OSD 69: SCOTUS out, time to build
The Court denied all ten pending 2A cases. But our new path forward is the same as the old one.
|Jun 15, 2020||2|
At 9:30 a.m. ET today, the Supreme Court released the news that they’re denying cert (i.e. they’re not going to agree to hear the appeal) on all ten Second Amendment cases that had been vying for the Court’s review. The cases challenged may-issue regimes, assault weapons bans, the ban on buying a handgun at an out-of-state FFL, and the California handgun roster. There are plenty of similar cases coming up through the system, but given today’s denials, it’s unlikely that the current Court will grant cert on any of those. For now, it’s back to the drawing board.
So what happened? Heller was in 2008, McDonald was in 2010, and since then the Court has rejected almost every 2A case (thereby leaving lower courts’ pro-restriction rulings in place). It only takes four votes (out of nine justices) to grant cert. It then takes five or more votes, of course, to win the case. Let’s do some math.
2A cases (with the slightly odd exception of Caetano v. Massachusetts, a stun gun case) were uniformly denied cert after McDonald all the way up through Justice Kavanaugh’s appointment to the Court. Along the way, we got some clues. Justices Thomas and Gorsuch dissented from a denial of cert in Peruta v. California, a case challenging may-issue laws. Justice Alito’s opinion in McDonald and separate opinion in Caetano made it pretty clear that he’s a solid vote for a fairly expansive 2A (modulo some exceptions away that intersects with police and prosecutorial power, explained by Jake Charles here). As a judge on the Court of Appeals for the D.C. Circuit, Kavanaugh wrote a dissent where he said he would have struck down D.C.’s rifle feature ban. So that’s four robust 2A votes, and the Court granting cert in NYSRPA (the New York City handgun transport case) within months of Kavanaugh joining seemed to confirm that.
Then things got weird. NYC repealed its ban on transporting handguns out of the city, in an attempt to moot NYSRPA before the Court could rule squarely on the 2A merits. And it worked — the Court ruled the case moot, avoiding the 2A question. But the opinions were interesting: Thomas, Gorsuch, and Alito all dissented head-on. Kavanaugh wrote a nuanced concurrence, agreeing that the case was technically moot but noting “that some federal and state courts may not be properly applying Heller and McDonald” and that the “Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
That last sentence sums it up. You’ve got four justices tipping their hands that they’d vote to grant cert on more 2A cases. Remember, four votes is all you need. And then two months later, all ten 2A cases before the Court get denied?
That can only have happened if at least one of the four justices voted to deny. Their track records on this are all long enough that they wouldn’t have done that out of a change of heart. The much likelier explanation is simple: they knew they had four votes, but didn’t know if they had five. And they’d rather deny cert on gun cases until they’re sure they have a fifth vote, to avoid setting bad 2A precedent.
So now we know where things stand. We shouldn’t expect any 2A cases to be heard by the current Court. Supreme Court action is extremely powerful, which is why it draws so much attention, but it’s just one avenue. And for guns, it has been a less important one than you might expect. Heller and McDonald were landmarks but they had minimal real-world effects — they mostly only affected D.C. and Chicago.
All the progress we’ve made as a community — the CCW tidal wave; the AR-15’s ascent into ubiquity; the long-term polling shifting towards gun rights, especially among young people — that has all been done with essentially zero help from the courts. So the job today is the same as it was yesterday: keep the work going. Make more gun owners. Train them up. Build the community. Be cool and friendly. If this whole community keeps working on that like it has been for the past 10+ years, we’re going to get the results that we all want to see.
This week’s links
Check it out!
Interesting (and encouraging) to see the sort of discussion this stuff gets in a calm normie forum. (And in case you missed the essay, check it out here: “Everybody agrees on guns, and they just realized it”.)
Her group — Security Latinos De La Lake — is one of many neighborhood watch groups sprouting up across the Twin Cities and in other parts of the country as dozens of mostly peaceful protests continue every day, sometimes in the face of violence from law enforcement: tear gas, rubber bullets and pepper spray. The Twin Cities have largely calmed, but Baires says she wasn’t even able to get through to 911 until Monday.
The first case where Freedom Week is being used as a defense to standard-capacity mag possession charges in California
Keep an eye on this one.
These concerns can easily turn away new gun owners. The biggest fix you can make as an individual is to welcome people into the community and take them shooting.
Our mantra: if you want to spread gun rights, just make more gun owners. And it’s not always obvious, but quality matters. Just an interesting note to put in the back of your head as you watch this fun video: high production values make more gun owners.
SAF’s lawyers are looking to go full-auto:
The Second Amendment Foundation today announced the launch of a new effort to remind America that the right to keep and bear arms is all-inclusive, and that all citizens regardless of race, creed or color should never be denied the exercise of their constitutionally-protected rights.
The Second Amendment Foundation is asking, “If you or anyone you know has been denied a permit to purchase or carry a firearm, please notify us immediately.”
Recap video from Reason about how the facts on the ground are shifting.
The 2A reason to own guns is not to shoot at the gub’ment. It’s to change the cost/benefit calculation of any other armed group (government or whoever) shooting at you, so that it moves into the “nope, not worth it” column.
Mrgunsngear on the value of medical training. You’re statistically far more likely to use your medical training than your gun training in an emergency situation. Good reminder to have both squared away.
We have a merch store. There are nice and subtle t-shirts, a hat, and some archival gallery-quality gun art for your walls. It’s pretty awesome. Check it out.
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