courtesy AP
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With Judge Brett Kavanaugh now Justice Brett Kavanaugh, the recent stalemate on Second Amendment cases at the Supreme Court Level will soon be over. Before, there were four solid pro-2A votes (Roberts, Thomas, Alito, Gorsuch), four anti-2A votes (Breyer, Ginsberg, Kagen, Sotomayor), and the unpredictable Anthony Kennedy as the swing vote.

Neither side knew which way Kennedy would swing, so neither side wanted to take a case that might go against them. As a result of the SCOTUS stalemate, some lower courts felt free to basically ignore Heller and McDonald, as they knew that the situation on the Supreme Court pretty much assured that they wouldn’t be reversed.

Those days are now passed. As Shannon Watts’ hyperbolic criticisms of Kavanaugh have thrown into sharp relief, Kavanaugh has been a robust Second Amendment supporter, and his recent ordeal isn’t likely going to make him particularly receptive to changing his mind.

Of course, the Supreme Court cannot simply start making declarations on issues of law. Appropriate cases need to bubble up from the lower courts. So, what’s in the pipeline that show what the new majority can (or is willing to) do and results in a full-throated endorsement of a broad reading of the Second Amendment?

Right now, here are three cases to watch:

New York State Rifle and Pistol Association v. City of New York

Currently pending before the Court is a cert petition on this issue: “Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel.” (The Second Circuit upheld the ban.)

Given the truly draconian nature of NYC’s gun control laws, this looks like a very strong candidate for a Second Amendment test case. New York’s response to the cert petition is due in November. Expect to see a decision by the Court on whether or not to take the case in early 2019.

Rothery v. Blanas

Also pending is a cert petition that challenges the California “may issue” CHL system as being arbitrary and capricious, especially in light of the law’s automatic carve-out for retired police officers. (The Ninth Circuit rejected that challenge to the law.) The Court directed California to file a response to the cert petition, which indicates that at least one judge on the Court is interested in this case.

This may be a vehicle for overruling Peruta, although the procedural posture of this case may not make it the ideal test case. Briefing on the cert petition is complete; we may see a decision on whether the Court takes the case before the end of the year.

Young v. Hawaii

This case may show how Kananaugh’s mere presence on the Court forces the lower courts to behave differently. In this case, a panel of the Ninth Circuit found that Hawaii’s ban on open carry, when coupled with its essentially absolute refusal to issue concealed carry permits, violates the Second Amendment.

Last month, however, the State of Hawaii filed a petition for the Ninth Circuit to rehear the case en banc. If granted, an en banc petition would have an eleven-judge panel rehear and decide the case. You may recall that this was the procedural method of overruling the originally pro-2A decision in Peruta.

With five pro-2A votes now on the Supreme Court, and Thomas and Alito loudly decrying the Ninth Circuit for routinely ignoring Heller, the threat of a near-certain cert petition may well force the Ninth Circuit to leave the panel decision in Young alone, rather than give the Supreme Court a chance to gut Peruta. On the other hand, the Ninth Circuit can sit on the en banc petition for as long as it wants, and it may well do so to avoid the issue entirely.

We’ll be watching closely, as you probably will be, too. Don’t touch that dial.

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    • That will make the restoration of your rights all the more *sweet*.

      Think of *fun* you will have with the look on your neighbor’s faces as you load up the Clark family ‘Truckster’ for a trip to the range…

  1. Next is more “gun control”. More taking guns without due process, executive fatwahs by Cheetoh, and “assault weapons” bans percolating through every state. Because there is still not a majority of pro 2nd amendment justices on the SCOTUS, there will be silence or bad precedent. In other words, par for the course.

    • “….executive fatwahs by Cheetoh…”

      Most pro-second amendment president in 200 years and you have to make an ass out of yourself whining.

      • “Most pro-second amendment president in 200 years and you have to make an ass out of yourself whining.”

        You mean the one supporting the bump stock ban and “take the guns first, due process later”? That one? At this point, we have gotten more gun rights back under 8 years of President Obama than under less than 2 years of President Trump. That says a lot, considering President Obama’s unsuccessful attempts in enacting gun control. Don’t be complacent!

        • I agree.. these idiots and their trump bumper stickers have their heads in the clouds.

          Doesn’t matter who is in office. The process is unstoppable until blood is shed on the homefront.

          Wake up. Government isn’t just getting smaller because some right side wing nut tells you he supports your 2A… he’d just as quick drone strike your ass for rebelling as some left wing but would.

        • The Hillary supporters, or worse yet, the “Trump = Hillary, no difference” supporters here are simply willfully ignorant. It is ridiculous and idiotic strawman to suggest that someone one has to love everything about Trump to note that he has appointed the most Pro Second amendment judges. The record is clear from his >140 federal court nominations: He is by far the most pro-second Amendment president in modern history — and actively so.

          EG we have an idiot saying: At this point, we have gotten more gun rights back under 8 years of President Obama than under less than 2 years of President Trump.

          Yeah, due to REPUBLICAN court appointees pushing back under Obama — just as Kavanaugh will be a key part of the resistance to whatever happens under the next Democrat President, when your crying and stomping about bump stocks will seem like a pleasant memory.

        • LOL. Just because I am not praising Trump as Der Fuehrer, doesn’t mean I am a Hillary supporter. It’s lemmings like you that are the reason we are continuing to lose our rights. You are blinded by propaganda. You are just a useful idiot.

          Under President Obama, we got the right to carry in National Parks back. Under President Trump, we got exactly nothing so far. No Hearing Protection Act, no National Carry Reciprocity, and no elimination of federal gun-free zones. Absolutely NOTHING. Instead, President Trump still plans to enact the bump stock ban. He also indicated favoring red flag laws (that are also supported by the NRA).

          WAKE UP. You and your vote are taken for granted, because you have no other choice. There will not be a single pro-gun law enacted under President Trump. It takes presidential leadership to get this done, as Congress will not do it on its own. So far, President Trump has outright refused to show presidential leadership when it comes to gun rights. He was very successful when it came to tax cuts, but gun rights seem to have much lower priority.

          As for SCOTUS, we will see if the appointments made any difference whatsoever. It will take years to find out. People seem to have forgotten how past conservative appointments changed. SCOTUS is exactly one branch of the government and can’t (shouldn’t) enact new laws.

          Lastly, if the Democrats get the House back in the midterms, that’s it. There won’t be any pro gun laws passed under President Trump. That’s the sad reality. The NRA will make more money though.

        • We got nothing? So the executive order for border state ffls to make an extra report of sales from barry bro’s fast and furious adventure getting revoked just flew under your radar i guess charles.

  2. You do know that Kavanaugh will follow the precedent that generally allows states to ban concealed carry, right?

    Nevermind the fact that he’s an enemy of the 4th Amendment, too, to the point that he helped write the PATRIOT Act.

    • You can’t tell a fan boy anything. “Muh President” and all that. Gorsuch and Thomas are pro gun. Kavanaugh, Alito, and Roberts are not pro gun but it’s a good bet they would follow precedent and are not rabidly anti gun. But it’s still a bet. I’m confident that the court won’t strike down any AWB or discretionary carry schemes in Kali or the Northeast.

      • You’re just talking out of your ass. Roberts and Alito were on the pro 2A side in Heller, McDonald and Caetano, the other case is Abramski (straw purchase) which Roberts and Alito were both on the pro 2A side but Kennedy was on the majority with the 4 liberals.

        Every opportunity which has presented itself, Roberts and Alito were pro 2A. There needs to be 4 judges in favor of taking a case for SCOTUS to hear it. Roberts, Alito, Thomas and Scalia/Gorsuch may have declined cases because they viewed Kennedy as not being a solid 2A vote on a case.

        Give it a rest with the sky is falling BS.

      • I think TTAG has had a fair amount of hidden trolls show up lately due to leftist outrage. They’re posing as pro gun but anti every single legislator that could help the pro gun side. Kavannaugh is fantastic for gun rights, concervatives, and the constitution. All of Trumps SCOTUS picks are LIGHT YEARS ahead of not only democrats, but most other republicans. Many of you seem to be wanting us to shoot ourselves in the foot by waging war on our own with the “yeah but,” nonsense. I think all y’all are scared liberals who are panicked because Di Fi single handedly ended the GOPs civil war, which will make them stronger then ever. The republicans are united like never before. The Trump Train stops for no one. Get on board or get run over.

        • The “trolls” to be seen here are actually jackasses like you who actively refuse to acknowledge legitimate concerns about who’s being chosen for the highest court in the land, and purely because “muh President.” Nobody is even trying to argue that Drumpf isn’t vastly preferable to Shillary (KKKillary? Billary!), so no, you need to quit with that Strawman nonsense first before trying (and failing) to lecture anybody on anything. Many of you seem to have no problem with other rights being shredded with the “but guns,” nonsense. What you personally like to think, as I’ve rightly dictated to you already, doesn’t even factor into it to begin with — and quit lying to yourself and everyone else by insisting that it somehow does. I know that you are simply projecting your own fear onto those of us who have actual concerns and you just automatically presume dumb shit about people that merely disagree with you. Dumb shit that you and I both know damn well you can’t even begin to substantiate, either. In that way, you’re no better than the DemoKKKrats that tried to boil Kavanaugh alive yourself. So, what’s actually going to happen is that you’re going to make real arguments and not be like our opponents or you’re going to spare us your own ignorance. Please and thank you.

        • In other words:

          “WA WA WA! *insert legislator here* doesn’t fit MY personal world view, so to hell with them and all of you who disagree with me are SHILLS! SHILLS I tell you!!!”

          Get over yourself. Your pontification is annoying and stupid. I get it. You’re still mad Trump won and continues to win. The fact is the man knows how to win and how beat the left. He’s not a perfect man but please by all means tell me who is. Even the founding fathers had pretty outrageous behavior. But they were great men none the less. Trump is the best President America has had in over 100 years. So go blow it out your ass.

        • Allow me to, once again, correct you:

          “WA WA WA! [Insert random internet user here] doesn’t AGREE with me, he’s a liberal shill and he should burn in Hell!!!”

          You need to take your own advice, for once, and get over yourself before lecturing to people who already know better than you. Your Strawmanning is what’s actually annoying and stupid. I already demonstrated that you don’t actually understand shit, too. All of us here — including me — are still glad that Drumpf beat the pantsuit off that murderous harridan. Nobody even began to imply that someone else was more qualified for the job, either. So, you get to go button your cock holster before going around and assuming dumb shit about people who merely disagree with you.

        • The only thing you’ve demonstrated is you’re as mentally deranged as the liberals. That’s good. Let it soak in. Let the butthurt flow through you. Everytime Trump wins get a little more enraged and let it eat at you until you join the ranks of the mindless leftist who’ve taken that plunge into true madness and end up behind bars where they belong.

        • What I’ve actually demonstrated is that you’re projecting and that you’re not any different from the liberals yourself. Whether you like it or not, acknowledge it or not, or want it to be so or not, are all irrelevant. You’re nuttier than a squirrel and you’ll end up in a padded room or the morgue. I’m right. You’re wrong. Accept it or not. It doesn’t change reality, which you’ve roundly rejected.

        • Truth being told here about Kavanaugh. Is he the gold standard for 2-A? Don’t know yet, we’ll see. For the whining trolls; I suppose you would prefer Killary and her picks. No f’ing thank you very much.

        • “For the whining trolls; I suppose you would prefer Killary and her picks.”

          If a “troll” is anyone who disagrees with you, why would you spend time here? Are you expecting a comfortable echo chamber for yourself?

          However, you continue to argue from a false premise: being wary of Kavanaugh means one automatically prefers the potential SC picks of a different candidate for President. Such reasoning is not superior to those expressed by people who disagree with you.

          I am glad Trump is POTUS, and Kavanaugh is SCOTUS, period. Neither position means I do not have reservations about both. Neither position justifies a charge that because of my reservations, I am guilty of preferring a different outcome during the 2016 election.

          Bottom line? Neither Trump, nor Kavanaugh are 2A absolutists, and bear considerable watching.

        • Neither position means I do not have reservations about both.

          Why falsify what the discussion is? No one is saying one can’t have reservations. It is smart to have reservations about anything.
          That does not change the facts. Trump has nominated over 140 federal judges and they objectively have some of the strongest pro-Second Amendment stances, including Kavanaugh, who is on record .

          Saying “we never know for sure” is meaningless drivel. We don’t, but we have more objective evidence than any set of nominations by other presidents.

      • ” I’m confident that the court won’t strike down any AWB…”

        Here’s what Kav had to say about that :

        “Brett Kavanaugh Said Banning Assault Rifles Would Be Like Banning Speech”

        “In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are Constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens,” he wrote. “There is no meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles.”

        • i suspect Kavanaugh had little, if anything to do with the Patriot Act, my point is pretty clear CA, but I’ll dumb it down so even you can understand it….preserving gun rights while supporting the loss of other rights is a losing strategy. Even you should be able to process that CA.

        • Ah, isn’t that sweet pg2 is using his condescension to vaccinate us against our own ignorance.

        • @Ad, if you have no fianancial interests tied to the pharmaceutical industry, you’re a dupe. Maybe you’re a troll account pretending to support gun rights while really supporting the destruction of what’s left of our remaining rights? There’s a few accounts here that do exactly that.

    • Kavanaugh was a staff attorney in the WH in the early 2000’s. He was a jr person so his role in the Patriot Act was minor if any.

    • You don’t have a clue what kavannaugh is going to do. Your just some jack ass with an opinion that’s not worth a shit. I’m personally happy to see so much tears over this nomination. Keep crying, it’s only making Trump go faster and harder.

      • You’re actually projecting is what’s actually going on here. His decisions as a judge make him exactly as I’ve described and whether you personally like to think so or not — think, because you’re clearly too stupid to actually know anything — is irrelevant, inapplicable, inadmissible, and inconsequential. What you personally believe literally does not matter one iota, and that’s what you’re crying over. Nobody else, just you and only you. Sure, I’d still take him over any of Shillary’s appointees any day of the week, but we must also face facts: he is not the staunch Constitutionalist that you’re trying to make him out to be. Especially when he and Merrick Garland (remember him?) ruled the same way 93% of the time.

        So please, shut the fuck up and miss me with that “but muh President” horseshit. Thank you for your inevitable cooperation, too, dumbass.

        • Oh ooo wow look at you. You know how to use buzzwords and italics and bold lettering. Because that’s all you’ve got. You don’t impress me. You’re not special. You’re not unique. You’re a snowflake. And I’m glad I triggered you.

        • Look at you hypocritically using more buzzowrds than anybody else here from the very start, and then feebly grasp at straws when anyone else uses them when I’m rightly taking you to the woodshed. I don’t even need to impress you so that, like your demonstrably uninformed opinion, is irrelevant. I rightly rightly don’t give two shits about what you think, and neither does anyone else here for that matter. You replied to me, which means I triggered you, little soy boy, not the other way around. And now I’m going to bring you running back to me every time I click the “Post Comment” button. Dance for me, little muppet.

          I’m right about this and about you, and there’s nothing you can do or say to change that. 😉

        • 😂 oh ok mr self richoustous. You clearly are triggered. I think your simply enraged that someone would dare to challenge the likes of you. Not only challenged, but outright embarrass. Have fun with the rest of the night and your fantasies of me.

        • Nevermind the fact that he’s an enemy of the 4th Amendment, too, to the point that he helped write the PATRIOT Act.

          Kavanaugh was a fairly junior straffer when the first Patriot Act was written, and you don’t know his position on it, so that is a nonsense claim. If anything the most he would have been doing is looking up some footnotes like a junior clerk.

          Moreover the real problem was the Second Patriot, I 2011, which was a vast expansion in depth and scope.

          As far as gun issues, I have one thing to say to your comments: WTF?

          There are so many major infringements passed and sitting in state laws right now that it is clear he will side against that it is not even funny. Are you even aware of the scores of laws passed in the last five years?

          It is very clear he will side against federal and state AWB. It is clear he will force if a case comes up may issue states’ hands with the ultimate killer: ok you can ban concealed carry of you allow shall issue open carry.

          And sorry it is NOT a “strawman” to note relative differences between Kavanaugh and a prospective Hillary appointment which we almost certainly would have gotten except for a handful of votes out of 100 million. We would have seen a reversal of Heller meaning any state or town with a 50.1% vote could totally ban even revolvers at home, a federal AWB, a federal ten or seven round limit, eventually even a ban on semi auto firearms, gigantic ammo taxes, and hundreds of new of federal and state regulations

        • @New Continental Army — And yet, here you come again, and exactly as I instructed you to. You started shit with me first, and then I proceeded to handily crush you at every turn. Nah, bruh, I triggered you. But, whatever helps you sleep at night, little soy boy. I know I’ll see you back here in the morning.

        • Excedrine, you’re the nutcase. Do you post these whines on other forums or are we the only lucky ones?

          You’re views are moronic and ill informed.

        • @DDay — Are you always intentionally this dense or do you have to put in extra effort every day? Your views are every bit as moronic and ill-informed as you oh-so-desperately want to pretend mine are.

        • @Frank — Except that I do know, for a fact, his exact position on it. Nor has he even been honest about his involvement nor stance on it, either.

          He was actually instrumental in its creation and even attempted to justify indefinite detention.

          See for yourself just how categorically wrong you are — that all of you are. Oh, and the real problem remains that The PATRIOT Act was even passed in the first place. Let’s also not forget that privacy is a right that is tightly intertwined with the right to keep and bear arms, too. But, I guess you’ve got no problem with the state knowing that you have guns, how many you have, and down to the make, model, and serial number. You know they have it.

          In so far as the whole gun issue goes, my hope is that this debacle opens him up to being pushed further towards absolutism. It’s not the government’s business whether I carry openly or concealed, so long as I’m conducting myself peaceably. Full-stop. The most immediate effect we could see is to tell all of those blue cesspools that they can’t ban carry at all. Nevermind the long-term goals of rolling back the GCA ’68 and NFA ’34, AND barring states from passing similar laws, too.

          And, sorry, it IS a Strawman to arbitrarily assume the simply because one danes to air legitimate concerns about an appointment to the highest court in the land that one would rather have Shillary (KKKillary? Billary!) appoint a judge instead. THAT was what this whole conflagration was about between me and that fucking retard “New Continental Army.”

        • Kavanaugh had virtually nothing to do with Patriot I. He certainly made no policy decisions.

          The problem with Patriot was the Second Patriot Act in 2001, whihc was the Obama White House and Clapper’s direct and material lies, let’s face it perjury.

        • @Toufek — Except that Kavanaugh was actually instrumental in not only constructing The PATRIOT Act, according to all of the available evidence which you clearly did NOT bother to investigate for yourself or you would NOT be arguing with me, he even tried to make legal (non)arguments for the torture provisions in it and then lied about it.

          The real problem actually remains that The PATRIOT Act was even passed in the first place, full-stop.

  3. The SCOTUS needs to force the division of the 9th into at least 3 courts so that it matches the others in the US in size.

      • Seems like keeping the current hearing locations and adding Pendleton, OR, and Las Vegas/Henderson, NV (since they are much more central for the two respective new districts than the current locations). I’m not convinced there is much you could do to make courts more accessible in Hawaii and Alaska than having them in their respective capitals, as they are today.

        I’d assume that OR, WA, ID, and MT (and maybe northern California) would end up being one court, CA (or maybe just S CA), NV, and AZ would be another, and HI and AK would be off on their own (along with the territories).

  4. “. . . the Ninth Circuit can sit on the en banc petition for as long as it wants, and it may well do so to avoid the issue entirely.” This statement calls for a further explanation.

    It sounds like an absolute barrier for any appeal to ever get to SCOTUS; which doesn’t make sense. Young has won at the 3-judge panel. Hawaii has requested en banc. I assume that the decision of the 3-judge panel is suspended until the Ninth decides to let the panel’s decision stand; or, to take and decide the case en banc. If the Ninth can simply sit on its decision whether to hear the case en banc then Young never gets either a final decision in his favor; nor, a final decision against him. If he can’t get a final decision against him then he can’t appeal to SCOTUS. If Hawaii can’t get a final decision against them, then they can’t appeal to SCOTUS. So, SCOTUS never gets an opportunity to take the case; nor, does Young ever get his permit.

    That doesn’t make sense to me. If this were so then any Circuit court could just sit on en banc appeals in order to stop SCOTUS from ever making a final determination.

    • Supervision For the Ninth Circuit, has been Anthony M. Kennedy, Associate Justice. (Roberts is filling in at present). That’s funny. Perhaps part of the reason Difi has come unhinged.

    • Cases get stuck in appellate courts all the time. There’s not much you can do to make a US Court of Appeals rule on a case. (In theory, if they sit on something too long, you could file a mandamus petition with SCOTUS to force them to rule on it, but that would be a real long shot unless you had some sort of smoking gun that the continued delay was intentional or that they had sat on it for years).

      There are IOP’s (Internal Operating Procedures) within the court that create some internal discipline on ruling on cases (mostly so that things like criminal appeals don’t fall through the cracks). But given CTA9’s recent history, don’t be surprised if they don’t slow-play Young for a while.

  5. Before we crow too much, watch Roberts. Many SCOTUS watchers are predicting he will slide into the role of swing.

    • I agree in general but not on two key Second Amendment issues where he has already come down on the gun rights side. I think assault weapons bans will be tossed with recerence to Miller and Heller. And some form of carry will be mandated. I don’t expect the Court to mandate reciprocity or completely rule out gun confiscation orders. They will probably just strengthen due process.

      • I agree. Assault rifle ban, perhaps capacity limits, and likely “may issue” are where we could get some wins. moreover there are MANY California and New York laws that could be overturned. I agree that sub criminal (eg restraining order) confiscations will be fully overturned but we could see some limits. I don’t think the court will force reciprocity.

        that said I think the time window is limited. we may just get one scotus term after this upcoming which has nothing major on the docket. The actuary tables say Ginsburg and breyer outlast trump if he is one term and then we get into a good chance of losing a GOP justice seat and game over. it is just as plausible we see Heller gutted in four or five years.

  6. What if States like California and New Jersey put up “Massive Resistance” to a Supreme Court decision just as Virginia and other Southern States put up “Massive Resistance” to a Supreme Court decision many years ago?

    The Socialist progressives of the old South have now been reborn into the Socialist progressives in California New Jersey and elsewhere.

    • “What if States like California and New Jersey put up “Massive Resistance” to a Supreme Court decision…”

      New York City and San Fransisco had no choice after ‘Heller’ was incorporated to set up a handgun licensing. They hindered the process by making it difficult with all kinds of requirements, but they complied.

      They will do the same when ‘shall issue’ is righteously rammed straight down their fuck throats like ObamaCare was rammed down ours… 😉

  7. Uh, you forgot all those other cases like Peruta that were not granted certiorari but which were not rejected for future review.

    Also Hollis v Holder/Lynch

    • Huh?

      Mandate issued in Peruta long ago. That case is over. The Supreme Court can, of course, take up the ISSUE raised in Peruta if another case comes along, but the Peruta lawsuit is done.

        • Ignore me, I’m obviously taking hallucinogenic drugs and didn’t read your original post.

          Duh, me…

  8. The “supreme court” can blather all it wants on the Second Amendment. Our rights do not come from the supreme court, but are inherent in us being born. PERIOD!

    • “Our rights do not come from the supreme court, but are inherent in us being born. PERIOD!”

      Then why all the Sturm and Drang over “rights”? Why are there court cases settled in ways that make your comment moot? Why are you conforming to any law/regulation that violates your natural, civil and human rights? Are you legally buying firearms without any government mandated background check? If not, why not? Are you legally buying automatic weapons without a “tax stamp”? If not, why not?

      The only “rights” you actually possess are those you can defend, yourself.

      • Sammy give your rants a rest. There is plenty of sober poltical philosophy which posit your rights are innate. in fact the majority pf poltical philosophers who are not Marxists or Fascists say so.

        We all know that governments often attempt to abridge, infringe or deny rights, that is what all governments eventually do. that doesn’t mean your human rights disappear, but simply that you are being oppressed

        So you don’t need to erect strawman arguments or red herrings are you are prone to do.

  9. “Kavanaugh has been a robust Second Amendment supporter…”

    Exactly so, although not in the way many people mean. Anybody arguing “policy preference” about Justice K has missed the point. He’s essentially a formalist. His “biases” are to:

    — resolve things in terms of law — constitution, federal, state — as written

    — defer to precedent

    — look for a formally stated authority for something the government wants to do

    So, the government wants to do this or that? Where’s the authorization? This pisses off folks who like to find “authority” in the charters provided to govt agencies and authorities. And those who look for find required scope of authority in constitutional penumbras, in arbitrary external law, or in “it’s a good idea, so we must have the authority to do this.”

    Since the supremes did Heller, I’d look to Justice K to treat similar lower court cases under that precedent. “Whaddya mean, you only ‘issue’ ‘permission’ if you feel like it, and that’s never? We sorted this, once, already.”

    So, Justice K hasn’t been so much a “robust second amendment supporter” in terms of what some of us think it should be, and means behind the cruft. He has been a supporter of 2A as written and interpreted.

    He’s not even all that “conservative” in policy, or even approach. More process. “Ya wanna do that; pass a law.” Not you should or shouldn’t, but do the authorizing formalism.

    Justice K is an addition that renders the policy preferences of the judges *less* important, and that’s what the “legislation by other means” folks couldn’t stand the most. Well, after the fact that he worked as a staff laywer in the Starr special prosecutor’s office, and for The Evil Boooosh. Doing anything but opposing and shunning those folks must run one out of polite society, let alone permit career progress…

  10. I can’t predict definitively about Alito or Roberts, but I am confident that Kavanaugh will vote to strike down a state-level AWB (e.g., Connecticut’s) if it makes it to SCOTUS. Excerpts from his relevant opinions on the subject have been published here on TTAG, and they leave little doubt that he will deem a ban on military-style semiautomatic rifles as unconstitutional.

  11. Overturning “may issue” (also known as non-issue but we don’t call it that) would FIGURATIVELY explode so many heads in NJ, HI, NYC, etc that I really hope it comes down first.

    Even more so when there’s no blood in the streets except occasionally of a mugger or rapist because, spoiler alert, most people who go through the process of getting a license to carry aren’t going around shooting people.

      • After what Kavanaugh had to endure, I have this vision:

        Tomorrow, after the morning’s oral argument, Kavanaugh goes over to Clarence Thomas’ chambers. Thomas offers him a Partagas, and they share a good cigar and a glass of rye. Then Thomas looks him in the eye and says “you ready to burn this MF town down?”

        • “Then Thomas looks him in the eye and says “you ready to burn this MF town down?””

          Oh, yes, yes, yes!

          I have heard Thomas was actually considered a moderate until his treatment during his confirmation hearings.

          Especially since Thomas got a very slightly nicer version of the same treatment Kav got.

          It would be a nice dream, and I can remain hopeful. But I suspect Roberts is going to suddenly sprout a conscience on us.

          I suppose what they grant cert. on or deny will give us a bit clearer picture.

          To refresh the younger crowd, this is how they treated Thomas –

  12. Sorry to break the thread. This is for Tom in ore. with whom I had words yesterday. If you remember Tom berated me for not being Black and White on the 2A. I noticed on Brietbart news that Antifa took over Portland today. I hope he is well and has his bump stock ATTACHMENT as well as his Firearm. No ANTIFA in Wyoming! No Sanctuary cites either. But, please, Tom be sure to explain the difference between an attachment and a firearm to Portland police. And I do hope you have enough ammo to feed your attachment.

  13. In order to find out how Justice Kavanaugh “will be” on 2A cases one will actually have to make it onto their docket and those cases are usually decided by the clerks, not the Justices. I’m confident in Kavanaugh to defend the Constitution, I’m not in any cases actually making it to the Court, however.

    • “decided by the clerks”?

      Dude, you’re either smoking something or you really don’t understand how a federal appellate judge’s chambers are run. (BTW, I clerked for a USCA judge and am admitted to practice in five federal circuits and the US Supreme Court. You?)

      • So- you’re saying that all 9 get together themselves and decide what they’re going to take prior to each session?

        • Clerks do not “decide” anything, especially on hot-button cases like whether a 2A case will be accepted.

          Clerks (and staff attorneys) write memos on pending cases, which may or may not contain a recommendation (depending on the preference of the clerk’s Justice). The Justices read the memos and then decide if he/she wants to read more of the briefs. Each case then goes to a conference where, yes, the nine justices vote on whether to take the case or not (which in general is more a function of “does anyone want to take this case,” as the vast majority of cases are doomed from the start).

          Whether a case gets accepted is more a function of whether there is a circuit split on the issue, or otherwise presents an extraordinary issue, than anything else. But the idea that Supreme Court clerks are making such decisions is just plain wrong.

      • Source for this posting but there are many more:

        Text, because many will not bother to go to the link:
        (For those who don’t want to read the entire text excerpt, cut to the bottom under the heading “Law Clerks”)
        “Supreme Court Procedures
        Article III, Section 1 of the Constitution establishes the Supreme Court of the United States. Currently, there are nine Justices on the Court. Before taking office, each Justice must be appointed by the President and confirmed by the Senate. Justices hold office during good behavior, typically, for life.
        The Constitution states that the Supreme Court has both original and appellate jurisdiction. Original jurisdiction means that the Supreme Court is the first, and only, Court to hear a case. The Constitution limits original jurisdiction cases to those involving disputes between the states or disputes arising among ambassadors and other high-ranking ministers. Appellate jurisdiction means that the Court has the authority to review the decisions of lower courts. Most of the cases the Supreme Court hears are appeals from lower courts.
        Writs of Certiorari
        Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari. This is a request that the Supreme Court order a lower court to send up the record of the case for review. The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. In fact, the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year. Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue).
        The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. Five of the nine Justices must vote in order to grant a stay, e.g., a stay of execution in a death penalty case. Under certain instances, one Justice may grant a stay pending review by the entire Court.
        Law Clerks
        Each Justice is permitted to have between three and four law clerks per Court term. These are individuals who, fairly recently, graduated from law school, typically, at the top of their class from the best schools. Often, they have served a year or more as a law clerk for a federal judge. Among other things, they do legal research that assists Justices in deciding what cases to accept; help to prepare questions that the Justice may ask during oral arguments; and assist with the drafting of opinions.
        While it is the prerogative of every Justice to read each petition for certiorari himself/herself, many participate in what is informally known as the “cert pool.” As petitions for certioraricome in on a weekly basis, they are divided among the participating Justices. The participating Justices divide their petitions among their law clerks. The law clerks, in turn, read the petitions assigned to them, write a brief memorandum about the case, and make a recommendation as to whether the case should be accepted or not. The Justice provides these memoranda and recommendations to the other Justices at a Justices’ Conference.”

        • “..they do legal research that assists Justices in deciding what cases to accept”

          Not going to argue with a lawyer admitted to practice before the Supreme Court, and knows what is what.


          Law clerks are merely “staff assistants”. Any good staff assistant knows you do not let the principal decide anything. Your prepare your analysis so as to make your staff assistant viewpoint the only “decision” to be made. The principal is thus relieved of the burden of actual review, voting only to accept the analysis, or reject it. The actual conference among the justices would be where the “decision” about which cases to take is made. One could conclude the clerks are making the tough decisions, but not the final.

        • Sam:

          Supreme Court clerks (or law clerks for other federal appellate judges) simply do not function in that fashion.

          You are there for a very short term (1-2 years), you may be bright but you’re still a young and inexperienced attorney (maybe not even licensed yet) working for a judge who probably has a stronger resume than you ever will and who’s has been at it for decades, and whatever you write is going to be read and critiqued by many other people far smarter and more experienced than you. The *last* thing you want to do is try and pull a fast one on your boss, especially if you’re wanting to follow the usual career path of SCt. clerks into academia, SG’s office, Biglaw, the judiciary, etc.

          Trying to insert your own agenda into the process (1) would not work in most cases anyway, and (2) would be career suicide. It also would be an incredible act of betrayal — getting selected as a clerk for any federal appellate judge is incredibly competitive and a big honor, and a Supreme Court clerkship exponentially more so. You owe the judge who gave you that unique opportunity the proverbial debt that cannot be repaid, and trying to “keep him from making the decision” by massaging the data would be betraying that trust. (Talk to any former appellate clerk if you doubt me on this.)

          The other thing to remember is that vast majority of cases in the cert pool (for Justices who participate in it) are relatively easy (e.g., garden variety criminal appeals that don’t have a prayer of SCt review), and just have to be machined out. The Justices are already aware of / on the lookout for hot button cases on issues like 2A, abortion, big circuit splits, etc. anyway, so it’s not like an ideologically-motivated clerk is going to have any stroke on whether those cases get taken up.

        • Thanks for further insight into the process.

          If the justices are not doing original research, then the clerks are. If the clerks are doing the research, are they directed as to what issues/cases they may review/analyze? If not, does that not put the clerks “in the driver’s seat”? Isn’t the research result subject to the limits and goals of the clerks? Or are the inexperienced clerks just flailing in the dark, trying to adopt the mind of their principal? In the end, it is difficult to believe clerks do not have significant influence on their justices. Which was the point of the original commenter’s critique.

        • Sam:
          You overlook the fact that the parties’ briefing on a cert petition usually already has all the research necessary neatly done and presented (if it doesn’t, the case probably isn’t going anywhere anyway). It’s not like the Court or clerks are going to have to do massive amounts of original research at the cert petition stage — typically, it’s going to be just reading the authorities cited and seeing if they stand for the propositions cited, and summarizing the issues presented in the briefing into a short bench memo for the Justices.

          Your typical “cert worthy” case is going to involve a “circuit split” (where there is a clear conflict between different circuit courts of appeals on an issue), a failure to follow Supreme Court precedent (rare, but it happens), or a hot button issue that one or more particular Justices are interested in. There’s just aren’t that many cases each term that fit those categories, and the clerks’ analyses aren’t going to make much of a difference on most such cases — they spot and identify such potential cases for the Justices, who then usually shoot them down anyway. There may be a rare case where a clerk plucks a case from the pile and manages to generate some interest on it, but those are Black Swan events . . . .

          And yes, the judges/Justices do actively manage their clerks and tell them what specific issues they want / need researched. The idea that there is there is some dark cabal of law clerks (or staff attorneys) who are manipulating and deciding things behind the scenes and beneath the Justices’ radar just isn’t reality.

        • Most interesting, and informative. Thanks for taking the time to lay this out.

          Perhaps my inbred, unshakable suspicion of government and all its motivations are not particularly helpful on this subject.

          The SC is now a super-legislature, which feeds my suspicions. There may have been some merit in the SC presuming the non-delegated power to decide what is/is not constitutional, but we now have the court determining not what is/is not constitutional, but deciding to invent what is/is not constitutional. The mere arrogance of the presumption that government has a non-delegated or prescribed “compelling interest” in anything, or that there are somehow levels of analysis in analyzing rights in conflict means we annually drift further left, further away from the founders intent. While now more informed, I remain fully distrustful of any arm, agency, branch, tentacle of government.

        • Sam:
          I share your concerns about the courts (especially the Supreme Court since WWII) aggregating far more power than the Constitution envisions or allows, especially in the form of “discovering” rights that unquestionably are alien to the original intent and understanding of the various provisions.

          However, the parties responsible for this are the Justices (even those who start out “conservative” but later seem to “go native” and absorb the mores of the Beltway / Georgetown cocktail party scene the longer they stay in Washington (see, e.g., Anthony Kennedy)). It’s not their law clerks that made Ginsberg, Kagen, Breyer, et al. into “living constitutionalist” — they had that outlook long before they were appointed.

    • Perfectly fine opinion to hold. That said the afore mentioned politics can have a lot of impact on your land, family, and especially property. Especially when city limits determines whether you need to get a permit for anything more involved than replacing a light bulb in home repairs let alone the fun of pistol permits.

        • Precisely, a phrase used here to rather succinctly describe gun-grabbing schemes before. That could also aptly describe the Kavanaugh confirmation hearings. Poor bastard.

  14. “Rothery v. Blanas”

    “This may be a vehicle for overruling Peruta, although the procedural posture of this case may not make it the ideal test case.”

    Unfamiliar with this, so I hit Google. And not being a lawyer or having stayed in a certain motel, it’s kinda gibberish to me (not in the least surprising, to anyone who knows me. But anyways -).

    So, being ‘kinda’ like Perta, is there anything expressly *prohibiting* SCOTUS from expanding a bit on the specific issue addressed to cover constitutional concerns?

    • The Second Amendment is not a local matter. If a locality bans assembly, bars free speech, institutes slavery or infringes on the Second Amendment it is a matter for the federal courts.

      • Funny how commies only mention states rights having any meaning is when they are busy violating the bill of rights.

        • I’m not a communist buddy, I just think the progressive FDR appointee Hugo Black was dead wrong in his interpretation of the 14th Amendment. Infringements on the right to bear arms at the state level need to be fought at the state level. Most states have equivalents (albeit sometimes watered down) of the 2nd Amendment written into their constitutions. No need to use the federal government as a club to get what we want

  15. I agree with others that President Trump is not strong on gun rights.
    He is for extreme risk protection orders without due process and against bump stocks.
    We may get a national bump stock ban from his order to ATF.
    He is not spending any political capital on getting the hearing protection act or national reciprocity passed.
    His choices for Federal and Supreme Court judges are far superior to what Hillary would have made.
    We got NO gun control at all from Obama!
    We are getting ERPO and bumpstock bans from Trump.
    I don’t see anywhere else we gun people can go except the Republican Party and Donald Trump.
    We can only hope the judges he is appointing stop him from his instincts against due process and rapid fire accessories

    This clip, title, and description were not created by C-SPAN.
    Concealed Carry is Not a Second Amendment Right
    SEPTEMBER 7, 2018 Judge Kavanaugh explains to Senator Feinstein that certain things, including concealed carry, fall outside the scope of the Second Amendment right.

  17. One of the biggest problems I see on here is that people posting here seem to be looking for 2nd Amendment ideological purity. You are not going to find ideological purity. If you are looking for ideological purity from a president, a legislator, or a Supreme Court justice, then you are going to be sorely disappointed. If you are going to base your decision on whether or not to stay-at-home on election day because someone is or is not ideologically pure on the 2nd Amendment, then only thing you are doing is casting a vote for the other party. I didn’t agree with Trump and his statements on bumps stocks, but that does not mean that I throw out his entire body of work.
    The way I see it, my chances of, at a minimum, retaining my Second Amendment rights, or possibly even expanding them, are better with Trump in the White House and a conservative-leaning SCOTUS, than they are with any democrat.

    • “One of the biggest problems I see on here is that people posting here seem to be looking for 2nd Amendment ideological purity. ”


      It is called “absolutism/absolutist”. The words of the 2d Amendment are absolute, needing no “interpretation”. 2A represents the clearest example that the government intends to violate the constitution anytime and anyway it is convenient for government. To change or repeal a provision of the constitution requires a formal amendment, not interpretation or simple legislation.

      When a constitutionally enumerated natural, human and civil right is exercised, it should be exercised absolutely, until altered by the formal amendment process. Government was never intended to parse the constitution as a means of saving people from themselves (as in the public is too incompetent to manage its own affairs). Government took upon itself the right of kings to determine which rights of the citizens would be permitted exercise. The government should have been burned down the first time it usurped power from the people – Marbury v. Madison. But because of politics, the founders failed us.

      Just because government is a failure, that is no justification for lack of demand that it be restored. Politicians have no legal power if they are out of office. Replacements should be reminded at every opportunity that they can be dislodged by the will of the people.

  18. Let this sink in for a minute. We have had complete Republican control of the government for TWO YEARS – including the White House, House and Senate – and what have we gotten for it?

    – No action on national concealed carry reciprocity
    – No action on the hearing protection act
    – A ban on a piece of plastic (bump stock) that can’t injure someone even if you throw it at them

    Sounds pretty much like what you would get with Democrats in the House, Senate and White House, doesn’t it?

    Yes, a Democrat government would mean that you would probably get a lot of additional negative bills in addition to an equally small number of positive ones (zero), but are we then saying that the only difference between the two parties is that one wants to destroy our rights and the other just wants to limit them? How is that winning?

    Trump should be primaried by an NRA-sponsored candidate for supporting the Bump Stock ban. Period, end of story. He sold out the second amendment, and that should not be acceptable. Banning bump stocks is no different than magazine size limits, “gun show loophole” nonsense, etc – all are emotional actions that are supposed to make people feel better but have zero impact on public safety. Trump is now squarely in that category.

    We deserve more, and should be demanding it.

    During those two years, we should have gotten the above mentioned acts; an amendment at least introduced guaranteeing an individual right to keep and bear arms as a fundamental right (fixing the tortured language of the 2nd that is used to distort its meaning); and other pro-gun legislation should have been introduced. Instead, we got the status quo and a little less when you consider the bump stock ban.

    All 2A supporters should see the last two years as a complete betrayal.

    • “…but are we then saying that the only difference between the two parties is that one wants to destroy our rights and the other just wants to limit them?”


      Both parties are satisfied with destruction of the republic. One party wants a swift death, the other a slow death. One party wants absolute government power over everything, the other just wants to be invited to the party.

    • Any attempt by NRA (or anyone else- GOA, NAGRs- how about you guys) to primary Trump in 2020 would be a big waste of money in a very short time. It’d make Jeb’s campaign look like a winner by comparison. If you, personally, want to fall on the “bump stock” sword, GO FOR IT! Forgetting that all semi autos and likely handguns would be gone by now had not NRA engineered good out of the crap that was going to pass regardless of the voters in 1992-93 keeps some of you alive, it seems. It’s a good thing some of us never rise to leadership positions in this war. It would do some a lot of good, for themselves and the fight, to educated themselves on the entire picture and quit regurgetating the vomit being spread by those groups who wish they were the NRA.


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