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The biggest Second Amendment case to reach the Supreme Court in nearly a decade

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    The biggest Second Amendment case to reach the Supreme Court in nearly a decade

    The biggest Second Amendment case to reach the Supreme Court in nearly a decade, explained

    Gun control supporters are desperate — and have already taken drastic steps — to get the Supreme Court to dismiss this case.

    Ian MillhiserSep 27, 2019, 7:50am EDT Supreme Court Associate Justice Brett M. Kavanaugh waits for the arrival of former US President George H.W. Bush at the Capitol Rotunda on December 3, 2018, in Washington, DC. Jabin Botsford-Pool/Getty Images
    Last January, the Supreme Court announced that it would hear New York State Rifle & Pistol Association Inc. v. City of New York, the first major Second Amendment case to be heard by the Supreme Court in nearly a decade — and also the first since Justice Anthony Kennedy’s retirement shifted the Court dramatically to the right.

    The case centers on an unusual — and recently changed — New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns.

    Gun control advocates, including policymakers in both New York City and the New York state legislature, fear a big loss in the Supreme Court and are desperate to make the case go away. Indeed, New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules — all in the hopes of obviating the need for the Court to weigh in.Because the legal controversy between the city and the plaintiffs is now over, the city asked the Court to dismiss this case as moot.

    The justices are scheduled to discuss whether to dismiss the case at their October 1 conference.

    New York State Rifle, in other words, is of two-fold importance. It is important because the Supreme Court’s current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case. But it is also important because the debate over whether to dismiss this case will offer a window into the psychology of the Court’s Republican majority.

    The argument that New York State Rifle must be dismissed as moot is very strong. Should the Supreme Court move forward with the case, it will only add to fears —including fears that were recently raised by Justice Sonia Sotomayor —that the Court is bending the rules in order to achieve conservative outcomes. Why gun rights advocates have so much to gain

    A few months before his death this summer, retired Justice John Paul Stevens offered a surprisingly candid window into the Court’s internal deliberations.

    In its 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. The Court split along familiar ideological lines, with Kennedy joining his fellow conservatives in the 5-4 majority.

    Heller, however, was hardly a total victory for advocates of gun rights. Indeed, Justice Antonin Scalia’s majority opinion is riddled with caveats. Heller suggests that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” all remain valid, as are bans on “dangerous and unusual weapons.”

    In a November interview with the New York Times’ Adam Liptak, Stevens revealed that Kennedy asked for “some important changes” to Scalia’s original draft of the Heller opinion. At Stevens’s urging, Kennedy requested language stating that Heller “should not be taken to cast doubt” on many existing gun laws. Without Kennedy’s intervention, in other words, Hellermay not have included the important language limiting the scope of the Second Amendment.

    But Kennedy is gone. And his replacement, Justice Brett Kavanaugh, appears very eager to expand gun rights.

    Shorter after Heller was decided, the District of Columbia’s government passed legislation banning semi-automatic “assault weapons” and requiring gun owners to register their firearms. Dick Heller, the lead plaintiff in the Supreme Court’s Heller decision, also led the challenge to this new gun law, and the case — Heller v. District of Columbia — was eventually heard by a panel of three Republican-appointed judges.

    Two of those judges largely upheld the law in 2011 (although they called for further proceedings on the registration requirement). The third judge was Brett Kavanaugh, who claimed that “both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.” (This second iteration of the Heller litigation was never heard by the Supreme Court.)

    And Kavanaugh’s dissent also went even further than that. The future justice did not simply argue that this specific DC law should be struck down. He also suggested that nearly a decade of Second Amendment jurisprudence should be tossed out. Kavanaugh opposes the consensus view among federal courts

    Heller, as mentioned above, was the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to own firearms. Since Heller, moreover, the Court’s only handed down one significant Second Amendment opinion. And that 2010 opinion, in McDonald v. City of Chicago, merely held that states must comply with the same Second Amendment regime as the federal government.

    The Supreme Court’s Second Amendment jurisprudence, in other words, is underdeveloped. In Heller, the majority basically hit a reset button that wiped out the Court’s prior Second Amendment decisions, which held that the “obvious purpose” of this amendment was “the preservation or efficiency of a well regulated militia,” not an individual right to bear arms.

    Heller replaced this older frameworkwith an uncertain new framework that emphasized an individual right to self-defense. But the Supreme Court has done little to develop that framework since Heller.

    Yet, while the justices have largely avoided big guns cases, the lower courts cannot. And a consensus view emerged among the federal appeals courts regarding how the Second Amendment should be read.

    At least 10 such courts apply what United States Court of Appeals for the Fifth Circuit Judge Stephen Higginson describes as a “two-step analytic framework.” Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review that courts typically apply in constitutional cases. “Less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”

    Thus, major burdens on gun owners are especially likely to be struck down, while less consequential burdens are more likely to be upheld.

    Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test — “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” While it’s unclear how Kavanaugh’s test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.

    New York State Rifle, moreover, offers someone like Kavanaugh the perfect vehicle to upend the consensus framework because the (now repealed) rule at the heart of this case imposes only a minimal burden on gun owners.

    New York offers two kinds of handgun licenses. A “carry” license permits gun owners to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a less permissive “premises” license permits a gun owner to “have and possess in his dwelling” a handgun. Premises license holders, however, may only bring the gun outside of their home for limited reasons, which include bringing the gun to seven specific gun ranges to practice shooting.

    The plaintiffs in New York State Rifle, each of whom has a premises license, raise a very narrow challenge to this framework. As a federal appeals court explained, some of them “seek to transport their handguns to shooting ranges and competitions outside New York City.” One of them also owns two homes, and he wishes to be able to transport one gun between those two homes.

    New York State Rifle, in other words, involves what Judge Higginson described as a “less onerous law” that governs “conduct outside of the Second Amendment’s ‘core.’” This isn’t a grand showdown over when and where people can carry guns — or whether they bring a gun into their own home. It’s a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.

    And yet, this very smallness is what makes New York State Rifle so dangerous to the consensus framework. The rule at the heart of this case is the very sort of gun restriction that the consensus framework is likely to treat as insignificant. And that gives the Supreme Court an ideal vehicle to hold that judges should treat all gun laws with skepticism — even very minor ones. The battle over mootness

    All of this said, there is a strong argument that New York State Rifle must be dismissed as moot. Article III of the Constitution provides that the “judicial power” only applies to “cases” and “controversies,” meaning that federal courts may only hear live legal disputes between parties.

    But New York City changed its rules to let people with premises licenses do what the plaintiffs in this case want to do. And the New York state legislature also passed a law providing that gun owners with premises licenses may bring their gun to “another dwelling or place of business of the licensee where the licensee is authorized to have and possess such pistol or revolver,” to “an indoor or outdoor shooting range that is authorized by law to operate as such,” or to “a shooting competition at which the licensee may possess such pistol or revolver consistent with” the law.

    So the plaintiffs won! They asked for specific, narrow relief, and the state legislature gave it to them. There’s no longer a legal dispute between the plaintiffs and the defendants in this case, and that makes the case moot.

    But a few amicus briefs submitted to the Supreme Court suggest that the case should not be dismissed under a doctrine known as “voluntary cessation.” Broadly speaking, this doctrine allows a court to continue to hear a case after a defendant voluntarily quits the behavior that led to them being sued. The point of this doctrine is to prevent a defendant from dodging lawsuits by doing something illegal, ceasing their illegal activity for long enough to dismiss any lawsuits challenging that activity, and then resuming their illegal actions as soon as the lawsuits are dismissed.

    Yet, as a group of legal scholars explain in their own amicus brief, that doctrine does not apply here. The defendant in this case is New York City. But a law preventing the city from reinstating the challenged rules was enacted by New York state. It would be impossible, in other words, for the city to resume its allegedly illegal conduct because a higher power stripped the city of its ability to do so.

    We could know as soon as next week whether the Supreme Court will dismiss the case — or whether it will add to JusticeSotomayor’s fears that the Court is ignoring its own ordinary procedures, in this case by finding away around the mootness doctrine.

    Yet even if the case is dismissed, such a decision will only delay a reckoning on the Second Amendment. Eventually, the justices will hear a gun rights case that is not moot. And when that happens, Justice Kennedy won’t be around to inject a note of caution into the Court’s opinion.
    Gun control supporters are desperate — and have already taken drastic steps — to get the Supreme Court to dismiss this case.
    Pat ------> NRA Endowment Member

    #2
    October 1st is D-Day for the case, as the SCOTUS will be considering whether to dismiss it on mootness grounds. A betting man would say they will.
    Know your rights/Refuse peacefully to consent to a search /Ask if you are free to go or are being detained/Even if you are not doing anything wrong the 4th Amendment protects you against unreasonable searches/Never say anything to law enforcement even if you think it will help you/If questioned you should clearly and unequivocally request that you would like to have an attorney present and defer any questions until then/Never go to prison because you are afraid to go to jail.

    Comment


      #3
      So,best case scenario, you'll have the "right" to transport locked and unloaded. Another "landmark decision ".

      "Now all you gun owners can STFU and leave us alone for at least the next 10 years."

      But the State still may or may not issue.
      No one ever wished they didn't have a gun.

      Comment


        #4
        Originally posted by BLAMMO!! View Post
        So,best case scenario, you'll have the "right" to transport locked and unloaded. Another "landmark decision ".

        "Now all you gun owners can STFU and leave us alone for at least the next 10 years."

        But the State still may or may not issue.
        Actually I think we already have that now since NYC did away with the law. It just sucks that of all the 2A cases the SCOTUS could hear, *this* is the one? Yawn. It won't benefit anyone accept the city ppl. Maybe I'm just being short sighted, but I just wish it was something more like throwing out the BS definition of an "assault rifle" or addressing carry restrictions.

        Comment


          #5
          Originally posted by BLAMMO!! View Post
          So,best case scenario, you'll have the "right" to transport locked and unloaded. Another "landmark decision ".

          "Now all you gun owners can STFU and leave us alone for at least the next 10 years."

          But the State still may or may not issue.
          Actually best case scenario is the court rule strict scrutiny on the 2nd amendment. Which could possibly rule all gun control laws ineffective

          which is a very long shot
          The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule ...Samuel Adams, "The Rights of the Colonists" page 419

          Comment


            #6
            Maybe the SCOTUS will decide that Premise licenses are unconstitutional, you know, because they prevent you from "bear(ing) arms."

            ...I can dream, can't I?

            Comment


              #7
              My opinion.... The case is not moot .... the relief was not freely given ... and the lower courts all agreed with the City ..so those are the decisions that the SCOTUS will be addressing because that is the still the question of constitutional correctness ..... also all the amicus briefs for the city argue that the city was acting properly and constitutionally .. further..the City guaranteed it will be heard because they said so in their Motion for mootness .... the City basicly said .... even though they were acting constitutionally ..they gave the plaintiffs complete relief and if the case proceeds they will not argue the merits of the case only it's mootness..... This case calls into question the level of government control that can be applied to an enumerated individual right ...also the manner in which lower courts have been applying different levels of scrutiny ... and as a side note ..several similar cases are pending in lower courts they are gonna have to address this .... I say the SCOTUS hears the case.. they didn't wait 10 years to balk

              Comment


                #8
                Originally posted by Range Time View Post
                Maybe the SCOTUS will decide that Premise licenses are unconstitutional, you know, because they prevent you from "bear(ing) arms."

                ...I can dream, can't I?
                They can't because the plaintiffs did not raise that issue.
                Know your rights/Refuse peacefully to consent to a search /Ask if you are free to go or are being detained/Even if you are not doing anything wrong the 4th Amendment protects you against unreasonable searches/Never say anything to law enforcement even if you think it will help you/If questioned you should clearly and unequivocally request that you would like to have an attorney present and defer any questions until then/Never go to prison because you are afraid to go to jail.

                Comment


                  #9
                  I heard Kavanaugh once lied to his mother about eating the last ice cream 48 years ago. I think the dems are looking to get him kicked of the Supreme Court
                  let's make america great again

                  Comment


                    #10
                    Originally posted by Banzai View Post

                    Actually I think we already have that now since NYC did away with the law.
                    Only if you had a premises restriction.

                    https://assembly.state.ny.us/leg/?default_fld=&bn=A07752&term=2019&Summary=Y&Action s=Y&Text=Y&Committee%26nbspVotes=Y&Floor%26nbspVot es=Y


                    Notwithstanding any inconsistent provision of state or local law or rule or regulation, the premises limitation set forth in any license to have and possess a pistol or revolver in the licensee's dwelling or place of business pursuant to paragraph (a) or (b) of subdivision two of this section shall not prevent the transport of such pistol or revolver
                    ANY violation by ANY person of ANY provision of this section is a class A misdemeanor. - NYPL §400.00(15)
                    Conspiracy in the sixth degree is a class B misdemeanor. - NYPL §105.00

                    Comment


                      #11
                      Did Cuomo sign it yet?
                      ANY violation by ANY person of ANY provision of this section is a class A misdemeanor. - NYPL §400.00(15)
                      Conspiracy in the sixth degree is a class B misdemeanor. - NYPL §105.00

                      Comment


                        #12
                        I hope they issue a broad decision on this case. The wild assortment of conflicting and confusing gun laws in NY and the rest of the USA has been out of control for too long. It would be nice to give RBG one more chance to butt fuck the Constitution and then watch it slip through her skeletal fingers.

                        Just think, if DJT doesn’t get another SCOTUS pick this year, gets impeached and then Pence gets Hillaried, Nancy Pelosi is next in line for POTUS. WOW, think of that for a minute. Killary would extort her way into VP, Nancy OD’s on mascara and blush and Bill becomes First Laddy of the United States.

                        Comment


                          #13
                          Regarding moot:

                          Per wikipedia on Roe v. Wade

                          Though not often discussed, the Court's opinion first addressed the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women. As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion.

                          The Court concluded that the case came within an established exception to the rule: one that allowed consideration of an issue that was "capable of repetition, yet evading review." This phrase had been coined in 1911 by Justice Joseph McKenna in Southern Pacific Terminal Co. v. ICC. Blackmun's opinion quoted McKenna and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."


                          1911 case:

                          The court referred to this condition as,
                          The case is not moot where interests of a public character are asserted by the Government under conditions that may be immediately repeated, merely because the particular order involved has expired... The rule that this court will only determine actual controversies, and will dismiss if events have transpired pending appeal which render it impossible to grant the appellant effectual relief does not apply to an appeal involving [a government] order .. merely because that order has expired. Such orders are usually continuing and capable of repetition, and their consideration, and the determination of the right of the Government and the carriers to redress, should not be defeated on account of the shortness of their term.
                          ANY violation by ANY person of ANY provision of this section is a class A misdemeanor. - NYPL §400.00(15)
                          Conspiracy in the sixth degree is a class B misdemeanor. - NYPL §105.00

                          Comment


                            #14
                            Get rid of idiotic restrictions and make the states must issue and call it a day already. Enough of this anti 2A shit.
                            NRA Lifetime Member / NRA RSO & Certified Pistol Instructor
                            NYSRPA Member / Freeport R&R Member
                            Armed Citizens Legal Defense Network Member

                            Comment


                              #15
                              So does anyone think it's a big deal that the case is on the SCOTUS calender for Dec 2 ,2019 https://www.scotusblog.com/case-file...york-new-york/
                              New York State Rifle & Pistol Association Inc. v. City of New York, New York

                              18-280 2d Cir. Dec 2, 2019 TBD TBD TBD OT 2019
                              Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

                              Comment

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