Brett Kavanaugh Supreme Court Swearing In
courtesy USA Today and Jack Gruber
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Many on the pro-gun rights side have been tearing their clothes and singing meet the new boss, same as the old boss, after the news came down yesterday that the Supreme Court, now featuring Justice Kavanaugh, refused to hear an appeal of a Ninth Circuit “may issue” ruling that held sheriffs can refuse to issue permits as they see fit.

The court on Monday, without comment, left intact lower-court rulings against two Sacramento County residents who were denied concealed-gun permits more than a decade ago. They challenged the California law that lets county sheriffs decide whether to issue the permits and claimed that in Sacramento County, the sheriff reserves handgun licenses for political supporters. …

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld the state law in 2016 and said the Second Amendment does not include a right to carry concealed handguns in public. The Supreme Court denied review of the case in June 2017 over the dissidents of Justices Clarence Thomas and Neil Gorsuch, who said, in Thomas’ words, that Second Amendment rights were not limited to “carrying a gun from the bedroom to the kitchen.”

Friend of TTAG and distinguished barrister LKB suggests we all take a deep breath and has this advice regarding the court’s refusal to jump in on this one:

What non-practioners often fail to grasp is how truly hard it is to get the Supremes to grant cert on anything, even where there is a clear conflict between the circuits over obvious federal law issues. Except for truly exceptional cases, the SCOTUS just does not grant a cert petition if there are procedural nits to be picked with the case. That’s just the way it is.

As I mentioned here in this post, the Rothery case had no small number of procedural hickeys that made it a less-than-ideal test case. Thus, while I’m disappointed with the decision to deny cert on it, I’m not surprised.

Similarly, while the instant case has some awful dicta and reasoning, it also appears to have some procedural issues that I suspect may make it less than an ideal cert candidate.

Roberts and likely Kavanaugh are going to want to wait for an ideal 2A test case. Best bet right now is New York State Rifle and Pistol Association v. City of New York, given that the NYC laws are so draconian as to amount to a blanket denial of 2A rights. We should have a decision on whether they will hear the case early next year.

It’s always been extremely hard to get the Supreme Court to take any case — even ones that don’t present procedural “outs” — and that reality isn’t going to change.

Another case to watch right now is Young v. Hawaii. Rumblings I’m hearing indicate that the Ninth Circuit Court of Appeals is not likely to grant en banc reconsideration, because they are afraid that doing so and reversing the panel opinion would likely present an ideal 2A test case for Supreme Court review. [Young, like Heller and MacDonald, is a near-perfect plaintiff for a 2A test case.]

On the other hand, the appeal in the Young case was originally filed with the Ninth Circuit in 2012 . . . so I won’t be surprised if the anti-2A forces just try to avoid things by stringing it out for a few more years rather than actually decide it one way or another. (Hot legal topic right now is whether the Young opinion is binding precedent in Ninth Circuit unless or until en banc rehearing is ordered.)

I believe that the day of reckoning for the anti-2A forces is coming. Roberts being Roberts (and I think he’s going to be the key vote given the current composition of the Court), he’s going to want a near-perfect test case before he’ll enforce/expand Heller. There are several in the pipeline that might do the job.

My prediction is that whatever case they take, Roberts writes a narrow opinion that declares that laws that impinge 2A rights are subject to strict scrutiny, and kicks the case back down for determination under that standard. (Thomas will write a blistering concurrence joined by 2-3 others saying that there’s no need to send it back, as there is no way the law in question survives strict scrutiny.)

While frustratingly narrow, that kind of incrementalist ruling would nuke just about all the Heller-agnostic Court of Appeals rulings out there (which typically hold that 2A challenges get only intermediate scrutiny or rational basis review), and make it very hard for district and circuit judges to continue to wink at Heller. When laws are subject to “strict scrutiny” constitutional analysis — for example, laws that impose prior restraints on free speech — almost never survive the challenge.

Now, were we to get a solid pro-2A replacement for Ginsberg/Breyer/Sotomayor in the near future, then this calculus changes radically. Thomas would then have the votes for a broader ruling, and as the senior judge in the majority (assuming Roberts wimps out) Thomas would almost certainly pull rank and assign the writing of the Court’s opinion to himself. And Thomas’ 2A creds are second to none.

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  1. This is great news! What this means is that after Washington passes their egregiously unconstitutional initiative today (violating both our state constitution and the US), that if I’m convicted tomorrow of some new gun crime related to phony “assault weapons” that I can expect to be about 85 years old before my case is finally heard and a ruling made on the law’s constitutionality! What a comfort!

    • “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare juris-dictionem.’”
      Thomas Jefferson, Letter to Thomas Ritchie

  2. I concur. Up until now, there was no reason to risk granting cert on a case without knowing exactly how Kennedy would rule. There’s too much at stake. I believe the justices are chomping at the bit to finally rule on 3 pressing matters:
    Heller and McDonald ruled an individual has the right to “keep” (own/possess) a firearm in the home. Heller was federal and McDonald incorporated the states. They did not rule on “to bear” (carry) outside the home. That’ll be the next case that eventually gets heard, IMO.

    Next, they’ll hear a case, probably involving the NY or CT safe acts, regarding modern sporting, semi auto rifles. Kavanaugh didn’t say much about anything during his confirmation hearings, but he did explicitly say those firearms (ARs in particular) were in common use and thus Constitutionally protected.

    Finally, I believe we’ll get a case about firearm accessories that will be focused on magazines but will also effect “cosmetic” changes that don’t effect a firearms mechanical operation. Because bump stocks don’t actually change a firearms function, that can be woven in there, too, hopefully.

    For those wondering why Kavanaugh was added to Trump’s list AFTER, the answer is pretty clear, IMO. He got an indication from Kennedy that he intended to retire IF he could name his own replacement. Thus why Kavanaugh was added and got the nod. This is important. I believe, if we first hold the senate, and then we see either Ginsberg or Breyer “retire” in the next 2 years, I think Thomas will also retire before the end of Trump’s first term, provides he also gets to name his successor. That may happen anyway. I believe Thomas has seen enough of Trump’s track record with regards to federal judicial appointments and Trumps 2 SC nominations to trust to follow through on a wink and a nod. Time will tell. Things have never looked better for the freedom loving patriots in our lifetimes (I’m 52, fwiw).

    • If we’re going to argue cosmetics, then I’d like to throw in the SBR/SBS/AOW argument. Pistols are now more prolific than ever, and the braces are getting better. We’re to a point now that the A3 SB Tactical adjustable is literally a stock with Velcro wrapped around. I’m happy to have this “almost” stock, but there is really no reason anymore for the registration of things that are already legal, because of the addition of cosmetic changes. Still functions the same.

    • I wasn’t expecting Kavanaugh to join and we would instantly get a strong pro2A ruling, so I haven’t lost all hope. Of course the media was happy to rub it in our faces “despite Kavanaugh, the SC still refuses to hear gun rights case!!!”

      However I will be disappointed is nothing happens, or we have to wait for the perfect case, and maintain all majorities, and get more justices… “Give us an unopposed dictatorship and we will fix those gun rights”… At some level the Republicans need to play the game, even if they lose on votes, and show what they would do, show some vision.
      While progressives call for bans on assault weapons, call for instead for fixing sporting purposes or import/parts counts, or SBRs. Tell us what you want to do, even if it is far fetched in the current state. It seems right now we get “vote for us or scary things will happen, but don’t expect us to actually make positive change.” If you could dream, Republican leaders, what would gun rights look like?

  3. This just means we need to push even harder. We need to absolutely make sure Republicans have control of the Senate and President for as long as possible to ensure that Trump’s court packing continues.

    Likewise, we need to hold Republican’s feet to the fire on this. If they are not willing to defend the second amendment, then they need to get primaried out of existence.

    • Trump is not “packing the court”, he is appointing judges to open positions. Packing the court is what will happen if the the blues ever get control of all three positions again.

      • The conclusion from your comment is that Dimwitocrats filling court vacancies amounts to “court packing”, but not when Republicrats are filling court vacancies.

        You might have first explained what “court packing” actually is, before writing the rest of the comment.

        Jes sayin’

      • Unless you’re expecting to win senate race later today, your vote for the supreme court doesn’t really mean much.

      • It amazes me how many anti gun people try to apply the “well regulated” phase to “arms.” Despite the fact that there are two whole commas separating the phrases.

        • SCrock……Not to mention the hunting/sporting use issue to rule on whether a gun is prohibited.

    • When you’re making 200k a year and writing the majority opinion in crayon “shall not be infringed.” Please remember us little folk. I’d like to be invited to shoot trap in the Hamptons or somewhere I can piss off the neighbors.

    • I want the *oceans* of cheap communist ammunition out there to find a happy home in America…

      • Present the idea as a way to reduce the supply of ammo for guerilla insurgents and it might work. I’m pretty sure American recreational shooters can shoot off an ocean of ammo and still want more.

  4. The Right to keep and bear arms : that is to have arms , and to bear arms. To bear arms where exactly ? “From the bedroom to the kitchen ” it does not take a genius to understand that this was absolutely not what the 2nd Amendment stated. I do believe to keep and bear is understandable , in that it means on your person , concealed or not. What good is a gun In your safe at home , going to do for you if you need it on the street ? You don’t go out in the winter with no coat on when it’s 20 degrees , You’l freeze , right ! The same applies to your G.O.C. you Cary it and hope you don’t need to use it. But if you do need it , it must be on your person. It is after all your right to defend yourself. No one has the right to tell you not to be prepared to protect your life. SCOTUS INCLUDED !!! do people think thugs , and criminals aren’t in our midst , with ” guns ” we the law abiding , citizens of this country should be held in higher regard , than the non law abiding that can , and would attack us. That is what shall not be infringed represents. The anti’s have taken far to much already. It is time that changed.

  5. You know, waiting for the perfect opportunity is we also failed to get reciprocity & the hearing protection act.

    Waiting for the perfect opportunity? Or waiting for an excuse to do nothing? We already know the Republicans (and conservatives in general) have no incentive at all to actually deliver on their promises, so my money’s on the latter.

    • They wait out the clock then run a PR campaign for reelection. Rinse and repeat every two years.

      If they were to get rid of all the problems they would lose their cushy “job” they can milk until their death. It gets even better if they create problems to solve. The more problems the more money and power they get. What’s the incentive to do otherwise? It’s not like you will reject their system and punish them severely.

      It’s like a corporation that releases product every few years with something lacking in order to get you to “upgrade” to the new release in the future. It’s no surprise some companies would secretly decrease a product’s performance near the release date of their new product.

      Most people are simply political chumps. If the people continue to behave in a stupid manner all the smart people will turn on them and focus on making their lives better whatever way necessary. You can only put up with so much before you join them…

    • It denied review in a different case in 2017, a case called Peruta, where the Ninth held en banc that there is no constitutional right to a concealed weapons permit. It did not decide–although the question had been presented to the original panel–on the issue of whether there is a right to bear arms openly under the 2A, reserving that issue for the future. California, by the way, banned the open carry of loaded firearms in 1968 (thus allowing “open unloaded” carry), and followed that up in 2013 and 2014 with bans on, respectively, the open carry of unloaded handguns and long guns in urban areas. The carrying of firearms, open or concealed, in wilderness areas is unaffected.

      • Interestingly the 68 Ban was the Republicans in CA responing to carrying by the Black Panthers. So if we want to be intellectually honest we kinda screwed ourselves and set a lot of this in motion.

  6. An awful lot of Americans, and that includes even the originalists and strict constructionists including some of the justices of the SCOTUS, overlook the inconvenient (to them) fact that the Constitution of the U.S. does not grant the Supreme Court the exclusive power of constitutional review. Every judge on the bench can decide on constitutionality. Any judge’s decision can be appealed if it is in error, but the act of deciding constitutionality is not an error.

    Yes, I know the precedent for looking to SCOTUS only for const. review goes back 215 years, but many, including myself, regard that as an assumption of authority not granted.

    • Marbury Vs Madison, as you well know, is THE law of the land and will be until America no longer exists.

      • Actually, it was a decision by the Supreme Court whereby, among other things, they gave themselves extraconstitutional authority. And now you say that this authority is unassailable because the SCOTUS has the authority it gave itself? That’s a textbook case of the petitio principii logical fallacy.

        • I’m intimate with the case and the rulings. Marbury’s right to the commision was what brought the case. That the case didn’t ripen in the lower courts was the catalyst for the rulings. But, the ancillary fact the Judiciary Act was unconstitutional in the first place is what has persisted since. Our justices take an oath to uphold the constitution in all matters brought before the court. They have an obligation to review everything that comes before them. Judicial review guarantees that all 3 branches remain both equal and serve as a check and balance for each. It is one of the most consequential, important and appropriate rulings in our nation’s history.

        • I do not argue that extraconstitutional acts by the government are all bad per se; many have had beneficial results. I do argue, however, that using a utilitarian argument to justify (beneficial) extraconstitutional acts is in conflict with the principled argument in favor of strictly limiting government authority by means of a constitution that enumerates that government’s power to act.

        • “And now you say that this authority is unassailable because the SCOTUS has the authority it gave itself?”

          Quite logical.

          The SC asserts it has the power to decide what is/is not constitutional. Where is the appeal? To whom? No one would accept the Executive branch deciding constitutionality of anything. Where next? Congress? Well….Congress has the power to create courts, and logically has to power to eliminate courts. Congress has the power to determine jurisdiction of the courts, and can declare some matters outside of jurisdiction of the courts. However….

          The SC would declare any limits on its power to be unconstitutional, prima facie. Now what? The SC has the rest of the government, and the republic, boxed in.

        • “John Marshall has made his decision; now let him enforce it.”

          The Supreme Court has positioned itself as the ultimate authority on constitutionality and, as has been said, who else is there to appeal to- but it only matters if anyone chooses to listen to them.

          Jackson defied the Supreme Court, and it seems like it could be done again. A problem with our system is that the executive branch effectively controls all the government employees. Congress and the Supreme Court don’t really have the ability to enforce their will as long as executive branch employees choose to obey contradictory orders from the President.

  7. “My prediction is that whatever case they take, Roberts writes a narrow opinion that declares that laws that impinge 2A rights are subject to strict scrutiny, and kicks the case back down for determination under that standard.”

    Like mandatory registration (because there is little historical precedent for it)?

    Like 50-state constitutional carry?

    I’m fearful the Leftist judges will just change the meaning of ‘strict scrutiny’ “because of the unusual danger guns provide” or some such prattle…

  8. The SC willingly hears the same case over and again regarding issues that are not related to a specifically enumerated article/amendment in the constitution. They ply games with the second amendment, looking for an excuse not to rule, or rule on some pissant, arcane process matter, avoiding the central issue regarding government infringement. What does it matter that a procedural matter wasn’t followed when that procedural matter would not protect the constitution? Failure to completely infringe upon an enumerated right is not justifiable as an excuse to rule the infringement did not take place because an infringing process was ignored, or insufficiently completed.

  9. This is all assuming that the current composition of the court stays intact. Ginsburg is old and the Republicans after tonight have solid control of the Senate. If Ginsburg croaks expect a very gun friendly Court to be in place in short order.

  10. Yep, just keep making excuses for Republicans and keep railing against Democrats. As long as they keep getting elected your freedoms will be fewer amd fewer.

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