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Supreme Court Is About To Erase More Gun Laws -- Now Would Be A Good Time To Leak That Draft Opinion

This opinion is clearly finished. Don't let the Court play games with it.

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Man using rifleNo one holds any illusions about what New York State Rifle and Pistol v. Bruen is going to say. Oral argument made clear that the majority of the Supreme Court will yet again obliterate even the mildest of gun regulations in service of its gun lobby masters. As staunch conservative former Chief Justice Warren Burger noted years ago, the idea that the Second Amendment conveys an inviolable individual right to own firearms is “a fraud upon the American public.” But that breed of conservative with an eye on jurisprudence and precedent is gone.

Despite knowing exactly how this is going to turn out, the Supreme Court is likely to sit on this opinion now. We could have seen it as early as Tuesday, but the conservative majority that brands itself as “just calling balls and strikes” is sufficiently cowardly that it won’t risk declaring a concealed carry free-for-all one week after a school massacre.

Which is why, if we’re going to start leaking opinions anyway, this would be a good time to send this one out. Because I think we’d all be interested in hearing the Court’s take on this right now rather than a month from now when the nation has moved on to another shiny object distraction. Reading the Court explain just how “weak” they feel a state’s interest in curbing violence is would provide a genuine service to the country that depends on the institution’s credibility.

At this point there are few informed observers arguing that the Dobbs leak didn’t come from the conservative wing of the Court. Liberals had no real incentive — whether Roe is overturned in May or June is of little consequence — while the risk that other conservatives might defect to join a muted opinion by Roberts was palpable. The leak put those justices on the spot to not appear wishy-washy. But if the liberal wing ever wanted to get in the leak game, disrupting the Court’s spineless effort to keep a low profile until this blows over would be a good time.

I put this idea out there on Twitter last night and received mostly positive feedback but also some laugh-out-loud responses, summed up by this one from Aaron Sibarium from the Washington Free Beacon:

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Dude, you doxxed a bunch of 1Ls for saying they wouldn’t invite FedSoc students to their next birthday party, so I’m more than comfortable suggesting that adult civil servants operate with more transparency.

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Also, I’m a journalist. Leaks are kind of central to the job. If anything, my message upholds a core norm of American journalism from the XYZ Affair to the Pentagon Papers. That I’m having to explain this to the Washington Free Beacon says everything about that publication.

Alas, I suspect this is all just bad faith posturing for the gullible. “Norm violation” is the the new “fake news” — a phrase liberals used for real phenomena that got co-opted and repeated by conservatives until it lost all meaning. Norm violations used to be stuff like “abdicating the Senate’s constitutional obligation to advise and consent on a nominee” or “not sending a mob to murder your own vice president.” Now it’s “gosh, what if the opaque Star Chamber that rules the country couldn’t duck public scrutiny?”

Because as “norms” go, this is a stupid one. The only justification is protecting the deliberation period, but we all knew how they were going to vote after oral argument. This isn’t about a February draft like Dobbs where someone was trying to lock in votes — this is a done deal. The case was argued at the beginning of November! They’re done haggling over its wording at this point.

This opinion will come out either way. It’s not changing because of this. At some point, probably on the last possible day of the Term at this point, the Court will rule against the state and write an opinion declaring that states basically have no right to pass any gun regulation at all. The only thing at issue now is whether judges on the taxpayer dime get to hide out from the public until they hit the sweet spot between massacres so no one ties the opinion’s language to real lives.

And they’ll probably succeed. Because 10 people were massacred in Buffalo a little over a week ago and people are still acting like the Texas shooting is a weird aberration. It doesn’t take all that long for government officials to escape accountability for their actions, just grifters and a compliant public.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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