Supreme Court Gadsden flag scotus
Courtesy Jeff Hulbert

TTAG’s fortunate to have someone like LKB who’s an experienced litigator and keeps a close eye on Second Amendment case progress. He sent the following update on two cases that could go before the Supreme Court.

Both the Guedes v. ATF (bump stock ban) and Worman v. Healey (Massachusetts assault weapon and large mag ban) cases were on the court’s conference agenda last week. They were not, however, on the list of “cert denied” cases on Monday’s orders from that conference.

Over 95% of the cases presented were denied and none were granted review.

My read is that the Court is continuing to hold all cases where there is a serious Second Amendment issue, either because . . .

1) They know they will reach the merits in New York State Rifle & Pistol Association (in which case all such cases will be remanded for consideration under the new opinion) or . . .

2) Because they are planning on granting cert on another Second Amendment case if they don’t reach the merits in NYSR&PA (in which case they’ll hold the other cases until that case is decided, for the same reason).

While that’s at least mildly positive (before Kennedy retired, these kinds of cases were just “cert denied”), right now there’s no telling what the tea leaves are showing on this.

Absent some very unusual procedural maneuvering, however, it’s now too late to add any additional cases to be decided this term. That means if they don’t reach the merits in NYSR&PA and grant cert on another case, it won’t be argued until Fall 2020 and decided until after the election.

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55 COMMENTS

  1. We must insist that the doctrine of “strict scrutiny” apply to any and all laws which impinge to any degree on the right to keep and bear arms. And we must declare that all decisions by any court which do not apply the strict scrutiny standard are null and void and do not carry the force of law.

    • Strict scrutiny? “Shall not be infringed” means the right is outside of the government’s legislative abilities, and the government should be incapable of infringing. Its not subject to the changing winds of debate but far above it and put outside of reach.

      • And while I agree, when I say something along those lines, I get
        ” Yeah so you’re okay with private citizens having tanks and missiles, Huhh? ”
        And, since there are laws against blowing up banks and nosy neighbors houses, I’m going with, why not?

        But people who wig out over a black plastic stock go straight up apoplectic about then, and there is no talking to them about the true purpose of the second amendment or what prior restraint is..
        So, any ideas on how to proceed?

        • Cannons are still legal to own, under Federal law (state and local laws vary).
          Private citizens used to be allowed to own warships with cannons, but I think the maritime laws have changed to forbid putting your cannons on your yacht nowadays. Still, you can have a working cannon in your yard, and it’s legal.

          I think tanks are legal to own, as long as the main gun is “de-milled” (not that you’d be able to find ammunition for their 120mm main gun at your local Wal-Mart or LGS anyway, LOL).
          They’re just too expensive for the average person to own or maintain, costing millions of dollars each plus a fleet of mechanics to keep them running.

        • Civil disobedience, the law only matters if it has enough enforcers to counter the people telling politicians to pack it with the sun don’t shine.

        • Drivetanks.com has tanks with operable main guns and machine guns. Drop a few grand, and they’ll let you play with them.

      • We can say “shall not be infringed” till our faces turn blue but the reality is constitutional cases fall under 3 types of review- Strict Scrutiny, Intermediate Scrutiny, and Rational Basis.

        Strict Scrutiny means any law which infringes is subject to the strictest scrutiny by the court- and laws viewed under this standard have to show they are absolutely necessary and as narrowly tailored as possible. An opinion coming out applying strict scrutiny to 2A cases would be a huge win.

        Dems want rational basis to be the standard… which is basically the idea that any law that infringes on a right need only have a rational reason put forward by it by the govt to be upheld. Basically nothing gets found unconstitutional if its a rational basis test.

        • Dems want rational basis to be the standard…

          Who gets to decide what is rational? Is there any Rational explanation to continue to pretend that No Gun Zone laws actually stop or even diminish death? After SEEING increased concealed carry and SEEING the Good Guy with a gun minimize carnage, wouldn’t any RATIONAL person realize that things are better when good people, trained, responsible, people, average citizens, are armed?
          And, above that argument, let’s remember the absolute Reason for the Second Amendment is found in the writings of the Founding Fathers.
          They had to fight for freedom from tyrants. And they, in their wisdom, knew that unless the People were the Sovereign and government the servant, the People would live in oppression, so, they set the Constitution up to make clear that the People had unassailable Rights. One of which is that the People have the right to arms, sufficient to protect themselves from an oppressive and tyrannical government.

    • If it’s in the Bill of Rights it should automatically get strict scrutiny — I’ve never understood why that isn’t obvious.

      • Also, this was relisted for 1/17, which better than simply being held. It means someone is more interested in this case than the rest. Most cert Grant’s are relisted first. Of course there are other outcomes as well.

        • First the bump-stock ban is an entirely different issue altogether. It’s a question of authority of the ATF, not the Second Amendment. It might eventually get to a point where it’s a matter of the Second Amendment, but from what I understand, that case is not.

          Second, I agree that Worman being on “hold” is the best possible place for it right now. It gives clues that NYSRPA is going to go well for us.

        • Say SCOTUS waves their magic wand on NYSRPA and declares “Strict scrutiny”. That isn’t going to do a whole lot of good in the near future, we will have to sue each and every infringing law to get them declared unconstitutional, no?

          Slave states will just pass infringing law after infringing law, forcing us to battle each and every one. What good does that do us?

        • Geoff. Think back to Illinois just a short few years ago. The dem machine in Chicago put up road block after road block. Finally the Scotus slapped them. They had 30 days to become either shall issue or they would become court ordered constitutional carry.

          Piss off scotus and see how fast it rains shit on your parade. I have witnessed a federal judge, not at scotus level, round up city officials and have them in shackles in front of his bench. They cooled their heels in jail for contempt and that was the last time that judge got any shit from them.

          I don’t know where this myth started that you can thumb your nose at scotus. You’ll only do it once.

  3. Someone should sue the Supreme court for not doing it’s job, they keep avoiding dealing with issues that have to be addressed. What does the supreme court do all day? Come clock in for an hour a day and twiddle your thumbs and rule on some thing once a month. it’s ridiculous. They should have a new rule that they have to rule on every issue within 30 days. Not kick it back or delay it because of politics.

    • The Supreme Court has a 9 month term, but in fact justices are available year round for emergency opinions. There are only 9 justices. They decide over three hundred cases every term. Review of cases is almost entirely discretionary–the court gets to choose which cases it will decide out of literally thousands of petitions it receives every year. Many of those petitions for certiorari, as was the case in the NYRPA case, include a lengthy record and multiple amicus curiae briefs, all of which all of them must read before a decision on whether to grant or deny review. Typically it does not review cases where there is no conflict in the law between the various circuits. It is also the court of last review for death penalty cases, each of which usually has a record in the thousands of pages amassed over a period of many years before it ever reaches the court.To suggest that these guys sit around twiddling their thumbs is specious.

    • A Supreme Court justice can be impeached and removed according to the same rules used against the President.

    • While I appreciate your sentiment, unfortunately suing SCOTUS would be a certain failure. The case would end up in SCOTUS, and they’d most certainly favor themselves. Unfortunately the courts are one of the areas of the government the people have very little real control over. Presidents and congressional members ultimately do have to win elections to stay in power. Judges are immune to the will of the people and have few checks on them.,

      • Wrong, see comment above.
        Never realized what my initials spelled until now! Crap!

  4. Fortunately after november 2020 we will have Trump in his second term. RBG should be going then or soon after. Good days ahead.

        • All it is is funny Dave. Its not the big a constitutional crisis anyway. We had unlimited terms until FDR, we changed it after that because no one could beat the guy. Same thing would likely be true for Trump, were it legal.

          …its not…so its only a humorous “what if” scenario.

      • Leftard’s given to their mental disease will take that idea and run with it, the lame stream media will have it in 3,2,1. Perhaps the house will file a addendum to their zilch impeachment charges.

    • Your counting on President Trump!?! He supported the ban on bump stocks and has vocalized his dislike for silencers wanting to ban them next. Don’t take my word for it. Look it up.
      He is not our ally in this. He’s only better than the options of power hungry commies and socialist. Some tell me his son is supportive of the 2A but he’s not the POTUS at the end of the day. Once President Trump secures the second term and no longer needs the crowd support lets see what happens.
      Don’t blindly follow or put faith in it because him will be your undoing.

      • Mio. I have no faith or like for Trump. But at this point in our history it’s all about the judges. And Trump appoints conservative judges.

        If Trump is the gop candidate we either vote for him or see the fascist left get their way.

    • You seem to be sure that she’s alive now. I’m not sure of that, at all. I think she’s dead, and they just keep washing her up, dressing her up, and propping her in front of a camera now and hten. It’s their only hope to avoid Trump appointing another SC justice. But, they can’t continue that charade for another 4 years!

  5. I wish I could just deny 95% of the workload my boss throws on my desk.

    “Sorry boss, these all don’t hold up to scrutiny and cannot pass cert.”

    And still get 100% of my paycheck for the job I was hired to do.

    Somebody should be able to just abject fire every last justice in the Courts (high or low) who refuse to allow for the redress of grievances for their abject lack of conviction to their positions.

    • I don’t think the Court could do any kind of credible job on that many cases. It stinks but it’s reality.

      • This, so much this. The justices and their staffs put a lot of work into every opinion that they write, and high quality work takes time. A Supreme Court that spent 75%+ of its time simply hearing cases wouldn’t turn out very good rulings.

  6. A hostile Court. Derelict in its duty. Partly responsible if there is another civil war. Damn them

    • If there is to be a future Boogaloo,it won’t be north against the south but rather the Left versus Americans.

    • If it looks like serious violence is going to erupt in Virginia, I think you will see Justice Thomas writing very fast…

  7. Just to be clear: the RKBA has no real “friends” in the conservative political movement or the conservative legal movement. The conservative movement is actively “anti-libertarian,” and now more so than ever. It has a bevy of theocratic, populist, nativist, and authoritarian causes on its agenda, none of which will be made easier by having a heavily-armed civilian population. The absolute minimum will be given by the larger “movement” to its disfavored stepchild, and that on a purely transactional basis. For whatever reason, RKBA is now yoked to its least natural ally: “movement conservative” GOP politics. Every step forward is fraught with peril.

    • But why is it so hard for most “conservative’ pro gun people to understand this? I don’t have an answer for our problems but we can’t even begin to organize in any way until we stop acting like ignorant children. The ballot box and courts are not going to save us. The Virginia rep was right I guess, we’re like little kids.

    • The problem lies with happened to the libertarian movement. Before the 2010s it was very different then it was today. However, In the 2010s, it morphed into a “liberal lite” movement that embraces open borders, certain aspects of gun control, and even slightly socialist leanings. I’m not sure why this happened, and I do not like it. I find it sad honestly. But I watched this transformation occur and I am quite disdainful of what the libertarian party is now.

      • What do you mean by “open borders”? There is a border between New York and Massachusetts. It is an “open border” because you can cross it without any screening or prior permission. That’s what “open border” really means in the English language. Is that what you mean? Because if so, literally no one advocates “open borders” internationally in the leadership of the Libertarian movement. Or are you just using “open borders” as a slur against anybody who wants more freedom for immigrants than you do?
        *
        “Some aspects of gun control.” Yeah, you should not be able to make a private sale of a gun to a felon or a fugitive or an illegal immigrant by not checking their eligibility first. Do a NICS check when you do a private gun sale. Simple. Easy. Level playing field with commercial sellers.
        *
        “Slightly Socialist.” Whatever the hell that means. I give up.

  8. We need President Trump to appoint at least 2 more constitutional jurists to the Supreme Court, then my grandkids will have the American dream we thought we would have… really disappointed that the Supreme Court hasn’t got behind the constitutional #2 Amendment like it was supposed to do… dirt bag liberal judges keep screwing shit up, Obummer was the worst in my lifetime , probability yours to if your on this web. Unless you’re a BIG DICK like , Vlad, who’s always a DICK… don’t shop at Dick’s either, another story.

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