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By LKB

The most important Second Amendment case in a generation was argued in November. As was covered in the TTAG post-argument analysis, the consensus was that we’ll see NYC’s “may issue” regime (and likely those of the other states that still have one) go the way of “separate but equal.”

There is also a very good chance that the Court will mandate either strict scrutiny or “text, history, and tradition” as the heightened test for evaluating anything that encumbers the right to keep and bear arms. That would be a game-changer for Second Amendment cases challenging gun control laws like “assault weapons” ban, magazine capacity limits, and more.

That initial prognostication is appearing increasingly solid. Indeed, the press and the gun control industry have read the same tea leaves, and reached the same conclusions . . . which is causing no small amount of wailinggnashing of teeth, and rending of garments among Civilian Disarmament Industrial Complex.

Of the ten cases argued in November, NSYR&PA v. Buren is the only one that hasn’t been announced yet. All the October cases have been decided, as have most of the December ones. Based on which justices have written majority opinions for the cases argued in those months — and which have not written opinions — veteran court watchers are betting heavily that the Bruen opinion will be written by either Justice Thomas or Justice Barrett, neither of whom have written an opinion for a November-argued case.

Since April, I’ve been expecting the opinion to drop at any time – only be to be disappointed on each opinion day. While you can (and should) always watch TTAG for news of the opinion (Dan and I are keeping a very close eye on this), if you want to see it happen in real time, here’s a quick primer on SCOTUS watching.

First place you should go is the calendar on the SCOTUSBlog home page . . .

Opinion days are usually Mondays or Thursdays (occasionally other days), and are announced via the calendar one or two business days before, so check in over the weekend and on Tuesday or Wednesday. If the calendar shows an opinion day coming up, you know to tune in.

Opinions are announced at 10:00 AM (Eastern). Pre-COVID, opinions were announced in the SCOTUS courtroom, often with the judges reading their opinions from the bench (no TV cameras, of course). Today, with the court still closed to visitors, opinions are instead released electronically on the Supreme Court’s Opinions page, at the rate of one opinion every ten minutes (you need to keep refreshing the page as it doesn’t automatically update). You can download a copy of opinions from that page as well.

SCOTUSBlog runs a liveblog on opinion days, which is an easy way to watch the process unfold (as well as read the commentary of court watchers).

Opinions are announced in reverse seniority order. As such, if the first opinion is by Justice Gorsuch, it means you won’t see any that day from Barrett or Kavanaugh (they have less seniority), but any of the other justices might have one. (Look for the opinion author’s initials under the ‘J.’ column on the opinion page).

If you see an opinion by Justice Thomas, the court’s most senior member, it means that the only other opinions that could be released after it would be by another one by Thomas (though it’s very uncommon to have two opinions by the same justice released on the same day) or Chief Justice Roberts.

On the opinions page, if an opinion is announced and it has a “R-number” next to it in the left column of the chart, it means that was the last opinion to be released that day.

Right now, there are 33 remaining cases that have been argued during the term and and are awaiting decision. There will likely also be a number of opinions or orders released on “shadow docket” cases. With the current term winding down, we will likely see two opinion days per week until the Court adjourns for the summer, with probably three to five opinions announced per opinion day.

So, when will the long-awaited decision be announced? My gut is that it will come out very shortly. Apparently one of the proposition betting sites also has it coming out sooner rather than later. It’s possible that they will hold it for a “last day” dump (as I expected them to do with the Dobbs abortion decision prior to the unprecedented leak). But unless you have a contact with that supremely unethical court insider, it’s all just an educated guessing game.

The good news is that we’ll all find out sometime in the next five weeks or so, so buckle up and stay tuned.

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34 COMMENTS

  1. The time to release Dobbs was during the day or so after the damned leak. And it should/must be unanimous in overturning ROE. The court has GOT to show unanimity. It it the only way that this crap will stop.

  2. If Roberts is in the majority on this case, then he probably assigned the opinion to himself so he could water it down. If Roberts is part of the dissent, then the senior Justice in the majority, probably Thomas, would assign the writer. Given that the Second is Thomas’ passion, he would more likely than not assign it to himself.

    Thomas was hospitalized back in March. That may explain why we’ve waited so long for this opinion.

      • Big yawn coming. Because the 2nd amendment is a 3rd class right, even if Thomas writes it, each different unconstitutional state “law” will have to be litigated separately. Just because there is strong language in the decision it’s not going to make a lower court decide a magazine ban is unconstitutional for example. The real life effect will be people in NYC and maybe Hawaii can carry a registered revolver in their car after spending a lot of money and waiting a long time. Literally the only thing forestalling a complete ban is the popularity of guns. The constitution is just a piece of paper.

        • ‘each different unconstitutional state “law” will have to be litigated separately’

          It depends on the decision. If the Court issues a broad decision, discretionary permitting will be swept away. That’s why the writer is so important.

    • Ralph:

      If Roberts has the pencil on this one, then it would mean that he, Gorsuch, *and* Sotomajor all doubled up on November cases, while leaving Thomas and Barrett out of the rotation. That’s *very* unlikely, given that there were some of the “doubled up” cases were ones where Thomas or Barrett were in the majority, and thus Roberts could simply have assigned them one of those.
      When you look at the distribution of opinions for Oct-Dec cases, the odds get even longer that Roberts assigned it to himself.
      I’m *really* hoping for a Thomas opinion . . . .

    • Possum,

      What does a SCOTUS decision on Bruen have to do with over- sized, flightless birds?

      Do possums eat emu?

    • What about the price of support gear? Holsters, mag pouches, etc. Suddenly large areas such as New York, Hawaii, and California that were mostly no carry will be open to carry.

      It ain’t just ugly birds that will increase in price. Throw in bidenflation and the prices go up further.

  3. The case is a no brainer to decide. That fact and the court dragging their heels implies they are searching for words to twist the case into a peeing on your leg and telling you it’s raining decision. If they tire out from searching for words and come up empty then the 2A prevails.

    • You are probably right. What really takes brains is to decide, as the Ninth Circuit Court of Appeals did in Young v. Hawaii (pet.rev. pending), that there is NO RIGHT to bear arms outside the home, and then to write an opinion justifying that decision. (I assume that the petition has not been granted because, if Bruen goes the way we expect it to, that case will be remanded to the Ninth Circuit for reconsideration in light of Bruen. And if the Ninth screws it up again, then it will not take long for it to make its way back to SCOTUS.)

    • Don’t panic. Remember, even if it’s 6-3, the dissenters can be “working” on their dissents for quite a while and drag out the process. End of term is the enforcer here.

      • From what I have seen, this most recent killer showed no outward sign of his intentions until he decided to act. With no record at all, nor evidence of mental health issues, a red flag law would have accomplished exactly nothing.

        • Would a red flag law have helped in this situation?

          A brave homeowner, using first his pistol, then his modern sporting rifle, to defend his home from a gang of armed intruders.

          “Doddridge County Sheriff Clint Boring said Gary McMillian, 74, of West Union had a history of confrontations with his neighbors which had brought deputies to his home before. When they were called to the home Thursday, there was an outstanding warrant for McMillian for pointing a gun at one of those neighbors.

          “There’s been some issues with Mr. McMillian and his neighbors that we’ve been dealing with. At this point we’re unclear what his problems are with the neighbors,”

          According to the sheriff, McMillian refused to cooperate when Deputies attempted to arrest him for the warrant.

          “He was armed, drew his pistol and open fired on the deputies. The deputies returned gunfire and he was killed as a result of that gunfire,” Boring told MetroNews.

          McMillian’s wife Pam McMillian, 70, was behind her husband in the kitchen area of their home and was hit by two of the bullets fired in the exchange. Investigators believe she was an innocent bystander and was not involved in the incident. She remained hospitalized at Ruby Memorial Hospital in Morgantown Friday.

          The sheriff said initially, McMillian fired a dozen rounds from his 9mm pistol. The first volley forced the two deputies on the scene to retreat to cover behind their cruisers. McMillian reloaded and fired 12 more rounds before he retrieved an AR-15 rifle from the home. The sheriff said McMillian fired three shots from the rifle, repositioned and fired two more rounds before he was killed.

          “We believe Mr. McMillian fired at least 36 rounds and our deputies returned 15 rounds.” Boring said.”

        • Miner,

          I’m usually loathe to feed the trolls, but today I’ll play. It doesn’t appear a red flag law would have helped that unfortunate situation at all. The police already had a warrant for his arrest and just hadn’t executed it. There’s little reason to think Mr. McMillian would have cooperated any more with police attempting to disarm him under a red flag law than he did when they finally showed up to arrest him.

    • The demtards are “considering” any silly ass thing they thing can be used as an election issue against some not demtard candidate. Does no mean they plan to even attempt a vote as event the stupidest among them know, in their evil black “heart” gun restrictions are more of a loosing issue than ever before.

  4. “There is also a very good chance that the Court will mandate either strict scrutiny or “text, history, and tradition” as the heightened test for evaluating anything that encumbers the right to keep and bear arms.”

    The 6-3 advantage we have on the current bench smells to me that we don’t need to rely on Roberts to water-down the decision.

    Since Thomas has seen over the last 10 years just how the states have treated intermediate scrutiny, the chances seem high to me that we’re gonna get strict scrutiny, since Thomas’s patience has run out with games like that.

    In that case, we will get to see just how much tap-dancing states like California will do to turn strict scrutiny into intermediate scrutiny… 🙁

    • Illinois tried to dance around a scotus decision. Scotus told them 30 days or you go constitutional carry. Shall issue became the law in Illinois.

      • Not exactly, that was the Seventh Circuit Court of Appeals. Case never made it any further after the shall issue law was passed.

    • I personally would prefer strict scrutiny, as the Ninth Circuit in Young purported to apply “text, history and tradition,” and concluded that the Sovereign had the exclusive right to provide protection for the public, and that therefore there was no historic tradition of a right to bear arms prior to the passage of the 2A. So be careful what you ask for.

    • Thomas seems pissed off lately so if he can corral the others, the ruling might even be better than strict scrutiny.

  5. Where is the live feed to watch prog heads explode when announced? (without bumping CNN ratings into double digits).

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