The courts have taken us this far, and no farther

It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.

I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?

I infer from the most recent two decisions (King v. Burwell and Obergefell v. Hodges), as well as previous statements and decisions, that Justice Roberts really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience. Meanwhile, the anti-gun justices went 0 for 2 in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.

This isn’t my only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).

At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks and force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.

This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).

15 Responses to “The courts have taken us this far, and no farther”

  1. Jim Jones says:

    The problem is that the it is the Supreme Court’s JOB to reconcile conflicting precedents from the various circuits. With the 2A, it is pretty clear that there are two very different Americas. You can’t resolve that at the state level when it concerns constitutional rights.

  2. Shawn says:

    Well it is to be expected. Most judges I would feel do not care for and are probably openly hostile the the right to keep and bear arms. Oh, they might say there is an individual right but there actions will betray them. In fact nearly every major legal challenge to all of the gun control measures passed in the past 2-1/2 years have upheld even the most blatantly unconstitutional anti-freedom bills passed. Oh, there are little things here and there we have won on but I fully expect the courts if it ever came around to a case involving say a bill passed either in te state or federal level that involves the outright ban of of sales and ownership of ALL handguns and ALL semi-auto rifles with mandatory confiscation with no buybacks and having one of those items you’d get a jail sentence of 25 to life the courts would still say it’s constitutional on all levels. The courts have in essence become the very enemy of freedom and checks and balances they exist to uphold. We should expect no more major victories in the courts anymore on any level and SCOTUS will never take another gun case again. In fact I bet within a decade the Heller and McDonald decisions to be overturned entirely and any similar cases the anti-gun law to be upheld no matter how extreme. Only minor things and even then they will be few and far in between.

    • Jim Jones says:

      To be fair, we did get Heller and McDonald out of the same set of Justices.

      • JC_VA says:

        But they may be at their limit of what they’re prepared to address. We’ll see with Peruta. If they refuse that one, then I think we’re going to have to go the legislative route.

        Keep your voter registrations current.

        • Ian Argent says:

          That’s the point, really. SCOTUS is not taking more gun rights cases. They’ve had plenty of opportunities, and passed.

          If my theory (and it is only a theory) is right, then we actually have to not only hold the attention of the HEller 5, but we also have to put at least one more vote for cert. onto the court. The next election is going to REALLY matter.

  3. Brad says:

    When it comes to hostility of the Federal Courts towards RKBA, it is important to remember that by 2017 Democrat presidents will have been choosing those justices for 16 of the last 24 years. That is a huge burden to overcome.

    Elections do have consequences.

    Without protection from the Federal Courts, anti-gun laws will get even more extreme in blue states. I see that in the aftermath of Jackson v San Francisco, that NY is moving forward with a firearm storage law even more draconian than the San Francisco law. So much for D.C. v Heller.

    • SDN says:

      Cuomo has already seen that he can pass anything he wants. Enforcing it will be a LOT harder. 95% noncompliance.

  4. And national reciprocity could come at what cost? AWB 2015/16 edition? Magazine restrictions? Toomey/Manchin background check language? No more semi auto rifles? It’s all on the table when amendments start to fly. We’ve already seen that some republicans are willing to stick it to gun owners and take their chances at the polls. We’re not going to get national CCW without it costing us something. The votes aren’t there and the POTUS isn’t friendly to us. Veto overrides are rare and I doubt anyone has the stomach to burn the political capital for national CCW.

    The focus is on the states. If we can hold the federal gov’t until Jan of 2017 and take an election in 2016 then there might be some movement in D.C. We can and have been winning in the states and that’s where the focus should be right now.

  5. Congratulations to the Six members of the Supreme Court who were able to deal with the facts and not the rhetoric for continuing the Affordable Care Act. Millions of Americans were without healthcare insurance of any kind. Because of the ACA, there are nearly ten million less people who have some form of healthcare, even though it may be a little high.

    • The Dude says:

      That’s great. 6 million people picked up expensive subsidized coverage at the expense of 100,000,000 who have seen premiums double, deductibles double, or plans cancelled. Oh, and then there were those tens of millions who saw their work week reduced to 29.5 hours/week. I guess words don’t mean anything anymore.

    • aerodawg says:

      Oh it’s fantastic. We just had to completely destroy separation of powers to get the political result you wanted.

    • KM says:

      Because of the ACA, there are nearly ten million less people who have some form of healthcare

      And at least a hundred million people are now saddled with healthcare they don’t want, don’t need and can’t afford.
      People shopping for insurance used to be able to pick the plan that suited their needs best. Not anymore. Bureaucrats decided for you that in spite of you and your wife being retired and having grandchildren, you need to pay for maternity coverage.

      Some folks think that we have “Govt. provided insurance”. NOPE!
      We have private insurance companies providing coverage but now we get the added Bonus! of a huge, inept, inefficient government behemoth sticking its nose into health insurance which will ALWAYS raise the cost.

    • Ian Argent says:

      Stay on topic. Stay on topic.

      This is not an ACA thread, and dragging the politics of the ACA into it misses the point.

  6. Cargosquid says:

    Because of the ACA, millions are now with worse insurance and cannot afford to use it, have lost doctors, and lost money. 10 million? BS. It was supposed to be 45 million, with no one losing their insurance and saving $2500.

    SCOTUS, especially Roberts, are cowards. Even Scalia’s Heller decision was written in such a way as to leave it open for the states to infringe. We will have no more gun victories in SCOTUS unless the roster changes to a collection of more principled judges. The outcry on Heller scared them.

  7. JC_VA says:

    We replaced one of the better systems available with what is essentially the NHS. Yeah, real smart move that. Perhaps you can get me back my health insurance CCC? Or perhaps my wife’s?