Will SCOTUS Hear the Assault Weapons Case?

Supreme Court Building

Bob Owens’s money is on “no.” I also think that is the safe bet. Trying to divine the purpose and meaning behind the Supreme Court’s moves is really not much more rigorous than tea leaf reading. But as I’ve said before, I don’t think Scalia and Thomas’s dissent in denying cert in Jackson was a good omen. Ian seems to have agreed with that assessment. I haven’t seen anything that changes my mind. The Jackson case would have just been reinforcing Heller. It would not have required the Court to do much in the way of blazing new trails in Second Amendment law. I took Scalia and Thomas’s dissent as desperate frustration that the Court was not only unwilling to take additional cases to further define the contours of the right, but was also unwilling to even defend Heller from the predations of the lower courts.

It’s quite possible that one of the Heller justices in the majority voted with the majority because he wasn’t willing to nullify the Second Amendment, but beyond that has little desire to see a lot of state and local gun laws overturned. This would fit the judicial minimalism philosophy of Justice Roberts. I’ve been amused by a lot of folks suggesting that Roberts is going liberal. I don’t think this is the case. Judicial minimalism or judicial restraint have generally been regarded as conservative philosophies rather than liberal ones. Also consider the President who appointed Roberts mostly had an interest in ensuring his “Global War on Terror” initiatives were upheld by the Court. Minimalism has been a good way for politicians who seek power to fool a lot of people into allowing them power under the banner of “conservatism,” with courts willing to strike down unconstitutional excesses being labeled “activist.” The American people have been played, but hopefully have started to catch on. We have to demand the next President appoint justices who are ready and willing to strike down unconstitutional laws, and enforce appropriate limits on governmental power.

27 thoughts on “Will SCOTUS Hear the Assault Weapons Case?”

  1. Judicial minimalism from Justice Roberts???? Don’t make me laugh. He’s the guy who said something was a tax when it wasn’t a tax and said “state exchanges” don’t mean “state exchanges”.

    Justice Roberts is a Judicial Imperialist.

    1. Nope, he’s the Chief Justice who said “Congress made the law, I’m not going to fix it. Elections have consequences.”

      1. Actually, he did “fix” the law by defining a penalty as a tax, a fee that Congress specifically denied was a tax when the law was sent for signature. That’s one of the problems.

      2. Sloppy pronoun usage on my part. He’s declining to fix the political problems attendant on the law. The lawsuit was a way to get via lawfare what opponents of the law couldn’t get via the legislative process. “It” in the comment above refers to Congress, not the law.

        This is consistent with his (apparent) dichotomy of action in voting for Heller and McDonald, but against cert for anything else. Heller and McDonald settled the “individual/group” right issue; which (he felt) was necessary to be decided at that time. It is not, yet, necessary to decide what the limits are, since those are being worked out in the legislative process at every level from federal to local.

        The problem with this, from our point of view, is that inaction is itself an action – the failure of SCOTUS to act has sent a message to the lower courts, and denial of cert can be seen as a form of decision.

  2. You know what we need? A win in circuit court that the anti-gun side appeals. That will present the anti-Heller 4 with Morton’s Fork. Either they deny cert, and the circuit ruling stands, or they accept cert, and the Heller 5 uphold the circuit.

    1. The antis know this as well. That is why cases like Moore v. Madigan don’t get appealed. I believe that they understand the Court’s reluctance, and they will not tempt them with an unfavorable Circuit ruling to their cause. I don’t think a single pro-gun Circuit court ruling has been appealed to the Supremes so far. Anyone can think of one?

    2. Assault weapon bans have already won every court case they have been heard at.

      1. Yes, but what’s really frightening is how extreme the Highland Park ban is. Virtually all of the bans ruled on by the courts so far were only bans on sales, the Highland Park ban is a ban on possession of rifles as well as a ban on possession of magazines.

        Arguably the Highland Park ban violates the takings clause of the 5th Amendment as well as the 2nd Amendment.

        1. The ban in New York City is worse. Bans on possession of assault weapons since the AWB in 1994. Rifle magazines restricted to 5 round for *any* long gun. Yes, 5 rounds.

          *Any* 15 variant, even if NY State SAFE act compliant, is banned. No Thorsden FRS stock (http://www.thordsencustoms.com/frs-15-rifle-stock/frs-15-stock-kits/, Monster Man grip (http://monstermangrip.com/) etc., allowed built on any long gun that is built using a AR-15 receiver.

          But! This is allowed: http://www.pagunblog.com/2015/05/22/new-york-city-legal-ar-15/

          Kafka would be proud.

          In NYC, you now can own a SCR that is lighter out of the box -5.5 Lbs exactly on a scale- than any stock pistol grip AR. It’s smaller and more compact (no muzzle device, pencil barrel, short rifle stock, more svelete lower reciever, smaller diameter spring and receiver extension) than any stock AR. But shoots the same 5.56 ammo and uses standard AR mags.


            1. Yes. Lower functions just like any other AR-15. The upper requires the use of the Ares modified bolt carrier that has a rat tail. Though I assume .22 uppers don’t have AR style bolts?

    3. I still view shall-issue carry as the key. I believe it has driven much of the public shift on the 2A and to drive home the stake we need to get it forced into the few remaining may-issue/no-issue-in-practice states.

      On Carry we have the 7th. We need the en banc in the 9th to go our way. That will firmly set up the split, unify CA’s regime, and bring Hawaii into the fold. That leaves only NJ as 100% practical no-issue and reduces may-issue to county by county in the rest of the few states in the East.

      With California/Los Angeles Shall-Issue, only NY (by county) and NYC will remain as truly restrictive in the Top 10 cities and states by population. It will be more difficult to claim that “carry is wrong for urban areas/ some states” when it works for all the meaningful ones.

        1. 9th hasn’t ruled on Peruta et al en banc yet though, right? Final bite at the apple either way.

          1. Yes, still waiting for the Peruta ruling. On the face of the evidence and process so far, Peruta should win. But I expect the worst considering how the courts in general and the Supreme Court in particular have acted since McDonald v Chicago in 2010.

        2. There was nothing wrong with Kalchalsky. On tape in the oral arguments, Gura made the most succinct argument for exercising a fundamental right: You don’t need the kings permission to exercise a fundamental right in its most basic form.

  3. Do we want them to do so? I think we’ve gotten as far as the courts will take us, and now we have to go to the legislature.

    What if we tried having Congress withdraw federal funds from states & localities with gun bans or no-issue policies?

    1. Although removing federal funding has worked in the past, highway funding for the 21 drinking age and school funding for standardized tests as two prime examples, I don’t know what kind of funding could be linked and withheld; maybe community police funding?

      Further, those of us with a conservative bent hate to see the federal government wield a big stick, they should only have a few twigs available. The thought is almost repulsive, and I can’t justify the end by the means. It makes us no better than ‘them’. I would rather ram a national carry permit though the legislator and force state compliance that way, even though I know states like PA may have to give on something and agree to 8 hours of training.

      1. So Reagan wasn’t conservative? I don’t like it either, but it’s way more respectful of federalism than any kind of national permit system.

      2. Do it the way congress set up LEOPA. States still issue permits according to their own laws, but they must issue them. That stood a court challenge. Do it under the 14th amendment power to enforce the 2nd by appropriate legislation.

        1. That’s an excellent idea. It could be argued that state issued private carry permits should be honored in every state if LEOSA permits are honored; there should not be a two class system. Play off the gay marriage ruling (Art. IV, full faith and credit) and the equal protection clause.

          Even today the LEO’s I know will not take firearms into NJ: their Gestapo still give out of stater’s a hard time, regardless of LEOSA. I guess we will always have a trouble maker in the class, regardless of how long they sit in the corner with a dunce cap on!

  4. Go read Friedmen was written in such a way as to provoke SCOTUS. a major beef from the 7th is lack of guidance. The ruling nullifies Heller.

    any gun not around in 1791 can be banned

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