Quote of the Day
The Ninth Circuit’s chaotic (and defiant) Second Amendment jurisprudence begs out for intervention by this Court. Sup. Ct. R. 10(a), (c). That chaos has escalated to an internecine intra-circuit conflict, most recently in Duncan v. Bonta, No. 23-55805, 2025 WL 867583 (9th Cir. Mar. 20, 2025) (en banc). The case generated three dissents on the merits, including a first-of-its-kind video dissent.
…
The Duncan dissenters didn’t mince words: “[T]he majority didn’t just butcher the Second Amendment and give a judicial middle finger to the Supreme Court. It also spurned statutory procedure for en banc proceedings.”
Donald Kilmer
C.D. Michel
March 31, 2025
B&L PRODUCTIONS, INC., D/B/A CROSSROADS OF THE
WEST, ET AL., v. GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF THE STATE OF CALIFORNIA AND IN HIS
PERSONAL CAPACITY, ET AL.
The video mentioned is this one:
You would think SCOTUS would rapidly get annoyed with this contempt by the lower courts and slap them down. But apparently things do not work the way I think they should.
Roberts is an all power to the judges guy. Any judge will do.
Communists are going to commie.
And since power is the object of communism, and judges are a major projection of power.
The judiciary is by nature going to be full of communists.
And communists don’t give one whit about the law.
Now, everyone understands what “Shall not be infringed”, means. They understand who it’s speaking to and why.
They don’t care.
They don’t care that it makes their rulings “not-with-standing”, anywhere, and in any manner.
It automatically strips away the very authority they project.
They just don’t care. They have zero problems with making up any lie, no matter how fraudulent, then using it against you and all that is righteous.
Absolutism is the goal, and they don’t care how it is perceived.
But here is the twist. What does the 2A grant us?
It grants us tacit authority to remove them. If it didn’t. There was never a reason to write the 2A in the first place.
It was written to prepare us for the time when the tyranny that our forefather knew for a fact would come upon us.
Human nature precluded anything else from happening.
The only thing in question is our threshold for their ignorance.
And what it takes to reach it.
What will happen when we do is a foregone conclusion writ large in 2A itself.
Till then, communists are going to commie.
You would think SCOTUS would rapidly get annoyed with this contempt by the lower courts and slap them down.
A courtroom — even, or perhaps especially, at SCOTUS’ level — is supposed to be a place of reason, more free from emotion than most places. Annoyance is an emotion, and the Justices shouldn’t be allowing temporary emotion to dictate their actions. They won’t slap the lower courts out of annoyance.
That said, history shows that certain Circuit Courts (looking at you, Ninth Circuit) have a LONG habit of giving SCOTUS the one-finger salute, defying precedent, and doing their own thing — particularly but not exclusively in cases touching the 2nd Amendment — and reason dictates that unless those Circuit Courts are slapped down, good and hard, they will continue to do so. Thus, SCOTUS should slap the lower courts out of pure, emotionless reason, just to keep from wasting valuable time on cert petitions for questions they’ve already answered (or alternatively, denying or ignoring cert petitions on questions they’ve answered and allowing injustice to stand … which is what we’ve been seeing the past few years.)
Why they don’t — out of reason, if not annoyance — is beyond me.
I think the trouble is that judges are all about process at the expense of everything else, including obedience to the Constitution. The sad reality is that only a handful of judges obey the Constitution even some of the time, and none do so all the time. I’m fairly comfortable saying that none, in the history of the United States, have done so.
Part of the “process” issue is that there actually is no way for SCOTUS to discipline a lower court. The Constitution places that power only in one place, the Congress (through impeachment). And Congress is extremely reluctant to do so, even though perjury (of the oath of office) is surely a sufficient cause.
My theory is SCOTUS would prefer the 2nd Amendment issues stay off their docket for as long as possible. They may say they are interested in these Constitutional matters but the Justices are human. And often part of what is generally seen as a Liberal court system.
I think they don’t take these cases or slap down the lower courts because they fear the outcome of taking up and ruling on these matters as the Constitution requires even more. They would prefer that the circuits slug it out for a decade or two, find some consensus equilibrium and then resolve some matter where the outcome won’t be controversial.
Look at Heller. Fundamentally a safe storage and handgun possession case. One draconian jurisdiction. Only got to SCOTUS because of Adrian Fenty’s hubris. Could have been resolved locally or by Congress. Had it, Heller would have never happened.
Look at McDonald. Same fact pattern in Heller. Only made it to SCOTUS because of Daley’s hubris. Unlike Fenty, Illinois saw the writing on the wall afterwards and prevented Bruen from happening 10 years earlier.
Look at Bruen. A localized carry case. After 88% of the country had already come to consensus on carry outside the home. With half Constitutional Carry. The decision was about bringing a small minority into line. What is a middle finger to SCOTUS when 90% of the of the states are kind doing what they are supposed to? Let the open defiance remain local and not draw official attention.
Now you have open all-out licensing and bans playing out in Illinois, Washington State, Oregon and Colorado. Again, local issues. A minority of states. Most do this and, unlike other cases, no circuit splits. It raises the bar to getting SCOTUS involved. Let things play out for a decade here and elsewhere. See what consensus emerges. Then rule weakly.
Bette that than upset the national apple cart with SCOTUS declaring AR-15s protected. They don’t want to do that. They seriously don’t. For all the lip service, I do believe they honestly fall into the trap of seeing such firearms as having military purpose. They want to allow some form of firearm freedom but not the level the Constitution requires. They don’t want to close doors on the government ever being able to act towards guns. Keep it nebulous. Make the fight generational. Let attitudes change naturally and these issues die off or evolve into non-controversies.
While I hope for slapdown of things like AWBs, licenses to purchase/possess and so on, we’ve seen enough foot-dragging by the Circuits that the view is they can long-game this for years, rule against and force those challenging them to use a process hostile to them to bankrupt them monetarily and emotionally. The cynical part of me sees AWBs still existing in 2035 with SCOTUS doing little with a new round of gun rights balkanization occurring in the USA. This time around permission and form rather than self-defense.
When judges can declare boxes with springs a verboten item with a straight face, you know you’ve already lost.
While a court may overturn a lower courts rulings in general judges simply do not hold other judges accountable for their conduct or rulings…no matter how egregiously wrong they may be. For a simple reason. If the system actually started to hold judges accountable than ALL judges would have to “look over their shoulder” on every issue they rule on. And they simply do not want to have to do that. Other professions tend to act the same way. No matter how incompetent a doctor may be it’s rare for other doctors to actually even speak up let alone act to protect patients from them. In fact the only meaningful recourse society has for incompetent doctors is the malpractice lawsuit, which is about the only thing doctors actually fear.