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Supreme Court again denies cert
But over a strong Thomas dissent.
"as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are "really worth insisting upon," Heller, supra, at 634, I would have granted certiorari in this case."
"The Ninth Circuit claimed to be applying intermediate scrutiny, but its analysis did not resemble anything approaching that standard. It allowed California to prove a governmental interest with speculation instead of evidence. It did not meaningfully assess whether the 10-day waiting period is reasonably tailored to California's purported interest. And it did not defer to the factual findings that the District Court made after trial. The Ninth Circuit would not have done this for any other constitutional right, and it could not have done this unless it was applying rational-basis review."
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I think the reason for the denials of cert in Second Amendment cases is pretty obvious.
And that reason is Justice Anthony Kennedy.
He is notorious for being the "swing vote" on close or controversial cases. Neither the 4 pro-gun justices, nor the 4 anti-gun justices, know which way he would "swing" on these kinds of cases.
The pro-gun justices are justifiably worried that if Kennedy goes against them, they will lose the ground gained in Heller and McDonald. Except, of course, for Justice Thomas, who is apparently a man of principle, but not of strategy.
The anti-gun justices are also worried that if Kennedy goes against them, they'll essentially destroy any meaningful attempt to control guns in the United States. Right now, individual states have a fairly wide latitude in restricting gun rights, but that could very easily change if Kennedy sides with the pro-gun justices.
So neither side has a big incentive to grant cert until the balance of the court changes. Neither side wants to roll the dice. Once there is a solid 5 justice majority on either side, you'll see Second Amendment cases accepted by the Supreme Court again. Until then, the court is going remain "gun shy".
Bush made huge mistake in appointing chief Judge. He’s been a disappointment from the beginning on Obamacare, immigration, and guns. Cheap political hack. Senate has effectively kept real conservative voices (Bork) off the court for many years. Gorsuch was a safe choice to get confirmed. Trump needs to put solid conservative on bench when opportunity comes. Court has zero leadership and worse, no balls to deal upfront with issues of the day imho.
While he was never briefed on it for a case, Bork was terrible on the 2nd Amendment. But I agree with you about Roberts, and contra dittybopper my bet is that it was he who defected from the Heller and McDonald five, not Kennedy.
I disagree H. If Roberts "defected" from the Heller/McDonald side, then the anti-gun justices would only be too happy to grant cert because they'd have their 4, plus 1 (Roberts), putting them in the majority no matter how Kennedy votes.
They wouldn't be able to simply overturn Heller and McDonald because of stare decisis, but they could effectively neuter the Second Amendment with rulings saying, for example, that California's 10 day waiting period even for those who already have guns is fine. Or requiring that you absolutely must register every firearm that you own and be licensed to own them.
Right now, because SCOTUS denied cert, that's only the law in the 9th Circuit. Had SCOTUS taken the case, and ruled in favor of a 10 day waiting period, that's the beginning of the end of the Second Amendment.
Remember, it takes four votes to grant cert, not five.
If we were dealing with a 4-4-1 split, either side could grant cert on its own.
Both sides prefer to punt, for now.
So, the "Heller 5" are now down to one it would seem.