly how well Hurwitz's 'it's just a temporary emergency stay!' aged like fine milk, it's still disappointing he couldn't be bothered to either vote differently or provide a deeper analysis of Bruen as a concurrence. There's some fun discussion from Nelson about whether the 9th circuit's newly-created comeback rule is compliant with federal law, and apparently the court claims that it'll even request briefings on the matter... but since five of the judges out of eleven in the en banc panel are those newly-senior judges that the law does not allow on en banc panels, I don't think it'll be any more compelling to them than the violation of process back in 2020 were when they were doing it explicitly.

The fun part is the explicit text of that original order: "Judgment VACATED and case REMANDED for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022).". That quote, above? Is all that the 9th Circuit's en banc panel did, in terms of considering Bruen. As Butamay points out :

Despite this clear direction, our court once again swats down another Second Amendment challenge. On what grounds? Well, the majority largely doesn’t think it worthy of explanation. Rather than justify California’s law by looking to our historical tradition as Bruen commands, the majority resorts to simply citing various non-binding district court decisions. There’s no serious engagement with the Second Amendment’s text. No grappling with historical analogues. No putting California to its burden of proving the constitutionality of its law. All we get is a summary order, even after the Supreme Court directly ordered us to apply Bruen to this very case. The Constitution and Californians deserve better.

Does this count as massive resistance to a direct order from the Supreme Court? I'm sure someone (if not huadpe, now?) could argue otherwise: emergency stays with perfunctory logical support are not exactly unusual, and the majority do mention Bruen for almost a whole paragraph. But it's more plausible to read this the opposite direction, especially given the Court's willingness to punt on procedural issues whenever plausible (and sometimes even when not). Getting GVR'd repeatedly and with increasingly strict-yet-ignored direction is nothing to party about, but it isn't a loss, either. You can make a media spotlight out of it, if you're on the 'right' side, but that's not the real motivation.

It's another two or four years to enforce unconstitutional laws, to mark those who don't comply with an unconstitutional law as felons, to build alternative methods to harass and exclude those who comply but don't agree, to cost your opponents tremendous amounts of money (only a fraction of which they may get back), and to wait for the composition of the Supreme Court to change or be changed.

The only post-Bruen challenge the Supreme Court has taken is Rahimi, and that's clearly to give them a chance to backpedal and find that a restraining order is certainly a sufficient reason to take away a person's gun rights. The Supreme Court is simply not interested in people having gun rights, only in grandstanding about them.

I would be interested in hearing what 2A advocates consider the legal boundaries of the 2A in terms of what states (or congress) are allowed to prohibit. Presumably raising an army or building nukes is off the table, and while the space between that and these magazine bans is obviously immense, the constitution is pretty vague.

Until the 2A opponents are willing to acknowledge and respect the things which ARE clearly protected, I'm not willing to play the game of "Oh, we've established that there can be restrictions, now we're just quibbling about where to draw the line".

I’m asking what is clearly protected. I don’t oppose the 2A as currently interpreted, I just think there’s more nuance than many seem to acknowledge. For example, I don’t believe the 2A supports the expansive weapons ownership rules guaranteed rights that many libertarians would like, even though I think some of those rights would be fair. I think it maybe allows states to allow very free weapons ownership, but it doesn’t force them to.

Any thoughts on whether the First Amendment forces states to allow willynilly use of the press or just gives them the option of allowing privately held journalistic enterprises if they think it's a good idea?

I think the First Amendment certainly allows states much more control over speech than was decided in the 20th century. In general I see much of the core 20th century SCOTUS decision-making as self-serving, in that it vastly expanded the nominal authority of the constitution, thus (because amendments are so hard) enshrining the Supreme Court as by far the most powerful institution in the United States, granted near unlimited authority in “interpreting” a vague 18th century document according, mostly, to the political principles of those who nominated them to that body.

But yes, I’d like to see speech rights, weapon rights, civil rights, voting rights (I think states ought to be free to determine how and who they send to Congress), and really almost everything else devolved back to the states, although I concede it’s unrealistic. If Utah wants to be a Mormon theocracy under the literal control of the LDS Church, that sounds like an interesting model of government that I think would be fascinating to have in the US.

I don't think selective incorporation is consistent; the Second is as enforceable against the states as the First or the Fourth.

There's really very little nuance in "shall not be infringed". Appeals to nuance in this case, like so many others, are an attempt to say "You have the right to keep and bear arms, but..." and nothing before the "but" matters.

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