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Notes -
NRA + ACLU
The ACLU reports:
[previous discussion here]
For a tl;dr of the background: the New York Department of Financial Services pressured several licensed insurance agencies in the state of New York from working with the NRA, citing new interpretations of rules regarding affinity programs, and allegedly while promising during backroom meetings that the DFS would allow quiet and easy remediation programs if the companies would assist. Companies that didn't jump onboard quickly received steep fines; those that showed hesitation felt fear for their license to operate as insurers. The NRA sued, and lower courts have largely allowed all responsible parties to claim various immunity, or argued that the behavior even if true would not be unlawful.
While that twitter thread doesn't go into much of the minutiae, and there's nothing I can find on the ACLU's website, the NRA's lawyers report that the ACLU will be acting as co-counsel. This has not been without controversy just from other CLUs; the third-party complaints tend toward the hilarious. So in that sense, it's a costly signal in a way that weak-kneed amici are not -- and while I'm not optimistic about this case, it's not in that ugly spot where the ACLU's presence has no chance of impact, either.
That said, it's not clear how much this case will matter for its specific actors, even if the NRA wins at SCOTUS. Vullo and New York State and all the king's horses won't be able to put the NRA's finances back together again. It's been self-insured in an increasingly lawsuit-optimized world for years already, and that's not gonna change even if Vullo takes a hit for the team. While Cuomo takes too much credit given the internal problems already plaguing the gun group, this is exactly the type of lawsuit where 'victory' means legal fees, a token financial punishment, and a promise that the bad actors won't commit the same mistakes where they could be caught. It won't even touch the current efforts to go after bank and merchant services (also, coincidentally, a group that falls under NYDFS purview!). A victory before SCOTUS might help reduce the risk of the organization's other New York and DC lawsuits from hollowing out the leadership and wearing the infrastructure like a skin suit, but we won't see the NRA be a cultural or legal force worth mentioning again in the next decade, if not my lifetime.
But a more general precedent might matter, if it could stick. For example:
FCC v. Starlink
FCC commissioner Brendan Carr writes:
context.
SpaceX and its subsidiaries have received a lot of unusual scrutiny in recent years, but most of it could at least motion around textual (if not necessarily even-handed or reasonable) interpretation of well-established regulation. Contract challenges aren't unusual, sometimes even not wrong.
Here, there seems to be little, if any, fig leaf: the king is just naked.
It's not absolutely certain that SpaceX will be able to achieve the RDOF grant requirements, and indeed the average StarLink connection today is closer to 80/10 than the 100/20 for the target (though I don't know if RDOF grantees might be focused toward the higher end of the scale). But it's far from "not reasonably capable", not least of all because the company already supports 1.3 million customers at those rates, rather than the 650k in the RDOF grant. While total capacity doesn't reallocate cleanly, the company is clearly capable of achieving scale, and on schedule to continue doing so. And Carr's complaint that this evaluation is not standard rings a sharper tone. Even after a grant is completed it's not unusual for grantees to sputter without so much as an FCC complaint. Completely revoking a grant partway-through, without much clearer evidence of non-performance or outright fraud, is an entirely different matter entirely.
I've mixed feelings about the rural internet upgrade programs and grants, even as an (indirect, non-Starlink) beneficiary, but Simington's dissental is damning in a different way : "What good is an agreement to build out service by 2025 if the FCC can, on a whim, hold you to it in 2022 instead?" Simington does not give the same focus on political bias that Carr does, but in many ways the problem is more damning when considered in that frame. Starlink has committed to massive infrastructure build-out and contracted with hundreds of thousands of consumers on the basis of doing a job, and consumers have worked with the company under market conditions of doing that job.
If you genuinely believed that the FCC was just being arbitrary to the scale of almost a billion dollars, rather than 'just' trying to hammer a political dissident at the President's not-very-indirect orders, that's actually pretty bad too! I just don't see many plausible ways for that to be the case.
New Mexico Carry Bans
[previous discussion).
Ping pong, hope no one ends up with an arrest record because the courts are fucking around. The public park carry isn't as extreme as the original county-wide ban, but it's still a clear violation of the dicta in Bruen, especially in a state like New Mexico. Doesn't really matter much if you can play with the court system long enough to fuck over anyone who wants to challenge a bad regulation, though.
More deeply, there's been no serious repercussions for it. During the warm-up for the upcoming legislative session, there's been more progress on an assault weapons ban than any serious rejoinder to Grisham's adventurism. The federal censure went nowhere. Citizen grand juries ditto.
Illinois v. Due Process
Speaking of the force of law being applied in random ways, Illinois just had a hearing on its Assault Weapon law. This law requires all guns in certain classes owned by certain people to be registered with the state, deadline January 1st, after which the registry closes. New ownership, or possession of an unregistered assault weapon, after that point will be a serious felony. What does it ban?
That is, not only is the rule arbitrary and vague, it's intended to be arbitrary and vague, able to change with little notice or opportunity to register newly-banned guns. And, indeed, the current rules are in limbo and will not be finalized before January 16th at their earliest.
There's at least some comedy in the court filings (do you know what a grenade launcher is? Because the state of Illinois doesn't think you do). But while the state managed to get a unlucky draw at the district level, this didn't last very long after appeal. And the basic problem that "When dealing with guns, the citizen acts at his peril" remains, with little recognition or response from the normal set, and a long and successful campaign to splinter the groups devoted to this topic.
There was a separate and more specific hearing on vagueness yesterday, after the 'new' rules failed their last chance to get passed before Jan 16th, and perhaps we'll get an answer there before January 1st, but it didn't sound during arguments like a pause was likely. And, of course, some people will register between now and the decision's release.
How many? Uhhhh.
Maybe this would be a good reinforcement of @HlynkaCG and "refuse to be ruled", but at the risk of paraphrasing a bad Dilbert strip, perhaps for your first felony you should pick something that hasn't given the police your home address and a reason to think you specifically dangerous. Illinois' various laws don't quite amount to sending the state the exact make and model of every gun purchase (though they do for recent 'private' transactions), but it's mostly just a matter of convenience at this time.
The Supreme Court, and conservatives in general, do not want people to have gun rights. They want to make an abstract legal point about the Constitution, but they'd be horrified if it had any practical effect. "Sure, you have the right to keep and bear arms. But what makes you think that means you can carry a GUN?"
The Supreme Court has been pretty pro-gun recently, though. It keeps getting ignored by blue states, but that isn’t the Supreme court’s fault.
Adding to Nybbler's comments, the 2nd Circuit (which includes New York) just recently decided Antonyuk's preliminary injunction stage. It's a long fucking decision, but the tl;dr accepts and allows to go into force everything but mandatory social media disclosures, a 'vampire' rule requiring carry permitees to get explicit permission before entering private property -- that is, the most aggressive of restrictions, and all only added after Bruen -- and blocked a complete ban on carry even with the permission of owners in houses of worship only as applied to the specific appellants and no one else.
By contrast, the "good character" requirement that was just a rewording of the Bruen-overturned "proper cause" rule survived. Even the disclosure of cohabitants can go into play, somehow! The case defies Bruen in every way but flicking it the bird -- and it gets pretty close, there.
Meanwhile, fewer people are getting permits now than before Bruen.
Now, that's 'just' the preliminary injunction stage, and 'just' decided on December 8th. It's possible that SCOTUS will allow an interlocutory appeal, grant a more serious injunction, and rap the 2nd Circuit's knuckles. It's possible that the 2nd Circuit will actually do a serious analysis that wasn't just padding the word and page count. But we haven't seen that in any other case of massive resistance, yet.
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It is partly the Supreme Court's fault. There are any number of follow-up cases where the lower courts ignored the decision and restricted gun rights that they could have taken. Instead they took one case, Rahimi, where the Fifth Circuit took Bruen seriously and took an expansive view of gun rights. They appear likely to reverse Rahimi, thus limiting Bruen formally (though like I said, in practice it's obiter dictum in its entirety). The conclusion I come to from this is the Supreme Court wants, for some reason, to make an academic point about people having gun rights, but does not actually want to interfere with infringement thereof.
It is over a year since Bruen. I still cannot buy a gun, because it is illegal for me to buy a gun in any but my home state, and my home state requires not only that I give the name and hospital affiliation of every mental health practitioner I have seen in my lifetime (information I do not have), but also have two unrelated adults vouch for me. These are not restrictions which would be accepted for any other right, yet there are no challenges to them even pending. Because conservatives are fine with them.
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I think it's pretty clear that the reason why gun ownership is widespread in America and virtually unheard of in places like Australia and the UK is 1) the second amendment and 2) an active movement of conservatives who continually fight for their gun rights.
Australia is what happens when conservatives don't want people to have gun rights.
I'd qualify that somewhat?
Australian conservatives: 1) do not specifically desire that gun rights be protected or expanded in Australia, and 2) also do not specifically desire that Australians lack gun rights.
That is, I don't think the Coalition want people not to have gun rights. I think the Coalition just doesn't care very much. The Australian people in general do not care about guns very much. There is a small constituency that does (SFF exist, and One Nation mention it every now and then), but it is numerically small, not particularly wealthy, and not very effectively mobilised.
The situation here is basically that the Greens are strongly anti-gun, both Labor and the Coalition are inconsistent and opportunistic (Labor are probably a little more anti and the Coalition a little less, but neither are that devoted, and both usually signal anti-gun stuff in the aftermath of shootings), and the few pro-gun voices are marginal. I would expect the Coalition to turn out to be pro-gun if they thought there were votes it, but there aren't. SFF have very few seats, they don't have much of a lobby, and pretty much all SFF voters are preferencing the Coalition anyway. Same for One Nation. This is Australia, so turnout/mobilising-the-base are irrelevant; elections are about swinging moderates. And moderates do not care about guns.
I think the key difference in America is simply that there are a large number of people who either regularly use and therefore care about guns, or for whom guns have this almost talismanic power as symbols of liberty. As such there's a reasonably-sized constituency of people who care about them and will fight for them. America has low-turnout elections so mobilising people does matter, firearms enthusiasts and manufacturers have a powerful advocacy group in the NRA, and the Second Amendment provides a fantastic banner to rally to. As such firearms are one of the few of - perhaps the only? - culture war issue in America where the right has been consistently winning.
I'm always a bit surprised when I talk to Americans in terms of just how important the gun issue sees to them. I'm Australian and I am in fact in favour of liberalising our gun laws (seriously, the buyback scheme after Port Arthur did not actually reduce firearm violence), and even then I... kind of don't care. I'd like to liberalise our gun laws, but it is pretty low on my list of priorities, and I would be happy to trade it for other things I care about. As a point of principle, I want to relax the laws, but it's a pretty minor issue all things considered. I agree with the Americans in terms of overall position, but the issue is just so much less salient to me, and I think to most Australians.
Fully agreed, this is a fuller description of the situation. I feel like our gun laws should be liberalised at least a bit - people have had heirlooms from the world wars confiscated and destroyed, as if anyone was going to go and commit a crime with an antique Luger. But it's pretty abstract for me - crime is low, I don't need or want a gun for protection. And gun ownership does seem to meaningfully impact on suicide numbers, and that's less abstract for me because I used to deal with suicides for a living (they're awful, I do not recommend). And I'm one of the tiny minority of people who grew up with guns.
I've been meaning for a while to finally make the time to go down a local range and fire a gun for the first time - it's cheap, they lend out weapons for first-timers, and they sound pretty friendly. I just keep putting it off for dumb reasons.
Still, I feel like it would be good for me, in some respect, to at some point just... hold a rifle in my hands, aim at a target, and pull the trigger. I hope there would be some learning in that, in experiencing a gun not as a vague idea or symbol, but as a physical object in my hands. I hope there would be something demystifying in that.
Or maybe it'd just be a fun afternoon. I don't know. But it seems worth doing.
Anyway, on the laws, it's mostly just that my starting point for most regulations like this is that when in doubt, err on the side of liberty, and as far as I can tell the more restrictive post-1996 firearms regulations just haven't really had a positive impact. And insofar as there are people who have legitimate uses for firearms, and derive real enjoyment out of owning them, collecting them, using them recreationally, etc., there are no grounds for me to deny them.
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Gun ownership impacts firearm suicide rates; skip past that particular bait-and-switch and the evidence is mixed at best, with massive substitution effects.
Firearm suicides do tend to be messier and the not-immediately-fatal modes worse than almost anything short of the more aggressive overdoses, though.
There's a partial but not total substitution effect. Eg see here, where there is a steep decline in firearm suicides following Port Arthur and a correspondingly sharp rise in hangings, but it still nets out to a reduction in the overall rate.
Guns are quick and irreversible. You're holding the gun, you decide to do it, you pull the trigger, you're gone. Other methods take more time to execute, so you have time to snap back to your senses and think actually this is maybe not such a great idea.
That still gives an (age-adjusted) rate of 12.0 per 100k in 1985, which exceed all but 1993 (11.9 per 100k) and 2002-2013 (at minimum, 10.2 per 100k in 2006). That's better than it sounds -- the 'real' suicide rate is probably lower now than in 1985, despite the official numbers, due to improved data collection and reduced stigma -- but it's still a lot weaker and a lot less directly connected a signal than you're suggesting, especially given the nature of Australian suicides (and especially demographic concentration) and how the numbers have been measured.
You can smuggle some sort of causation out: perhaps it took seven years for the law to be implemented to some important threshold, and then there was some external economic pressure that fucked over a lot of people for the next decade after that or revision in the data-gathering. Or that it rode an already-decreasing rate from the more-suicidal early 80s, in ways that should have us comparing not pre/post Port Arthur or its laws but some other years. That might even not be wrong! But it's still mixed.
I know the theoretical fundamentals, but they seem insufficiently precise and a bit of a just-so story. There's no small number of other mechanisms with similar irreversibility and speed, some more available in Australia.
Hanging isn't one of them, and it's the one people mostly choose.
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Wrong order. When there wasn't a large active movement of citizens fighting for gun rights, the 2nd amendment was treated like an inkblot.
I totally agree, and this is a big part of why I oppose a bill of rights. Ultimately paper laws are worthless in the face of public will, and so creating constitutional protections that are supposedly above the normal democratic process actually just creates incoherent law as judges pretzel around provisions that don't have support. That and the inherently vague nature of these broad proclamations inevitably lead to a politicized judiciary.
It's not above the normal democratic process. Congress could repeal the bill of rights tomorrow if they put their minds to it.
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The entire point of having a bill of rights is to give rhetorical ammunition to the pro-rights side- sure, "rule of law" is always going to be "rule by law" to some degree, but even an explicitly worthless bill of rights (like, say, Canada's) still codifies how the public should ideally restrain its worst impulses and, much like guns, provides a common co-ordination point around which political action might crystallize.
Sure, this depends on a bunch of things- mainly that the past was freer than the present (though that's why bills of rights from countries that post-date the US' founding are all much weaker than the US's BOR in the first place!)- but giving [classical] liberals the ability to convict traditionalists and progressives of institutional and intentional unfairness is still a big deal especially when those factions start losing political ground, and gives those who might be in favor of returning to that stated ideal the same cover of "I just want to be treated fairly" that the corrupt enjoy when public opinion favors them.
I think the constitution is the wrong place to put rhetorical ammunition. If it were statutory law (like the Racial Discrimination Act which our government just suspends when it gets in the way), not so bad. There's value to making the government explicitly say "yes we are in fact abridging this right". But the current system rewards people for pretending that actually the second amendment wasn't meant for weapons of war or other similarly asinine things.
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On balance I do favour a Bill of Rights, but with a get-out - either something like the Canadian notwithstanding clause, or a Constitutional amendment process that is easy enough that a stable 55% majority who know what they want can amend the Bill of Rights in order to get it.
I think the ability of a court to ask the political branches "Are you sure your really want to do this?" is valuable because the nature of politicians is that sometimes they do stupid stuff for a quick headline, and the sort of rights that get put into Bills of Rights ought to be taken seriously. And the possibility of being overruled acts as a deterrent to judges who want to get their inner politician on.
Yeah this is fair. I wouldn't massively object to a statutory Bill of Rights that effectively just forces governments to own their decisions when they come into conflict with it.
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Seem pretty uncharitable, maybe you mean just DC conservatives? Or city conservatives?
I've never lived in an area more dense than "suburban". And I can say I've never had a neighbor against gun rights. I've had plenty of liberal and democrat voting neighbors. Most of them have owned guns.
This issue has always seemed like a "rural vs urban" thing. Party lines have also tended to break down along those lines lately. But if I had to take a bet, I'd say the gun rights debate breakdown is better characterized by rural vs urban than it is by republican vs democrat.
I'll say for the Supreme Court: if Neil Gorsuch can be austisticly literal when it comes to the CRA, but doesn't apply that same literalism to the 2A, it's a strong sign of what he wants to get done.
I'm still waiting on the Supreme Court to strike down the blatantly unconstitutional magazine bans and "assault weapon" bans that have been popular in the last few years.
He was not being "autistically literal." He was applying the usual rule of statutory construction:
Re Constitutional adjudication, the rule is somewhat different: the question is what entire clauses mean, not individual terms.* (Which is why the "no law" in the First Amendment does not literally mean "no.")
*Re the Second Amendment, "[t]he Courts of Appeals [must] ascertain the original scope of the right based on its historical meaning."
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They can be treated with charity when I can buy and carry a gun. Or at least they're not declaring victory when in fact I still can't buy a gun. Until then I'll judge them harshly as deserved.
I mean I guess my complaint is less about charity than accuracy. You seem wrong about your assessment. I guess I'm curious if I'm missing something big or you just wanted to shit on conservatives. Sounds like the latter though.
You're missing that when push comes to shove, conservatives will not push the fight, and will side with the institutions. gattsuru mentioned above "refuse to be ruled". Well, suppose one were to do that by violating one or more of these gun regulations. And one were to get caught, and the state to come down on you like a ton of bricks. What would a conservative who previously advised "refuse to be ruled" say about that? I'm fairly sure it would be something along the lines of "play stupid games, win stupid prizes". Conservatives who can get guns because they're in a community where guns are a thing and they can jump through any hoops the state puts in their way anyway treat gun rights like a sort of intellectual game; they want to make the point that they have the right to keep and bear arms. But they don't give a shit about it being enforced in other communities that are more hostile to gun rights. That's why, for instance, there's been no move to challenge the interstate purchase rules.
Do you live in a large city? This is the only thing I can think of that would prompt this level of annoyance.
I own guns, I consider myself very pro second amendment, I don't know or honestly care that much about how difficult it is to get a gun in a city. My solution to them having shitty gun laws is to not go there. I'm also not in the habit of picking political fights for other people.
I'd love it if you explained to my wife that me owning guns is actually an intellectual pursuit. Right now she is under the mistaken impression that I'm just a big boy with disposable income and I'm buying big boy toys.
I live in suburban New Jersey.
The left wasn't satisfied to have gay marriage only in their strongholds. They weren't even satisfied when there was a single clerk holding out. And they got their way, because Supreme Court decisions for the left count. Conservatives, on the other hand, have left prospective gun owners and those who wish to carry out in the cold everywhere but their own strongholds. They got a Supreme Court decision or three, but they don't count for spit in the real world; it turns out that according to the appeals courts, every restriction on guns an anti-gun jurisdiction engages in is OK according to Bruen. And rather than take those cases and reverse them, the Supreme Court took a case from the Fifth Circuit where a Federal gun restriction was ruled against -- presumably to decide that indeed, a simple restraining order of the sort handed out like candy by judges is sufficient to revoke someone's gun rights.
Well yeah, that is a shit state to be in for guns.
Maybe try and live in one of the non gray areas: https://en.wikipedia.org/wiki/Second_Amendment_sanctuary
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A themotte.org meetup in your backyard, for the purpose of convincing your wife that owning guns makes your family very intellectual and sophisticated sounds like a worthy endeavor.
Haha, that would probably have the opposite of the intended effect. I'd not be opposed to a meetup in northern virginia if anyone is around though.
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I have a lot of gun-owning conservatives in my social circle, and this sentiment is completely off-base, IME. Can you substantiate it?
You can look at the court cases. Bruen has changed nothing, and the only follow-up case the Supreme Court has taken (Rahimi) is one where their action can only LIMIT Bruen. In real life if you talk to "conservatives" who aren't hoplophobes about it, they tell you it's no problem to jump through the hoops the state has set up and you should just do it. If you point out that there's some reason you can't, they switch to saying maybe you just shouldn't have a gun.
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