Why does SCOTUS refuse to take up any "Assault Weapons Ban" cases?

[LogicMan]

So this thought struck me while typing a response in the Massachusetts AWB thread, but does the SCOTUS just decide this based on a simple majority vote the way they decide cases? Because if so, that likely means that the dissenting vote is Justice Kennedy. But if Kennedy is for striking down the bans or upholding them, then what would be his concern? He'd get to essentially decide the case either way, right?

 

[Bartholomew Roberts]

It only takes four votes to grant cert on a case. We know Ginsburg, Sotomayor, and Breyer are against even the limited ruling in Heller. We have no solid basis for conclusion on Kagan; but she is likely anti. So there are probably four votes to grant cert if they thought a ban would be held up by SCOTUS.

On the pro-Heller majority, we know Thomas and Gorsuch favor granting cert on an AWB case.

So our mystery Justices are Alito, Roberts, Kennedy and (maybe) Kagan. I think it is safe to say at least two of the Heller majority wants to wait and see what the lower courts come up with before accepting an AWB case. So, it isn’t just Kennedy.

However, it is possible that some of the Justices aren’t granting cert because they know one of the Heller majority is borderline and don’t want to take that chance.

 

[Glenn E. Meyer]

We cannot ignore the possibility that some of the Heller majority members like Alito or Roberts actually feel that Heller went far enough. A handgun for self-defense of the home might just fit what they think is protected. It is reasonable that they think Kennedy will turn against gun rights if they were to attempt to negate state bans.

Supporting gun rights does not have to be dichotomous for NO guns, ALL guns. We don't know.

Here's something I found on Kagan, if it is useful:

2nd Amendment confers individual right, not broad principle
Sen. Jeff SESSIONS: You stated that ours is a Constitution "that has all kinds of provisions in it, so there are some that are very specific provisions. But there are other kinds of provisions meant to be interpreted over time, to be applied to new situations and new factual contexts. Sometimes they laid down broad principles." Would you classify the 2nd Amendment as a "very specific provision" or a "broad principle"?

KAGAN: I did not mean to suggest that all constitutional provisions fall into one of two categories--"very specific provisions" or "broad principles." Rather, I meant that different constitutional provisions contain language at different levels of generality, which present different interpretive issues. The issue in DC v. Heller was whether the 2nd Amendment conferred an individual right to bear arms or merely a collective right associated with militias. The Court considered both the language & the history of the 2nd Amendment in deciding that it conferred an individual right.

Kagan and Scalia on hunting:

https://www.theatlantic.com/politic...ice-scalia-are-hunting-buddies-really/277401/

From the article:

I'll tell you what, if I am lucky enough to be confirmed, I will ask Justice Scalia to take me hunting.'

She said she shot a deer and birds. Now does hunting translate to owning an AR? We have seen many hunter types oppose ownership of such. Certainly not all but some have been highly vocal.

For example, Morning Joe Scarborough (blah) has proclaimed the 2nd isn't about hunting and then switched. I heard him say one morning that you don't need a AR-15 loaded with a clip of 30 cop killer bullets to go hunting with your son.

Here's some history (is this source credible): http://www.breitbart.com/big-journalism/2018/02/16/evolution-joe-scarborough-gun-nut-gun-grabber/

Note that here and other places, Morning Joe credits the Constitutinality of an AWB to Scalia's prose in Heller.

That's a note for the Heller fans who try to dissect the decision as not to support such bans. It certainly is being used that way in the public domain and in the lower courts. You can write tons of electrons on the gun forums saying it ain't so, Joe - but the outcomes are what counts.

 

[zukiphile]

So our mystery Justices are Alito, Roberts, Kennedy and (maybe) Kagan. I think it is safe to say at least two of the Heller majority wants to wait and see what the lower courts come up with before accepting an AWB case. So, it isn’t just Kennedy.

That's a very solid analysis. It seems fair to doubt that Roberts would decide the issue without regard to political winds based on his maneuvering on the Tax v. Penalty issue. Predicting Kennedy is like predicting the weather. We know that Thomas doesn't mind writing as a minority of one.

Note that here and other places, Morning Joe credits the Constitutinality of an AWB to Scalia's prose in Heller.

I sometimes watch his program with breakfast. He is tedious and dull, and is no constitutional scholar. That he misinterprets Heller doesn't indicate that he has correctly applied it.

That's a note for the Heller fans who try to dissect the decision as not to support such bans. It certainly is being used that way in the public domain and in the lower courts. You can write tons of electrons on the gun forums saying it ain't so, Joe - but the outcomes are what counts.

That a case is incorrectly interpreted in the public conversation and some lower courts should not dissuade anyone from applying it correctly.

The outcome of a decision is not all that counts. Heller itself demonstrates that given the subsequent history with DC and Chicago. The power and persuasion of the reasoning will also have a bearing its influence.

Looking to the future, this means that transforming Thomas and Gorsuch from a weak minority into part of a stronger majority on this issue should be an electoral priority.

Here is an interesting piece. https://www.politico.com/story/2018/...endment-488561

It demonstrates that 2nd. Amend. support can be found and encouraged across classic party lines. Such candidacies should be supported. While this is a touch political, that is not my intent in posting it.

The need for a stronger SCOTUS block to correctly apply Heller and the 2d Am. is exactly why Heitkamp should only be supported if there is no one better. She didn't like Gorsuch, but voted for him because he was the exec's nominee. She has described Gorsuch as someone she never would have nominated.

There is a specific philosophy about how justices should approach interpretation of COTUS text. Candidacies who would choose justices who can do that should be supported so we don't have to prophylactically deny cert.

I see pictures of Clarence Thomas and sort of wish he would take better care of himself.

 

[LogicMan]

KAGAN: I did not mean to suggest that all constitutional provisions fall into one of two categories--"very specific provisions" or "broad principles." Rather, I meant that different constitutional provisions contain language at different levels of generality, which present different interpretive issues. The issue in DC v. Heller was whether the 2nd Amendment conferred an individual right to bear arms or merely a collective right associated with militias. The Court considered both the language & the history of the 2nd Amendment in deciding that it conferred an individual right.

For Pete's sake, and she is supposed to be some high-end legal scholar The Bill of Rights doesn't "confer" anything to the people, it protects what are pre-existing individual rights. The only reason it was even added to the Constitution is because the anti-Federalists would not support ratification without one. The Federalists themselves thought a Bill of Rights redundant and even dangerous because it says that the federal government cannot do things which it isn't granted any authority to do in the first place, and that by saying such, can give the impression to people that it does have some such authority.

To quote Hamilton from Federalist Paper #84: "For why say that things shall not be done for which there is no power to do?"

 

[zukiphile]

For Pete's sake, and she is supposed to be some high-end legal scholar ...

To be fair, she legitimately is a "high-end legal scholar". She's was an academic and professional success, there being nothing second rate in her record. Assuming the error you note wasn't carelessness, you might find a clue to her different vision of rights in her undergraduate work.

Put differently, it isn't that she doesn't know something you and I know, but that she doesn't believe some things about humanity that you and I believe. Being very smart isn't a substitute for beginning from the correct premises.

 

[Tom Servo]

So our mystery Justices are Alito, Roberts, Kennedy and (maybe) Kagan.

I think we can count Alito as being in our corner based on his writing in McDonald.

As for the rest, any prediction I could make would be worth the electrons used to project it on your screen and not much more. Let's remember that Souter (who'd been sold to GHW Bush as a "slam dunk" for conservatism) sided against us in Heller.

 

[Minorcan]

Wel Trump should have the opportunity to appoint more conservative Justices to the SCOTUS soon. This could be his most significant action of his Presidency!

 

[ATN082268]

That's a note for the Heller fans who try to dissect the decision as not to support such bans. It certainly is being used that way in the public domain and in the lower courts. You can write tons of electrons on the gun forums saying it ain't so, Joe - but the outcomes are what counts.

How exactly are the lower courts using Heller? I really want to know. If the 2nd Amendment is an individual right, then the lower courts should treat it as such, like the 1st Amendment, right?

 

[Bartholomew Roberts]

I think we can count Alito as being in our corner based on his writing in McDonald.

If I had to guess, I would say Alito’s view of the Second doesn’t support bans; but he might still be opposed to granting cert on a lower court upholding a ban for other reasons.

 

[Gary L. Griffiths]

Since this is mere speculation, I'll add my $.02 worth. I think that BOTH sides are kicking the can down the road because of Justice Kennedy. The liberal justices don't want to grant cert on a 2nd Amendment case because they're afraid Kennedy will again side with the conservatives and strike down, say, an assault weapons ban. OTOH, the conservatives are aware that they may not have Kennedy's support for upholding the 2nd Amendment in an assault weapon ban or public bearing case, so won't vote for cert until he is replaced with a more reliably originalist justice.

The ultimate answer is, only the nine know for sure, and maybe not even all of them! The drama continues.....

 

[Glenn E. Meyer]

The kicker in the game is that folks want a 'conservative' justice and sometimes that person is an unpleasant surprise for those predicting ideological purity.

I suppose that could happen for a liberal justice also.

To ATN - one has to look at the lower court decisions on upholding state bans to find language using Heller as support. We have them all over the forum or they can be googled. Now some say that they are misinterpreting Heller and Scalia's wisdom and thus it was a good decision. However, I tend to think about outcomes. If the misinterpreting crowd can use the language and win the day - that's what counts. It also means that the language, while seen as wonderful, had the risk of misinterpretation and that what was bad about it. Some don't see that.

Words on paper and the actual real world behavior need to be looked at carefully. If you have to turn in your mags and AR with a justification from Heller, guess what counts from that decision?

 

[Lohman446]

I expect the justices have some idea of how they might vote. However it is unlikely they have articulated it to the particular points of law that will be brought up in arguments and it would be somewhat irresponsible if they had. They don't really know, with certainty, how they will vote let alone how their colleagues will vote. It should also be noted that while their rulings are expected to be matters of law and based on law they are not free from political opinions.

It could be that they, from a political perspective, fear the outcome of an unknown ruling that would make the issue clear and simply wish to continue the status quo on the issue.

 

[Glenn E. Meyer]

It should also be noted that while their rulings are expected to be matters of law and based on law they are not free from political opinions.

I said this before, making some folks get all hot and bothered, that research of hot judicial topics of social import seems to indicate that judges are most likely to vote their politics and then look for supporting precedent. Given the vast amount of blather out there, you can find support for almost anything. Pick a section here and there.

It is the behavioral outcome that counts - meaning whether YOU go to jail based on some interpretation.

 

[zukiphile]

If you have to turn in your mags and AR with a justification from Heller,...

Would you quote the part of Heller that would justify such a ban?

The kicker in the game is that folks want a 'conservative' justice and sometimes that person is an unpleasant surprise for those predicting ideological purity.

It does not predict ideological purity to foresee a justice deciding cases based on his own demonstrated principles pertaining to the manner in which constitutional limits are to be applied to controversies that come before the court.

A justice who supports finding new rights where none are written and dismissing explicit limits because the COTUS is a "living document" may be expected to continue that line of thought in their decisions. A justice who supports interpreting the COTUS according to the public understanding of the ratified text is more likely to continue that line of thought in his decisions.

Only one of those schools of interpretation has resulted in the affirmation of an individual 2d Am. right as expressed in Heller.

Describing justices as liberal or conservative is overly political and misses the point of the differences in interpretive schools. Scalia wrote in strong defense of the rights of criminal defendants. Is that liberal or conservative? Or did he just have a "gut" affinity for criminal defendants? Merrick Garland showed a relative weaker argument for defendant's rights while also having slight regard for principled limits on the scope of federal government. What does that make him?

Now some say that they are misinterpreting Heller and Scalia's wisdom and thus it was a good decision. However, I tend to think about outcomes. If the misinterpreting crowd can use the language and win the day - that's what counts. It also means that the language, while seen as wonderful, had the risk of misinterpretation and that what was bad about it. Some don't see that.

There is no language so clear that it cannot be willfully misinterpreted by someone who would prefer to misinterpret it. Since any language can be misinterpreted in that manner, it can't be a comment on the text of Heller that someone would choose to disregard it. It's good to examine results; dismissing what produces a result is a poor plan.

The movement to read the 2d Am. according to the publicly understanding of the text of the amendment comes from a fairly specific Society of attorneys and judges. At a national level, we've yet to see the political "liberal" candidate who would commit to nominating judges from that Society. I'll be happy to see it if it does happen.

 

[thallub]

IMO: Folks are reading too much into reason/s Second Amendment cases are not heard. There is the problem of caseload. Each term 7,000-8,000 cases are appealed to SCOTUS. SCOTUS hears about 80 cases each term: That's about one percent.

Each Term, approximately 7,000-8,000 new cases are filed in the Supreme Court. This is a substantially larger volume of cases than was presented to the Court in the last century. In the 1950 Term, for example, the Court received only 1,195 new cases, and even as recently as the 1975 Term it received only 3,940. Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term, and the Court typically disposes of about 100 or more cases without plenary review. The publication of each Term’s written opinions, including concurring opinions, dissenting opinions, and orders, can take up thousands of pages. During the drafting process, some opinions may be revised a dozen or more times before they are announced.

https://www.supremecourt.gov/about/justicecaseload.aspx

 

[ATN082268]

I said this before, making some folks get all hot and bothered, that research of hot judicial topics of social import seems to indicate that judges are most likely to vote their politics and then look for supporting precedent. Given the vast amount of blather out there, you can find support for almost anything. Pick a section here and there.

So, in general for judges, it is more about upholding their opinion than law.

 

[zukiphile]

So, in general for judges, it is more about upholding their opinion than law.

It isn't that there is no truth to that generalisation, but there is limited utility to it in understanding written decisions.

Gorsuch is 50, give or take. He has certainly brought his own inclinations and prejudices to legal issues when he first encountered them; that's how people learn. However, his inclinations have also been formed by what he learns about the law. The process is often referred to as a hermeneutic circle of understanding. We look at individual trees to better understand the forest, and our idea of the forest yields a better understanding of the trees in it.

To suppose that this middle aged man has an opinion that is at odds with or not accurately represented by his expressed legal analysis, and simply writes a rationale to justify a nebulous "gut" feeling misses much of what Supreme Court justices as well as lower court judges do.

I've seen judges decide cases in ways personally distasteful to them, and I've seen them turn the law on its head because they wanted to do something they shouldn't. Judges surely have personal biases, but it is generally too simplistic to dismiss what they do as a mere expression of personal bias.

 

[Glenn E. Meyer]

When SCOTUS judges are analyzed for appoitnment according to their ideological purity on major social issues, that is a major part of the variance. As I said, research into such decisions indicates that ideology is a powerful factor.

Now a legal professional may not be comfortable with such a view. That has little practical significance. Since decisions are complex, dismissing the factor as a major play is stupid.

When Heller was decided, you had a 5 to 4 split, you have justices denouncing the 2nd Amend. in the past and present. Given the laws and precedents stand as written, what causes these seemingly intelligent people to come to diametrically opposed views of the world?

It is the same with other social issues, not to debate their validity, gay marriage or abortion. Wildly different views, expressed with personal intensity. Why is that?

We will see who misinterprets the outcomes based on the behavioral consequences? Will state bans ever be overturned or will such continue? If a federal ban comes into place due to a change in the legislature, will it be supported? If it is, will Scalia still be quoted.

It is sheer folly and a lack of really understanding decision making to argue the decision was great as it could be easily misused.

We should have won because we had a great game plan - not a good excuse, Coach.

 

[zukiphile]

When SCOTUS judges are analyzed for appoitnment according to their ideological purity on major social issues, that is a major part of the variance. As I said, research into such decisions indicates that ideology is a powerful factor.

Emphasis added. I've bolded the pronoun with no clear antecedent. Knowing someone's ideas is certainly a powerful indicator of the way he thinks, but that near tautology doesn't support a contention that a holding is mere personal bias or a "gut" feeling with an ad hoc rationale opportunistically cobbled together.

Now a legal professional may not be comfortable with such a view. That has little practical significance. Since decisions are complex, dismissing the factor as a major play is stupid.

I don't know what you mean by "major play". That decisions are not actually complex is a position I've only read you assert here.

The 4 liberal justices have a gut oppostion to guns. The 4 conservative justices have a gut opposition to gays. That's what focuses how they decide.

Kennedy has been seen as one who thinks about things a touch more deeply and also relishes his position as swing on the major issues.

and

I'm afraid constitutional issues are decided by people on a primary personal basis and the intellectual ballast, so to speak, comes in later to rationalize the decision.

I'm happy to see development and moderation of your assertion, but you will note that I haven't discounted the complexity of decisions or dismissed the irregular role of bias.

Although you label your view as practical, its practical value to you appears to be as a reason to disregard the text of decisions in favor of the imputed emotions.

The problem with your view isn't discomfort amongst attorneys and judges (an imputed and non-intellectual motive).

When Heller was decided, you had a 5 to 4 split, you have justices denouncing the 2nd Amend. in the past and present. Given the laws and precedents stand as written, what causes these seemingly intelligent people to come to diametrically opposed views of the world?

Emphasis added. You beg the question of the constitutional analysis you claim to answer. Smart people may proceed from different premises and reach different conclusions. The majority opinion in Lawrence v. Texas did not take the precedent in Hardwick as a given. They applied a mix of premises to reverse Hardwick, and some of those ideas aren't even purported to be constitutionally derived.

That's the interpretive difference between a justice who would look to the original public meaning of the text of the 2d Am. and one who would examine extra-constitutional social "science" to shape public policy. That is a difference in method, not emotion.

It is the same with other social issues, not to debate their validity, gay marriage or abortion. Wildly different views, expressed with personal intensity. Why is that?

Don't miss the possibility that you both over-estimate the personal intensity of the expression and that you have misindentified the object of the intensity when you dismiss the importance of the rationale for a holding. The method of interpretation is a matter of some passion.

It is sheer folly and a lack of really understanding decision making to argue the decision was great as it could be easily misused.

Your planted axiom is that a good decision can't be misused. No one familiar with litigation believes that.

Moreover, despite requests you've not identified the part of the decision you think is so easily misused.

If you have to turn in your mags and AR with a justification from Heller,...

Would you quote the part of Heller that would justify such a ban?