More Second Amendment Tea Leaves From the Supreme Court

Supreme Court New Jersey may issue new york state rifle & pistol association

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By LKB

Reading the tea leaves of what may be going on behind the tightly closed doors of the Supreme Court is always a dicey proposition. However, it’s becoming increasingly clear to me that the Court is indeed gearing up for a major overhaul of Second Amendment jurisprudence.

As TTAG readers will recall, the Court granted cert earlier this year on New York Rifle & Pistol Association v. City of New York. Some TTAG commenters poo-pooed the significance of that case, opining that because it only addresses a narrow aspect of NYC’s ultra-restrictive firearms laws, it won’t likely be of any real significance for the rest of us.

I have long viewed the case as a classic “test case” that could be the vehicle for the Supreme Court to slap recalcitrant lower courts into line, probably by declaring that laws that materially impact Second Amendment rights must be subjected to strict scrutiny. (When laws are subject to constitutional “strict scrutiny,” they almost never survive the challenge.)

Indeed, my prediction has been echoed by many anti-2A commentators, who are decrying the prospect of a new conservative majority on the Court “super-sizing” the Second Amendment.

This week yielded another indication that something big in Second Amendment law is indeed afoot. Rogers and Association of New Jersey Rifle and Pistol Clubs v. Grewal is a test case that is a head-on challenge to New Jersey’s “may issue” system of concealed carry licensure…which in reality is “no issue” for anyone but the politically connected. Like the First, Second, and Fourth Circuit Courts of Appeals, the Third Circuit refused to take the Supreme Court’s Heller decision seriously, and rubber-stamped the New Jersey laws.

The plaintiffs filed a cert petition, powerfully calling out the Third Circuit and other lower courts for essentially ignoring Heller. The usual suspects (including a collection of over twenty state Attorneys General) have filed amicus curiae briefs in support.

New Jersey, on the other hand, declined to file a response to the cert petition. That’s not unusual, because the vast number of cert petitions don’t have a prayer. Parties thus often choose not to expend resources filing a response to something that has less than a 1% chance of being granted – especially given that if a cert petition is granted, they will have the right to file a brief on the merits.

The cert petition was scheduled to be considered at the Court’s conference today. However, a couple of days ago, the Court directed New Jersey to file a response (due March 21) to the cert petition.

What does this portend? Obviously, if the votes weren’t there to overrule the Third Circuit, the Court could (and likely would) have just denied the cert petition, as it has done on many post-Heller cases. It’s possible that the request for a response came from a member of the anti-2A wing of the Court, as a way of temporarily delaying a grant of cert. It could also be someone like Chief Justice Roberts recognizing that cert is likely to be granted, and, for public relations reasons, wanting New Jersey to be officially heard before the Court does so.

My best guess is that the pro-2A wing of the Court knows something big is likely coming in NYSR&PA, and thus is setting up to hold this and other pending 2A challenges until NYSR&PA is decided. Thereafter, the Court will grant all those “held” cert petitions, and summarily send all of them back for rehearing under whatever new standard is announced in the NYSR&PA ruling (hopefully, strict scrutiny or even something stronger).

We’ll see. In the short-term, we definitely should expect to hear a lot more wailing and gnashing of teeth from the other side as they realize that the walls are closing in.

comments

  1. avatar Parnell says:

    Like the saying goes, “From your mouth to God’s ears”.

  2. avatar NORDNEG says:

    So fareee so Goodeee…!🔫🔫🔫

  3. avatar ANG Pilot says:

    Not to be a Debbie Downer, but what 2A majority exists on the SCOTUS? Roberts has become the new Souter, so good luck pinning your hopes on his support.

    1. avatar barnbwt says:

      Yeah, the guy who’s been exactly as pro-gun as Clarence Thomas ever since he was confirmed to the bench is gonna suddenly throw us to the wolves, because we all know gun control & Obamacare go hand in hand.

      I keep hearing this bold claim being made VERY confidently in many, many places. Where is this talking point coming from? It is totally baseless unless you rely on imagined motives that Roberts has not disclosed publicly.

      Will Roberts vote to dismantle all gun laws en masse? No, but neither will Clarence Thomas or any other justice; the SCOTUS tries to avoid that kind of legal disruption as much as possible (and that’s a good, if frustrating, thing). Will he likely rule that some sort of shall issue or unregulated carry is required otherwise it constitutes an infringement on a civil right? All signs point to yes.

      Will CA/NY/NJ/etc ignore the ruling anyway for years? Probably. Will SCOTUS actually defend its decision this time? Maybe.

      1. avatar Cuteandfuzzybunnies says:

        Thomas and Kavanaugh have gone on record saying assault weapons bans are likely unconstitutional. So they do want to dismantle some gun laws.

        If Roberts is on our side we know gorsich and Kavanaugh are. Alito is a law and order /authoritarian on many issues so he could be problem. But many think that Kennedy was the hold out.

        I think it will be something mild at best. Strict scrutiny and/or Make every state shall issue.

        There could be an assault weapons ban over turned also. Probably not mag limits , but maybe.

        Strict scrutiny gets rid of many laws like California’s safe list and parts of assault bans.

        1. avatar Nanashi says:

          And Kavanaugh has also gone on record (under oath and in official court documents) saying full auto bans absolutely are because tradition is more important than the Constitution. Can’t be trusted.

        2. avatar Mad Max says:

          As I recall, Kavanaugh didn’t specifically state that full auto bans were Constitutional; he avoided answering directly by stating that he would uphold “tradition”.

          Would an Originalist consider upholding a Leftist progressive law restricting possession of certain firearms that was passed in 1934 to be “tradition” in light of the original text “… shall not be infringed.”

          I think he was referring to the few rulings from the 1840s that actually upheld Constitutional carry for self defense purposes but criminalized carrying a firearm for illegaI purposes (i.e. – carry a firearm for the purpose of committing a crime and the act of carrying was also a crime).

        3. avatar John in Ohio says:

          ” and/or Make every state shall issue. ”

          Licenses are carrying under a government privilege. It is not equivalent to the unalienable individual right to keep and bear arms. Licensing systems seriously hurt the exercise of the right in the long run. People begin to confuse the right with a privilege and then it becomes normalized. By that point, many cannot conceive of someone bearing arms without a government permission slip. It encourages politicians and judges to infringe because they have an alternate system in place to reference; the licensing scheme. Some individuals develop a sense of identity and become too wrapped up in feeling “special” because their are licensed; CCW badges and sashes anyone? Entire industries grow around licensing of carry.; license training schools, publications, specialized equipment, etc. Some in these industries quietly, intentionally or not, lobby to keep some licensing in place. Don’t settle for less than the exercise of the right. Don’t trade a privilege for a right. It makes re-establishing the exercise of the right so very much more difficult later.

        4. avatar MarkPA says:

          @John: “Licenses are carrying under a government privilege. ” I have long been troubled by this debate; one which you have articulated well. Nevertheless, I conclude that “licenses” ARE the path toward establishing this liberty.

          Let’s not get wound up in the terminology here. What is it that we are talking about? Not what terminology are we using. The distinction between “privilege” and “right” at the time of the Constitution – or, the 14A – are not especially sharp.

          Try to think of a “CWP” as a “certification”; i.e., a CWC. Is the bearer “able” to exercise this Constitutional right? What is her age? In VT one must be 16 to bear a handgun. Is she a member of the class “the People”? Citizen? Green-Card holder? Has she become “disabled” by – among other possibilities – renouncing her citizenship?

          We have a “right” to – for example – marry. Yet, to do so, states have the power to impose licensure requirements. E.g., at the time I married my state required that a license for the contemplated marriage of a bride resident in my state must be acquired in the county of her residency. (Presumably to afford “Any man having just cause to know . . . ” to object to the marriage.)

          Do we have a Constitutional “right” to be ignorant or contemptuous of the “discipline” required for militia duty? Congress has the power to prescribe this discipline; a power which it has neglected. Suppose Congress exercised its power; would not the states have an implied power to ensure that those bearing arms have been trained to “the discipline prescribed by Congress”?

          I think it quite unlikely that SCOTUS will rule-out state requirements for “licensure” that are not outrageous. They will leave to the political branch (the legislatures) the power to decide requirements for training or testing.

          If we can get the last 8 Won’t-Issue states to Shall-Issue then we will have an opportunity to move some of them toward permitless-carry. So long as we can-NOT get them to Shall-Issue, carry – to say nothing of permit less carry – is academic.

        5. avatar John in Ohio says:

          ” because tradition is more important than the Constitution.”

          In essence, there’s that estoppel I’ve been going on about.

        6. avatar John in Ohio says:

          Notice, they passed laws that made fully automatic weapons difficult to impossible (for some) to legally acquire and possess. Now, it’s “what’s in common use.” Golly! They aren’t in common use because government made it so. They squatted on the unalienable individual right to keep and bear arms. The People didn’t evict the squatter. Now, this is considered essentially estopped by the People’s inaction. Are y’all seeing this yet?

          He isn’t going to go against precedent. He will continue to protect the squatter and considers the matter settled. You can’t win back ground this way. The best you can hope for is not to lose too much more!

          “On Second Amendment, Kavanaugh says he must side with Supreme Court regardless of personal opinion”
          https://youtu.be/CcRmapqDakE

          (I can’t seem to embed videos correctly.)

        7. avatar John in Ohio says:

          @MarkPA: I don’t waste my time reading your nonsense anymore. This latest TL;DR of yours is no exception. You call for appeasement and are a fool. Save it for the morons.

          Shall not be infringed.

        8. Alito’s record on the 2nd is very resolute, he is very pro 2nd. It will be a 5-4 split with the usual suspects voting accordingly.

      2. avatar Geoff "I'm getting too old for this shit" PR says:

        {Concerns about Roberts conservative reliability}

        “I keep hearing this bold claim being made VERY confidently in many, many places. Where is this talking point coming from? It is totally baseless unless you rely on imagined motives that Roberts has not disclosed publicly.

        Baseless, you say?

        How about the ‘affordable care act’ ruling? It was a slam-dunk for being ruled unconstitutional, yet he gave us a logically twisted opinion that kept that turd alive…

        1. avatar Hannibal says:

          1) it was not
          2) it was passed by congress

          Even if you want to dispute the 1st, consider the 2nd. The court, particularly Roberts, is much more likely to step lightly when overruling congress than when overruling a handful of authoritarian state legislatures- and that’s the case here. NY, NJ, MD, HI, CA and maybe a few I’m missing are the states that basically get to decide whether anyone can carry or not (regardless if they call themselves may issue or what). Much easier to slap them down (again) than the majority of Congress.

      3. avatar Mark H says:

        Well, Thomas would actually vote to pretty much dismantle all gun laws. He’s even on record as wanting to revisit Wickard v. Fillburn

      4. avatar John in Ohio says:

        “the SCOTUS tries to avoid that kind of legal disruption as much as possible (and that’s a good, if frustrating, thing).”

        No, it isn’t a good thing. It’s continued infringement on the exercise of an unalienable individual right to keep and bear arms. Any continuation, under ANY pretense, is never a good thing. You can’t spin that to a positive no matter how much you squint or tilt you head. It is something the government has been explicitly prohibited from infringing upon. It needs to stop now.

        He’s not going to completely stop raping her (and that’s a good, if frustrating, thing). See how incredibly idiotic that statement is?

        This is too serious for any more delay. Shall not be infringed.

    2. avatar LKB says:

      While Roberts is clearly a disappointment and the weakest link in the pro-2A block, I’ll bet we’ll keep him on this one. Recall that he was in the majority on both Heller and McDonald. Even hard-core anti-2A constitutional scholars like Prof. Winkler don’t see Roberts changing his stripes on this issue.

      Recall why there was a post-Heller stalemate: each side had four solid votes, but nobody could be sure which way Kennedy would bounce. Nobody wanted to take the chance, and so a decade-long stalemate resulted. If Roberts has indeed waffled on 2A, the other side would have been all over granting cert in a case like Peruta so that they could cement a retrenchment from Heller. Why didn’t they do so? Because they viewed Roberts as a solid pro-2A vote.

      Similarly, Thomas and Co. are no fools. To paraphrase Justice Brennan, much of Supreme Court politics can be summed up as follows: can you get to five? Thomas, Alito, Goresuch, and Kavanaugh are not going to risk having Heller being eviscerated, and so I strongly suspect that they know that they have the fifth vote they need.

      1. avatar Cuteandfuzzybunnies says:

        I agree. The antis would love to have a 2a case BEFORE RGB kicks the bucket. Cuz if trump gets another scotus pic it then alito would be the swing on this. It could be a 6/3 court. And they could easily get somebody as good or better than Thomas on guns.

    3. avatar Jonathan-Houston says:

      Well, Roberts did join Thomas, Kennedy, Alito, and Scalia in the Heller decision. Souter, Breyer, Stevens, and Ginsburg all dissented. So there is that.

      Those same five justices returned two years later to form the majority on McDonald v. Chicago, incorporating Heller upon the states. The same justices dissented, minus Stevens and Souter, plus Sotomayor, but before Kagan had taken her seat. So there is that, too.

      The Roberts role will likely not be Souter-like, by dissenting outright, but rather Kennedy-like, by weakening the wording to produce a milquetoast opinion that he will support.

      My best guess is to expect a nice base hit–a double or a triple–and maybe even a run or two batted in for our side when this case is decided. However, there’s no way that Chief Justice John “Obamacare is constitutional” Roberts steps up to the plate, points to the stands in leftist field, and slugs a grand slam homer out of the park for freedom’s sake.

      1. avatar LKB says:

        You may be correct. Of course, if RBG shuffles off the mortal coil before the decision is announced, all such bets are off.

        Actually, the home run would be for Roberts to assign the opinion to Thomas, and thereafter join it. Still might happen . . . .

        1. avatar Cuteandfuzzybunnies says:

          If Thomas writes the opinion we get machine guns back. And maybe bazookas

        2. avatar Geoff "I'm getting too old for this shit" PR says:

          Question for you, LKB –

          Do you think the initial Heller decision would have been written differently had the justices known the Leftists would have pulled that “Heller applied only to DC, and not the states” trick? Forcing the need for the McDonald decision later?

          Is Thomas & Co. now wise to the kind of crap they may try? And craft their decision to reflect that reality?

        3. avatar LKB says:

          Answer for you, Geoff:
          No. Scalia was, regardless of his faults, clearly from the school of judicial restraint — that especially on constitutional matters, courts should rule as narrowly as possible, and avoid making constitutional rulings if they can. Any ruling on incorporation in Heller would have been dicta, so I think he would have just said, “it’s not before us, and we leave it for another day.”

      2. avatar barnbwt says:

        Exactly; he’s not an activist judge. “Home run” rulings have historically all pretty much been overreaches of one form or another. It’s not SCOTUS’ job to decree what is ‘right’ so much as to determine what is ‘legal.’ Lots of overlap, of course, so they aren’t inseparable, but a SCOTUS doing its job won’t being knocking down entire institutions that have existed for over a century (notice they never did knock down slavery themselves, and notice that it took activist judges –and loads of political pressure– to take drastic action on segregation)

        1. avatar John in Ohio says:

          ” It’s not SCOTUS’ job to decree what is ‘right’ so much as to determine what is ‘legal.’ ”

          http://constitutionality.us/

    4. avatar Wellington says:

      I agree.
      When a significant 2A case is settled in favor of gun rights – e.g., repealing a significant regulation such as the 1934 NFA, or the 1968 GCA, I’ll believe it. Until then, the SCOTUS is just another self-centered, power-hungry bunch of power-mongers out to disarm the citizenry any way they can, legal or not. I won’t be holding my breath for anything more than crumbs to keep the gun owners appeased if and until such a ruling occurs. I hope I’m wrong..

  4. avatar jwm says:

    Trump. He may not be rabid pro gun but he’s rabid big business and he appoints big business friendly judges. Big business friendly judges tend to be conservative.

    And with the dems going hard, hard left and them being too stupid to back off they’ll push so hard that the new courts will have no option but to bitch slap them. With the help of aoc and her ilk we’ll have constitutional carry by the end of Trumps second term.

    And we’ll need it. The left is getting crazier and they have no qualms about getting violent over such trivia as a hat.

    1. avatar pwrserge says:

      I can only hope. What amazes me is that these clowns forget that Trump is a center-right MODERATE. God help them if we get a real constitutional conservative in the White House in 2024.

      1. avatar barnbwt says:

        Say it with me; “Evil Ted! Evil Ted! Evil Ted!” (because Cruz has a beard now 😉 )

        1. avatar Desert Ranger Tycho says:

          Cruz reminds me more of the Penguin from Batman.

      2. avatar binder says:

        The big problem with Cruz is he is not exactly against religion in government. The ONLY thing worse that the lack of the right to bear arms is the lack of a secular government. Because religion and power is such a good combination for freedom.

        1. avatar pwrserge says:

          Historically, it actually is.

        2. avatar uncommon_sense says:

          binder,

          There is nothing wrong with religion working into government. What is wrong is a theocracy or a government that only allows one religion.

        3. avatar Texican says:

          The Founder’s encouraged the Christian religion in its various sects. We should as well. Our country has gone downhill since Bible class and the 10 Commandments have been taken out of public life. Restoring those will restore our Republic.

        4. avatar DDay says:

          Binder, you’re ignorant. The US was not founded to be free of religion, the founders were very religious and were so in their gov’t roles.

          The US is built on religious values.

        5. avatar Mark says:

          Too often the rightists treat the 1A’s establishment clause like leftists treat 2A’s operative clause. The hypocrisy is pretty disgusting. The BoR is not to be enforced piecemeal.

      3. avatar TexTed says:

        “What amazes me is that these clowns forget that Trump is a center-right MODERATE. God help them if we get a real constitutional conservative in the White House in 2024”

        You know, I used to agree with this, but I’ve done a 180. Trump is not a “moderate” or a “conservative”. Trump doesn’t have opinions or convictions. He was very pro-choice, he killed Hillary in the debates on how pro-life he was. He supported the assault weapons ban, he says he’s never going to let the 2A community down, etc.

        So I don’t think he has any positions. But what he does have is a fervent, desperate need to not only “win”, but to rub it in other people’s faces. And the Democrats have made themselves his enemy. I honestly believe that he could have gone either way in the early days of his Presidency, but the way the left and the media have excoriated and vilified him, the way “the Resistance” lined up against him, it’s now become his life expediency to destroy them. “Winning”, to Trump, now means “beating the left.”

        So while I don’t think he’s a conservative by any means, I think he’s now the leftist’s worst enemy. And it’s their own fault.

        1. avatar jwm says:

          You may be right. But do we care how the left is crushed so long as it happens?

    2. avatar TrueBornSonofLiberty says:

      Trump is the most consequential President in the last 100 years for pro Constitutionalists, as he’s remaking the federal judiciary and SC. That alone is enough to give him full throated support in 2020,where he’ll certainly seat 3 more SC Justicesby the end of a second term.

      1. avatar Victor says:

        That assumes those justices are Constitutionalists. Kavanaugh is a nightmare on 4A and 10A matters. As always, “trust but verify” is the absolute minimum.

  5. avatar dwb says:

    Personally I was hoping that they would simply grant cert and slap NJ AG in the face. Supremely arrogant to waive a response in the face of a clear circuit split. That, said, NJ AG is my new best friend. I hope he stays in his position long enough to blow up at the Supreme Court next year. He is the best idiot Bloomberg money can buy.

    1. avatar Mark N. says:

      A bit premature, since the response is not yet due. However, the NJAG can rely on the opinion of the third DCA in lieu of a formal response, and the Supreme Court has all of the briefing from the court of appeal. So there is that. On the other hand, the question as to whether to grant cert raises different issues, i.e., the existence of circuit splits on the standard of review, that should be addressed by stating why the Supremes should decline to entertain a case on concealed carry.

      Personally, I agree that there is a god chance that the court will do a “grant and hold” pending the New York case, and that the NY case will address the standard of review for “bearing arms” outside the home. In that sense, both of these cases raise the same fundamental issue as to what “and bear” means in the context of the 2A, even though one is a transport case and the other a concealed carry case.

      1. avatar MarkPA says:

        An easy step for SCOTUS to take is to rule that the 2A includes the words “and bear” and that those words can’t be presumed to be superfluous. If it is reasonable to construe the word “keep” to be in the context of the home then “and bear” must allude to outside the home. I.e., there IS a right to arms outside the home and the lower courts have failed miserably in their duty to recognize such a right.

        Is that right “everywhere at any time”? Perhaps not. But, to say “nowhere at any time” constitutes an infringement. Thus, NYC’s ordnance and the several Won’t-Issue laws are unConstitutional under any level of scrutiny.

        That’s about all we need as the next step. Send the Antis back to their legislatures to try to draft new laws about carry and transport that conform to a new SCOTUS ruling.

        Some states will respond responsibly as did Illinois. One or more will respond irresponsibly setting up just the right circumstances to litigate and get a ruling of unConstitutionality.

        This is going to be a long drawn-out battle; but, it’s a battle we will be winning. The states with the worst laws will be the places where we will attack and win. And with each win, the laws which infringe more mildly will become vulnerable.

        1. avatar pwrserge says:

          Illinois didn’t respond “reasonably”… we had to drag the liberals kicking and screaming with the threat of court mandated constitutional carry. We still have the toughest license requirements of any “shall issue” state.

        2. avatar Dan in Detroit says:

          b-b-b-but the original intent was NEVER to have a gun with you everywhere you went, right?
          “Let your gun therefore be the constant companion of your walks.” – Thomas Jefferson

    2. avatar rt66paul says:

      It isn’t “Bloomberg money” it is “NWO money”. He is just a shill for NWO.

  6. avatar Darkman says:

    Relying on any court including the supreme court to protect 2A Rights. Is attune to being in a fight and expecting the judges to give you the win after 15 rounds. The only way to win is to knock your opponent out. Take that for what it’s worth but such is life. Keep Your Powder Dry…

    1. avatar Mad Max says:

      Part of the fight is to get the SCOTUS to rule unequivocally in our favor and then have one of the anti-gun states refuse to follow the ruling thereby fully justifying our right to throw that “knockout punch”.

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        “Part of the fight is to get the SCOTUS to rule unequivocally in our favor…”

        I hope the court learned from their mistake with the Heller decision requiring the court to act on the later McDonald decision “Yes, the 2A means the states, and not just DC.” and crafts a decision that leaves them zero daylight to abuse.

        But, if wishes were fishes…

        1. avatar Mad Max says:

          Strict scrutiny applied to “keep” and “bear” would be an excellent start and not detrimental to stare decisis.

    2. avatar John in Ohio says:

      +1 Darkman.

      The court won’t go against precedent, or at least too far. That means the best one could hope for is to not lose too much more ground. True restoration of the exercise of the unalienable individual right to keep and bear arms will never be won through the courts. You can’t get there from here by that road. It’s the fox guarding the hen house. Some hens are going to keep disappearing.

      It’s the hard truth and I think far too many are ignoring it, hoping they won’t have to do the heavy lifting.

      1. avatar MarkPA says:

        @John: I think you are going in the wrong direction here.

        “The court won’t go against precedent, or at least too far.” The Supremes CAN go against president. Read the book Law of Judicial Precedent. They can do a 180. It’s not likely in this 2A case; but, we are better off by building an accumulating body of cases that are thoroughly reasoned. A reversal of precedent is more likely if a decision is over-reaching or not thoroughly thought-out.

        “That means the best one could hope for is to not lose too much more ground.” I see the respective roles of Congress and SCOTUS in the reverse. The best we can hope for in Congress is not to loose more ground. Legislatures are in the business of making things illegal; i.e., depriving citizens of liberty. It is in the nature of the institution. Courts have an obligation in our system to uphold the rights guaranteed by the Constitution. We are better off investing in building a better court and a winning cases.

        “True restoration of the exercise of the unalienable individual right to keep and bear arms will never be won through the courts. You can’t get there from here by that road.” Here, you are correct. No government will respect any right of the People which the People – by a strong majority – neglect to insist upon being upheld. When We the People insisted upon upholding the right to due-process for all then lynching wound down to nearly zero. While We the People didn’t particularly care about Black people being hanged without trial, the practice proliferated.

        Likewise, the right to arms – including right to self defense – will be won in the hearts of men and women. Or, there it will be lost through neglect. We must win this noble war in the coffee shops, not the courts nor the ballot box.

      2. avatar Mad Max says:

        Fortunately for us, there actually isn’t much SCOTUS jurisprudence on the 2A to prevent strong rulings in favor of the individual right to keep and bear arms in the future and what does exist may be able to be interpreted in a manner that helps us.

  7. avatar Kyle says:

    My opinion was, and continues to be, that no government, left or right, wants an armed citizenry and if the founding papas could have undone the 2nd amendment, they absolutely would have.

    Government wants its people under their thumb…always.

    I did, and continue to, have very little hope that this will end well for the pro-gun side.

    …that said…there is still SOME hope.

    1. avatar Texican says:

      You must have read some documents I’ve never heard of. The Founder’s were all in accord when it came to the 2nd Amendment. And their writings show that before and after being in office.

      1. avatar Clark Kent says:

        The Founders are all dead. Now we have to deal with modern day politicians/judges. Many could care less about the Constitution or the people.

        1. avatar Ralph says:

          Indeed. We are a country founded by geniuses but now run by idiots.

    2. avatar MarkPA says:

      Your prediction is untenable in the US. That became so with Heller/McDonald.

      There IS a right to handguns in the home. The genie is out of the bottle and she won’t go back inside. It’s unimaginable that long guns (i.e., rifles) would be ruled-out as ineligible for 2A protection. Once there is recognition of the right to rifles in the home then there remains an armed citizenry hanging as an implicit threat of the sovereignty over the elected agents holding office.

      Much of America’s territory – square miles – is rural. It’s armed to the teeth. It will maintain its arsenals and practice to maintain proficiency. These states won’t do much to quash the right to rifles. And, their senators won’t vote for legislation to do so federally.

      The major issue is whether our 52 governments can – collectively – disarm the citizenry of the ultimate means of preserving their sovereignty. That prospect is dim indeed.

      What we are arguing about is pure politics. Whether the gun-control bills proposed in these 52 legislatures will drive more progressive voters or conservatives to the polls.

      I don’t think that control bills will turn-out many more progressive voters who would not otherwise vote anyway. I DO think that the controls bills WILL turn-out more gun-owners who otherwise would be too lazy to vote for their conservative values.

      The gun-control legislation is the bugle call on election day – – for the rights voters.

      1. avatar rt66paul says:

        While there is a right to handguns in the home, I foresee some states backing HOAs against handguns in their places. Even though many HOAs told people that their costs would never rise, the original buyers sold out and the new owners wanted to spread the payments and it was declared legal, even though a few original owners were still there.
        These rules are fluid and change with the wind.

        1. avatar strych9 says:

          I really don’t see the framework for this.

          “You cannot sign away your rights” in a way that violates the law nor can a contract forcing a violation of the law be enforced. The 2A is “the law of the land”. Any contract you sign “giving up” your 2A rights is invalid because the contract is illegal. Sign it and ignore it.

        2. avatar uncommon_sense says:

          Assuming that the acronym “HOA” means home owner’s associations, the Second Amendment would not apply. Remember, the Second Amendment is a limitation on Federal government and by incorporation state governments. It does not prevent real estate owners from making rules for real estate.

          Now, having said all that, I believe that there are other reasons why home owner’s associations cannot ban firearms. That is a topic for a different discussion.

        3. avatar Timothy says:

          Should only take one time for an HOA to successfully bans guns and a homeowner gets injured or killed during a burglary for a lawsuit to make that so expensive that other HOAs won’t take the risk.

    3. avatar doesky2 says:

      Leftist states will continue to ignore SCOTUS no matter what SCOTUS says.
      That’s how the Left rolls (and rules).

      Let’s just get to the nationwide divorce or CW2.0 and get it over with.

      We no longer are a country with different ideas of HOW to reach a COMMON GOAL.
      With the rise of the Left we now are a country with two DIFFERENT GOALS.
      This condition can not stand.
      It’s either DIVORCE or WAR.
      At this point I don’t care which.

      1. avatar TrueBornSonofLiberty says:

        Could not endorse this comment enough. Spot on. I’m not getting any younger. It’s time for a “winner take all, once and for all”.

      2. avatar Mad Max says:

        It’s always possible that a series of political and judicial victories for 2A rights might get the Left to give up on gun control as most of the Left doesn’t vote on the issue anyway.

        Eventually, they’ll realize that gun control is a loser for them and they’ll also realize that it is unlikely that we (conservatives and/or gun rights supporters) are going to promote, support, or participate in an armed insurrection because the Left manages to expand Medicare.

      3. avatar John in Ohio says:

        Exactly. And, I echo TrueBornSonofLiberty’s sentiments. I’m at about the last point in my lifetime for being physically useful in such an endeavor. Much longer and others will have to haul my water. I dislike that fact very much.

        Incrementalism will kill liberty in this nation. Inaction by the People is cutting their own throats.

  8. avatar Stateisevil says:

    Yeah, I’m going to have to go with a couple centuries of history and say that scotus ain’t going to do anything for us. I won’t be holding my breath. I hope I’m wrong though. and when they have helped us lower courts just ignored anyway so what will be different this time?

    1. avatar Clark Kent says:

      SCOTUS at one time decided blacks were not equal to whites and was A-OK with Japanese Americans being herded into concentration camps during WW II. They are not, and never were, the source or provider of the inalienable rights of Americans.

    2. avatar pwrserge says:

      To be fair, this is the first reliably conservative SCotUS in over a century.

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        Mostly reliable.

        Re – ObamaCare…

        1. avatar uncommon_sense says:

          Well, remember that Kavanaugh and Gorsuch were not on the U.S. Supreme Court when they ruled on Obamacare.

          I am guardedly optimistic that this U.S. Supreme Court truly is different — in a good way — from past courts.

  9. avatar former water walker says:

    Meh…I only hope ILLinois is saved from the coming gunpocolype. The daughter of satan needs to leave this mortal coil and join him😡

  10. avatar possum says:

    I expect the Supreme Court to get their taxpayer funded paychecks

    1. avatar Clark Kent says:

      It’s a good gig if you can get it. Lifetime paycheck with no term limit. What’s not to like?

      1. avatar John in Ohio says:

        “It’s a good gig if you can get it. Lifetime paycheck with no term limit. What’s not to like?”

        Well, for starters, some of us have consciences. Ironically, that’s also why we won’t become worthless goon foot soldier tools of the State; aka cops.

  11. avatar Alan says:

    Should The Court slap someone/something down, let’s hope that is is the errant lower courts and not the sadly abused Second Amendment, which for to long has been on the receiving end of the most shabby treatment, as have the rights of the law abiding citizenry also been.

  12. avatar Chiefton says:

    I believe the SCOTUS needs to look at the 2A completely differently than they have in the past. “Shall not be infringed” is very powerful language and clear in its meaning. All gun laws on the front end are unconstitutional. The only gun laws that do not infringe on a person’s rights are those that are punitive for abuse of this constitutional, God-given right. That means that laws which punish an individual for unlawful use of a firearm would be constitutional. That is firearms used in assaults, robbery or murder. All other laws take away law abiding citizens rights in the name of punishing the illegal firearm users, and that folks makes those laws unconstitutional.

    1. avatar Clark Kent says:

      I believe the government should buy every adult a new Cadillac. My wish is more likely than yours. Nice try; no cigar.

      1. avatar UpInArms says:

        If the Green New Deal goes through, the gubmint just might buy you that Cadillac. But… only if you’re not working and the Caddy is electric.

      2. avatar John in Ohio says:

        Is there a line in the Constitution mandating that the government should buy every adult a new Cadillac. Something like shall not be infringed?

        Nice try; no cigar.

  13. avatar FG Mike says:

    I recommend reading Timbs vs. Indiana, the recent civil forfeiture case. The Opinion of the Court was written by Notorious RBG.

    Ruthie’s citation of McDonald v. Chicago as a basis for declaring some forfeitures unconstitutional is a big feature of the ruling as she was discussing it in terms of enumerated rights, of which the Second Amendment speaks. Not only that, Ruthie goes through an “originalist” analysis of the “excessive fines” clause that Clarence Thomas could agree with (although in his concurrence he cited other sources). Maybe she’s finally learned something. Just imagine: Ruth Ginsburg, Originalist. Boggles the mind.

    The real test will be whether she accepts the Second Amendment as a “fundamental enumerated right” in subsequent cases and votes to eviscerate state laws seeking to limit the right to keep and bear arms.

    Back when I was studying Constitutional Law in law school in 1972-73, we often discussed that the due process clause instead of the privileges and immunities clause was being used in these 14th Amendment incorporation cases, and we concluded it made no sense. I’m glad to see after all these years Justices Thomas and Gorsuch are taking this seriously.

    1. avatar strych9 says:

      When you say “Notorious RGB” all I can think is…

      “Huh, word to mother, I’m dangerous/
      Crazier than a bag of fuckin’ angel dust”

      which is oh so fitting.

    2. avatar Mark N. says:

      Don’t forget that all nine justices agreed that the 2A guaranteed an individual right; their disagreement was over the scope of that right and the analytical framework for use in 2A cases. She joined in the dissent that argued for a sliding scale analysis that the majority rejected (but that has indisputably been applied nonetheless by the 2,3,4 and 9 circuits).

    3. avatar Geoff "I'm getting too old for this shit" PR says:

      “Ruthie’s citation of McDonald v. Chicago as a basis for declaring some forfeitures unconstitutional is a big feature of the ruling as she was discussing it in terms of enumerated rights, of which the Second Amendment speaks.”

      Is this it?

      “(a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fun-damental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorpo-rated, there is no daylight between the federal and state conduct it prohibits or requires. Pp. 2–3.”

      https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

  14. avatar James W Crawford says:

    I need to set up a bananna consession outside of SCOTUS so that my customers can throw the slippery peels at Justice Ruth Bader Ginnsberg’s feet as she walks down the steps.

    1. avatar uncommon_sense says:

      That there is some really funny stuff!!!

    2. avatar possum says:

      That would work if she walked, however she floats as a Spector.

      1. avatar strych9 says:

        A Specter is a ghost.

        Spectre is a world-wide criminal organization bent on world domination.

        Spector is a NYC musician and record producer with the first name of “Phil”.

    3. avatar pwrserge says:

      Sell squirt guns… much more effective.

  15. avatar 22winmag says:

    The rule of law is dead as a fucking stone.

    War is coming soon. Really soon.

    Why waste your time on this crap?

    1. avatar John in Ohio says:

      It’s because so many are unwilling to even consider doing the heavy lifting that’s really necessary. Instead, they prefer to believe in fairy tales whilst giving each other a reach-around.

  16. avatar Joe says:

    I do not trust a damned one of these nine idiots on the court. They are un-elected, and unaccountable to no one. So long as they have THEIR guns and THEIR rights, why should they care about ours? The rules, after all, never did apply to them, or Congress, for that matter. Roberts is nothing but a dried up, dead leaf blowing in the wind, and he will vote based on whomever threatens him, or buys him off. As for the others? I would not count on any of them doing anything other than shredding the very Amendment they are supposed to uphold.

  17. avatar John in Ohio says:

    You go, Charlie Brown! Lucy will let you kick that football this time.

    ROFLMFAO!

  18. avatar sound awake says:

    roberts is real a pain in the ass

  19. avatar Geoff says:

    2A pretty much says all gun control laws are unconstitutional, however, I do believe even the SCOTUS would agree that certain persons should be prohibited from owning gun. You know VIOLENT CRIMINALS arrested for felonies. Yes, I know about the ruling that criminals don’t have to register firearms as that is self incrimination. But if they get caught…
    The only reason we have all these gun control, Laws is nobody challenged the Big Daddy of them all, the 1934 National Firearms Act. That told the Government they could get away with any infringement, contrary to 2A “shall not be infringed.”
    Eventually there may be a “2A Firearms Freedom Revolution”, what form it will take, who knows?

    1. avatar John in Ohio says:

      ‘The only reason we have all these gun control, Laws is nobody challenged the Big Daddy of them all, the 1934 National Firearms Act. That told the Government they could get away with any infringement, contrary to 2A “shall not be infringed.”’

      Spot on and each new infringement that the People do not push back upon with all of their might accelerates us towards tyranny. At some point, people must stand up for their unalienable rights or they will have to accept that they are slaves to their government. My guess is that it will be the latter. Live as free as you can now because we are surrounded by myopic morons who would trade their birthright for trinkets.

  20. avatar Jim Bullock says:

    Interesting that just this week The Notorious RBG wrote the 9-0 majority opinion (selected by Roberts, who gets to decide who write the opinion when he votes with the majority) on a Civil Asset Forfeiture case.

    Interesting because that opinion:

    1) Reels in a species of govt imposition on citizens
    2) Does so via incorporation: “No, yr state can’t go do that thing that is federally prrohibited.”
    3) Is reasoned textually, and in part from original meaning / original intent
    4) Tags up on an amendment: the 14th as I recall.

    Kinda looks like the form of half of every decision around guns and the 2A. (The other half is always some form of consequentialis argument.)

    That decision makes a very interesting blueprint for judicial reasoning to perhaps be applied in gun rights cases. So precedent in reasoning, from the most Notorious of the current liberal justices. And concurring justices will be a bit more reluctant to deviate from this reasoning on another topic. They like to look consistent, especially when they are not. Being able to tag back to an opinion by RBG will also brush back some of the chattering objectors a bit, and will give Roberts a bit more of a spine to stand on. (Pardon my mixed metaphos. It’s about The Supremes. The topic is so mixed it bleeds over…)

    In my imagined best possible future…

    Roberts gives writing the next consequential 2A decision to the new, female Justice The Orange Crush nominated and Cocaine Mitch got confirmed nto the seat recently vacated by RBG. It’ll be among the first, if not the first the new Justice handles, while the not anti-people are still engaged & P-O-ed after the abuse and Kangaroo Show-Trial inflicted on her along the way. (Kamala-extract is still on that committee, right? Tell me she is. She just can’t stop herself from going too far. No self-discipline when the camera is on her.)

    So far the Opposition, sorry #resistance, is so spun up on abortion via Roe v. Wade, they’re not paying attention to other policy considerations, or *how* decisions are made, vs. a particular decisions’s content. The last thing they want is another “Hey, you wanna ban guns: repeal the 2A.” – Justice. Most of them don’t know that yet. And meanwhile, The Orange Crush keeps serendipitously doing right things, for wrong or no reasons. He’ll nominate another constructionist, a woman, someone the #resistancer has already come after, just because it pisses them off, and he’s looking to 2020. Which at this point he wants to win, just because it’ll piss them off even more.

    It was the intentional genius of the structure of US governance to set ambition against ambition (in the author’s phrasing), or to leverage humans’ limitations and baser impulses (in mine.) At the moment, that part is working brilliantly.

    Meanwhile maybe The Notorious RBG’s written opinion becomes a club for beating through later ones her acolytes and fellow travelers hate, hate, hate. Hey, it’s my fantasy.

  21. I have been tracking cert petitions with a Second Amendment nexus for this term. Links to them can be found at the bottom of this page at my website -> https://californiaopencarry.com/status-of-my-federal-open-carry-lawsuit/

    SCOTUS has already denied several concealed carry cases since the beginning of this term. Rogers and Gould are both represented by the same attorney. Both should have been “carry” cases but the first cert petition left no doubt that it is about concealed carry. We will have to wait and see if he makes the same mistake with his cert petition in Gould.

    1. avatar MarkPA says:

      @Charles: Thank you for this insight. We really ought to try to learn from the cases which SCOTUS DENIES cert.

      Suppose the 2A bar appeals 100 nearly identical cases and SCOTUS denies cert for every one of them. What purpose is served by filing the 101’st identical case?

      Clearly, there won’t be many nearly identical cases. Nevertheless, there ought to be commonalities among the cases that are denied cert. And, commonalities among cases that are granted cert.

      By careful and clever analysis we ought to be able to figure out what SCOTUS is relatively amenable to taking and what will prove to be the kiss-of-death. Too many of us refuse to pay attention to the course of history. We want to keep beating our heads against a brick wall hoping that the wall will give before we drive ourselves insane.

      The objective is to start winning cases. Heller, McDonald, Caetano, NYRifle, . . . each case a step in the right direction. NO case that turns against us.

      Recognition of the distinction between “holdings” and “dicta”. We NEED holdings that uphold the 2A. Dicta that seem to erode the 2A are MUCH less important. We shouldn’t be afraid of pursuing cases that are apt to generate some undesirable dicta.

  22. avatar Time4Truth says:

    Roberts May be thinking ahead. If RBG dies then Roberts loses functional control of the court. Take the cases now and he can at least control the cadence. Wait and he gets rolled.

    1. avatar MarkPA says:

      Good point! At the same time, it may make it worth-while to exercise patience at this time. Allow Notorious to recover; or, to consider whether she really can devote her flagging energy to the Court’s work “full steam”.

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