Supreme Court Takes Major NRA Second Amendment Case from New York

danb · Apr 19, 2019

Clement:

https://www.supremecourt.gov/Docket...2019-04-19 NYSRPA response letter - FINAL.pdf

Seems "scathing" to me.

What is more, the timing and circumstances of respondents’ efforts raise serious voluntary cessation concerns, as the proposed rulemaking appears to be an effort to frustrate this Court’s review, rather than a serious effort to bring the City’s regulatory regime into alignment with this Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). The statement accompanying the proposed rule does not even acknowledge that the transport ban is constitutionally infirm in its current form; instead, it acknowledges only that this Court has granted review to resolve that question. Indeed, the statement reflects the City’s continuing belief that the existing ban serves important public safety goals. Combined with the fact that the City has previously denied that its policy seriously implicates the Second Amendment and has procured a precedential decision that denies meaningful protection of Second Amendment rights in the Second Circuit, respondents’ proposed actions raise the concerns that underlay the voluntary cessation doctrine. Put simply, the proposed rulemaking appears to be the product not of a change of heart, but rather of a carefully calculated effort to frustrate this Court’s review.

ya think?

swinokur · Apr 19, 2019

This is what happens when you can’t win your case on the merits

CrabcakesAndFootball · Apr 19, 2019

Thanks for posting danb. I enjoyed how Clement points out that NYC has basically taken the position that public comments are meaningless, and the City will do what it wants regardless of what the public has to say. I also had never heard of the voluntary cessation doctrine, but I suspect I will learn a lot more about it if NYC adopts this rule change.

krucam · Apr 19, 2019

Wish Mr. Clement would have brought up the Exception to Mootness that we brought up on the previous page. Regardless, with the opening brief in the Merits due May 7th and likely being worked, here’s to hoping NYC’s request gets denied...

danb · Apr 19, 2019

CrabcakesAndFootball said:
Thanks for posting danb. I enjoyed how Clement points out that NYC has basically taken the position that public comments are meaningless, and the City will do what it wants regardless of what the public has to say. I also had never heard of the voluntary cessation doctrine, but I suspect I will learn a lot more about it if NYC adopts this rule change.

See post #146.

Normally I would agree that given how NYC is run, public comments are meaningless and the rules are a fait accompli, however, given how the progressives ran Amazon out of town, maybe not.

krucam said:
Wish Mr. Clement would have brought up the Exception to Mootness that we brought up on the previous page. Regardless, with the opening brief in the Merits due May 7th and likely being worked, here’s to hoping NYC’s request gets denied...

I think he did when he mentioned voluntary cessation doctrine, but in typical fashion I think he declined to spend too much time on the obvious. In pointing out that NYC continues to defend the policy, he is basically also pointing out the likelihood that they will return to their old ways after the case is "mooted"

esqappellate · Apr 19, 2019

I think the way Clement handled this is quite clever. The applicable exception to mootness here is the voluntary cessation doctrine. See, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982); Knox v. Service Employees Intern. Union, Local 1000, 567 U.S. 298 (2012). He raised it. But then said that it is too early to consider the question because NYC has yet to do anything and there is plenty of time to brief the issue when and if they actually do what they say they are going to do. Clement also raises appropriately the good faith of NYC, which is part of the doctrine. See Knox. With Clement's letter, the NYC suggestion (and it is not even a motion) to hold the briefing in abeyance will be denied (or ignored).

Kharn · Apr 20, 2019

Cited case Natl Assc of Manf v DoD from Clement's letter, with the briefs on holding the case in abeyance pending rule making.

motorcoachdoug · Apr 20, 2019

He really did a good job making his case on why NYC asking for the case to be dismissed should be denied and he really called the police dept and the mayors office out on the carpet as well. If NYPD and the mayors office had their way, they would not change it at all but because they are being forced to look at it they are dragging their feet as much as they can get away with.

danb · Apr 20, 2019

After reading Clements brief, I think that not only will the motion for abeyance be denied, but the gambit will backfire and hurt the credibility of NYC at oral argument. He basically accused them of bad faith, which is true, so it will be hard to take their arguments at face value now.

If the motion is denied, I am not even sure they will seriously pursue a change in rulemaking. If they dont think that they will get out of the litigation, I dont think that they will pursue it too hard.

Blacksmith101 · Apr 20, 2019

danb said:
After reading Clements brief, I think that not only will the motion for abeyance be denied, but the gambit will backfire and hurt the credibility of NYC at oral argument. He basically accused them of bad faith, which is true, so it will be hard to take their arguments at face value now.

If the motion is denied, I am not even sure they will seriously pursue a change in rulemaking. If they dont think that they will get out of the litigation, I dont think that they will pursue it too hard.

Which will also reflect badly on them.

PowPow · Apr 20, 2019

Clement wrote one of the better smack downs I've ever had the pleasure of reading. They deserved it.

danb · Apr 22, 2019

https://www.scotusblog.com/2019/04/empirical-scotus-advocates-who-drive-the-justices-votes/

glad he's on our side...

Some Guy · Apr 23, 2019

NYC Rule Change Proposal

Here's the proposed rule change as posted on the NYC portal:

https://rules.cityofnewyork.us/content/amendment-premise-handgun-license-rules

Some observations on how the City describes the proposed changes on its website:

"The Police Department has strongly believed, and continues to maintain, that the present Rule furthers an important public-safety interest."

- I read this to maintain that the governing agency continues to prefer the current Rule. Therefore, it is logical to conclude that the city could just as easily determine it should retain the current Rule or revert to it should it be changed in the coming months.

"...the Police Department has reviewed the Rule, and has determined that it is possible to modify it to reflect a carefully considered accommodation to the legitimate interests of licensees while also ensuring the safe transport of handguns by licensees between authorized locations."

- I read "...carefully considered accommodation..." as an indicator of an infringement. This phrase turns the language of accommodation on its head. If a right requires "accommodation" to be exercised, it would seem that the right is being denied or suppressed. For example, we make accommodations to enable disabled persons to obtain employment, vote, etc. We make such accommodations because the free exercise of a disabled person's civil rights may restricted due to a disability of some kind, or due to acts of persons or governments which prevent a disabled person from exercising his/her rights. To me, it seems if an accommodation is required to enfranchise a right, it indicates that the right is being denied in some form or fashion. Therefore, the creation of a "...carefully considered accommodation..." indicates that the City is essentially admitting it is currently suppressing or denying one or more rights.

Also, the City refuses to event address the elephant in the room. They refer to the "interests" of "licensees". I'm not an attorney, but even I can see that the City is refusing to even call the dispute what it is: It's an issue of RIGHTS, not interests.

The Supreme Court must get this sorted. To me it seems the City is admitting it's suppressing or denying rights, and at the same time, it's saying that it actually maintains that it's OK to do this. The City doesen't even acknowledge that there is a fundamental issue of rights being argued. And, the City can opt to change its rules and suppress second amendment and other rights seemingly at its capricious pleasure.

I hope the court keeps the case.

Nobody · Apr 23, 2019

Whatday of the week are certs granted, debated our denied?

Please and thank you.

Nobody

randomuser · Apr 23, 2019

From the first post in this thread:
"The Supreme Court on Tuesday granted review in the first Second Amendment case in almost a decade"

We have so many more infringements than can possibly be heard in 5 lifetimes that will never be addressed because lack of money and time.
Is why you cannot let them take any of your rights and think that SCOTUS will be able to get back a right stolen in your lifetime.

The infringements come faster than we get them back.
Until I have have a pencil barrel and standard mag to start along with a ton of other things then the constitution is not being followed.
I know, I'll just go to SCOTUS and get it fixed.

danb · Apr 23, 2019

Nobody said:
Whatday of the week are certs granted, debated our denied?

Please and thank you.

Nobody

Full calendar is here: https://www.scotusblog.com/events/

This page also has useful info organized according to conference dates: https://certpool.com/conferences

the answer is... depends. Usually conferences are Fridays with orders released Mondays, so we officially know Monday at 9:30. However in May and June, conferences are Thursdays with orders released Mondays. If Monday is a holiday, then orders come out Tuesday. There are exceptions. If a case has been rescheduled a number of times, often cert grants are posted the same day as the conference (so, Friday).

The above is a general rule, but the only 100% certain way to know is to bookmark certpool or scotusblog and check the calendar, or bookmark a particular case you are interested in.

I should add that the behind the scenes process is probably not as simple. Chances are clerks bubble up interesting cases (the one or two of 250 scheduled) and justices exchange memos why/why not to grant cert. This is not happening at one conference but the debate is happening over several weeks.

press1280 · Apr 23, 2019

randomuser said:
From the first post in this thread:
"The Supreme Court on Tuesday granted review in the first Second Amendment case in almost a decade"

We have so many more infringements than can possibly be heard in 5 lifetimes that will never be addressed because lack of money and time.
Is why you cannot let them take any of your rights and think that SCOTUS will be able to get back a right stolen in your lifetime.

The infringements come faster than we get them back.
Until I have have a pencil barrel and standard mag to start along with a ton of other things then the constitution is not being followed.
I know, I'll just go to SCOTUS and get it fixed.

The problem is Heller and McDonald were 5-4 meek opinions. The lower courts pretty much thumbed their nose.
But take Caetano, an 8-0 rebuke of the Mass courts stun gun opinion. Most localities folded instantly when they got sued, and the only one that tried to fight was N.Y. and they lost in the 2nd circuit. Keep in mind Caetano didn't necessarily strike down the stun gun ban either.
But the lower courts got the message crystal clear.

Elliotte · Apr 23, 2019

danb said:
If the motion is denied, I am not even sure they will seriously pursue a change in rulemaking. If they dont think that they will get out of the litigation, I dont think that they will pursue it too hard.

They're just following the pattern NJ set up with Drake, say "hold on we've got this other thing happening that could impact this case" and then once the SCOTUS acquiesces go back to business as usual and not follow through on what was used to stop SCOTUS.

whistlersmother · Apr 23, 2019

Elliotte said:
They're just following the pattern NJ set up with Drake, say "hold on we've got this other thing happening that could impact this case" and then once the SCOTUS acquiesces go back to business as usual and not follow through on what was used to stop SCOTUS.

Hey! If it worked once, maybe it'll work again. After all, how long before SCOTUS takes another 2A case?

Sent from my SM-G965U using Tapatalk

danb · Apr 24, 2019

The city's response to Clements response:

http://www.supremecourt.gov/DocketP...8659_NYSRPA v CNY Letter to Supreme Court.pdf

Lots of use of the word "if" as in "if the rulemaking proceeds according to established procedures..." "if the proposed rule is adopted..." if, if, if.

IF briefs could be submitted via YouTube, this would be mine:

Maybe it's me, but I thought the NYC reply was amateurish and a little dismissive of the Supreme Court. As if they were looking to postpone a hearing on a traffic ticket, not a weighty matter before the Supreme Court.

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