Supreme Court Speculating

This season’s Supreme Court decisions that center on the second amendment have been a reversal of the trend that passed GCA68 back when I was an underclassman at Bozeman.  To me, the second amendment centers on the words “shall not be infringed.”  For my entire life, I have watched legislation and court decisions that seemed to have an entirely different view, a different definition of those words.

Even now, as I watch Bruen struck down, after being established New York law for over a century, and remand 21-902 BIANCHI, DOMINIC, ET AL. V. FROSH, ATT’Y GEN. OF MD, ET AL., 20-1507 ASSN. OF NJ RIFLE, ET AL. V. BRUCK, ATT’Y GEN. OF NJ, ET AL., 20-1639 YOUNG, GEORGE K. V. HAWAII, ET AL., and 21-1194 DUNCAN, VIRGINIA, ET AL. V. BONTA, ATT’Y GEN. OF CA back to the District Courts with instructions that basically say “Get it right this time.” I wonder.

Obviously, the Trump appointees shifted the balance on the Supreme Court.  I like the explanation that the second amendment is not a second-class right.  Yet I wonder – will West Virginia v. Environmental Protection Agency wind up having more effect on gun owners than the five other cases?  None of them affect me in Montana . . . but in the EPA case, the Court determined that EPA is not authorized to enforce a rule (from back when Obama was a president) that lacks specific congressional approval.

If the West Virginia v EPA can be expanded to cover ATF rules . . . and, while I see no reason it can’t, I am not an attorney . . . the rewrite of rules to cover bump stocks changes.  Re-writing the rules that change pistols with braces to short-barreled rifles changes.  Redefining a receiver may well be equally disallowed.  I don’t know – but I wonder if this ruling isn’t the most significant change that the Supreme Court has opened.  If an agency is not allowed to enforce rules that lack specific congressional approval – it’s a game changer.

The one area of the constitution where I am familiar is Article 1 Section 2, which authorizes the decennial Census for the purpose of apportioning the house of representatives.  As it exists today, the house is apportioned by population, not by population of citizens.  That given, the average California congresscritter represents a population that is 14.1% non-citizens.  A Montana congresscritter represents a population that is 1% non-citizen.  The speculation is simple – should the court hold that the principle of one-man, one vote affects this, California, the nation’s leading source of left wing politicians would lose somewhere around an eighth of its congress representation.  Should a post 2022 Republican landslide take over the house, and get past 60% in the senate, they could pass legislation mandating that the house of representatives be apportioned based on citizen population (instead of total population). 

As I said, I’m no attorney – and even if I were, usually there is an attorney on each side of an issue – but West Virginia v EPA may have a lot more effect for a lot longer than any of the other decisions we have seen.  The future appears very differently to an old man than it did to a college sophomore.

2 thoughts on “Supreme Court Speculating”

  1. Yes, the EPA case was indeed a game changer. It also ends what we call “Chevron deference,” that is, courts deferring to the expertise of agencies in cases involving their rule making, when they shouldn’t have been the source of the rule in the first place.

    Sent from my iPhone



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