Adding to
AW/Magazine ban updates -
https://armedpolitesociety.com/index.php?topic=70249.msg1463393#msg1463393Adam Kraut ... Second Amendment Foundation ... Snope is one of our 55 active cases ... challenges Maryland's assault weapons
It was relisted ... A lot of people have questions about what that means ... a lot of conjecture going out there ... people telling ... that they know what's going to happen
So where are we today? ... Well, we're waiting to see what Supreme Court will do
The U.S. Supreme Court is deliberating over the AR 15 ban case and the magazine ban case and Mark Smith discusses what this means -
https://www.youtube.com/watch?v=uUeC9l-ae1o0:00 Snope Denied... What Now? - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=0s
1:05 The Reality of the Situation - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=65s
3:45 What I Think Could Happen Here... - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=225s
5:10 Caetano Example & Why That Won't Happen Here... - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=310s
7:50 Odds of Cert Grant This Term - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=470s
9:30 Other Possibilities - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=570s
13:04 This Isn't Unusual... - https://www.youtube.com/watch?v=uUeC9l-ae1o&t=784s
- US Supreme Court is still sitting on two extremely important Second Amendment cases ...
Snope versus Brown dealing with Maryland's "assault weapon" ban and ...
Ocean State Tactical versus Rhode Island dealing with ... magazine capacity ban
- I want to tell you ... where I think we stand ... with ... these two important cases
- I told you ... that ... trifecta for ... Second Amendment ... would be ... Trump winning ... House ... Republicans controlling ... Senate so that we can get our judges through and ... Supreme Court would take the
Snope versus Brown-
I don't see how we lose that case if the Supreme Court takes it ... just a simple application of Heller ... the "in common use" test ... burden is on the government to show that these weapons are not in common use ... there's simply no way for them to do that because they're ubiquitous- Nevertheless here we sit ... at the end of January and the US Supreme Court has not granted cert on either of these cases
- Question is what's going on with the US Supreme Court and these cases?
- Why have they not granted cert?
- Well, here is what may be going on ...
- Obviously, I have no inside information ... exactly what's going on inside the US Supreme Court ... so breakdown of what I think could happen
- Based on history and my experience ... to begin with, many people on X ... said can we get a per curiam opinion in Snope or Ocean State Tactical?
- Caetano example and why that won't happen here ...
- In 2016, you may recall Caetano case sought cert ... the Court had a chance to analyze that case and during the period of time Court was doing an internal analysis of the case, justice Scalia died
- Then the
Caetano case came ... opinion was released ... said again that it was wrong for ... Supreme Court to conclude that stun guns were not arms under the text of the Second Amendment ...
because modern arms are as protected as modern instruments of communication for the First Amendment and it was a very good opinion per curiam which meant no justice technically wrote it- But there's a very powerful concurrence and here's where the history gets interesting
- Extremely powerful concurrence that writes basically everything we wanted to say in that Caetano case ... The concurrence by justice Alito signed off by justice Thomas
- Now the hubbub on the street is that the majority opinion in the Caetano case was going to be that concurrence by justice Alito but when justice Scalia died, a 5-4 win for the Second Amendment with that powerful concurrence on "in common use" and modern arms being protected, that powerful concurrence was going to be the majority opinion
-
But when Scalia died, it no longer was a 5-4 court ... it became 4-4 and thus the Court decide to issue that relatively narrow ... per curium decision in Caetano
- So I do not think we're going to see such a scenario occur with Snope or Ocean State Tactical because that was really odd circumstance where likely the Second Amendment was going to prevail in a huge way 5-4 but because of Scalia's death in the middle of the deliberations of the case, it became a 4-4 tie and a narrow per curium decision was issued
- Kind of as a compromise among all the justices to get it out the door- So I think that's unlikely to occur in either Snope or Ocean State Tactical
- I think the Supreme Court will view these cases as particularly important and I don't want to say groundbreaking because that's not really accurate but they will view these as particularly big cases to decide
- So I think it's less than 1% chance we could see a per curium opinion like we saw in Caetano
- Now with that said, I think the odds of cert grant this term, possibility of a cert grant this term has become exceedingly unlikely. I would put it at maybe 3%
- They may still be negotiating and they may have some sort of breakthrough internally because what's likely happening is the Court is assuming there's a possibility ... that's being granted cert this term
- What's likely happening is they're discussing if they grant cert, which side should likely prevail and what would be the rationale because remember, when you're dealing with the US Supreme Court, there's really two questions and they're equally important
- The first question is, "Which side is going to win? Are you going to uphold the lower court ruling? Are you going to reverse it? What's going to happen?" So that's the first issue
- And the second equally important issue is, "What will be the rationale? What is the basis for the decision? What will the draft opinion likely say? Because remember there's a lot of different ways you can rule in favor of a person. There could be five or six different ways
- And then ... some justices may want it to be in one particular way to set a precedent versus a different way so again, there could be ongoing negotiating
- So I would say again,
less than 1% chance we get a per curium opinion like we saw in Caetano
- A 3% chance ... Court grant cert this term- Because we're really running very low on days where they would have the time to have a cert grant and the lawyers get all their briefs in on time, allow for oral argument and the writing of the opinion by the end of June
-
It's starting to get very tight so I would still say there's a very small chance of a grant cert this term but very small 2 to 3%
- With that said, I think there's other possibilities, a 6% or so chance that there could just be a denial of cert outright with no opinion, no dissent, no statement ... Just an outright denial of cert ... that's a possibility. I would place that pretty low at around 5 to 6%
- I think there is a pretty good chance ... 70% chance ... we see a denial of cert ... along with a dissent from one or more justices that say we really think the Court should take this case ... we think it's wrong to deny cert because this is a pressing public policy issue that lower courts are violating the Second Amendment rights and we're going to only encourage more of it
-
There's also a very real possibility ... that the Supreme Court decide to push Snope and/or Ocean State Tactical into next term meaning they think they want a grant cert ... but they don't want to do it just yet because they want the lawyers to have an extra long period of time to work on these cases - - Because they may view these as really big deals and they may say why don't we just relist these cases for a couple another month or two and then grant cert at the end of this term and basically give the lawyers the entire summer to work on the briefs
- I would place that at around maybe 15% or so that we're going to see this shoved into next term
- And the last possibility which I place around 5% is just an ongoing repeated series of relists- Every time a case goes before the US Supreme Court and it's conferenced which means that justices all sit in a room, all nine of them by themselves and they decide whether or not to hear a case
-
If four justices vote to hear a case, that means cert will be granted. If they don't have four votes, it means cert will be denied- But there's also the possibility of relisting a case and what that means is that a case will neither be granted cert nor denied cert ... What the relist simply means is that particular case will be relisted at the next Court's conference
-
Right now the best we can hope for ... is they're going to grant cert in the next couple months for the 2025-2026 term which means we'll get a decision in June of 2026 on one of these cases or both of these cases- I know that's not optimal from our point of view but it certainly would be a lot better to push this case in next term and have a cert granted ... than for it to be denied