livingston
20×102mm Vulcan
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.
Don’t Expect Miracles | Shall Not Be Questioned
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.
Don’t Expect Miracles | Shall Not Be Questioned
