SCOTUS denies cert on two 2A cases.
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TTv2
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That stament to me feels like pure pandering to not get people riled up, damage control. I don't for a moment believe it and neither should anyone else.
They had the time to bail out you know who from his legal troubles. It basically over unless two of the liberal judges leave the court and two who truly appreciate gun rights are appointed. Fat chance though. I said Heller was fatally flawed on AWBs and so was Bruen but NO - all those WOO HOO - bah.
AlexanderA
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Just to quote what I said earlier in this thread:
The somewhat surprising thing is that the three antigun justices didn't vote "yes" on cert, just so they could turn around and uphold the bans. I guess they weren't thinking strategically. Or maybe they weren't 100% sure of Barrett and Roberts.
OK, here's how I see it: Alito, Thomas, Gorsuch, and Kavanaugh are the pro-gun bloc. By themselves, they are enough to grant certiorari, but they are not enough to issue a favorable decision. Jackson, Kagan, and Sotomayor are definite antis. That leaves CJ Roberts (the institutionalist) and Amy Comey Barrett (the budding moderate). Neither one wants to decide a gun case right now, each for his/her own reasons. The pro-gun bloc are not going to grant cert and risk an adverse decision. So the cases are going to remain in limbo, with cert being neither granted nor denied, until either Roberts or Barrett indicates a clear position on the merits. That might be a long time coming.
This proved to be exactly correct. Justice Barrett made it increasingly clear that she would side with the other female justices in upholding AWBs and mag limits, and CJ Roberts would have joined them. The four pro-gun justices could have granted cert on their own, but then would be faced with an all-but-certain defeat on the merits. So Kavanaugh, by prearrangement, voted "no" on cert to prevent that from happening. This is the strategically correct move. A favorable decision on the merits has to wait at least for Roberts to change his mind, or for a stronger case to come out of the lower courts.The somewhat surprising thing is that the three antigun justices didn't vote "yes" on cert, just so they could turn around and uphold the bans. I guess they weren't thinking strategically. Or maybe they weren't 100% sure of Barrett and Roberts.
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Miami_JBT
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No, the politics and politicians do!
There wouldn't be any doubts, if these and people's fefe's weren't involved.
Our rights, shouldn't be based on any of these. Yet, we see it happen all the time.
Basura Blanca
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I don't know about that. There are a handful of competing challenges to California's AWB that are all stalled out in the 9th circuit. Those lawsuits challenge laws that are now thirty-five years old, putting them on par with Heller challenging a similarly aged handgun ban in DC.
How much stronger do we really need, and how many more versions of the same thing will it take?
On a side note, I find it a little concerning that Kavanaugh refers to this as "the AR-15 issue". It's an off the cuff remark, I'm sure, but it comes off as infantilizing a legitimate legal controversy.
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Basura Blanca
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Thomas was in the deepest possible minority when he wrote those things with respect to one of the worst "pro" 2A cases that SCOTUS agreed to hear.
We can't win stuff 1-8.
Basura Blanca
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On the contrary, plenty can change to our disadvantage.
States with already terrible laws are empowered by all the wishy-washiness of the high court. Colorado arguably has one of the worst AWBs ever written. And with SCOTUS continuing to ignore us, the usual suspects (like California) will take that inattention as a greenlight to move the bar upwards.
AlexanderA
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Just wait. I'm bracing for Virginia, next year, to enact the previously introduced (and defeated by one vote) AWB with no grandfathering. If a challenge to that makes it to the Supreme Court, it will be on 5th Amendment "taking" grounds and not 2nd Amendment grounds.
Mark Smith has a good take, as usual. This was pretty bad. The glimmer of hope (which many admit may be fantasy) is that the magic case might appear next year, even though the issues are crystal clear with the current ones but they have to screw around with the lower courts, blah, blah. However, the unknown is that Roberts and Barrett may be negative votes. This in unclear. While Smith says it is crystal clear, we know that justices vote their personal beliefs for the most part and then come up with convoluted spew of cognitive dissonance with selection information processing to support their position. We've had the Golden Case to Come and Clarence Dissent for Years (yeah, he told him! Woo HOO). My clock is running out and I doubt I will see AWBs and locale bans being found favorably in that time.
AlexanderA
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I agree with Smith. It's become clear that Roberts and Barrett are votes to uphold AWBs. As long as those two were waffling, the four pro-gun justices were putting off the decision on cert. The fact that they have now denied cert (by having Kavanaugh cast the "no" vote) means that they're reasonably sure that they can't get either of the Roberts/Barrett votes on the merits. Time to pull the issue off the table until the landscape is more promising. I'm just shocked that the Kagan-Sotomayor-Jackson trio went along with it.
armoredman
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We yelled at SCOTUS, "Do something!"
They answered back, "No."
They answered back, "No."
Insignificant bill
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Yeah all gun control has been going on for way to long. Then we have garbage like history and other impediments which don't exist in the 2nd Amendment and we the people don't do a thing about it.
Mannlicher
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I have all but given up on the entire Federal Judiciary. SCOTUS included. They have become the big stumbling block to fixing what is wrong with America.
I'm just over that obviously flawed decisions like Heller and Bruen are divine pronouncements. I'm over just wait for the next perfect case where Clarence Thomas will write the Golden Tablets of Gun Rights. Bruen gave some more people permits in NY, still with convoluted and long procedures depending on county BUT carry options were destroyed as to make permits close to useless. So if the issue was to fix NY - it didn't and it is ambiguous across the country. That courts can have diametrically opposed views shows that the law is not a set of mathemetical like principles but just a game to be played according to your personal beliefs on the bench. This court was designed to be the sex police on abortion - they accomplished that goal and gun rights - they don't care. Yes, they stir themselves to protect their ideological overlord from legal repercussions of his actions but to protect your gun rights - write me on the yacht!
AlexanderA
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2nd Amendment interpretation should be based on two simple principles:
(a) gun ownership is tied to the militia, and
(b) membership in the "militia" is universal.
Therefore, every (non-criminal) citizen is entitled to own the same types of weapons issued to the military. "Weapons of war," far from being "removed from the streets," should be present in every household.
This was exactly the thinking back in 1791. Where are the "originalists" when we need them?
(a) gun ownership is tied to the militia, and
(b) membership in the "militia" is universal.
Therefore, every (non-criminal) citizen is entitled to own the same types of weapons issued to the military. "Weapons of war," far from being "removed from the streets," should be present in every household.
This was exactly the thinking back in 1791. Where are the "originalists" when we need them?
Okie_Poke
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I have a somewhat different take on this. I find Kavanaugh's statement respecting the denial of certiorari interesting. Not in the substance of what he said---that because AR15s are unquestionably in common use, the 4th Circuit's decision is probably wrong---as that was basically just summarizing what he said in his dissent in Heller II while he was on the DC Circuit. But the fact that he said anything at all in this context is interesting to me. He didn't have to say anything; he could have just voted to deny certiorari per normal. I view this as a long-shot attempt by him to persuade the Chief or Justice Barrett in the nearish term (i.e., the "next term or two"), while the Court is still 6-3 and Thomas is still on it.
There is not currently a circuit split between the circuits on whether "assault weapons" bans are constitutional (at least not to my knowledge). Any time we get a ray of hope in a panel decision, the courts reconsider en banc and uphold the laws. So, from a purely institutional perspective, there is less reason for SCOTUS to grant review. That, I think, is significant to the Chief Justice in particular, and also maybe to Barrett. I think both of those justices would be hesitant, purely from a temperament perspective, to buck a "universal" view of the courts of appeal if the Court granted cert. and heardthe case. So, I think that explains Kavanaugh's vote to deny certiorari.
Okay, but then why write about it? To signal to lower courts that now is the time to create the circuit split, if it can happen. Counting noses from this, you've probably got four votes to overturn outright AWB bans. If he voted not to hear the case but said nothing, folks would speculate he may have gotten squishy on it. By saying something, he reiterates that he hasn't. And by referencing the desire to have other courts weigh in, I think he's saying they need (or at least really want) a lower court appellate court opinion invalidating an AWB if they are going to persuade Roberts or Barrett. Thomas' repeated opinions and Kavanaugh's statement provide a permission structure of sorts for lower courts to go ahead and take that step, if there's anyone on the fence.
The issue is going to come to SCOTUS at some point; 2A jurisprudence cannot advance much until it does. I think Kavanaugh perceives the opportune window may be narrow but hope isn't lost. If Roberts and Barrett were for-sure no votes, I think one of the liberals would have joined the vote to grant certiorari to lock in their votes on the merits (or at least Kavanaugh would have voted to deny cert. and then not said anything about it). I agree that if Kavanaugh thought there were 5 votes for sure to invalidate AWBs, he likely would have voted in favor of granting certiorari. I think he's still trying to persuade Roberts or Barrett and is hoping for some help with that from a lower appellate court.
Barring an unexpected health issue for one of the justices, the compostion of the Court does not look likely to change during Trump's second term. Thomas and Alito are the oldest of the justices, so if there is going to be a change it's most likely one of them. Sotomayor and Roberts are next in terms of age, then the justices get relatively young. Looking at the odds of any future change in perssonnel, it does not appear likely to get better for the 2A any time soon. I think Kavanaugh wants to address the issue now because he doesn't expect the votes to get better in the future, but he doesn't know he has the votes now. So, he's sending out a call for help to hopefully nudge a lower appellate court to create the circuit split and provide Roberts and Barrett with cover/some assurance this isn't out of the legal "mainstream".
Whether any of this works, of course, remains to be determined. As soon as (or if) there is a circuit split and a court of appeals invalidates an AWB, I expect there will be four votes to grant cert. Then we'll find out if that's what we want.
Maybe I'm off base with all of this. I don't know the composition of the courts of appeals currently considering AWB challenges, and so maybe my thought of Kavanaugh sending up a signal for some judge on the fence is fanciful. Maybe the justices aren't this tactical with their cert. votes, or maybe circuit judges don't pay any attention to them when deciding cases. But this is what I was thinking when I read the vote breakdown and Kavanaugh's statement.
There is not currently a circuit split between the circuits on whether "assault weapons" bans are constitutional (at least not to my knowledge). Any time we get a ray of hope in a panel decision, the courts reconsider en banc and uphold the laws. So, from a purely institutional perspective, there is less reason for SCOTUS to grant review. That, I think, is significant to the Chief Justice in particular, and also maybe to Barrett. I think both of those justices would be hesitant, purely from a temperament perspective, to buck a "universal" view of the courts of appeal if the Court granted cert. and heardthe case. So, I think that explains Kavanaugh's vote to deny certiorari.
Okay, but then why write about it? To signal to lower courts that now is the time to create the circuit split, if it can happen. Counting noses from this, you've probably got four votes to overturn outright AWB bans. If he voted not to hear the case but said nothing, folks would speculate he may have gotten squishy on it. By saying something, he reiterates that he hasn't. And by referencing the desire to have other courts weigh in, I think he's saying they need (or at least really want) a lower court appellate court opinion invalidating an AWB if they are going to persuade Roberts or Barrett. Thomas' repeated opinions and Kavanaugh's statement provide a permission structure of sorts for lower courts to go ahead and take that step, if there's anyone on the fence.
The issue is going to come to SCOTUS at some point; 2A jurisprudence cannot advance much until it does. I think Kavanaugh perceives the opportune window may be narrow but hope isn't lost. If Roberts and Barrett were for-sure no votes, I think one of the liberals would have joined the vote to grant certiorari to lock in their votes on the merits (or at least Kavanaugh would have voted to deny cert. and then not said anything about it). I agree that if Kavanaugh thought there were 5 votes for sure to invalidate AWBs, he likely would have voted in favor of granting certiorari. I think he's still trying to persuade Roberts or Barrett and is hoping for some help with that from a lower appellate court.
Barring an unexpected health issue for one of the justices, the compostion of the Court does not look likely to change during Trump's second term. Thomas and Alito are the oldest of the justices, so if there is going to be a change it's most likely one of them. Sotomayor and Roberts are next in terms of age, then the justices get relatively young. Looking at the odds of any future change in perssonnel, it does not appear likely to get better for the 2A any time soon. I think Kavanaugh wants to address the issue now because he doesn't expect the votes to get better in the future, but he doesn't know he has the votes now. So, he's sending out a call for help to hopefully nudge a lower appellate court to create the circuit split and provide Roberts and Barrett with cover/some assurance this isn't out of the legal "mainstream".
Whether any of this works, of course, remains to be determined. As soon as (or if) there is a circuit split and a court of appeals invalidates an AWB, I expect there will be four votes to grant cert. Then we'll find out if that's what we want.
Maybe I'm off base with all of this. I don't know the composition of the courts of appeals currently considering AWB challenges, and so maybe my thought of Kavanaugh sending up a signal for some judge on the fence is fanciful. Maybe the justices aren't this tactical with their cert. votes, or maybe circuit judges don't pay any attention to them when deciding cases. But this is what I was thinking when I read the vote breakdown and Kavanaugh's statement.
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Okie_Poke
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This is not how certioari works. Every petition for certiorari is either granted or denied. Denied is the default. It takes four votes to grant. If the petition doesn't get four votes, it gets denied. So, there's nothing particuarly special about the Court denying certiorari here as compared to the various other AWB challenges on which it has previously denied cert.
AlexanderA
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The four pro-gun justices had become convinced that Roberts and Barrett were for-sure "no" votes on the merits (or close to it). Otherwise, they would have kept re-scheduling the case, hoping to convince R and B.
It's a mystery why the liberal justices didn't vote to grant cert. Maybe they weren't as convinced that R and B were sure "no" votes on the merits. Or maybe they weren't thinking strategically and just wanted, short-term, to leave the lower court upholding of AWBs untouched. In either case, they certainly missed an opportunity. (For which we should be grateful.)
The reason for Kavanaugh's statement is simple -- he wanted it on the record that he was part of the pro-gun bloc. Without the statement, some people might have concluded that he was going soft on gun rights. Clearly, his vote to torpedo cert (at this time) was part of a strategic prearrangement with the others.
Along those lines, if the three liberal justices had voted to grant cert (see the rationale above), the three remaining pro-gun justices would not have, leading to the same exact result.
Okie_Poke
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Maybe. But they don’t relist cert. petitions indefinitely. No one really knows. This is one of the those not transparent things about the court.
RetiredUSNChief
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I'm getting MORE frustrated in the lack of citizen progress in defending/protecting our constitutional rights.
The courts are all well and good, but let's face it...they aren't there to make laws. They're supposed to be there to apply/interpret the laws already on the books to whatever case and, once in a blue moon, decide on the legitimacy of a particular law itself based on the fundamentals outlined in the Constitution.
Citizens need to get off their collective keisters and start putting some political thumbs in thumbscrews.
JERRY
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I'm not gonna read four pages I'll sum this up quickly. This is a good thing because there there are only 3 judges that are certain to be on the side of the 2nd amendment. There are 3 judges certain to be on the opposite side of the 2nd amendment. There are 2 judges that are "socially conscious", and I'm not willing to gamble with that. Let's wait until the odds are in our favor.
AlexanderA
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The unfortunate truth is that the antigunners have done a better job of propagandizing the general public. So, there's more sentiment for banning "assault weapons" than there is for safeguarding them. And make no mistake, the Supreme Court (and especially CJ Roberts) pays attention to public opinion. (Roberts is already rated the second-worst Chief Justice, after Roger Taney. He doesn't want to sink any lower.)
