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The Hartford Courant quotes the article I co-authored with Shelby Baird, The Shooting Cycle, to explain a recent poll showing an expansion in popular support for gun rights.

The waning support for gun control since Newtown’s immediate aftermath is not, however, entirely surprising. It mirrors a pattern of public opinion observed after other mass shootings.

“The pattern is a painfully familiar one,” South Texas College of Law Professor Josh Blackman and Yale University student Shelby Baird wrote in “The Shooting Cycle,” an article published in May in the Connecticut Law Review. The authors analyzed how the government and the public react to mass shootings and found that after a tragedy, “support for gun control surges.”

“With a closing window for reform, politicians and activists quickly push for new gun laws,” Blackman and Baird wrote. “But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.”

…

The poll was released as gun control advocates, approaching the Newtown anniversary, have been holding vigils and calling attention to mass shootings that have occurred since the tragedy, hoping to rebuild momentum for their cause.

But Blackman and Baird, “The Shooting Cycle” authors, counter that in passing gun control legislation after a mass shooting, “time is of the essence.”

“Engaged politicians and interest groups supporting the law must move as quickly as possible before emotions subside,” they said, citing public opinion polling from the past two decades. In the case of Newtown, they argued, the “depth of the emotional capture” provided an opportunity to enact reform, and “it would be against this emotional backdrop that any legislative change would be made.”

 

Texas has filed a complaint, challenging the legality of the President’s executive order on immigration (DAPA). They have also recently filed a motion for preliminary injunction. Let’s assume a PI is granted, enjoining the administration from implementing DAPA. (I’ll stress that Texas asked for the injunction to apply “nationwide,” so the DOJ cannot pull the trick they did with Obamacare, arguing that Judge Vinson’s order only applied in Florida).

At that point, there would be an immediate appeal to the 5th Circuit. Taking a shot in the dark here, but I imagine most three-judge panels of the 5th Circuit would likely agree with the district court, and the en banc 5th Circuit would also probably concur.

For timing, let’s make up some numbers, erring on the side of speed. The District Court grants the preliminary injunction in March 2015. The United States appeals to the 5th Circuit seeking a stay, and it issues a denial of a stay in August 2015.

Then what? Two steps. First, the SG would file for an emergency stay to the Court seeking a stay of the preliminary injunction. Second the SG would file a petition for certiorari to review the 5th Circuit’s decision to deny the preliminary injunction. Let’s do the cert petition first. If the cert petition is filed in October or November, the case would probably be argued in March 2016 with a decision by June 2016. Back to the emergency stay.

Emergency appeals for a motion to stay are generally not argued. I suppose the Court could request expedited arguments, especially if a cert petition is coming down the pike. But if the Court wants to grant cert, it won’t let the policy go into effect, only to potentially stop it a few moths later. But in either event, this issue is not resolved by the Supreme Court till June 2016. By this point, we will be four months from a Presidential election. The policy could probably not be implemented in such a short time until the changeover of administrations. People won’t be able to apply in this short window. Or, Congress may pass a new law in the interim beforehand, mooting the issue.

In sum, the preliminary injunction is the name of the game. If it is granted, the policy would likely never go into effect. If it is denied, the policy will be fully implemented before it ever gets to the Supreme Court. And, as President Obama reminded us, no future administration will be able to reverse it.

Oral argument in Gelboim v. Bank of America Corp. presented a duel of two of the premier Supreme Court advocates–Tom Goldstein for the petitioners, and Seth Waxman for the Respondents. During arguments, Goldstein called Waxman’s argument “in a word, ridiculous.” Justice Kennedy replied, and said “Excuse me, what is that word.” Goldstein doesn’t answer Kennedy’s question, and moved on with his argument.

That’s ridiculous!

H/T Jacob Berlove

Update: The audio is here. If you scan to 55:30, you can hear Goldstein’s ridiculous comment, but Kennedy’s comment is not recorded. I think there may have been some cross-talk, and someone else asked about the citations, but it isn’t clear.

Update 2: On further listening, I think the faint cross talk was a Justice asking about a citation, which would make sense in light of Goldstein’s response. The Court Reporter presumably heard Justice Kennedy’s comment (“Excuse me, what is that word.”), but it didn’t make it into the audio. As we learned with Justice Thomas’s remarks, the microphones do not capture everything. Comments that are noted in the transcript do not always make it clearly into the recording. I will wait for Alderson’s to release the final transcript to clarify the issue. In the interim, I have modified the post above, and eliminated the description of Justice Kennedy’s interjection.

Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly be justified under the auspices of  (our favorite) “prosecutorial discretion.” Likewise, the AG has decided not to enforce financial regulations against banks that deal with marijuana distributors. Of course, none of this was an actual exemption from prosecution. Banks aren’t stupid. They won’t listen to such hollow assurances. The Attorney General in 2017 can turn around and prosecute every single person who violated these statutes (so long as the Statute of Limitation had not run).

The way to exempt people from a law the executive dislikes is not through prosecutorial discretion, but through an act of Congress. And now, it seems the Cromnibus bill (which I hear is quite cromulent) will do just that. Think Progress reports:

But if the now-foundering budget deal dubbed Cromnibus or another similar one manages to pass, it will also have some much better news for marijuana advocates. Another provision added to the budget would protect medical marijuana laws in every state that has legalized it, by prohibiting the Department of Justice from using federal funds to prosecute medical marijuana actors in states where their actions are legal.

Here is the text of Rep. Rohrabacher’s amendment:

SEC. ll. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This is the correct way to exempt people from the prosecution of the law. It is especially reassuring that the law promotes federalism, and allows the states to experiment with policy, unencumbered from federal dictates.

I hope future Congresses codify the Executive’s decision not to prosecute certain crimes, rather than the Executive taking the responsibility himself.

The Pew Research Center has released a report showing that 52% of Americans favor the protection of the right to own guns, while only 46% favor controlling gun ownership. This is the first time in the two-decade long history of the poll that gun rights has surpassed gun control. It also represents a remarkable turnaround in public perception. In 1999, 66% favored gun control, and 29% favored gun rights.

As Shelby Baird and I discuss in The Shooting Cycle, other than brief spikes following mass killings in Columbine, or Virginia Tech or Newtown, there has been a decreasing mean for gun control. The Pew report reflects this change.

The balance of opinion favored gun control in the immediate aftermath of the Newtown tragedy in December 2012, and again a month later. Since January 2013, support for gun rights has increased seven percentage points – from 45% to 52% — while the share prioritizing gun control has fallen five points (from 51% to 46%).