Do the dissents usually come before the opinion of the court in the 10th?

The law in question should fail for lack of a nexus to interstate commerce. I would really like to see a federal law making anyone ineligible to possess a firearm also ineligible to vote.

How common is mandamus on a jury instruction?

While I haven't specifically researched the issue, I know that in over five years of practicing law in the Tenth Circuit I've never even heard of a party attempting to get a writ of mandamus regarding a jury instruction, let alone obtaining one.

It would seem that the federal government could regulate marital intercourse using a condom or an abortion using a scapel which has previously passed through interstate commerce -- after all, statements expressly contrasting private matters from interstate commerce have never been repudiated, not to mention Griswold v. Connecticut's characterization of privacy as involving matters outside government's powers to regulate. The Griswold court noted the distinction between marriage on the one hand and interstate commerce on the other. If what is included in the governmental power cannot be included in matters outside it, i.e. if interstate commerce is outscope of privacy, than the expansion of interstate commerce jurisdiction to include any future private use of an object that has previously passed through interstate commerce would appear to render Griswold v. Connecticut's logic a nullity. It's simply no longer true as evidentiary fact that these matters are outside the scope of interstate commerce jurisdiction, that most public and most obviously non-private of jurisdictions.

Matters which have a substantial effect on interstate commerce cannot be characterized as private, at least by the logic the Court actually used in establishing the concept of privacy in the first place. This logic assumes a certain degree of limitation to indefinite expansion of the commerce power's scope. If everything or virtually everything gets found to have a substantial effect on interstate commerce, then there is no or virtually no privacy: it becomes a category with no or virtually no content. And this seems to be the case (or virtually the case) now.

the expansion of interstate commerce jurisdiction to include any future private use of an object that has previously passed through interstate commerce would appear to render Griswold v. Connecticut's logic a nullity.

A funny statement, because Griswold's rational incoherence and ipse dixit reasoning have already rendered it a nullity, at least if you are expecting it to stand for something other than an naked exercise of judicial power. Were Congress to attack Griswold using the Commerce Clause, they'd be attempting to murder a man who has already committed suicide for all practical purposes, though Congress could still stab the lifeless body.

On the other hand, it would be satisfying in a 'pox on both their houses' way, to see a blatant and dishonest act of judicial overreach undone by a blatant and dishonest act of congressional overreach. Perhaps then the Executive Branch could refuse Congress' direction to interfere in private matters, in an act of Executive Branch overreach that would make for a perfect little equilateral triangle of federal government misbehavior... In the absence of government doing the right thing I'll settle for the government being unable to do anything.

Having clerked in the 10th cir. I can tell you this is not surprising.

If what is included in the governmental power cannot be included in matters outside it,

This makes no sense. Raising an army is within the governments power. Establishing an official church to which recruits must convert is outside. So Congress can raise an army but they cannot raise an army that is required to convert to a religion.

In general, the fact that a power is enumerated does not render a nullity the other provisions of the Constitution. Congress cannot violate the Bill of Rights in exercise of its enumerated powers.

The case that the misdemeanor d.v. gun ban is unconstitutional under Heller is very weak, given that it approves the gun ban in the case of non-violent felons in dicta there (widely followed by the lower federal courts) and given that d.v. misdemeanor convicts were singled out as a class of criminally convicted people involving a high risk of future violence as a class by Congress.

The interstate commerce argument is also a weak one under the current state of law which has been in place for two generations.

This is largely a political problem and needs to be attacked on politics, more than it is a legal problem. The Lautenberg Amendment (this law) was passed as a increment towards Lautenberg's preferred solution, a complete ban on non-governmental firearms. We have a silly law, and a set of prosecutors who are pursuing it with scorched-earth doggedness.

These two judges and -- more importantly -- these prosecutors have shown they stand with Lautenberg and against the 2nd. The prosecutors are important because most prosecutors see themselves as a larval form of politician, and have political ambitions. (That also answers the question of why federal prosecutors choose to pursue malum prohibitum victimless crimes that are slam dunks, rather than malum per se violent crimes that take more time -- and might spoil the statistics one needs for that coming Me For Congress ad.

Who are these anti-gun, anti-freedom, soft-on-real-crime, anti-constitutional prosecutors in Utah? Name 'em and shame 'em, and let's make sure their political careers come to a disappointing end before they get going.

Likewise, the anti-gun judges can't be dumped from Appeals, but they can be prevented from rising higher.

If someone does something bad with a gun -- that's a good time to prosecute him. Not like Bullwinkle would demand, for "what he's going to do next week."

OK last post, really.

I think Dave Kopel's law review article...
Denver U Law Review
...explains why he was somewhat blasé about this decision, and if Doug Berman rereads it he'll see why Kopel isn't as worked up. Kopel just isn't expecting much from this court, based on its record.

It might be hoped that the Tenth Circuit will undertake a more serious treatment of these unresolved issues than have some of the post-Heller district courts, whose analyses have often been glib and shallow.

Glib and shallow is also a fair description of many of the Tenth Circuit’s pre-Heller cases on the Second Amendment. Some of those cases amounted to barely more than a judicial ipse dixit, and those cases certainly did not inspire confidence that the Circuit had treated the constitutional issues with appropriate seriousness and diligence. Pre-Heller, the Tenth Circuit’s rule for the Second Amendment was "the Government always wins.”

Plus ça changé, plus c'est la même chose.

Kopel hoped for a more serious treatment of the Amendment (2nd, not Lautenberg) in the 10th, but does point out in the article that there are paths to continuing to be a rubber stamp for prosecution. This decision shows that his analysis was bleakly prescient: the one thing these judges aren't going to do is reconsider these cases.