Drake Denied

This morning, the Supreme Court denied cert in Drake. This is a little speculation on the case from SCOTUS Blog:

The denial of Drake was without explanation or noted dissents. That does not mean that no one voted for cert; probably that those who wanted to grant, if there were any, were unsure about prevailing on the merits. The list of denial of 2d Amendment outside-the-home cases is lengthening. It is unclear what kind of case on that subject will attract the Court’s attention.

24 thoughts on “Drake Denied”

  1. A sour disappointment, but there is some sugar in here for lemonade.

    Decisions like this make Congressional action for Universal Carry* much more likely, because it energizes our community into action. The number of voters who work for self-defense civil rights nationwide has exploded the past three years, and grows more every day. This is fueled by a sense that government is letting us down, or actively looking to extinguish our civil rights.

    Universal Carry requires action, not just defense. The chorus of pissed voters nationwide can force action to protect our rights, affirmatively. Congress has always played lip service to us in the past, and done some remedial defense on gun issues – stopping an AWB was an easy thing for them to do, for instance. Today we are more energized than yesterday, and that means we are closer to getting our rights protected by law, everywhere.

    There are some solid 2A lawmakers in Congress, and quite a few who play simple lip-service. Now is the time to press all of them into supporting Universal Carry. Even those who play lip-service will go along to get along, if we press hard enough.

    I have said here that I want the court to answer this question — and that I would accept the answer even if it didn’t go our way, because that would probably be the kind of tipping point we need to fix this nationally. One way or the other we will defend these rights – and we have multiple ways to do it. We don’t need to wait years for SCOTUS to act – we can all start working now. Collectively we can fix this through Congress.

    * Universal Carry: A federal law that requires carry permits to be issued using objective standards, with national reciprocity and common standards, protections and penalties for abuse. Much like a driver’s license. Not to be confused with Constitutional Carry.

    Universal Carry is only the interim step before Constitutional Carry.

    1. Yeah but before we get universal carry, the antis are going to want something in return. I’m in no mood to give anything more, ever.

      1. Agreed. If Congress goes (R) across the board they will be fighting to maintain that slim margin. They cannot lose us. Gun voters are not Progressives – we won’t line up behind the party establishment choice and play nice. We fight back. We primary. We don’t lay down.

        Amendments are determined by the leadership of each chamber. If we have both chambers, we can force votes on riders to immigration, finance, environmental, etc. bill that will pass. They go to Obama and he has to decide: do I get the Dream Act passed with Universal Carry, or do I veto and lose the one chance we get to get it done?

        Yossi says it below, and I agree: the Republicans are going to do something immigration-related. The “dreamers” – those brought legally as kids but left behind in the USA and having no other home – are the most likely group the Republicans will legalize (caveat: I know several in this class and they are as American as anyone I know since being here before they could speak any language, and frankly they have no place to “go back” to).

        If the Republicans control the process in both chambers, they could attach Universal Carry to the Dream Act (or something close). The Dems would have to assuage themselves they can undo the carry act in future years, but as we have seen – nobody has ever been able to rescind shall-issue. Nobody. No state. Ever.

        And there is no way Dems would not pass that Act, even if it meant overriding Obama. No way they would kill it. They cannot get comprehensive (read: amnesty for all) reform, so they would have to take this piece. Kill it and they lose more than a vote or two. They lose a whole demographic for the next decade (this goes both ways, or course).

        Elections matter. 2014 matters.

        1. Boehner and the GOP are still willing to kick us to the curb over Amnesty. Do you really think these milquetoast, “mustn’t offend the mommies,” “I want to be Bipartisan,” “Never offend the New York Times Republicans” will go for nation-wide carry?

          1. Well, if it wasn’t for the Harry Reid holding the Senate majority leader slot, Congress would have already passed federal reciprocity. . . even in a Democrat majority Senate.

            If it wasn’t for Obama being the President, such a bill would have been signed.

        2. “The “dreamers” – those brought legally as kids but left behind in the USA and having no other home – are the most likely group the Republicans will legalize (caveat: I know several in this class and they are as American as anyone I know since being here before they could speak any language, and frankly they have no place to “go back” to).”

          Ahhh…no. The so-called “DREAMers” are minors who were brought here ILLEGALLY and grew up in this country. You can go to http://dreamact.info/, a pro-illegal-immigration web site, to verify this. There’s nothing about being “left behind”. In most cases, I imagine, their parents are still in this country illegally.

  2. I wouldn’t read too much into any decision to grant or deny cert. Jim Jones is probably correct, that there is some fear (on both sides) of how the case comes down. We gun right supporters often overplay our hand (or at least assume things will/should happen sooner than perhaps the system allows for). On the same lines, much of the rehtoric I’ve seen has been focused on the fact that there is either (1) a split in the circuits and/or (2) the fact that this was such a good case with good plaintiffs.

    Just because there is a split, of course, doesn’t mean the Court will take the case. Even if its a gun rights case. There are thousands of areas where federal circuits have split, most don’t get resolved by SCOTUS. Now, if the split widens and we have a situation where there is a 3 way split or perhaps each circuit (or even just most) circuits have weighed in and no clear direction can be found, that will further enhance the liklihood that the court may take a case like this.

    They also may see this in political terms. Both the obvious – they realize taking it might impact this falls senate elections and/or the 2016 Presidential elections. I don’t think that’s an issue though. THe more important political issue though is if the court views the decision to grant or deny carry as a “political” issue, that is one best addressed by state and/or federal government. Its an area that continues to evolve, and there happens to be a different case making its way up via California. Its possible that they just want to hold off a little more, to see how state legislatures continue to address the carry issue. They know that California is going to be dealing with it soon, Illinois has recently been forced to deal with it. At the same time, as much as we celebrate victories like the recent ones in Georgia (and just a couple of years ago, Virginia & Tennessee) allowing us to carry guns in restaurants, SCOTUS may also be concerned about the long term impacts of a decision recognizing a constitutional right to carry and they want to hold off some more to see if there are any unexpected or otherwise unforseen repurcossions and/or beenfits to it.

    My own sense is that the best case to take up, if we can find it, is going to be a situation where an african american (or perhaps a Muslim America) is denied a permit. Or where we can do an analysis of carry permits issued in a state (either a shall or may issue state) and be able to show that the denial rate for one group or another exhibits arbitrary (or otherwise discriminatory) treatment. That would be a good baby step to the ultimate decision on recognizing a constitutional right to carry outside of the home and would be constructed in a manner – like Otis McDonald’s case to highlight racially discriminatory treatment that does exist when you allow a government the right to discriminate for no reason.

    Personally, my sense is its probably a combination of all these factors. Kennedy is probably a little weary of going that far (which means we only have 4 votes), and in fact I can see Robert’s being weary too. On the flip side, Scalia may see an angle down the road to bring in SOtomayer and/or Kagan to our side . . . but this case doesn’t present that opportunity yet.

    Remain hopeful.

    1. I would think that someone who runs an ATM service company would be a good plaintiff.

      1. you owuld think. But that doesn’t mean its the best case to bring forward. Which, since they didn’t accept it, it clearly wasn’t.

      2. No, a poor black inner city woman who has been raped would be a good plaintiff.

        Isn’t there a case from D.C. making it’s way? Might they be waiting for that, so there’s no “states’ rights” to be argued, but pure federal v. citizen?

  3. I think the next best opportunity to pass universal carry would be to get added as an amendment to the inevitable immigration reform bill. There are probably enough votes in the senate for it if it isn’t a standalone bill and it would allow them to say that immigration reform is too important to vote against.

    1. It could be. If Peruta holds, then we get California, Hawaii, and Pacific Territories. How many states does that leave with may-issue regimes? Massachusetts, which does issue in many jurisdictions, New Jersey, which doesn’t effectively issue, New York, which issues in many jurisdictions, New York City, which issues to celebrities and the connected, and Delaware, which is effectively shall-issue in two counties, and still generally willing to issue in the third if you can concoct a decent reason (and is a traditional open-carry state), and Maryland, which doesn’t issue.

      1. Unfortunately, there’s almost no chance of Peruta holding. Even if we got the best possible panel for en banc, the result would still be a couple of votes short – and it’s highly unlikely that we would get that “best possible” en banc panel. Loss of Peruta will leave the “split” as a minor ripple and reduce the chances of SCOTUS review.

  4. I think it’s Roberts. Whatever dirt they held over him to get him to change his mind in the Obamacare case they still have so they’ve got him on a set of puppet strings. The last thing the Democrats want is for a gun case to come up just before the elections. If gun control loses they are stuck with universal carry if gun control wins then a lot of pissed off gun owners are energized to go to the polls. Either way Obama and the gun grabbers lose.

    It’s really sad that this conspiracy stuff seems a lot less crazy than it did a few years ago.

    1. if “they” had dirt on Roberts they would have used it to reign in C4 spending and corporate speech. those issues hit the left much harder than anything gun related, because they affect their chances of gaining and retaining power.

      I have my opinions on Roberts, but they fall more into the idea of his being a statist who just prefers when his team is in the state house. but a statist he is and remains, and he is perfectly willing allow covers t a fuller reach into our lives than we like. no conspiracy required there.

  5. National reciprocity is a good idea. Accompanying that with Federal licensing standards is a terrible idea.

    We should also demand scrapping the Lautenberg amendment and the anti-gun crap in things like VAWA.

    I’d go for scrapping the civilian machine-gun ban if I thought it could be successful.

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