Background

The Supreme Court has ruled that the meaning of an Amendment is locked to the time it was adopted. The People at that moment of time analyzed the end and decided that the means proposed was properly balanced. If The People decide that the original analysis was wrong, they will go through the process of amending the Constitution.

Karen Achoo, the governor of a blue state, requests and gets the Protect Our State (POS) law passed. This declares that dangerous or unusual weapons can be banned, and it is factually obvious that firearms that hold more than two rounds are dangerous and thus are banned.

This bill goes into effect on January 1, 2024. We now game the problem from the view point of the anti-gun side.

Scenario One

The Supreme Court is 6-3 favoring originalism. Judges that will read the law(s) as written and apply the means-end that was done at the time of the adoption of those Amendments.

In this case, the anti-gun people want to keep 2A cases away from the Supreme Court. If they make it to the Supreme Court, they assume that the ruling will not be favorable. The thought being that if they can hold out long enough, the balance of the Supreme Court will change and they will have anti-gun Justices.

GOA with FPC file suit in District Court challenging the POS. They get any anti-gun Judge.

First, this Judge sends the case through mediation. This is two weeks before both parties agree that mediation won’t work.

The Court then sets a briefing schedule. He sets the timeframe to 8 weeks for everybody to have everything filed and briefed, and the case will be heard two weeks after that.

The plaintiffs (good guys) file for a TRO and a Preliminary Injunction. The state files for summary dismissal for lack of standing.

The Court agrees. The state has already filed their motion for dismissal, the plaintiffs are given 3 weeks to file their briefs to prove they have standing. After that 3 weeks, the state will have a week to respond. The court will give their response a week or so later.

We are now nearly 2 months out and the court dismisses the case for lack of standing.

It takes another 2 months for the GOA and FPC to correct the reason for dismissal, at which point they re-file the case.

We are 4 months into the process.

The same court gets the case and the entire process starts again. Two months after the case was refiled, the court rules that the plaintiffs have standing. With this order, the case starts to move forward again. The plaintiffs again file for a TRO and Preliminary Injunction. Briefings are scheduled and a hearing on the TRO/Injunction is scheduled. The schedule is a tight 2-month schedule.

We are now 8 months into the process. For this time period, every person who owns a firearm that holds more than two rounds is considered by the state to be an indited felon.

The Court declines to issue a TRO or a Preliminary Injunction since it will confuse the people of the state. The court states that this will preserve the status quo.

The plaintiffs file notice that they are appealing to the Circuit Court. Two weeks later, they file an emergency request with the Circuit court requesting that the Circuit Court issue the Preliminary Injunction.

The Circuit court schedules a hearing in 4 weeks because it is an emergency. Meanwhile, they leave everything as is. The parties file their briefs.

At this point, a bunch of other infringers leap into action, and file friends of the court briefings, 100s of pages each.

The Circuit Court hears the appeal 6 weeks after the District Court filed their ruling.

12 weeks later, the Circuit Court delivers their opinion. They decide that since the case is not yet final, they are not going to step in.

We are at the 11-month mark. The District court now moves back to the request for an Injunction. Since the briefings for the Preliminary Injunction and the Injunction proper are mostly the same, he gives the party only 8 weeks to complete all briefings and responses before he will hear oral arguments for the case.

It is 1 year and one month since the infringing started and the District Court is finally going to hear the case. The big day arrives, and the parties argue for two days. At the end of oral arguments, the judge takes everything under advisement and tells everybody that he will issue his opinion shortly.

The court now goes radio silent for 6 weeks. At the end of that time, he issues an opinion. It is 200 pages of damning with week praise type of argument in favor of the Plaintiffs. He grants an Injunction on the smallest part of the law as he can. He says that people can keep revolvers that hold more than two rounds.

We are 1 year and 2.5 months into the case and the plaintiffs have a “win”. They are not happy, but they might not have standing to appeal. The state has standing to appeal, but they decide that they are happier with where they are than in appealing.

The case is dead.

At which point the State Rifle and Pistol Association steps in and files their own suit in a different District Court. This time they get a better judge.

This time, the case moves faster at the District level. When the court issues the Preliminary Injunction, the state immediately files an appeal with the Circuit court. Within a couple of days, the Circuit Court issues a Stay pending hearing the appeal.

The Circuit Court does not actually schedule a hearing. The plaintiffs are begging for a schedule and the Court is just not doing anything.

Finally, they’ve had enough and appeal to the Supreme Court to get them to remove the Stay.

The Supreme Court responds within a week, asking for the state to provide their side of the argument within the next week.

We are now at nearly the two-year mark.

The Circuit court sees this happening and quickly schedules a hearing. The Supreme court denies the request for cert. Because the Circuit court has mooted the request from the Plaintiffs.

Three months later, the case is argued before a 3 Judge panel for the Circuit court. 3 months after that, they issue an opinion that removes the Stay.

The state makes an Emergency request for an en banc hearing and requests that the stay be left in place while they wait for the results of the full panel.

The Circuit Court agrees with the state and the Stay goes back into effect. 4 months later, the Court hears arguments about the stay and 3 months after that, they issue their opinion that the stay is lifted, the case is returned to the District Court to move forward.

The state has now lost two rounds at the Circuit court, but Karen Acho, has had her POS in place for 3 years. At the District level, the case moves forward. The Court issues an Injunction 6 weeks after the Circuit Court released the case back to the District Court.

The state requests an Emergency Appeal for a Stay bending appeal at the Circuit Court. That Stay is granted and Karen’s POS is back in play. A year goes by and the Circuit Court issues their finding, in a 3 Judge Panel, that the law is unconstitutional. The state appeals to the en banc.

3 months later, the en banc issues their opinion that the law is Constitutional.

The plaintiffs appeal to the Supreme Court. There it sits for nearly six months, being distributed to conference multiple times before certiorari is granted.

The state leaps into action. Within the month, they have created a new bill and the Governor has signed it into law. The POS is no more. The “Mitigate Offending Regulations and Efforts to Protect Our State”(MORE POS) becomes law.

The Supreme Court has no choice under the constitution, they agree that the case is moot.

The entire process starts all over again.

Five or so years after Karen got her first bill passed, the Supreme Court finally knocks it down. Two months later, the state has passed another POS with slightly different wording based on the latest Supreme Court ruling. The circle continues.

Conclusion

The goal is to keep these cases from the Supreme Court as long as possible, in hopes that one of the Constitutional Justices will die. If they are lucky, they will get an anti-gun justice on the bench. It will still be 5-4, but they have a better chance of getting a favorable ruling from a 5-4 than a 6-3 bench.

I do not expect to see a 2A case before the Supreme Court this year. If we get lucky, early next year a case will be heard. On the other hand, it could be 5 to 10 years before the next case is heard.