Bruen Drops and It’s a Win

This doesn’t portend a return to blogging. Social media and Google have killed blogging as a thing, so I’m not inclined to return to the same level of activity I once had. But I wanted to note Bruen because it’s probably the most important thing to happen to gun rights since McDonald dropped 12 years ago. You can read the ruling here. At this point I have done only a quick skim, but my impression is that it is about as good a ruling as we could have hoped for. Is it ironclad? No. No ruling would be. My impression is that Kavanaugh and Roberts are the weaker of the Bruen majority, but they still joined the majority of the opinion and filed their own concurrence basically saying shall-issue was fine.

Overall it puts the kibosh on the lower courts Second Amendment Two-Step dance. They will have to come up with a more novel means of resisting the Second Amendment, and I suspect they will. But it will get harder for them. The Court pretty clearly wanted to emphasize Heller and signal to the lower court that it is not dead letter. The Court made quite clear that outlying laws were meaningless for 2nd Amendment analysis. So the fact that the Sullivan Law is over 100 years old by now doesn’t mean it’s constitutional because it has a long history: it is an outlier that new other jurisdictions have passed.

Long term it’s probably best not to rely on the Courts for protection. Just ask Planned Parenthood how well that’s working out for them. But we can use these reprieves to help repair the gun culture in these jurisdictions if the restrictions lighten things up a little. This is not over. There will never be a death blow to the desire of the nobility to control the serfs. Nonetheless we should use the circumstances presented to us for maximal advantage.

Good SCOTUS News

We’re going back to the Supreme Court. I agree with Cam’s take on this: “The Court’s acceptance of this case is going to lead to a meltdown by many on the Left. Expect court-packing rhetoric to grow red hot from the likes of Sen. Sheldon Whitehouse and other anti-gun Democrats who’ve been threatening the Court with ‘restructuring’ if it took a Second Amendment-related case for well over a year now.”

I believed the rhetoric about court packing was actually squarely aimed at the Second Amendment. Why do I say this is good news? I have heard from people who would know that there was a coalition on the Court that meant Scalia could avoid taking any case he could not win. I am betting that deal has managed to continue. I would not say it’s a slam dunk. This will be a nail biter.

There was a lot of talk about the denial of cert for the felon-in-possession cases last week. I didn’t really comment on them because I didn’t think that meant much. The truth is the lower courts haven’t handled that issue as poorly as they have with understanding the core right. So I wouldn’t really read much into it. To me FIP cases are miles down the road when the lower courts aren’t even getting the basics right, or in some cases outright reversing Heller and McDonald.

I Kept Saying Roberts Was the Weak Link

The Supreme Court will continue to allow the lower courts to rule the Second Amendment into irrelevance. I stand by my assertion that Roberts was the weak link all along, or at least one of them. Maybe Kennedy was too. But clearly unless there’s yet another change on the Court, this isn’t going anywhere. Judges are elites. They don’t really want the peons armed either.

Mootness to be Considered at Oral Arguments

The NSRPA v. New York case isn’t being dismissed for mootness. It’s moving forward to oral arguments, but both sides have been informed to be prepared to argue the point. Dave Hardy notes that they’ve held a number of cases over until the next term. We very much need a significant victory at the Supreme Court.

Aimed Squarely at Roberts

Dems are threatening some court packing if the Court actually puts some teeth in the Second Amendment. Roberts is very concerned about the perceived legitimacy of the court, so I believe these Dems are trying to scare him into dismissing the case using arguments that will be likely to sway him.

I can tell Roberts that nothing will endanger the legitimacy of the courts more than failing to secure a robust Second Amendment right. This isn’t just calling a penalty a tax and feeling good you dodged the issue: you’re talking about erasing an amendment out of the Bill of Rights by judicial abrogation.

While We Were Busy With Good Old Fashioned Infighting …

the Courts have issued some favorable rulings. The big one is the Supreme Court ruling that New York isn’t getting out of their lawsuit just because they made a token gesture at changing their law. Paul Clement responded on behalf of NYSRPA:

Even now, the respondents insist that the transport ban promotes public safety, but in a nakedly transparent effort to evade this Court’s review, respondents have commenced an administrative rule making to reconsider the ban. Although that process was only recently initiated, and respondents have not yet received any of the public comments they have solicited, respondents make the extraordinary request that this Court stay any further briefing in this case. That request is radically premature and should be denied in all events.

It appears the Supreme Court agreed.

2nd Amendment Victory in California

District Court win, which can be reversed by the Circuit Court, but a win is a win, and for now California can’t enforce their magazine ban.

It’s good to see some victories. As Dave mentions, it could be the next wave of appellate challenges. I am becoming cautiously optimistic. It’s a long shot, I think, to get court protection for all semi-automatics and accessories. Federal judges are elites who tend to come from more urbanized areas. They don’t like the idea of the peons being armed any more than you’d expect from someone of that class.

I appreciate everyone’s patience through the light posting period. I’ve been extremely busy. Trying to start new steel matches, rebuilding Bitter’s S&W 622, and trying to balance multiple clients at the paying job. I shoot Bitter’s 622 more than she does, and it started getting very fussy about ammo. Replacing the recoil spring, extractor spring, and firing pin seems to have breathed some new life into it. I’d like to have replaced the extractor too, but they are hard to find right now.

Significant Win in Federal District Court

Adam Kraut and Josh Prince have won a pretty significant as-applied 2nd Amendment case in the Middle District of Pennsylvania. Yes, you can lose your right to bear arms for traffic offenses. Someone I know at my club was just telling me the other week that he got arrested for drag racing as a teenager, along with a friend of his that he still keeps in touch with. His parents hired a lawyer and got the case against him dropped, but his friend plead, and has since been prohibited from possessing firearms. Apparently drag racing used to me a 1st-degree misdemeanor in Pennsylvania, which has a potential jail sentence of 5 years, even though his friend never spent a day in jail. In the case just won, the guy got busted for faking an exemption form for tinted windows.

This kind of thing happens more often than you think. The Gun Control Act prescribed a one-size-fits all solution, even though individual states have a lot of variation on what the maximum sentence is for misdemeanor offenses. It’s good to see the courts finally taking this seriously and willing to entertain as-applied challenges, and strike down applications of the Gun Control Act’s prohibitions with regards to non-violent offenses.

Don’t Expect Miracles

I’m seeing a lot of gun owners out there having unrealistic expectations about what this case will accomplish. I don’t think you’re seeing the beginning of the end for Second Amendment litigation. But maybe the end of the beginning, if we’re lucky. As I wrote on Zuck’s Facebook of Horrors:

Kennedy retires and now you have Kavanaugh, who penned that very strong Heller II dissent as a circuit judge. Now instead of having two Weeble Wobbles on the Court, you have one. You also know that your remaining wobbler is a judicial minimalist who doesn’t agree with upsetting legislative apple carts needlessly. This is, I’d note, not even considering what the other justices might know about RBG’s actual condition.

So why not use this case if you’re the four strong pro-2A judges? If you need to, you can narrow it up quite a bit to keep Roberts on board. You can please his inner minimalist. It only affects a few hundred legal gun owners in NYC, after all. But if Roberts is feeling frisky, you can use it to say a lot about the right to bear arms outside the home. You can use it to smack down the 2nd Circuit, which has pretended Heller and McDonald never happened. You can go a lot of places. And if RBG leaves the court for health reasons? It’s a different ball game. I think this case makes a lot of sense, and I’m optimistic.

The fact that it’s an outlier law that exists in literally no other jurisdiction can help Kavanaugh build on this “history and tradition” model because this law is so far removed from that. It’s about as far removed from that as you can get. I think Roberts would also like moving away from standards of review. I think I’ve read some writings of his critical of “levels of scrutiny” that’s been adopted in the First Amendment context and abused by the lower courts in the 2nd Amendment context.

At best, you’ll get a ruling with a lot of helpful dicta that will make the lower courts start taking the Second Amendment more seriously than they have been. This case won’t fix everything having to do with carry. That will take more time and probably more cases. There’s also the possibility that Roberts will insist on keeping the case narrow, and we won’t get much in the way of helpful dicta.

I view this case as testing the waters: the pro-gun justices, believing or perhaps knowing they have a majority, now want to see how a Second Amendment case shakes out, and do it with a case that isn’t high stakes and has a lot of flexibility.

I serve on a decision making body roughly the size of SCOTUS, and I can tell you where my fellow directors stand on things, and can even usually predict where they’ll fall on new issues. And I talk to them all the time. But you never know once you get a discussion going in a meeting where things will actually go. When the stakes are high, you proceed cautiously, even if you’re pretty sure you have the votes on an issue going in.

Back to the Supreme Court Goes the Second Amendment

Looks like SCOTUS has granted Cert in NYSRPA v. City of New York, which challenges the city’s prohibition on removing a licensed firearm from the City. This is great news. It would seem Kennedy’s retirement may have changed things, and this is a case where the stakes are not that high if Roberts goes wobbly, since it would only affect New York City, which already sucks. Here’s hoping for a strong opinion from SCOTUS. The Second Circuit is in serious need of a smackdown on this issue.