Supreme Court Takes Major NRA Second Amendment Case from New York

[danb]

Nope. If that happens, I would count that as a win, and also a shot across the bow to State legislatures.

Having litigated mootness doctrine for years, I can say that Lewis is solid precedent.

Thanks for keeping us on the straight and narrow, and for all the work MSI does. I hope you get a front row seat to (another) Frosh head banging very soon, lol.

 

[win296]

Everyone here seems to be overlooking the fact that SCOTUS was threatened by several Senators. Can’t remember which ones. Did the threat work?


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[Blacksmith101]

Everyone here seems to be overlooking the fact that SCOTUS was threatened by several Senators. Can’t remember which ones. Did the threat work?


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It was mentioned up thread. You need to read all the posts from #1420 on.

 

[esqappellate]

Everyone here seems to be overlooking the fact that SCOTUS was threatened by several Senators. Can’t remember which ones. Did the threat work?


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It drew Justice Alito's ire. See page three of his dissent:

A prominent brief supporting the City went further. Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal. Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (internal quotation marks omitted).

 

[rascal]

Heck, I also predicted that the case would be held to be moot, especially after oral argument. No one would accuse me of being anti 2A. (At least I hope not). FWIW, I think that was the right decision on the facts. What is interesting in the outcome is not that result, but that Justice Kavanaugh filed a concurring opinion saying what he did, as did Alito, Thomas and Gorsuch in dissent. None of these guys had to say anything about the merits. As for the Chief, nothing in your cites suggests how he would actually vote. Has the Court been criticized as political. Sure. Personally, I don't see the Court as partisan (as in D or R), but it is certainly split along rough ideological / judicial philosophy lines. But even that can be a poor predictor. See, e.g., the split in this week's decision in the Georgia copyright case. In other cases, Gorsuch has joined the liberals and Kagen has joined the conservatives. As to whether Roberts will go beyond Heller, even if true, that all depends on what Heller means to him. He is going to have to decide, as there will be a cert grant in one of these cases and he will undoubtedly influence the case selected. That's part of the reason why I think Pena is such a good candidate for cert, as not even the liberals will go to the mattresses to defend the stupid California microstamping law. Not even politicians in Congress will make that a campaign issue. We shall see.

so ok, nothing in my cites from the coverage of Roberts 2019 questions/comments definitively states how he would vote. He did not say "I will moot this." But pretty much all the expert court observers said Roberts was signaling how he would. And it is how he did. The dozens of articles at the time absolutely did say he was "signalling,","suggesting," "indicating," "that it appeared he would vote for [moot]," or "the court’s more liberal justices all seemed inclined to do so, and the only comments that Roberts made suggested that he might be open to doing so [moot] as well.

One of the reasons I think, and others do as ell, is that Roberts is sensitive to the fact that the data show this is the most partisan court ever. I think this also goes to why he likely wont support any strict scrutiny on this issue either unless it is going to be six votes.


I do hope my comments seem like a drive-by saying that the discussion of the merits is pointless because it is all in the bag. I do think eight votes, four voters on either side at present, are in fact "in the bag" on core 2A issues. But it was wrong if I appeared to dismissive of the exercise of discussing the merits, when, especially on Bill of rights issues, as many citizens as possible ought to be aware, educated and thoughtful of the basics on both sides of any important contended case.

On partisanship in scotus, here is a question: was Souter (or warren or Brennan or to lesser extent O'Connor) proof that the court was not partisan? Or were they proof that exceptions occur? And lessons learned by Democrat and Republican presidents, that more clearly orthodox and politically reliable justices are needed? I would say the latter has occurred.

Secondly there is the issue of courts being politicizing in another way, a kind of pull in the push-pull, or demand side in supply demand question: That the make up of the court is now a major source of both a) fundraising an b) get out the vote/getting base active during political campaigns in recent years? Presidential campaigns on left and right now explicitly state, emphasize that they will use litmus tests.

I am in the main pointing out that if this court had five liberals instead of four, we would not even be seriously discussing the merits here in understanding how the court came to any 2A decisions. If there were five, not four justices who vote like Sotomayor, RBG, Kagan, Breyer, this would not even be up for discussion -- we would lose every core case despite the merits.

Yes, there might be some indirect 2A cases involving searches/privacy laws, prior conviction issues, who is disqualified under mental health rules, where you might get left-right mix. But NOT on core cases like magazine capacity, shall v may, "assault weapons" or even possibly Heller rights as they currently stand -- we would know they are toast.

Again in general the data shows the current court is partisan. I will go with the data. https://www.journals.uchicago.edu/doi/full/10.1086/691096
I don't agree fully with that study because it does not fully discuss the New Deal effect, where the court was exceptionally partisan on New Deal issues, knocking down FDR new deal policies on straight 5:4 100% partisan votes over and over, but less partisan on wartime powers issues. Nor does it discuss the anti-partisan effect of GOP appointments Earl Warren and William J. Brennan which was complex because of the courts involvement in knocking down onerous racist laws and policies.

We can also note outliers and exceptions all the time, exceptions on cases such as copyright or privacy or civil liberties where you get a centrist block and an harder left+libertarian coalition, do occur. But the overall trend does not change.

But recent and current court is more partisan than ever.

And because gun control has gone from semi-partisan to absolutely partisan, even though there is a lag on partisan effect in the courts, the trend will be that it will get more partisan on gun control issues, not less. The next court appointment, no matter if done by Biden or Trump, will almost certainly NOT be centrist. We will likely get someone either inamicable to even Heller or someone who supports strict scrutiny for the 2A in the first csae in which it can be applied.

 

[rascal]

Everyone here seems to be overlooking the fact that SCOTUS was threatened by several Senators. Can’t remember which ones. Did the threat work?

The threats are directed right at Roberts since he is the clear swing vote on partisan aligned issues. some issues are not partisan, but many are severely partisan aligned. When those issues come up the courts, and pressures on them are getting increasingly politicized

And more so recently. Fundraising for the campaigns also includes more fundraising tied to discussion of future makeup of the court and whether we get secure GOP or secure Democrat justices.

1. Data show scotus is more partisan than ever in its members' decision to appointing party alignment.
2. The court has been openly threatened in major media editorial boards and members of the Senate with packing
3. There is more fundraising by parties and third party politically based policy groups than ever.
4. Candidates more often talk about litmus tests and who they would appoint
5. SCOTUS issue is an increasingly big part of GOT (get out the vote), base activation, and work at getting votes in the center.

 

[kcbrown]

Yes, it could. That is the tension inherent in co-equal branches and the federal system. It isn't pretty or very neat. At some point, one side will give up. During the Brown v. Board of Education era, there was massive resistance of this sort to desegregation. Eventually, the Court won. You would not like it very much if the Court abandoned judicial restraint. That's a two-edged sword.

Yes, eventually the Court won, but not through actions of the Court. It won because the executive branch stepped in and put a stop to it by way of the National Guard.

But that's not happening here, nor will it.

The point here is that the Court has, if Alito is correct, already broken with its own precedent as regards mootness, and is thus allowing itself to be played like a fiddle. Unless and until the Court changes its ways, the state legislatures and the lower courts will run roughshod over both the Court and the citizenry.

The Court exists to impose the Supreme Law of the Land onto the other branches, onto the states, and onto the lower courts as well. By mooting this case, it has chosen to ignore that responsibility. It has done so for every 2nd Amendment case that has been sent up to it that it has denied cert to. I understand why that is -- the Court is ultimately political in nature so its behavior is a natural byproduct of that. But that doesn't change the factual characteristics of its behavior.

 

[esqappellate]

Yes, eventually the Court won, but not through actions of the Court. It won because the executive branch stepped in and put a stop to it by way of the National Guard.

But that's not happening here, nor will it.

The point here is that the Court has, if Alito is correct, already broken with its own precedent as regards mootness, and is thus allowing itself to be played like a fiddle. Unless and until the Court changes its ways, the state legislatures and the lower courts will run roughshod over both the Court and the citizenry.

The Court exists to impose the Supreme Law of the Land onto the other branches, onto the states, and onto the lower courts as well. By mooting this case, it has chosen to ignore that responsibility. It has done so for every 2nd Amendment case that has been sent up to it that it has denied cert to. I understand why that is -- the Court is ultimately political in nature so its behavior is a natural byproduct of that. But that doesn't change the factual characteristics of its behavior.

"if Alito is correct" is the operative phrase. It is not altogether clear that he is. It is significant that Kavanaugh thought it was moot and he is the best judge I've ever been in front of. Look, I understand the impatience. I share it.

 

[jcutonilli]

I would take issue with your statement that lower courts misinterpret Heller. It seems to me that they ignore it. That seems to be a political stance rather than judicial confusion. I'd wager that a strong majority of the anti-2A decisions are rendered by judges appointed by the left.

The court system was intended to balance the political legislature by adhering to the COTUS, and the definitions of that document originating from SCOTUS. Since legislatures prefer to write vague laws, thus dumping blame on the court system - deniability, as it were - the courts are essentially writing the laws by virtue of their decisions. Obviously not their intended role.

A big problem with legislating from the Bench in this fashion is that it serves to reinforce the tyranny of the majority, another issue that was supposed to be dealt with in the COTUS, but subsequently undermined in the holy name of "democracy." Once access to the Senate was turned into a direct popular election, that deliberative body became merely another organ of the Parties, rather than a check on the populism of the House.

I'm not competent to debate the stance of the various plaintiffs, but briefs I've read by Clement, Gura, and our own Wolfwood don't seem shy regarding illuminating the errors in their opponents' positions.

The lower courts are not misinterpreting Heller as much as they are using a different interpretation of it. I am not sure the problem is with Heller as much there are issues with the other mechanisms.

Clement, Gura and Wolfwood are not illuminating the errors as much as they are illuminating a different interpretation of the data. They use different data to justify it. The state might point out all the murders that occur with a "assault weapon", while the plaintiffs might demonstrate that hands and feet are used to commit more murders. One set of data does not dispute the other.

The courts look at these differences differently than you. They are seeing these differences as a political decision because there is no correct answer. This allows the court to defer to the legislature to make those political decisions. This is not a decision made by Heller, it is a different SCOTUS decision that the plaintiffs do not argue why it is inappropriate to defer to the legislature for these type of decisions.

 

[kcbrown]

They would loose all credibility with the court.

Uh huh. I'm sure the state and local governments are quaking in their boots at such a prospect, particularly when they know that the Court's actions are largely due to its attempts to appear non-political and that it fears being called partisan by government entities.

In any case, "credibility" has nothing to do with the outcome. The Court has to take statements presented to it at face value, no? Otherwise it would most certainly be partisan.

The state and local governments don't give a crap about "credibility". They only care about outcomes. If getting the outcome they want means losing "credibility" when doing so would otherwise have no effect on the outcome, then they'll happily lose "credibility".

 

[kcbrown]

I disagree that the court would have issued a ruling earlier if they were going to declare the issue moot from the start. They are going to give the dissenting justices the time they need to write a dissent. Thomas did not concur with the entire dissent so it is possible that he was the hold up and that the three dissenting justices could not all agree on the reasoning. It is also possible that Kavanaugh was the hold up and decided at the last minute to support mootness. Roberts stance seemed consistent with his questioning at oral argument. Kavanaugh did not ask any questions at oral argument.

That's true, and is actually a good point. So it's possible my analysis is incorrect.

However, what you fail to account for is all of the held 2nd Amendment cases. If the Court knew it was going to moot NYSRPA, there was no point in holding the other 2nd Amendment cases beyond that point. That it held onto them anyway is at least suggestive that the Court didn't know it would moot NYSRPA until relatively recently. But for that to be the case, either a change of mind had to occur, or the mootness question was one that was hotly debated for some time. Either is possible, but only the former supports my original analysis.

Frankly, I hope I'm wrong about it, because if I'm right then it means that 2nd Amendment litigation will be dead in the water (and we'll lose all of the cases we bring) until the Court composition changes again.

 

[esqappellate]

so ok, nothing in my cites from the coverage of Roberts 2019 questions/comments definitively states how he would vote. He did not say "I will moot this." But pretty much all the expert court observers said Roberts was signaling how he would. And it is how he did. The dozens of articles at the time absolutely did say he was "signalling,","suggesting," "indicating," "that it appeared he would vote for [moot]," or "the court’s more liberal justices all seemed inclined to do so, and the only comments that Roberts made suggested that he might be open to doing so [moot] as well.

One of the reasons I think, and others do as ell, is that Roberts is sensitive to the fact that the data show this is the most partisan court ever. I think this also goes to why he likely wont support any strict scrutiny on this issue either unless it is going to be six votes.


I do hope my comments seem like a drive-by saying that the discussion of the merits is pointless because it is all in the bag. I do think eight votes, four voters on either side at present, are in fact "in the bag" on core 2A issues. But it was wrong if I appeared to dismissive of the exercise of discussing the merits, when, especially on Bill of rights issues, as many citizens as possible ought to be aware, educated and thoughtful of the basics on both sides of any important contended case.

On partisanship in scotus, here is a question: was Souter (or warren or Brennan or to lesser extent O'Connor) proof that the court was not partisan? Or were they proof that exceptions occur? And lessons learned by Democrat and Republican presidents, that more clearly orthodox and politically reliable justices are needed? I would say the latter has occurred.

Secondly there is the issue of courts being politicizing in another way, a kind of pull in the push-pull, or demand side in supply demand question: That the make up of the court is now a major source of both a) fundraising an b) get out the vote/getting base active during political campaigns in recent years? Presidential campaigns on left and right now explicitly state, emphasize that they will use litmus tests.

I am in the main pointing out that if this court had five liberals instead of four, we would not even be seriously discussing the merits here in understanding how the court came to any 2A decisions. If there were five, not four justices who vote like Sotomayor, RBG, Kagan, Breyer, this would not even be up for discussion -- we would lose every core case despite the merits.

Yes, there might be some indirect 2A cases involving searches/privacy laws, prior conviction issues, who is disqualified under mental health rules, where you might get left-right mix. But NOT on core cases like magazine capacity, shall v may, "assault weapons" or even possibly Heller rights as they currently stand -- we would know they are toast.

Again in general the data shows the current court is partisan. I will go with the data. https://www.journals.uchicago.edu/doi/full/10.1086/691096
I don't agree fully with that study because it does not fully discuss the New Deal effect, where the court was exceptionally partisan on New Deal issues, knocking down FDR new deal policies on straight 5:4 100% partisan votes over and over, but less partisan on wartime powers issues. Nor does it discuss the anti-partisan effect of GOP appointments Earl Warren and William J. Brennan which was complex because of the courts involvement in knocking down onerous racist laws and policies.

We can also note outliers and exceptions all the time, exceptions on cases such as copyright or privacy or civil liberties where you get a centrist block and an harder left+libertarian coalition, do occur. But the overall trend does not change.

But recent and current court is more partisan than ever.

And because gun control has gone from semi-partisan to absolutely partisan, even though there is a lag on partisan effect in the courts, the trend will be that it will get more partisan on gun control issues, not less. The next court appointment, no matter if done by Biden or Trump, will almost certainly NOT be centrist. We will likely get someone either inamicable to even Heller or someone who supports strict scrutiny for the 2A in the first csae in which it can be applied.

I thought Roberts was signaling too, at the oral argument. Judges do that all the time at argument, and not just SCT justices. It is a legit way to engage counsel and give them an opportunity to dissuade them. I think it has happened in every oral argument that I have given (over 100). I happen to agree that the mootness decision was correct in this case but I also think it is utterly small potatoes. In some ways, it is far better to get a clean case to decide these issues than one clouded by close questions on jurisdictional issues.

I get that the Court has been accused of partisanship in a D or R way. I just don't buy that it is partisan that way, notwithstanding all the efforts of the partisans to make it into a partisan issue. The law just isn't so neat. First, on so many issues, there just isn't a partisan position. That is probably the vast majority of cases that are decided. There are often ideological positions on cases and that may have some appeal to partisans on both sides, but that has *always* been the case in the history of the Court. Hell, Marbury v. Madison was a partisan decision in that sense. In that sense there *is* an ideological split on the Court, but again that isn't just a partisan issue. It is a fundamental debate on how to read the Constitution. Judges are influenced by their colleagues. Even Justice Kagan has remarked that because of Scalia, "we are now all textualist" http://cdn.harvardlawreview.org/wp-content/uploads/2016/06/2118-2163-Online.pdf Second, the Court always has to contend with stare decisis but it undeniably acts as a restraint on how the court decides cases. See Ramos decision handed down just last week, holding that the 6th Amendment is fully applicable to State criminal cases, thus requiring a unanimous jury verdict. Look at the split. Indeed, there is a very healthy debate now on the Court on the rule of stare decisis.

But the bottom line, calling the Court partisan is simply pointless. It is what it is. Will the Federalist Society (of which I am a member) recommend different judges than Everytown? Sure. There is no doubt that the country has become more polarized. It is inevitable that the Court will come to reflect that divide. I do think that members on the Court (including the Chief) are *very* aware that their very legitimacy turns on the need to appear that they are not mere political hacks. So much in the law is gray, with no clear answer. Every decision is tempered by that reality. Hacks don't write these kind of really long opinions or seek to respond to dissents in the way this Court does. Welcome to the messy Republic that our Founders gave us.

 

[rascal]

While Roberts may not want to go past Heller necessarily, what happens when cert is granted in a case where the government doesn’t fold and the case is clear cut?.

Did the government of NY fold? They achieved a strategic victory through a tactical retreat. They got to keep a lot of their onerous regs and avoided any strict scrutiny ruling. Much of the press coverage was that NYNRA v NY could "end gun control." it generated threats to pack the court. 90% of the expense of, hassles with, and infringement on of legally getting and owning owning a gun in NYC is still present. That occurred with five GOP appointments on the court.

I think there is a better than even chance in a clear cut case Roberts will vote against us, especially in a case our side forces, unless RBG is replaced in the next four years by a Republican, in which case he will probably side with us in good part due to his sensitivity to politics and wanting court to have less 5:4.

 

[jcutonilli]

Uh huh. I'm sure the state and local governments are quaking in their boots at such a prospect, particularly when they know that the Court's actions are largely due to its attempts to appear non-political and that it fears being called partisan by government entities.

In any case, "credibility" has nothing to do with the outcome. The Court has to take statements presented to it at face value, no? Otherwise it would most certainly be partisan.

The state and local governments don't give a crap about "credibility". They only care about outcomes. If getting the outcome they want means losing "credibility" when doing so would otherwise have no effect on the outcome, then they'll happily lose "credibility".

"Credibility" is part of fact finding and is determined by the trier of fact (typically a judge in a bench trial or the jury). Throwing out facts due to credibility issues happens routinely. There is nothing inherently partisan about it, although there certainly are instances of it being partisan.

Governments get the outcomes they want because of "credibility". Here is a Baltimore issue with "credibility" https://www.cnn.com/2019/10/04/us/baltimore-police-corruption-cases/index.html 800 convictions were overturned because of "credibility" issues.

 

[Occam]

The court isn’t partisan. It’s divided between constitutionalism and having-things-the-way-they-want-ism. Because a large portion of the legislators and executives who seat these justices coalesce by association into parties for strength in numbers, it’s easy to mistake party affiliation with a spot on the spectrum of constitutionalism. But doing so is a mistake.

 

[rascal]

I get that the Court has been accused of partisanship in a D or R way. I just don't buy that it is partisan that way, notwithstanding all the efforts of the partisans to make it into a partisan issue. ...
But the bottom line, calling the Court partisan is simply pointless..

Not merely accused of partisan, but demonstrated, academically attested data driven proof of partisanship on quite a few issues.

Understanding it as profoundly partisan on Second Amendment issues is not pointless, but the core predictor and driving factor in all decisions on the matter.

The idea that Breyer, Ginsburg, Alito and Thomas votes on Heller may have been non partisan and random is just not supported. That thesis would require asserting that Alto and Thomas could have as easily voted to support DC, and Breyer and Ginsburg to support Dick Heller's rights -- a scenario with a likelihood of zero.

Again the arguments used are important, analysis such as you give is extremely important and valuable. Such an analysis does have a place in non partisan issues and may for the occasional, increasing rare non partisan on the court.

The fact remains that one less GOP and one more Dem on the court and Heller would have gone the other way. Not could have, would have.

 

[Occam]

Still confusing the party that chooses justices with a certain ideology with the justice being partisan. These are not the same thing.

 

[rascal]

The court isn’t partisan. .

Data on gun control decisions votes by each justice shows on this issue the justices are highly partisan. There is no doubt.
The method they allegedly use to get at their justification for their vote, contained in their opinion, is one thing. But this doesn't mean it drove their actual vote.

Your point on constitutionalism and schools of thought in that vein is correct, But that itself is partisan aligned already

 

[rascal]

Still confusing the party that chooses justices with a certain ideology with the justice being partisan. These are not the same thing.

only 95% of the time. Outlers such as Warren and Brennan, or more recently Souter are exceptions. The court record itself shows after you discount those rare outliers, party which appointed is extremely alligned with justices' positions on partisan issues.

 

[Occam]

2A issues are often taken up by parties in a polarized way, but it’s an ideological matter, not partisan. Some people are Nanny Staters, and some people are more liberty minded. The justices skew towards one or the other of those world views. Partisan politicians choose them for the adherence to, or rejection of the constitution’s meaning and purpose. The party match up is a symptom, not the disease.