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PaperclipPerfector  1yr ago (text post)   21933 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.

Raising an army is clearly and uncontrovertibly protected. The Amendment says it right there in the text! I'm genuinely baffled by the idea that there are honest people that can read as straightforward of a sentence as "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" and come away believing that this doesn't protect ownership of light infantry weapons for the purpose of fielding a fighting force.

Does “well regulated” actually mean “free for all, any citizen can do it”? I don’t know that it does. And again, my point is that why do (most non-ancap) 2A advocates think the limit is “light infantry weapons”? That seems, again, arbitrary - why can’t I build a warship in case the people’s militia requires naval power to protect the security of the people? Why can’t I field a battalion of tanks? There’s an inherent arbitrariness to almost all except the “privately owned nukes are constitutional” and “it’s not referring to individual ownership at all” interpretations of the 2A that should be acknowledged.

A more socialist SCOTUS could define “the right of the people” as the collective, rather than individual right, and define “well regulated militia” as ‘army’. In general I think these kind of Talmudic arguments about the literal text of the constitution are stupid, but the long term solution ought to be codifying it in some detail rather than, as @naraburns says, just getting your guys on the Supreme Court to read the tea leaves and do what you want.

A more socialist SCOTUS could define “the right of the people” as the collective, rather than individual right, and define “well regulated militia” as ‘army’.

Yes, and a different court could also claim that speech was only protected for purely political speech by (natural) individuals, and even then the manner of such speech could be regulated.

In general I think these kind of Talmudic arguments about the literal text of the constitution are stupid, but the long term solution ought to be codifying it in some detail

It IS codified. The more detail, the more wiggle room for those who wish to interpret it out of existence. As indeed, many people including yourself do using the nominative absolute the Second Amendment begins with ("A well regulated militia being necessary to the security of a free State...")

I don’t see how codifying that all US citizens have the right to own any small arms (defined as X) and to own unlimited (or some other large amount) of ammunition for them would lessen gun rights compared to the current situation. You and @Walterodim seem to almost be making the opposite argument from the same perspective - he would like more codification of the actual rules, you don’t, because you think they’d inherently make things worse than the current vagueness.

I would be fine with explicit codification in principle, but I think the current state is that my opponents are bad faith interlocutors that want to disarm people as much as possible. I would only support Amendments that add restrictions for explicitly called out weapons of mass destruction. Anything spelled out as a positive right is likely to be interpreted as a negative right - think of it like the dormant commerce clause, but for weapons. With regard to small arms, I have zero interest in explicit codification beyond the existing, very easy to read 2A, which covers the relevant rights as clearly as plausible.

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