Divination is the art of predicting the future or reading a person using some type of indicator.
Most people can do a cold read of a person and get it mostly right. Others do a much better job.
My personal example was being on a date with a young lady while at university. We had had a nice dinner and were sitting in the rose garden on campus, watching and listening to the water of the river.
I wasn’t pushing, being mostly stupid about females at the time, I was just talking and listening.
I stopped, and said, “I’m so sorry. I didn’t know you had been raped here.” The “guess” was right. I was able to observe her discomfort, and divine what was causing it. Was it magic? No. It was simply a logical result of analyzing the situation and her no verbal cues.
One of the methods that “readers” use to do divination is “reading the tea leaves.” Tea is poured into a teacup with loose tea. The person drinks the tea, leaving the leaves behind. The reader then looks into the cup and divines something about the person, often predicting what will happen to that person.
They read the non-verbal cues to do this, frequently without even understanding the cues they are reading.
The Supreme Court is mystical in how they decide what cases to hear. It is difficult to predict how they will decide given the questioning during oral arguments. Yet, we insist on trying to predict what they will do.
The information we have to work with is typically very limited. In this case, we are attempting to predict if they will grant certiorari in a Second Amendment case.
We have access to the case histories, we have access to the opinion pieces written by others, we have the briefs filed by the parties. We know what other cases are seeking certiorari. And we know cases that will be seeking certiorari.
And we have the orders issued by the Court.
The case which is furthest along appears to be Snope v Brown. It has been fully briefed, it was scheduled to be discussed yesterday.
Snope is an “assault weapon” ban.
Another Second Amendment case is Ocean State Tactical v. Rhode Island. It has been fully briefed, it was scheduled to be discussed yesterday.
Ocean State Tactical is a “large capacity magazine” ban.
Then there is the case of Gray v. Jennings. This is one of the interesting cases because it doesn’t ask the Court to decide a Second Amendment issue directly, instead, it asks how the inferior courts should address motions for a preliminary injunction.
In September 2024, the petitioner (good guys) filed a petition for writ of certiorari. They are asking the Court to clarify a Winter factor.
Winter factors are the four questions that must be answered before a preliminary injunction is granted, or a stay is granted.
The first question is, “Is the party likelihood of success on the merits of the case?” In other words, is the party requesting the injunction or stay likely to have the winning argument.
The second question is, “Is the party likely to suffer irreparable harm without the injunction/stay?” Losing money is not irreparable harm. Losing your life is. Losing your business? That might be something that can be fixed with lots of money.
The third question is, “Does the balance of equities and hardships tip in favor of the party seeking the injunction/stay?” If the hardship is trivial, then it does not justify an injunction or stay.
The fourth question is, “What is in the best interest of the public?”
In the past, the state has often won injunction’s and stays by getting the courts to modify the order of the factors. They claim it is in the public’s best interest, the court agrees, so never looks at the likelihood of success. Or the court finds that the party is likely to win on the merits, but no harm and no hardship is happening.
The Supreme Court not only set forth the “Winter Factors” but they later ordered that the factors be done in order. Success on the merits must always be done first.
In most civil rights cases, if the party is likely to succeed on the merits of the case, they are granted the preliminary injunction or stay. Having your constitutionally protected rights infringed is always irreparable harm. You will never again be able to speak at that moment.
The balance of equities always favors the protection of The People’s rights.
The public has no interest in enforcing unconstitutional laws.
The exception, of course, has always been Second Amendment cases. Many courts believe that there is no harm in denying The People their constitutionally protected right to keep and bear arms.
Gray asks, “Is the infringement of Second Amendment [protected] rights per se irreparable injury?”
The Reading
Snope and Ocean State Tactical were both conferenced for December 13th. The state declined to respond to the petition in September/October by Gray. The case was scheduled for conference on November 8.
Five days after it was scheduled, the Court issued a demand for the state to respond.
This is tea leave one. If the Supreme Court is “requesting” a response, it means that they are looking at the case seriously. You get your response in.
The state delayed in responding, then asked for an extension. The extension was granted. The date for the state to respond was fixed at December 12th.
The response is the normal anti-gun garbage. They first claim that there is no circuit split. This is not a requirement, it is just an assumption. The Court will often let an issue simmer until there is a good case. The one place where they are more likely to step in, is if the interpretation of the law is different in different parts of the country.
Their second argument is that the plaintiffs (good guys) should have presented evidence that being unable to purchase guns and magazines was actual irreparable harm.
Finally, they argue that the Circuit court not only rejected their appeal regarding the denial of preliminary injunction on winter factor two, but on factors three and four.
Because the petitioners (good guys) are only challenging the second Winter factor, if it is a Second Amendment challenge, then it is irreparable harm. The reason is that the other two factors also favor the plaintiff, per current case law.
Conclusion
The Supreme Court likely wants to discuss all three of these cases in the same conference. When we see these three cases distributed for conference on the same day, that will be a strong indication.
The Supreme Court can decide to combine the three cases, combine two and leave the third separate, or hear all three.
Of course, they could decide to hear none of them, this is highly unlikely.