SCOTUS Relists NY State Rifle & Pistol Assoc v City of NY

[historian]

An affirmation of a 2nd Amendment right to bear arms outside the home is what I've been waiting for ever since Heller appeared to stop short of extending that right.

Maybe this one will.

I don't think it will. My guess, you have to allow for weapons to be transported, but you can restrict them to be licensed and unloaded. Basically, NYC says you can keep a gun in your house, but it can never, ever leave. That is a bridge too far, especially since it results in a de facto ban as you cannot transport it to your house without violating the law.

 

[Timjoebillybob]

Has there even been an established right by SCOTUS to bear arms outside the home? Did'nt Heller stop short of establishing that right? Would a ruling on this be considered as a Constitutional affirmation?

After all how can one delve into restrictions on carrying outside the home if there has'st been an established 2A interpretation of the right to do so?

What am I missing here?

An affirmation of a 2nd Amendment right to bear arms outside the home is what I've been waiting for ever since Heller appeared to stop short of extending that right.

Maybe this one will.

Not a 2nd Am case, but in Dred Scott they mentioned under the privileges and immunities of free men the right to keep and carry arms wherever they so wished.

 

[T.Lex]

One historic issue is that many states regulated the carry of handguns (concealed and otherwise). So, there is historical precedent that says some manner of regulation was acceptable.

 

[MCgrease08]

Here's the take from The Atlantic and as one might expect, it's practically dripping with disdain for the second amendment.

https://www.theatlantic.com/amp/article/581017/

 

[T.Lex]

So skimmed through the briefing that got certiorari granted.

The commerce clause argument is... creative. And kinda brilliant.

The logic is that if NYC residents can't leave their house with their gun, then they can't travel to practice or compete with it outside NY state. That, then, impacts interstate commerce because those New Yorkers can't go to a range outside the state.

Based on past interstate commerce precedent, it doesn't take much at all to have the necessary impact. That might really be enough.

But that is like telling New Yorkers that they are free to golf beyond city limits, just not with their own clubs. Such a law would deny out-of-city golf courses access to in-city golfers who want to use their own clubs. The City’s transport ban likewise denies out-of-city shooting ranges access to New Yorkers who want to learn how to use their own firearms.

It also looks like some efforts to use the same abortion-related precedent about access to constitutional rights. Kinda like that petard.

 

[T.Lex]

In counterpoint to The Atlantic article, here's a better one from the National Review.
https://www.nationalreview.com/2019/01/the-supreme-court-has-taken-a-strange-gun-rights-case/

In doing some more reading on this, we could end up with a unanimous (in part) decision.

That is, I could see all of the justices agreeing that the NYC regulation is unconstitutional. Then, either a majority or (worst case) a plurality on the test for how to determine of legislation is unconstitutional.

If NYC wanted to be strategic about this, they'd change the law - LIKE RIGHT NOW - and moot this case, and ask for it to be taken out of SCOTUS. Back the train up a few stops.

 

[cbhausen]

In counterpoint to The Atlantic article, here's a better one from the National Review.
https://www.nationalreview.com/2019/01/the-supreme-court-has-taken-a-strange-gun-rights-case/

In doing some more reading on this, we could end up with a unanimous (in part) decision.

That is, I could see all of the justices agreeing that the NYC regulation is unconstitutional. Then, either a majority or (worst case) a plurality on the test for how to determine of legislation is unconstitutional.

If NYC wanted to be strategic about this, they'd change the law - LIKE RIGHT NOW - and moot this case, and ask for it to be taken out of SCOTUS. Back the train up a few stops.

Don’t give them any advice. I hope their overreach bites them in the ass.. HARD.

 

[SwikLS]

If NYC wanted to be strategic about this, they'd change the law - LIKE RIGHT NOW - and moot this case, and ask for it to be taken out of SCOTUS. Back the train up a few stops.

Don’t give them any advice. I hope their overreach bites them in the ass.. HARD.

given that the NY legislature just passed a law that would make it legal to kill a baby 1 minute before its born, I don't think that's going to happen.

 

[Alamo]

...
If NYC wanted to be strategic about this, they'd change the law - LIKE RIGHT NOW - and moot this case, and ask for it to be taken out of SCOTUS. Back the train up a few stops.

Well NYC listened to you and mildly fiddled the law, then asked for "never mind!" but it appears SCOTUS didn't bite:

https://www.scotusblog.com/case-fil...-association-inc-v-city-of-new-york-new-york/
(scroll to last event).

 

[T.Lex]

Yeah, well it doesn't look good to wait until cert is granted to try to change the rule. SCOTUS doesn't like parties gaming the system AFTER cert is granted. (Before cert, there's some leeway.)

If NY had done that before the cert process, it might've worked.

Turns out, when I posted that, it was basically already too late. Cert was granted a couple days before that (but apparently hadn't been published yet).

About the only thing NY can do at this point to save face is to concede the issue. Agree that it was unconstitutional as written, but not as it is now (after the rule change). Otherwise, they're going to be in the awkward position of defending a rule that they know is problematic, and already changed.

I hope they get hammered.

 

[chipbennett]

Would it be too much to hope that SCOTUS will establish that otherwise violations of second-amendment protections require strict scrutiny, as do the rest of the constitutional protections in the Bill of Rights? That, alone, would be the biggest 2A court win in my lifetime.

Also: why would a commerce clause argument be needed to grant cert, since McDonald incorporated the second amendment? Wouldn't a mere claim of deprivation of rights suffice?

 

[historian]

Just saw the AC list. It appears that the anti-gunners are filing as "for neither side." Lawyer types, is that unusual or typical?

 

[T.Lex]

Would it be too much to hope that SCOTUS will establish that otherwise violations of second-amendment protections require strict scrutiny, as do the rest of the constitutional protections in the Bill of Rights? That, alone, would be the biggest 2A court win in my lifetime.

Agreed. Strict scrutiny would put the 2A (basically) on par with the 1A, which is something I've long advocated.

I don't think that's too much to ask, also partly because we don't really need another unique middle-tier kind of analytical framework. IMHO.

Also: why would a commerce clause argument be needed to grant cert, since McDonald incorporated the second amendment? Wouldn't a mere claim of deprivation of rights suffice?

Appeal to multiple audiences (pardon the pun). The 2A SCOTUS caselaw is still fairly scattered. So, the parties try to put together arguments that will garner coalitions on the court.

Just saw the AC list. It appears that the anti-gunners are filing as "for neither side." Lawyer types, is that unusual or typical?

In big cases, probably something to be expected. It can strain credibility sometimes, when it really is pretty clear that the amicus are aligned with one side. The frequency probably depends on what universe of cases you're talking about. All SCOTUS cases? Uncommon. SCOTUS cases that reflect issues that are culturally divisive? More common.

 

[historian]

NY is trying to Moot it:

https://www.scotusblog.com/2019/07/city-tells-justices-new-york-gun-case-is-moot/

 

[T.Lex]

That's a bold choice. They already asked to hold briefing in abeyance, which was denied. Now they're saying that they're really not going to answer on the merits at all, but file more procedural challenges.

The downside of that (for them, but the upside for 2A supporters) is that it will leave SCOTUS with only 1 side briefed on the merits (the pro-2A side). Now, it may invite something of a fractured court, in which some of the non-2A-supporting judges dissent on the procedural ground, but for that to work, they need to get a majority to think that way. I'm not sure that'll happen.

But, if it does, it remains an incremental win for the 2A. NY was effectively forced to liberalize its gun laws.

 

[historian]

NYC is trying again:

https://www.scotusblog.com/2019/07/city-returns-in-gun-rights-case/

 

[HKFaninCarmel]

It's really telling about the confidence they have in their crap laws when they fold and panic before a SCOTUS hearing. We need a decision to apply later when they try this crap again. I'd like it to reference applying strict scrutiny to 2A cases.

 

[historian]

Whitehouse wades in with his crazy conspiracy:

https://www.nationalreview.com/2019/08/democratic-senators-threaten-supreme-court/

 

[T.Lex]

Actual brief here:
https://www.supremecourt.gov/Docket...259076_18-280bsacSenatorSheldonWhitehouse.pdf

As a (mostly former) practitioner - yeah, the rhetoric is really bad. In the Indiana Supreme Court, I've seen rhetoric like than that admonished in a footnote about civility.

The influence effort directed at this Court has been industrialized. In this particular“project” to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain.

Fortunately (or unfortunately) it masks pretty straightforward mootness arguments that every amicus on that side of the fence is making. So, assuming they can wade through the political posturing, it probably won't make a difference.

ETA:
I did not know Sheldon Whitehouse is a lawyer. Apparently, he filed the amicus as "Counsel of Record" for himself.

First, there's an old saying, "An attorney who represents himself has a fool for a client." Case. Made.

Second, the court, and whatever jurisdictions in which he holds a license, can hold him responsible for the content of his filings. Not that they actually will, but they can.

 

[historian]

ETA:
I did not know Sheldon Whitehouse is a lawyer. Apparently, he filed the amicus as "Counsel of Record" for himself.

First, there's an old saying, "An attorney who represents himself has a fool for a client." Case. Made.

Second, the court, and whatever jurisdictions in which he holds a license, can hold him responsible for the content of his filings. Not that they actually will, but they can.

I guess it is true that anyone can become a lawyer...