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The Supreme Court will hear the biggest guns case in over a decade next week

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    The Supreme Court will hear the biggest guns case in over a decade next week

    The Supreme Court will hear the biggest guns case in over a decade next week

    Ian Millhiser

    4 hrs ago

    © Doug Mills-Pool/Getty Images Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address at the Capitol on February 5, 2019, in Washington, DC.

    New York City offers two kinds of licenses to gun owners. A “carry” license permits them to carry a handgun for “target practice, hunting, or self-defense.” The less permissive “premises” license, meanwhile, permits gun owners to “have and possess in his dwelling” a handgun. Under a now-repealed rule, premise license holders were only allowed to bring the gun out of their home for limited purposes, including to practice shooting at seven specific gun ranges.

    The plaintiffs in New York State Rifle brought a narrow challenge to this framework. As a federal appeals court explained in an opinion upholding the city’s repealed rule, some of the plaintiffs “seek to transport their handguns to shooting ranges and competitions outside New York City.” One plaintiff also owns two homes, and he wants to be able to transport the same gun between these two homes.

    That’s it. They sued for a small expansion of the rights afforded to people with premises licenses. And indeed, last July, the state acquiesced: It passed a law permitting people with premises licenses to do the very thing that these plaintiffs wish to do. That renders the case moot — or so one would think.

    Yet the Supreme Court has so far refused to dismiss the case as moot. And if the plaintiffs have their way, the Court will wind up deciding a much bigger question than the one it originally agreed to hear.

    Paul Clement, the prominent conservative lawyer representing the plaintiffs, submitted a brief that presents the case as a grand fight over “draconian restrictions on the possession and transport of handguns.” Even though his clients already won with New York City and State changing its laws to accommodate them, Clement wants to proceed. And he’s urging the Court to see this case as a much bigger challenge than the one his clients raised in the lower courts.

    That’s a highly unusual move. The Supreme Court’s rules instruct lawyers that merits briefs “may not raise additional questions or change the substance of the questions” originally presented to the Court.

    In any event, it’s not hard to guess why gun rights advocates hope that this case becomes larger. The case was first brought in 2013, with the relatively moderate Anthony Kennedy on the Court. In 2019, Kennedy is gone and the more conservative Brett Kavanaugh is in his place. New York State Rifle could significantly expand Second Amendment rights now that we have a more conservative Supreme Court.

    The plaintiffs’ original modest ask, in other words, made sense when they probably thought they could only win incremental victories before a relatively moderate Court. But now they most likely have five votes for something much bigger. So why not ask for a revolution? Kennedy’s retirement is likely to change everything about the Second Amendment

    Months before his death earlier this year, retired Justice John Paul Stevens revealed some of the Court’s secret deliberations in District of Columbia v. Heller (2008), the landmark Supreme Court decision holding that the Second Amendment protects an individual right to bear arms. In Heller, the Court divided 5-4 along ideological lines, and Kennedy joined his fellow conservatives in the majority.

    Yet, in a 2018 interview with the New York Times’ Adam Liptak, Stevens revealed that Kennedy requested “some important changes” to the original draft of the Heller opinion. This language stated that Heller “should not be taken to cast doubt” on many existing gun laws.

    The final Heller opinion states that “the right secured by the Second Amendment is not unlimited.” 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” are all valid, as are bans on “dangerous and unusual weapons.”

    Thanks to Justice Stevens, we now know that such mitigating language probably would not have made it into the Heller opinion without Kennedy’s intervention.

    Kavanaugh, to put it mildly, does not share Kennedy’s trepidation about an overly expansive Second Amendment. Shortly after the Supreme Court decided Heller, the District of Columbia passed a new law banning semi-automatic “assault weapons” and requiring gun owners to register those weapons. That law never reached the Supreme Court, but a lower appeals court did hear a challenge to this new law in a 2011 case called Heller v. District of Columbia (Dick Heller was a party in both Heller cases, hence the similar case names).

    In this second Heller case, two judges — both of whom are Republican appointees — largely upheld the new law (though they did call for further proceedings on the District’s gun registration requirement). The third judge was Kavanaugh, and he argued in dissent that “both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.” Kavanaugh wants to significantly expand the scope of the Second Amendment

    At least until now, the Supreme Court’s been reluctant to hear Second Amendment cases. The 2008 Heller decision was the first time in American history that the Court held that the Second Amendment protects an individual right to own a gun. Since then, the Court’s heard just one significant Second Amendment case, McDonald v. City of Chicago (2010), and that case only held that Heller applies with the same force to the federal government and to the states.

    Prior to Heller, the Supreme Court rejected the thesis that the Second Amendment protects an individual right, holding instead that the “obvious purpose” of the amendment was “the preservation or efficiency of a well regulated militia,”

    Yet while the Supreme Court’s Second Amendment jurisprudence is underdeveloped, the lower courts have reached a consensus on how this amendment should be interpreted. At least 10 federal appeals courts follow what Judge Stephen Higginson described 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 constitutional review. “Less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core’” face a more permissive test known as “intermediate scrutiny.”

    But Kavanaugh rejects this consensus. In his 2011 dissent, he argued for an entirely different framework — “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.”

    One problem with Kavanaugh’s framework is that it is far from clear how it would work in practice. Strict scrutiny provides that a law will be struck down unless it advances a “compelling interest” and is “narrowly tailored” to advance that interest. Intermediate scrutiny provides that a law will be struck down unless it serves “important governmental objectives” and is “substantially related to achievement of those objectives.” These tests may seem vague, but they’ve been around for decades, have been fleshed out by hundreds of court decisions, and are part of the canon of constitutional law taught to first-year law students. Judges are very familiar with these tests, and they know how to apply them to individual cases.

    Kavanaugh’s framework, by contrast, is novel. And its full implications are unclear. Nevertheless, it’s a safe bet that Kavanaugh’s “text, history, and tradition” framework would lead to a much more expansive Second Amendment than the consensus framework, since Kavanaugh dissented to the right of two of his Republican colleagues in the second Heller case. Liberals best shot in New York State Rifle is to make this case go away

    If the Supreme Court reaches the merits of the New York State Rifle case, it is very likely that there will be five votes to significantly expand the scope of the Second Amendment — even if there aren’t five votes to adopt Kavanaugh’s particular framework.

    So there’s little doubt why New York City changed its gun rules — or why the state passed a law that effectively forbids the city from ever reinstating its old rules. New York is dominated by Democrats, and Democrats typically view the Second Amendment very differently than Justice Kavanaugh does. Their best chance to keep the Supreme Court from nuking many gun laws is to render New York State Rifle moot, and that’s exactly what they did.

    New York City changed its rules to allow the New York State Rifle plaintiffs to do what they originally wanted to do. And New York State enacted a law providing that people 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.

    Thus far, however, the Court has resisted the city’s efforts to have the case dismissed as moot. Last October, the Supreme Court considered whether to dismiss New York State Rifle because of its mootness problem. The justices decided instead to put off further discussion of mootness until the December 2 oral arguments.

    Some amicusbriefs argue that the case should not be dismissed because of a doctrine called “voluntary cessation.” As a general rule, this doctrine provides that a court may retain jurisdiction over a case after the defendant voluntarily quits their allegedly illegal behavior. It exists to prevent defendants from avoiding litigation by perpetually stopping their behavior, dismissing any lawsuits against them, and then resuming the same behavior.

    Yet, as a brief submitted on behalf of a group of legal scholars argues, New York State Rifle is not a voluntary cessation case. Because the state passed a law forbidding New York City from reinstating its own rules, it’s not possible for the city to resume its allegedly illegal behavior if this case is dismissed.

    That leaves Clement’s gambit — to simply assert a broader claim before the Supreme Court than the one his clients raised in the lower courts. If New York State Rifle is a grand showdown over whether New York may impose any restrictions on gun possession outside the home, then the case is not moot, and the Supreme Court may use it as a vehicle to expand the Second Amendment.

    New York State Rifle, in other words, isn’t just a case about what the Second Amendment means. It’s a test of whether the Court’s Republican majority is so impatient to expand that amendment that they will ignore the ordinary rules governing Supreme Court litigation in order to determine the merits of this case.
    The Court is poised to fulfill the NRA’s Second Amendment fantasies.
    Pat ------> NRA Endowment Member

    Fingers crossed. Will we hear any news early in the day? Or will this be an end of day event?


      Depending how this goes, other NYS laws may pass or get buried. Same with laws pending in VA and other places.
      I am not armed out of fear of who's in front of me.
      I am armed out of love of those behind me.

      Anyone who says money doesn't matter to them is either a FOOL or a LIAR or BOTH!


        Very surprisingly the NY Times wrote about this today in a fairly balanced article. Without taking sides strongly on the anti-gun side, they clearly articulated the basics of the argument. Clearly repeating that the court has called the Second Amendment an orphan right, without much support in lower courts.

        Compared to the shitty article in the Daily Snooze a few days back, I give the Times high marks for keeping it fairly even.

        After Long Gap, Supreme Court Poised to Break Silence on Gun Rights

        Following a change in personnel, the court could expand the scope of Second Amendment rights and chastise lower courts that have upheld gun control laws.

        WASHINGTON — It has been almost 10 years since the Supreme Court last heard a Second Amendment case. On Monday, a transformed court will return to the subject and take stock of what has happened in the meantime.
        The nation has had a spike in gun violence. And lower courts have issued more than 1,000 rulings seeking to apply the justices’ 2008 decision in District of Columbia v. Heller, which established an individual right to own guns but said almost nothing about the scope of that right.
        The new case concerns a New York City ordinance. Fearing a loss in the Supreme Court, to say nothing of a broad ruling from the court’s conservative majority on what the Second Amendment protects, the city repealed the ordinance and now argues that the case is moot. But the court may be ready to end its decade of silence, elaborate on the meaning of the Second Amendment and, in the process, tell lower courts whether they have been faithful to the message of the Heller decision.
        Proponents of gun rights and some conservative justices say lower courts have been engaged in lawless resistance to the protections afforded under the Second Amendment by sustaining unconstitutional gun-control laws.
        “The lower courts have, generally speaking, been defying Heller,” said George Mocsary, a law professor at the University of Wyoming. Gregory P. Magarian, a law professor at Washington University in St. Louis, looked at the same evidence and came to the opposite conclusion. “By and large, the lower courts have played this whole game very straight,” he said. “They have taken Heller seriously.”
        The decision in the new case may clarify matters. Justices Clarence Thomas and Neil M. Gorsuch have already set out their positions, saying that the Supreme Court has tacitly endorsed dishonest rulings in the lower courts by refusing to hear appeals from decisions sustaining gun-control laws.
        It was, Justice Thomas wrote in a 2017 dissent joined by Justice Gorsuch, part of “a distressing trend: the treatment of the Second Amendment as a disfavored right.”
        In another dissent last year, Justice Thomas returned to the theme.
        “The right to keep and bear arms is apparently this court’s constitutional orphan,” he wrote. “And the lower courts seem to have gotten the message.”

        Eight months later, Justice Brett M. Kavanaugh joined the court, replacing the more moderate Justice Anthony M. Kennedy. And just a few months after that, the court announced that it would hear the case to be argued Monday. The Heller decision was both revolutionary and modest. It ruled, by a 5-to-4 vote, that the Constitution guarantees an individual right to own guns — in the home, for self-defense. At the same time, it indicated that many kinds of gun regulations are permissible.
        Justice Kennedy was in the majority in Heller decision, but he insisted on an important limiting passage, according to a 2018 interview with Justice John Paul Stevens, who wrote the main dissent and died in July.
        “Nothing in our opinion,” Justice Antonin Scalia wrote for the majority in the passage that was the price of Justice Kennedy’s fifth vote, “should be taken to cast doubt on 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.”
        The court’s only other Second Amendment case since then, McDonald v. Chicago in 2010, extended the Heller decision, which concerned federal gun laws, to state and local ones.
        Recent scholarship tells a complicated story about how the Heller decision has been applied in the lower courts. A comprehensive study of Second Amendment rulings after the Heller decision through early 2016, published last year in the Duke Law Journal, found that the success rate for challengers was indeed low, at about 9 percent.
        But the article concluded that “the low rate of success probably has more to do with the claims being asserted than with judicial hostility.” For instance, challenges by felons charged with possessing guns made up about a quarter of the cases and almost always failed, as the Heller decision itself seemed to require.

        Other challenges, in criminal cases or brought by people without lawyers, were also seldom successful. But plaintiffs with lawyers in civil cases in federal appeals courts, the study found, had a success rate of 40 percent. “Second Amendment challenges have overwhelmingly failed at a broad level,” said Joseph Blocher, a law professor at Duke, who conducted the study with Eric Ruben, a fellow at the Brennan Center for Justice. “Something like 90 percent of them failed. But when you dig down into the cases to see why they failed, it turns out that many of them were weak from the outset.”
        “Courts are not reflexively rejecting Second Amendment claims,” Professor Blocher said. “There will be cases in which judges may not go far enough in protecting the right, but that’s not indicative of what critics have called ‘massive resistance’ or ‘nullification’ or ‘second-class rights treatment.’”
        Still, said Brannon P. Denning, a law professor at Samford University in Birmingham, Ala., “there was a tendency to give Heller the narrowest possible reading.”
        “Judges were saying that as long as there is not a complete prohibition of possession of a handgun for self-defense in the home,” Professor Denning said, “then pretty much on anything else we’re going to give the benefit of the doubt to the government.”
        The New York City ordinance challenged in the new case allowed residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city limits. But the ordinance barred them from taking their guns anywhere else, including second homes and shooting ranges outside the city, even when they were unloaded and locked in a container separate from ammunition.
        Three city residents and the New York State Rifle and Pistol Association filed a lawsuit challenging the law but lost in Federal District Court in Manhattan and in the United States Court of Appeals for the Second Circuit. A unanimous three-judge panel of the Second Circuit ruled that the ordinance passed constitutional muster under the Heller decision.

        After the Supreme Court agreed to hear the case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, the city amended its ordinance to allow people with premises licenses to take their guns to their homes and businesses and to shooting ranges and competitions, whether in the city or not. For good measure, New York State enacted a similar law. The challengers have gotten everything they sought, the city’s lawyers told the Supreme Court, making the case moot. In response, the challengers said the case is still live because they may be entitled to seek money from the city and could suffer negative consequences for what was unlawful conduct while the ordinance was in place. They urged the justices not to reward the city’s “extraordinary machinations designed to frustrate this court’s review.”
        Timothy Zick, a professor at William and Mary Law School, said supporters of gun regulation had reason to hope the justices would rule that the case is moot.
        “The fear is that the court will accept the premise that what we need here is the most robust form of protection we can offer to this fundamental right because it’s been orphaned and disrespected,” Professor Zick said. “That, and the fact that this law is not a very good one, makes it understandable that you might not want this case to be the one that the court decides.”

        LI Ammo, 2 Larkfield Rd. East Northport, (closed Sundays during Covid Apocalypse)


          I wonder which way Ginsburg will vote? Hmmmmm....
          NRA Lifetime Member / NRA RSO & Certified Basic Pistol Instructor
          NYSRPA Member / Freeport R&R Member


            Originally posted by Synner View Post
            I wonder which way Ginsburg will vote? Hmmmmm....
            Who knows if she'll make it to vote at all this session? She might have to get an excuse note from her doctor.
            LI Ammo, 2 Larkfield Rd. East Northport, (closed Sundays during Covid Apocalypse)


              Originally posted by LI Ammo View Post

              Who knows if she'll make it to vote at all this session? She might have to get an excuse note from her doctor.
              I’m hoping from a coroner.
              NRA Lifetime Member / NRA RSO & Certified Basic Pistol Instructor
              NYSRPA Member / Freeport R&R Member


                I don’t have my hopes up up. Best I expect is a strong dissent from Thomas about what a bunch of pussies they are.



                  What does this mean for pistol license holders that live outside of the 5 boroughs? This is pertaining to NYC pistol license holders to be able to take their licensed handguns outside of the city for target/hunting reasons.


                    Originally posted by FDEMTNYC View Post
                    What does this mean for pistol license holders that live outside of the 5 boroughs? This is pertaining to NYC pistol license holders to be able to take their licensed handguns outside of the city for target/hunting reasons.
                    Probably nothing to very little. There are plenty of theories on what SCOTUS may or even can do with this that would extend beyond the core of the specific focus of this case. Even if all they do is spank NYC I think a strong message is being sent that SCOTUS is back in the business of recognizing 2A as an equal right and not some step child within the Bill of a Rights.
                    There are also a handful of other 2A cases in the que that may or may not eventually be heard, I’d put my money on this court righting some of the wrongs that have occurred since Heller. Lower courts will be on notice to apply law and not political views when issuing 2A rulings.



                      Be nice if stupid administrative restrictions went bye bye.
                      NRA Lifetime Member / NRA RSO & Certified Basic Pistol Instructor
                      NYSRPA Member / Freeport R&R Member


                        The most important thing that can happen for these particular plaintiffs is the ability to recover for damages.
                        The argument that the case is moot has been mitigated by the fact that a ruling in the plaintiff's favor that they have been damaged by the City's rules when they were in force would allow a monetary damages case to be filed.
                        This was not the original intention of the case, but in following the many pleadings over the past year or two, this is what has presented itself.
                        The Court would have likely made this case moot and not heard it, had the issue of monetary damages not been discussed in the mix. If I remember correctly, this point was first made by the court in response to a letter from the City. I took it as a clear sign that the Court wanted to keep the ball rolling on this case.

                        The City would win in a local court, but it could lose in a Federal Court since a Federal Court would not want to directly challenge the Supremes over such a trivial matter. (trivial to the court).
                        The City knows that their financial asses are hanging out on this one.

                        LI Ammo, 2 Larkfield Rd. East Northport, (closed Sundays during Covid Apocalypse)


                          Yes. A pro-2A decision may make other authorities think before making laws that will eventually be struck down. They will also realize that they can't pass laws and then right before it's challenged in a higher court say, "OK, we'll change it right before the court sees the case to make it moot."

                          Fingers crossed.
                          "The Open Carry guy is my decoy."


                            I'm so glad the NRA pushed for this case.
                            Oh wait, they didnt. They are hiding in the corner as always like the pussies they are when it comes to defending NYS gun owners rights.
                            It took the balls of the NYSRPA to bring this case to light. Yet oddly, the NRA is the one who keeps robo calling me asking for more money.


                              Here's part of the discussion over suing for damages.
                              Apparently the Solicitor General brought it up first, which I believe is a definite poke in the eye to NYC, and likely a sign that the Court wanted this case in front of them.
                              I hope they wanted this case because they were sick of the crap that the City pulled with changing the rules to make the case moot.

                              scotus 2.pdf

                              Looks to me that they're begging the petitioners to sue the City for damages.
                              Attached Files
                              LI Ammo, 2 Larkfield Rd. East Northport, (closed Sundays during Covid Apocalypse)