There's no time like the present to take a Second Amendment case

Thirteen years after Heller, it's time for the Supreme Court to settle whether the Second Amendment applies outside the home.


In 2008, the Supreme Court decided D.C. v. Heller. Since that date, President Obama served two terms, President Trump served one term, and President Biden has begun his first term. Five members of the Court left through resignation or death: Justice Souter, Stevens, Scalia, Kennedy, and Ginsburg. Only four members from that Court remain: Chief Justice Roberts, and Justices Thomas, Alito, and Breyer.

Over the past thirteen years, a lot has changed. Yet, one thing has remained constant: the Supreme Court has refused to provide any further explanation about the scope of the Second Amendment. We have seen radical shifts in many other areas of the law, but for guns, we are still stuck in 2008. During this time, the lower courts have brazenly resisted Heller at every step. Yet, at least as of June 2020, there were not enough votes to take a gun case.

Now, I presume, the votes are present. Paul Clement has gift wrapped a cert petition with a bow for the Justices to review. NYS Rifle & Pistol Association II would present a simple question: "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." Answering this question, yes or no, would settle so much ongoing litigation. The case will be distributed for the March 26, 2021 conference. Keeping with past practice, the Court generally relists a petition once before granting. Thus, on April 1, the Court will decide whether to take this case.

I am confident there are four votes to grant review. Justices Thomas, Alito, Gorsuch, and Kavanaugh were all eager to review the underlying issue in NYS Rifle & Pistol Association I last term. But that dispute was deemed moot. Clement's current petition has no vehicle problems. He explains:

The circuits are deeply split, and no other circuit is likely to join the fray because the regional circuits that have not weighed in generally coincide with regions where state governments value and respect Second Amendment rights. Thus, the nation is split, with the Second Amendment alive and well in the vast middle of the nation, and those same rights disregarded near the coasts. Whatever else the framers intended in enshrining the Second Amendment in our charter of fundamental freedoms and guaranteeing rights to "keep and bear arms" to all "the people," it was not to tolerate a nation divided on an issue this significant. This Court should grant plenary review. 

However, if the Court declines to grant review, we can draw an unwelcome inference: there is uncertainty over how Justice Barrett will vote. I am skeptical of this outcome. During her tenure as a circuit judge, Barrett wrote a thorough Second Amendment dissent. It was brilliant. Randy and I excerpted it for our casebook.

I will keep my eyes peeled for April 1, or perhaps April 5. If this petition is neither granted nor denied, we can presume that a dissent from denial is being prepared. And the Second Amendment will remain in limbo for the foreseeable future.

NEXT: Mass Shooters by Race and Hispanic Ethnicity: Not Far off from the Population as a Whole

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  1. The en banc Ninth Circuit also upheld Hawaii’s virtual ban on carrying outside the home earlier today.

    1. Makes you wish that certain judges could be somehow fired for directly violating precedent.

      If that ruling isn’t a “go fuck yourself, Heller,” then I can’t imagine what would be.

    2. SCOTUS loves to overturn Ninth circuit. This should get their attention.

      1. I haven’t read the decision, but noscitur and Jason are pretty legit so it’s probably as bad as they say.

        But, the 9th isn’t overturned more than any other circuit these days, accounting for size.

        1. Accounting for size, it never was.

          Years back I read an interesting analysis.
          I don’t recall the exact numbers but it went something like this.

          Over all, without considering originating circuit, once SCOTUS grants cert, 70-75% of all cases are overturned.

          Breaking it down by circuit, for the ninth, the reversal rate after cert granted was only 2-3% above the overall average.

          Two other circuits were ahead of the ninth. Both were over 80% reversal rate. I want to say these were the 11th and the 1st, but I’m not sure I’m remembering that correctly.

          1. IIRC: from that same piece, if you look at all cases decided by the 9th circuit, the reversal rate dropped to something like 0.04%

          2. I think the difference is that the 9th had Reinhardt bragging about how he could make rulings contrary to the Supreme court’s precedent stick, because he could make them faster than the Court had time to reverse them. “They can’t catch them all.”, he said.

        2. From the decision synopsis:
          “The en banc court held the second amendment doesn’t guarantee an unfettered general right to openly carry arms in public for individual self-defense.”

          Now you may quibble about what is an “unfettered general right” but the Hawaiian law that was upheld eliminates any right for the public to carry firearms outside the home.

    3. yeah, but that was a facial challenge. you only win a facial challenge if the statute is ‘always unconstitutional, under every circumstance’, like if they restricted based on sex or race or religion. it’s unconstitutional for lots of reasons, but not on it’s face.

      1. you only win a facial challenge if the statute is ‘always unconstitutional, under every circumstance’

        When and under what circumstances is it constitutional to…

        1) Require citizens to meet vague and subjective requirements (like showing “reason to fear injury to [his or her] person or property” and being of “good moral character”) before being allowed to exercise a fundamental constitutionally-enumerated right?

        2) Vest in law enforcement officials the discretionary authority to arbitrarily grant/deny citizens exercise of that same right?

      2. It maybe that Clements case is a better vehicle, and it’s not like Hawaii’s law is much more draconian than the NY law.

        But the Hawaii en-banc decision that there is no right to bear arms outside the home is so starkly opposed to Heller’s bear arms analysis perhaps they should just GVR it with instructions to reissue it in line with Scalia’s analysis.

  2. While the cert petition presents an important question, that is not the question actually present in the case. The actual question is whether or not there is a general right to carry a loaded handgun *concealed* in public. The Heller decision was quite clear that prohibitions on concealed carry do not infringe on the Second Amendment right.

    1. That’s not correct, Charles. The New York carry license law does not distinguish between concealed and open. The case is about carrying vs. not carrying.

      1. And the 9th circuit previously ruled that open carry is not protected,.

  3. Leftists want to arrest and imprison innocent gun owners who never hurt anyone. I hope we can finally end that threat this year.

    1. Rightists think the Second Amendment has a third clause: “The right of residents to obtain firearms for the purpose of terrorizing a grocery, or a night club, or a neighborhood, or a school, shall not be infringed. Law-enforcement officers shall not be permitted to take any action whatsoever against any armed person in any public place, until that armed person has actually fired a bullet in the law-enforcement officers direction.”

      1. Hey look at that strawman!

        1. It’s no more a straw man than “Ben_”‘s assertion in the preceding post, that “Leftists want to arrest and imprison innocent gun owners who never hurt anyone.”

          1. Well, leftists want laws against actions that don’t involve somebody being hurt. For instance, I own a rifle with a 100 round magazine, Kelly grip, you name it. It sits in a safe, unused, hurting nobody.

            Leftists want to take that rifle from me, and if I don’t give it up, what happens to people who break laws?

            They get arrested and imprisoned.

            Violence and the law are inextricably linked: To advocate a law, is to advocate that people who won’t comply be forced to, violently if necessary.

            So, no strawman, unless you’re leaning heavily on that ‘innocent’, by declaring that any gun owner who doesn’t submit ceases being innocent.

            1. I would say that it’s a fair statement that Second Amendment absolutists are willing to live with two mass shootings a week (and probably more than that) so that Brett can have his 100 round magazine. Whereas those of us who favor more regulation think Brett is entitled to reasonable firearms ownership and use, but a 100 round magazine isn’t reasonable, and the lives lost in mass shootings matter more than someone’s right to own a 100 round magazine.

              1. I don’t think that is a very accurate statement of the typical positions at all (bearing in mind you can find a fringe on wither side).

                ISTM on one side we have people who seem quite sure that the current restriction they are proposing will make a difference – if just we ban some collection of rifles or do more background checks, we won’t have these horrible events.

                On the other side, we have people not sure how banning rifles or more background checks will prevent another Va Tech.

                (for people who have forgotten, the VT killer used two handguns, which he bought with background checks (that he probably shouldn’t have passed) at gun stores, after waiting out a one-gun-a-month period)

                1. Keep in mind that no regulation is going to be a 100% fix. If a proposed regulation reduces the number of gun deaths by, say, 10%, you’ll have people on one side saying, “Oh, look, we just saved 2000 lives per year, that regulation is worth is”, and on the other you’ll have people saying “But most gun deaths aren’t impacted by this regulation; 90% of the gun deaths are still happening.” And both sides will be telling the truth; they’ll just be emphasizing different facts.

                  It’s illegal to drive drunk. People do it anyway, and drunk drivers still kill a lot of people. But that’s not an argument to repeal laws against drunk driving.

                  And for purposes of whether the law is constitutional, I don’t think a rule must be a perfect, 100% fit. Just that it leaves us better off than we are now.

                  1. “It’s illegal to drive drunk. People do it anyway, and drunk drivers still kill a lot of people. But that’s not an argument to repeal laws against drunk driving.”

                    Nor is it an argument to preemptively take cars away from people who don’t drive drunk, nor declare some number of cars or some amount of alcohol to be “unreasonable” for someone to own

                    1. And if gun control advocates actually wanted to ban all guns, you’d have a far better analogy. It’s more like banning private ownership of Sherman tanks.

                      Nobody is coming after your hunting rifle, or your pistol that you keep for protection, or the gun that you fire at the range. Enough firepower to take out a mall? That’s a different story.

                    2. “Nobody is coming after your hunting rifle”

                      Oh, bullshit. Give us a break. You know quite well how easy it is to demonstrate that some gun control advocates want ALL guns banned, right down to BB guns.

                      And plenty of people hunt with guns you’d call ‘assault weapons”.

                      I recall the time Senator Kennedy introduced a bill to ban “armor piercing” ammo. It was pointed out to him that the bill’s definition would have included every hunting round larger than maybe a .22 cartridge such as you’d have trouble killing a squirrel with.

                      They didn’t change the bill, and he got plenty of votes for it.

                    3. *Some* advocates exist for just about anything. Yes, there are *some* who want to take away all guns. They’re the lunatic fringe.

                    4. “Nobody is coming after … your pistol that you keep for protection,…”

                      Do you recall a rather prominent Democrat thinking that Heller was wrongly decided?

                      Heller, of course, is the narrowest possible decision that ownership of handguns (and for that matter, guns in general) can’t be completely banned. Now, one might say ‘Sure, Heller was correct and should not be overturned, but some lesser restriction X is OK’. But when you say you want to overturn Heller, you are indeed saying you want to allow total bans; total bans are the only thing Heller took off the table.

                    5. So you found one prominent Democrat who disagrees with me.

                    6. Krychek, you’d actually get some compromise from the gun rights folks if the gun control movement didn’t have an ultimate goal of civilian disarmament. Apply this same logic to abortion. I’m sure you’d get some compromise from the pro-murder crowd on say, partial birth abortions, or abortion clinic regulations, if the end goal of the pro-life movement wasn’t the abolition of abortion.

                      Further, the well is poisoned, because every slice of the cake that is taken by the gun control crowd, means that another slice is on the menu.

                    7. “So you found one prominent Democrat who disagrees with me.”

                      It’s difficult to find prominent Democrats who DIDN’T get outraged over Heller.

                      So, whenever you say that you only want reasonable gun control, we look at what you got outraged over being struck down in Heller, and know what you mean by “reasonable”: Total bans.

                    8. Yes, there are *some* who want to take away all guns. They’re the lunatic fringe.

                      So you’re saying that Dianne “Mr. and Mrs. America, turn them all in” Feinstein – (Vice Chair of the Senate Intelligence Committee for 2 years, Chair of the Senate Rules Committee for 2 years, Chair of the Senate Intelligence Committee for 6 years and Ranking Member of the Senate Judiciary Committee until last month) and so many others like her are…and have been for decades…the lunatic fringe?

                    9. “So you found one prominent Democrat who disagrees with me.”

                      As Brett said, it’s harder to find ones that don’t.

                      Heck, four supreme court justices didn’t support it.

                  2. We’re not at the “repeal laws against drunk driving” stage.

                    We’re at the “ban cars with cup holders because somebody might put a beer in the cupholder” stage.

                    Not banning the actual wrongful conduct, just banning things that are purported to make the wrongful conduct easier, even though almost everybody isn’t using them that way.

                    1. But there are plenty of things that are banned just because they make doing bad things easier. In my state, it is a third-degree felony for a non-notary to possess a notary seal.

                      And I think it’s appropriate to weigh the likelihood of someone having it for an illicit purpose. There’s really no good reason for a non-notary to have a notary seal, and if someone does, he’s most likely up to no good. Why does anyone not up to no good need a 100 round magazine?

                    2. What lawful use does a non-notary have for a notary seal?

                      You’re proposing to ban things that not only have lawful uses, but are primarily used for them.

                      “And I think it’s appropriate to weigh the likelihood of someone having it for an illicit purpose.”

                      No, you don’t, or you’d be on the other side of this argument, because every damn thing you’re proposing to ban is legally used far more often than illegally.

                      I have a 100 round magazine for one of my carbines. How is it handy? You don’t have to reload as often. That’s how it’s handy.

                      Do I “need” it? I don’t “need” most of the books in my library, you think than means you can ban them? It’s only privileges where you have to demonstrate need. “Want” is enough to justify exercising rights.

                    3. They want to ban weapons with features that have nothing to do with the functionality of the weapon itself. Take a Ruger Mini-14 for example. If I keep the wood stock that it comes with I can have it. If I change to a black fiberglass stock with a pistol grip, add a flash suppresser and a Picatinny rail, now it’s an “assault rifle” and they want it banned. I’ve done nothing to change the function of the weapon, the rate of fire or the muzzle velocity. In other words it is useless.

                      The only people affected by gun laws are the people that you don’t have to worry about in the first place.

                    4. I think your wrong on that. We are at the banning of the person with multiple DWI. Requiring ID to buy alcohol. Banning the restaurant from allowing someone visibly intoxicated to leave. ie. assault weapons with 100 rounds

                    5. I think your wrong on that. We are at the banning of the person with multiple DWI. Requiring ID to buy alcohol. Banning the restaurant from allowing someone visibly intoxicated to leave. ie. assault weapons with 100 rounds

                      In addition to your inability to construct a sentence that demonstrates a post-third grade education, you appear to not grasp the rather easy to understand difference between behaviors and objects.

                    6. “But there are plenty of things that are banned just because they make doing bad things easier.”

                      How many violate specifically listed Constitutional rights?

                  3. “Keep in mind that no regulation is going to be a 100% fix. ”

                    You don’t say! :-).

                    It would certainly be helpful to the discussion if people quantified the expected benefit. For example, in 2019 the number of rifle murders was 364[1]. That’s an upper bound on the benefit of any kind of restrictions on rifles. Similarly, few murders involve more than 10 rounds fired.

                    From a gun right perspective the problem when people don’t quantify the expected benefit is that it seems the algorithm is an iterative loop of ‘do until(no more shootings) add more restrictions;’. And to the extent that’s true, we’re not talking about limited restrictions, we’re talking about a total ban, because there are no restrictions other than a total ban that will reduce deaths to zero[2].

                    “It’s illegal to drive drunk. People do it anyway, and drunk drivers still kill a lot of people. But that’s not an argument to repeal laws against drunk driving.”

                    You are conflating malum in se and malum prohibitum there. Laws against drunk driving are like laws against reckless discharge of firearms – I’m not aware of any objections to those. Prohibiting possession of firearms is like prohibition of alcohol, banning all possession, whether used responsibly or not.

                    [1]there were also some ‘unspecified firearm’ ones. If you prorate those, you could add another 170.
                    [2]of course, even a total ban won’t reduce shootings to zero, wither, any more than the total ban on hard drugs has eliminated drug abuse

                    1. whither, either, whatever 🙁

                    2. But most of the time you can’t quantify in exact numbers what something will do. All you can do is pass something that sounds on its face like it will make things better. And of course, if it doesn’t — if you have data a year later that it made no difference — you can then repeal it and try something else.

                      I remember once hearing a libertarian argue that it was wrong to require a law degree as a condition of practicing law; that anyone who wants to practice medicine should be permitted to do so, and his prospective patients have the freedom to decide whether to hire him. Suppose that happened. Can you quantify, in advance, how much additional medical malpractice would result? Probably not. But that doesn’t mean a reasonable person can’t draw an inference that there would, in fact, be more legal malpractice, and that’s enough of a reason to require a medical degree before someone starts cutting people open.

                    3. I typed too quickly. The libertarian was arguing against both medical licenses and law licenses.

                    4. The basic issue here is that it’s a right, and you’re absolutely determined to treat it as though it weren’t.

                    5. “And of course, if it doesn’t — if you have data a year later that it made no difference — you can then repeal it and try something else.”

                      Why did the phrase ‘assault weapons ban’ just float through my mind?

                      “But most of the time you can’t quantify in exact numbers what something will do. All you can do is pass something that sounds on its face like it will make things better.”

                      Exact numbers, no. A reasonable guess? Of course we should have that. I doubt you would support a ‘save lives by nationwide 35mph highway speed limit’ campaign. I expect you would start talking about the number of lives saved vs lost time, convenience, and so on, rather than ‘sure, let’s give it a try!’.

                      And while you can’t get exact numbers on how many lives a ban on AR-15’s might save, we can accurately estimate the upper bound.

                      That’s true of almost every gun law – for waiting periods, what percentage of murders were committed with a gun legally purchased within your proposed waiting period? None of the others would be affected.

                      For magazine laws, what percentage of murders involved more than N shots, where N is the size limit you are proposing.

                      Every law has a cost and a benefit. We always should get the best estimate of both that we can.

                      (maybe this is a lawyer/engineer thing? As an engineer, estimating this kind of stuff is just about like breathing. You can’t just say ‘we can get better mileage by making Chevys out of carbon fiber! You always ask ‘how much bettter mileage and how at how much cost?’)

              2. I’m not a Second amendment absolutist. I’m a Whole Freaking Constitution absolutist. The 2nd amendment is just along for the ride because it’s part of that Constitution. I get pissed off about Congress conducting business without a quorum, or administrations pretending they can obligate the nation by signing treaties the Senate never ratified, too.

                But, yes, I’m willing to live with the occasional mass shooting, just like I’m not going to ditch the 1st amendment because of the occasional extortion note. I’ve got a general rule here:

                You don’t violate the rights of the innocent in order to inconvenience the guilty.

                1. But extortion isn’t protected by the First Amendment. Just like not all gun regulations are proscribed by the Second Amendment. And would that mass shootings were only “occasional”.

                  1. Extortion isn’t protected by the First amendment, murder isn’t protected by the Second.

                    But just as extortion isn’t an excuse to infringe the 1st amendment rights of innocent people, murder isn’t an excuse to infringe the 2nd amendment rights of innocent people.

                    Yes, I agree, not all gun regulations are proscribed by the 2nd amendment. Only the ones that infringe the right.

                    Unfortunately, those are the sort we’re discussing here.

                  2. How would you define “occasional”?

                    1. Number of mass shootings in the US

                      Single digits most years sure looks like “occasional” to me.

                    2. We’ve had four in the past week, I believe.

                    3. Yes, as mass shootings are typically copycat crimes, they tend to come in bunches, after the first one inspires the copycats. Look at that chart I linked to above: It’s a regular sawtooth pattern. Somebody does one, gets a lot of media coverage, other people come out of the woodwork, they get media coverage, it gets worse and worse until the supply of murderous idiots hoping to get their name reported runs out, then it drops back to practically none for a while.

                      We’re in for a spate of them, because with the Democrats on a gun control crusade, they’re guaranteed major league coverage for a while.

                      But they’re still occasional, fewer of them per year than gang shootings an average week in Chicago.

                    4. And now that you bring up Chicago, let’s not forget: Chicago is one of those places that has, for decades, done a good job at keeping guns out of the hands of the law-abiding. If Chicago can’t be the flagship of how gun control saves lives, why are we even bothering debating gun control laws?

                      Shouldn’t the default, at this point, be “Perhaps we shouldn’t be doing what Chicago is doing — it seems to be failing!”?

                    5. Epsilon, the problem with Chicago and gun control is that it’s only a two hour drive from Wisconsin, which has very little in the way of gun control. It takes no effort at all for gang members to hop in a car, take a pleasant drive up to MIlwaukee, load up on guns, and maybe enjoy a nice lunch at Mader’s while they’re there.

                      If we’re going to have gun control, it has to be done at the national level. Hawaii has had some success because you can’t just drive from Hawaii to a red state and load up on guns.

                    6. Krychek_2: Wisconsin’s crime rate is much lower than Chicago, even though it is awash in guns.

                      Why is that?

                    7. “the problem with Chicago and gun control is that it’s only a two hour drive from Wisconsin,”

                      Does the meth/heroin/fentanyl that fuel the Chicago gang wars come from Wisconsin, too? Or have the crooks in Chicago figured out how to import banned stuff from outside the country?

                2. if you’re a 1st amendment absolutions. Then you agree with no defamation/Libel laws. No prohibition on pornography, child pornography, and perjury. Not to mention government may give no money to any religion as we do now.

                  1. I think you have some problems with what it means to be a constitutional absolutist. Here’s a clue: I don’t think murder is constitutionally required to be legal if you do it with a gun.

                  2. if you’re a 1st amendment absolutions.

                    Maybe you should sober up, then come back and try again.

              3. Setting aside whether the phrase “Second Amendment absolutists” itself is fair, it’s obviously not a fair statement because it implies that there’s some connection between the so-called mass shootings (which aren’t really mass) and Brett’s ownership of a 100-round magazine. There isn’t; taking that gun (or just the magazine) away from Brett, or even the public as a whole, would not prevent a single death.

      2. The real question is whether you actually think that was a well thought out troll, or if you’re actually nothing more than an moron who figured out the password to the sanitarium computer and has sneaked into the front office.

  4. Of course, if the Court announces its decision whether to hear the case, on April 1, we still won’t know for sure until the following day. (April Fool!)

  5. I would be careful about asking the current Supreme Court about the 2nd amendment. (Or at least not get my hopes up.) Guns are not like unions, conservatives can come out on both sides of that one (see Heller). After all, black people have guns too. That’s why the NRA used to be in favour of gun control.

    1. You kind of have that ass backwards. The NRA used to promote Blacks having guns to protect themselves from things like the Democrat KKK.

      No I am not a member of the NRA. Never have been.

      1. That’s a common libel of the NRA. The NRA was actually in tight with CORE during the civil rights movement.

    2. After all, black people have guns too. That’s why the NRA used to be in favour of gun control.

      As always, you have no idea what you’re talking about and are eager to demonstrate your ignorance. At least you’re consistent, so you have that going for you…which is nice.

  6. “Now, I presume, the votes are present.”

    I’m not sure why you assume that. They’ve passed up plenty of opportunities to take 2nd amendment cases. They’ve let circuit splits fester for years. There wasn’t any legal reason for that.

    If this case were to be decided in a vacuum, maybe in a mock court, the 2nd amendment would easily prevail. But it’s not, and all sorts of extra legal considerations are influencing the ‘Justices’:

    If I rule to uphold the 2nd amendment, will my family be safe?

    If I rule to uphold the 2nd amendment, will the Court be packed, and the ruling overturned anyway, along with a lot of rulings that might otherwise have survived?

    Thomas is of a “Let justice be done though the Heavens fall” persuasion. I doubt more than one or two other Justices are.

    The very fact that they haven’t previously took these cases tells us they’re not deciding on the basis of law, but instead factors like personal safety or the risk of Court packing. Those threats have hardly diminished in the last year, now, have they?

    1. If Roberts was afraid of damage to his reputation that’s all you need to explain a decade of silence followed by action this year. No need to invoke fear for personal safety. As for court packing, that wouldn’t have been a threat during the Trump administration.

      1. There’s no need to invoke fear for personal safety, there’s reason to invoke fear for personal safety. Leftists were literally clawing at the door to the Supreme court building while Kavanaugh was being sworn in. Schumer has threatened Justices by name. Protesters have many times in the last few years shown up at the homes of members of Congress to threaten their families.

        The Justices are well aware that pissing off the left could be physically dangerous.

    2. I think the argument is that in the past none of the 4 liberal justices would vote to take a case out of fear that the conservative majority would affirm 2A rights

      At the same time, at least 2 members of the narrow conservative majority did not want to take a case out of fear one of them may defect and enshrine an exception to the 2A (or, in Roberts’s case, perhaps fear that his reputation will be tarnished regardless of the outcome of the case)

      IIRC Thomas, Gorsuch, and Alito have all dissented to denials of cert for 2A cases, meaning we have at least 3 votes to take a case. If those 3, plus Barrett, vote to grant cert, then cert is granted

      1. Kevin,

        Thomas, Gorsuch, and Kavanaugh have all dissented from the denial of cert in carry cases just like this one. Thomas and Gorsuch dissented in Peruta (California), and Thomas and Kavanuagh dissented in my case, Rogers (New Jersey), just last term.

        Alito wanted to hear Caetano on the merits, and he authored McDonald, which is a pretty strong self defense case.

    3. It’s just a matter of vote-counting. When the mostly-liberal O’Connor was replaced by Alito, the conservatives finally had the votes to rule narrowly according to the text of the 2nd Amendment. Gun rights groups (GOA in particular) brought cases to court, resulting in the _Heller_ ruling. But this was a narrow ruling because otherwise Kennedy might have swung the other way, and because Roberts was afraid to go very far.

      The next three vacancies (Souter -> Sotomayor, Stevens -> Kagan, and Scalia -> Gorsuch) did not change the balance of the court, although Gorsuch added some libertarianism. (Previously, the best chance for a libertarian opinion was Thomas – not because Thomas tended that way at all, but because he actually reads the Constitution.) Meanwhile, Roberts was proving increasingly squishy (or cowardly, or blackmailed…), so no one knew how another 2nd Amendment case might come out.

      But since 2018, swinging-door Kennedy -> conservative Kavanaugh, and ultra-liberal Ginsburg -> conservative/libertarian Barret. Robert’s vote is no longer needed. There are currently 5 votes for gun rights at least as reliable as Alito and Thomas. There won’t be a better time to set precedents making the 2nd Amendment as strong as the 1st.

      …Unless the yammering about packing the court intimidates more Justices than Roberts. But the last time the Democrats tried to pack the court, they had a lot stronger majority than now, and they failed.

  7. Hard to talk about something indefensible. Better just leave it alone. The Court has the discretion to ignore things.

    1. It’s not like they have to worry about getting fired for refusing to do their job, that’s true.

      1. The Court denies cert hundreds of times a year. Part of their job.

        1. Yeah, and the traffic cop lets thousands of people driving by go by, without stopping them.

          But if he also lets the guy driving 100mph in a residential zone go by without stopping them, he’s still not doing his job.

          When you’ve got multiple circuit splits concerning an enumerated right in the Bill of Rights, and the Supreme court is refusing the cases, they’re not doing their job.

          Between Miller and Heller, the Supreme court spent 78 years refusing cert without comment to every single case where any of the parties raised the 2nd amendment as an issue. Didn’t matter how important the case was, how gross the violation, if you raised the 2nd amendment in your pleading, the case would be rejected without comment.

          Then everybody was shocked when they took Heller, and then McDonald.

          Looks to me like they’re back to their bad habit of standing back while the lower courts gut this right again.

          1. Kavanaugh goes by text and tradition…and traditionally Americans have had a right to open carry but that right can be liberally regulated. Rittenhouse shows that open carry can be dangerous because it draws suicidal people to try to get someone to kill them in a “suicide by cop” situation.

  8. Any cases on interstate carry? I occasionally travel out of state for business purposes to Illinois. I can have a firearm in my vehicle but not on my person. Illinois doesn’t recognize my states permit and doesn’t issue non resident permits.

    Also consider New York. If I were able to carry in New York the officials there would probably prohibit carry on public transportation or for hire services like taxis or Uber, essentially the only reasonable means of travel in the city.

    1. New York is regularly in violation of 18 U.S. Code § 926A.

      “Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”

      They routinely take the position that if, at any point, you stop to get gas or eat, you’re not longer “transporting” the firearm, and NY’s firearm laws apply.

      They even have an arrangement with the airlines, to be notified when travelers with checked firearms get diverted to NY, or held over due to weather, so that they can arrest them for unlawful possession of a firearm the moment they take custody of their checked bag.

    2. You’re not bringing a gun into my taxi. I’m no idiot.

      1. If I have, you wouldn’t have known it. 🙂

        1. That’s the thing that anti-gunners don’t really understand. People have been taking guns everywhere pretty much since guns were invented that could be safely tucked under a coat. There were no laws against it until the 19th Century, for the most part. Unsurprisingly, even with those laws in place, criminals kept carrying concealed guns anywhere they wanted because the odds of them getting caught with it were so small, but the law abiding stopped.

          The very least, is that concealed carry laws give people who care about respecting the law, the option to do the same as what the criminals have always done.

          1. Yet there is no evidence that civilians with guns stop crimes. But there is evidence of someone pulling a gun during a crime and getting mistaken as the perpetrator or shooting a bystander. Not to mention that there are certain rules that I think the court will uphold. like background checks, or the banning of cop-killer bullets. I cant ever imagine the ct taking the position that the people have the right to guns so that they may overthrow the government as I have hear 2nd amendment absolutist state.

            1. Guns are used in self defense, low end estimates 100,000 times a year to 500,000 times a year. High end estimates from surveys have it in the millions.

              A simple internet search will reveal this for you, and from NPR like sources that are within your information bubble.

              The rest of your comment is drivel.

            2. Yet there is no evidence that civilians with guns stop crimes.

              Let me guess. You’re one of those mouth-breathing window-lickers who is so easily duped by the claim that only cases in which the defender actually shot (or even killed) one or more attackers constitute the stopping of a crime.

              But there is evidence of someone pulling a gun during a crime and getting mistaken as the perpetrator or shooting a bystander.

              Cite verifiable statistics for occurrences of that.

              And FFS…if there is anyone in your home with at least passable literacy skills you should ask them to give your posts a once-over before hitting “Submit”. It’s bad enough that what you post is nonsense, you could at least make it a little easier to decipher.

            3. 2nd amendment absolutists like Jefferson?

        2. Might as well hide a bomb while you’re at it.

          1. And terrorists don’t hide bombs already?

            A bomb isn’t useful for self defense.

          2. Might as well hide a bomb while you’re at it.

            The sad thing is that equating a personal defense firearm with an explosive device isn’t even the dumbest thing you’ve said.

      2. I’m no idiot.

        If ever there was a conclusion that was not supported by the available evidence….

    3. NY has prosecuted people who have checked baggage in another state with a locked unloaded firearm in full compliance with state and federal law, then while transiting in NY had their flights cancelled and took possession of their baggage, and were arrested and charged while trying to book continuing flights to their ultimate destination.

      1. The Dirtbag State of Cuomo.

  9. I was going to note that the court might wait for Young v Hawaii… except that the opinion came out yesterday from the en banc court.

    I think that the only question now, really, is How hard they want to smack the 9th and 2nd circuits.

    1. And how much do they want that angry mob on their front lawns.

  10. Of course people should be allowed to take guns outside the home, in an unlimited fashion.

    I mean, how else could a person shoot up a school, a store, a theater, a public gathering, or invade a state house and threaten lawmakers and a governor who doesn’t agree with their demented right wing extreme position on guns?

    1. I’d like to see any evidence that our current gun laws have successfully prevented this kind of behavior.

      There’s plenty of evidence that, at a minimum, repealing laws that interfere with the carrying of guns outside the home has no effect on any of those things you listed. If anything, it may even reduce those things.

      States have been loosening their requirements for years — indeed, there are now 18 States as of 2021 (and 16 as of 2020) where it’s now legal to carry a concealed weapon outside the home without a permit. Thus, if the loosening of laws indeed does make these things more likely, you ought to be able to find plenty of examples, and heck, even data, to support your claim.

  11. Josh Blackman has way, way, way to much faith that the Courts will make a decision that isn’t a cowardly dodge.

  12. Let me explain. The Second Amendment was not to protect hunting, target shooting, or even self defense against the lawyer client, the vicious, violent criminal. It was to kill the British. It came in handy in 1812.

    Today, the Second Amendment is to kill Democrats running a permanent one party nation that has become a Commie shithole. All Democrat jurisdictions are Commie shitholes, even extremely wealthy ones like San Fran.

    1. Freedom rests on four “boxes.”

      1) soap box
      2) ballot box
      3) jury box
      4) cartridge box

      We are down to 1 of 4 legs.

    2. This guy right here is the reason the court doesn’t want to expand 2nd amendment rights. The court wants people like David Behar to never own a gun because of his clear mental deficiencies.

      1. Lawyers believe in mind reading, future forecasting, and standards of conduct are set by a fictitious character. Then you call me mentally ill for stuff from AP Am. History.

      2. And guys like you are why we don’t want to give up our guns. Funny that.

      3. “The Tree of Liberty is best refreshed, from time to time, by the blood of patriots and tyrants”

        – Democratic President Thomas Jefferson.

  13. The mainstream snapback against gun absolutists seems inevitable and likely to be severe. I hope it does not overrun a right to possess a reasonable gun in the home for self-defense.

    1. Hi, Artie. Where do you live? If you reply in a Democrat hellscape, your residence is your punishment for your disloyalty to America. *

      1. Someday, clingers will be desperately hoping that guys like me preserve the right to possess a reasonable gun for self-defense in the home.

        That’s right. I — not the NRA, not Prof. Volokh, not all of the militias and guns nuts combined — will be the Second Amendment savior, if that can be arranged during the snapback.

        You’re welcome.

    2. Gun rights have been increasing steadily and somewhat slowly over the past several decades. Surely, if there was any evidence that loosening gun rights causes an increase in gun deaths, we’d see it by now.

      Instead, we hardly notice anything — and this includes major events, such as Illinois being required to go from No Permits Whatsoever to “Shall Issue” permits, and Washington DC being required to recognize the right to own an assembled gun in the home.

      1. And DC going shall issue for carry permits.

        1. Sorta, kinda, shall issue, I gather. Still pretty restrictive.

  14. I believe we are unlikely to see SCOTUS take up a Second Amendment case during the Biden/Harris administration for the same reason that they’re refusing to hear abortion law cases — if the Supreme Court forces the Ninth to follow Heller or MacDonald, or overturns Roe, it will provoke Congress to pack the Court. Thus if one of those cases were now before the Court, the mostly conservative Court would feel forced to make another “switch in time.” Rather than have that happen, the Court apparently prefers to put off hearing any cases on those topics until a Republican is in the Oval Office again. I don’t blame them.

    1. There’s always an excuse, if you’re gutless. Better that the enumerated constitutional rights of millions be violated, than merely risk the Democrats doing something like that.

      1. You are going to hate America’s future, Brett Bellmore.

        I am content.

        1. Yes, people who love freedom will hate America’s future.

          You are content, because you can finally see the fascist control of America you have always desired to finally unfold before your eyes.

          1. ” people who love freedom will hate America’s future ”

            The people who object to America’s progress cherish many freedoms . . .

            The freedom to keep women out of graduate schools . . . the freedom to deny Black citizens the vote . . . the freedom to conduct (certain) organized prayers in public schools . . . the freedom to treat gays like dirt . . . the freedom to impose statist womb management, and big-state micromanagement of ladyparts clinics . . the freedom to suppress science in classrooms to flatter superstition . . . the freedom to pollute the air, the water, and the land . . . the freedom to segregate schools . . . the freedom to require standing at attention for the national anthem . . . the freedom to require Black men to lower their gaze in the company of White women . . . the freedom to close polling places with too much Black voting . . .

            1. Yes, indeed, the list of Democratic Party “freedoms” is appalling! It’s a pity, now that they are back in power, that this is now America’s future as well.

    2. IDK about that heller and Mcdonald were very vague and tailored rulings.

      1. Heller got rid of a DC handgun ban, but left the entire regulatory structure in place otherwise. Tons of follow on litigation.

        McDonland got rid of Chicago’s handgun ban, incorporating Heller and not leaving it a stillbirth, but left the rest of the regulatory structure in place. Tons of follow on litigation.

        The Court didn’t weigh in on a ton of issues in either case, like magazine capacity, or assault weapons, but chose not to.

    3. There are so many levels on which this comment is stupid. I’ll pick two:

      1) A Republican was in the Oval Office for the last 4 years, and they didn’t take any significant case. (The one case they did take, they then dismissed as moot.)

      2) Congress cannot pack the Court. It would take an end to the filibuster for that to happen, and the filibuster is not being abolished. Joe Manchin is certainly not abolishing the filibuster over an expansion of gun rights.

      1. As I pointed out, if the leaders of Congress decide to abolish the filibuster, (They’re certainly talking about doing it.) Joe Manchin isn’t going to be in a position to stop them. He can only stop them so long as they’re OK with being stopped.

        What’s he going to do if they hold the vote while several Republicans are absent, so that they don’t need his vote? Jump ship and become a Republican? Not very likely, and that’s the only threat he has that would mean anything.

        If they mean to pack the Court, they can, whether he’s part of it or not, and if they mean to abolish the filibuster, they will, regardless of what he thinks about it. Being the 50th Senator in your caucus only gives you as much power as they’re willing to let you have.

        1. As I pointed out, if the leaders of Congress decide to abolish the filibuster, (They’re certainly talking about doing it.) Joe Manchin isn’t going to be in a position to stop them. He can only stop them so long as they’re OK with being stopped.

          “The leaders of Congress” don’t have any way to abolish the filibuster. It’s the senate only, and it takes 51 votes. Assuming no Republican is going to support its abolition right now, it requires Manchin’s support.

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