Supreme Court Takes Major NRA Second Amendment Case from New York

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  • kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    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.

    The party match up isn't the disease itself, but it is causal. Put another way, it is because of party politics that certain people get nominated over others in the first place.

    So like it or not, nominating party is an excellent predictor of the outcome of decisions.

    Given the specific role of the judiciary, it should be clear that the disease isn't that party politics results in people of different mentalities getting onto the bench, it's that it's possible for someone who rejects the Constitution's meaning and purpose to get onto the bench at all. But I, for one, know of no good solution to that.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    "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.

    As you say, credibility is determined by the trier of fact. But the Supreme Court is not that, and yet must contend with the statements made by the state and local governments directly to it, and not to the trier of fact. By that point it's too late, and "credibility" means nothing, right?

    Or is your contention that, when faced with the question of mootness in the face of a state/local government that has been playing these games, the Supreme Court would remand the case back down to the appeals court with instructions to remand back to the district court for a credibility determination?
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    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.

    The problem is that this action by the Supreme Court opens the door for all government defendants to do the same thing, thus removing any possibility that the Court will get the clean case it wants in the first place.

    What, then, do you think the Court will do in the face of that? What could it do, having set the precedent it has with respect to mootness?
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The problem is that this action by the Supreme Court opens the door for all government defendants to do the same thing, thus removing any possibility that the Court will get the clean case it wants in the first place.

    What, then, do you think the Court will do in the face of that? What could it do, having set the precedent it has with respect to mootness?

    Maybe take cases that the state will fight to the bitter end like the NJ CCW law?
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    The group 1 cases have the advantage of a circuit split and if grouped they encompass multiple states, so it is much more difficult to moot in various jurisdictions.

    I think y'all are thinking about this wrong. Lets assume as Josh Josh Blackman does:

    And invariably, the local governments will try to moot the cases. Again.

    https://reason.com/2020/04/28/after...cond-amendment-cases-for-5-1-2020-conference/

    A concession (legislature repealing the law) is a win! see post #1557

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

    Trying to moot the cases is good news, not bad. It means that they know they are way out of line and willing to accept loosening of regulations rather than fight. It means they are conceding ground that is not ultimately defensible.

    If you think that respondents will concede, then pick the broadest case that will not be mooted.. If you think A,B,C will be mooted, but not D (D encompasses A,B,C) then the court will now pick D.

    NYSRPA was probably the most narrow case they the court could take. It was way over at A. NYC / NY State mooting the case will encourage the court to pick a more broad case, not act act shyly as they did with NYSRPA. NYC effectively moved the Overton Window by mooting the case, but against themselves. "Yeah we cant really defend that"

    Of course, its hard to know where the line is. But as I said, NYC effectively conceding the case will be read by the court as "yeah we were right to take this case so lets take more and think bigger"
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    As you say, credibility is determined by the trier of fact. But the Supreme Court is not that, and yet must contend with the statements made by the state and local governments directly to it, and not to the trier of fact. By that point it's too late, and "credibility" means nothing, right?

    Or is your contention that, when faced with the question of mootness in the face of a state/local government that has been playing these games, the Supreme Court would remand the case back down to the appeals court with instructions to remand back to the district court for a credibility determination?

    While SCOTUS is not the main trier of fact, there are certainly exceptions that allow them to assess credibility. For statements made directly to them, they certainly are the trier of those facts.

    Governments that change the law to avoid a ruling and change it back demonstrate the governments motive to avoid the ruling rather than accept the outcome. Existing precedent allows SCOTUS to rule on the issue in those circumstances.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The problem is that this action by the Supreme Court opens the door for all government defendants to do the same thing, thus removing any possibility that the Court will get the clean case it wants in the first place.

    What, then, do you think the Court will do in the face of that? What could it do, having set the precedent it has with respect to mootness?

    I think SCOTUS will do what it normally does. Wait and see what happens. They will try and respect precedent, but will make changes if needed.
     

    fred55

    Senior
    Aug 24, 2016
    1,772
    Spotsylvania Co. VA
    If NYSRPA would have requested court costs in their initial suit, how might that have affected the ruling? States and cities might think twice, probably not since it’s taxpayer funds, if they would be liable for “mooting” a case like NY did. fred55
     

    whistlersmother

    Peace through strength
    Jan 29, 2013
    8,948
    Fulton, MD
    The group 1 cases have the advantage of a circuit split and if grouped they encompass multiple states, so it is much more difficult to moot in various jurisdictions.

    I think y'all are thinking about this wrong. Lets assume as Josh Josh Blackman does:



    https://reason.com/2020/04/28/after...cond-amendment-cases-for-5-1-2020-conference/

    A concession (legislature repealing the law) is a win! see post #1557



    Trying to moot the cases is good news, not bad. It means that they know they are way out of line and willing to accept loosening of regulations rather than fight. It means they are conceding ground that is not ultimately defensible.

    If you think that respondents will concede, then pick the broadest case that will not be mooted.. If you think A,B,C will be mooted, but not D (D encompasses A,B,C) then the court will now pick D.

    NYSRPA was probably the most narrow case they the court could take. It was way over at A. NYC / NY State mooting the case will encourage the court to pick a more broad case, not act act shyly as they did with NYSRPA. NYC effectively moved the Overton Window by mooting the case, but against themselves. "Yeah we cant really defend that"

    Of course, its hard to know where the line is. But as I said, NYC effectively conceding the case will be read by the court as "yeah we were right to take this case so lets take more and think bigger"

    This pie in the sky.

    How is it a win if after mootness determination, the legislature passes the original law again?

    It takes YEARS for these cases to even have a chance at cert. Meanwhile, us peons have to live with the draconian laws with a very small window of slightly less draconian laws.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    The group 1 cases have the advantage of a circuit split and if grouped they encompass multiple states, so it is much more difficult to moot in various jurisdictions.

    I think y'all are thinking about this wrong. Lets assume as Josh Josh Blackman does:



    https://reason.com/2020/04/28/after...cond-amendment-cases-for-5-1-2020-conference/

    A concession (legislature repealing the law) is a win! see post #1557



    Trying to moot the cases is good news, not bad. It means that they know they are way out of line and willing to accept loosening of regulations rather than fight. It means they are conceding ground that is not ultimately defensible.

    If you think that respondents will concede, then pick the broadest case that will not be mooted.. If you think A,B,C will be mooted, but not D (D encompasses A,B,C) then the court will now pick D.

    NYSRPA was probably the most narrow case they the court could take. It was way over at A. NYC / NY State mooting the case will encourage the court to pick a more broad case, not act act shyly as they did with NYSRPA. NYC effectively moved the Overton Window by mooting the case, but against themselves. "Yeah we cant really defend that"

    Of course, its hard to know where the line is. But as I said, NYC effectively conceding the case will be read by the court as "yeah we were right to take this case so lets take more and think bigger"
    If they consolidate all the carry cases, good luck getting MD, NJ, and MA to all modify their laws in time to halt the proceedings.
     

    Boxcab

    MSI EM
    MDS Supporter
    Feb 22, 2007
    7,865
    AA County
    This pie in the sky.

    How is it a win if after mootness determination, the legislature passes the original law again?

    It takes YEARS for these cases to even have a chance at cert. Meanwhile, us peons have to live with the draconian laws with a very small window of slightly less draconian laws.

    I believe that in such a case the defendants can petition the upper courts directly and not start at the beginning again. The Upper courts can refuse until the lower courts review again... or they can take the case to review it.

    I am open for correction if I am wrong here.




    .
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I believe that in such a case the defendants can petition the upper courts directly and not start at the beginning again. The Upper courts can refuse until the lower courts review again... or they can take the case to review it.

    I am open for correction if I am wrong here.




    .

    They can do that but rarely it works.

    However the lower courts know scotus took this case for a reason. Are they that naive to think they can simply rule the same way again?
    Look at what happened with Caetano. The Mass Supreme Court got the message loud and clear even though it never got to the merits.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    They can do that but rarely it works.

    However the lower courts know scotus took this case for a reason. Are they that naive to think they can simply rule the same way again?
    Look at what happened with Caetano. The Mass Supreme Court got the message loud and clear even though it never got to the merits.

    This.

    The 2nd circuit wasted a lot of time on litigation, only to have the case mooted because NYC conceded.

    They wont make that mistake again.

    If NY tries to re-enact the restrictions the court will simply stop it before it gets to the Supreme Court, they wont allow a lot of time wasted on something that will incur a massive bitch slap from the Supreme Court.
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,142
    I was thinking just the opposite here.

    With so much new crap, laws, being flung against the wall every year, by the usual offender state legislatures, trying to get “stuff to stick”,

    Years spent challenging. and the associated $$$.

    And the lower courts getting it all wrong... as in the NY case, evidenced by the mooting attempt/success. Only after scotus takes the case.

    And zero consequences for the under courts for this failure. Where to the under courts get publicly punished for allowing this?

    The subtleties are lost in this. They must be explicitly told “you screwed up”.

    Maybe the next law won’t be identical but it’ll be infriniging enough, take years in the courts, and as Alito posits, will changed only when it gets to scotus, and through each circus, in an attempt to moot.

    Without declaring constitutionality here, it hurts damage claims. ?or does it? What damage can be recovered when a law is mooted vs declared unconstitutional? When filing for damages against .gov?

    I guess time will tell, but as noted, delayed/denied. Let’s see what happens with the Cali ammo case. With 16% of eligible legal purchasers being denied, an injunction and an “emergency” stay thereof, what have the lower courts learned.

    Just a non lawyer pondering here..hope I am wrong. Several other articles I’ve read leave me with the opinion that the courts will disavow the 2a. As several circus’ are and have been trying for years.



    This.

    The 2nd circuit wasted a lot of time on litigation, only to have the case mooted because NYC conceded.

    They wont make that mistake again.

    If NY tries to re-enact the restrictions the court will simply stop it before it gets to the Supreme Court, they wont allow a lot of time wasted on something that will incur a massive bitch slap from the Supreme Court.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    While SCOTUS is not the main trier of fact, there are certainly exceptions that allow them to assess credibility. For statements made directly to them, they certainly are the trier of those facts.

    Do we have any examples of where SCOTUS acted as the trier of fact and rejected the statements made as a result of acting in that role?


    Governments that change the law to avoid a ruling and change it back demonstrate the governments motive to avoid the ruling rather than accept the outcome. Existing precedent allows SCOTUS to rule on the issue in those circumstances.

    Do you happen to know off the top of your head what precedent exists for that?
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    This.

    The 2nd circuit wasted a lot of time on litigation, only to have the case mooted because NYC conceded.

    They wont make that mistake again.

    This presumes that the 2nd Circuit is concerned more about their time than they are the outcome.

    While their decision was vacated due to mootness, the 2nd Circuit has now done the heavy lifting necessary for any future decision. Vacated or not, the next time such a case makes it to the 2nd Circuit, it can just cut'n'paste from this decision, while making certain tweaks to account for the actual case before them. The rest (the briefings and such) will then just be mere formality to them.


    If NY tries to re-enact the restrictions the court will simply stop it before it gets to the Supreme Court, they wont allow a lot of time wasted on something that will incur a massive bitch slap from the Supreme Court.

    A ruling from the Supreme Court that the case is moot and that the 2nd Circuit's decision has been vacated is not a "bitch slap". It's not anything at all. It says nothing about the 2nd Circuit's decision in the slightest. Only the dissent did that, and dissents carry no precedential weight whatsoever.

    There's no indication whatsoever, at least from the way NYSRPA was disposed of, that the Supreme Court will act any different next time than it did this time, when faced with the same set of circumstances. If there's prior precedent that says that they will behave differently next time, I'd like to know about it.
     

    rascal

    Ultimate Member
    Feb 15, 2013
    1,253
    A ruling from the Supreme Court that the case is moot and that the 2nd Circuit's decision has been vacated is not a "bitch slap". It's not anything at all. It says nothing about the 2nd Circuit's decision in the slightest. Only the dissent did that, and dissents carry no precedential weight whatsoever.

    There's no indication whatsoever, at least from the way NYSRPA was disposed of, that the Supreme Court will act any different next time than it did this time, when faced with the same set of circumstances. If there's prior precedent that says that they will behave differently next time, I'd like to know about it.

    Agreed. Calling a loss a "win"and visa versa, is standard in DC. The case outcome is a strategic win for the gun control side because it represented high consequence risk to their positions.

    It is not accurate to call this case a per se win for our side, and it is even more of an Orwellian inversion to call it a win for us in the context of the body of cases. Why? This case had some potential to decimate gun control. This was widely noted by supreme court beat reporters, and also academics working in constitutional law. Instead NY was allowed to apply chilling affect to Second, and then in several sets of maneuvers, and sets of repeal legislation - arising only from the ligation - ratchet it back, with no penalty or virtually cost consequence for the attempt.

    If anything it has now become more rational for local or state government to engage in strategy of enacting onerous and draconian gun control, and then, if challenged by Second Amendment advocates, rely on mooting strategy for the cited onerous aspects, achieving a "chilling effect" on exercise of basic elements of gun ownership, which has no consequence to enacting authority other than moving the onerous legislation bank in increments to no better than before. This ruling enables this being attempted more and more with zero consequence, and worst case scenario being return to status quo ante.

    Moreover given the clear partisan track record of court decisions on the Second Amercement, if the composition of the court changes by one vote, or if the court is packed, as is more likely than ever in our modern history, this goes from win/neutral to win/win strategy and will occur even more.

    Do take a look at the Q/A between Alito and New York government's attorney: on pages 52 and 53 here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-280_m64o.pdf

    NY was arguing a really nasty test, arguing that even laws that would not help with pubic safety were valid. Not only was the law manifestly wrong, our opponent arguing the case was, in my view, sputtering. He is not the most capable opponent and that matters too.

    BTW as you can see if you read the various cases there is an increasing use of academic studies in arguments -- and decisions -- validating gun control on epidemiological studies. The other side is pumping out such studies at an increasing rate. We here discuss them in terms of press views, public views on gun ownership. But their use is definitely proliferating in actual cases, and that is virtually all a bad trend for us. The slowdown of pro-gun control study production following the controls on what the CDC was doing 30 years ago, has now reversed into a open spigot of gun control work in academia at present. This is because other side has seen this as an a very effective tool, and is funding them with in incredible amounts of money -- all tax deductible to boot. They can be used against us in the great majority of the 10 or so distributed cases that may make it to the court. Specifically in shall/may, "assault weapon"and mag capacity, which make up the great majority of relevant possible upcoming cases.
     

    rascal

    Ultimate Member
    Feb 15, 2013
    1,253
    Years spent challenging. and the associated $$$.

    And the lower courts getting it all wrong... as in the NY case, evidenced by the mooting attempt/success. Only after scotus takes the case.

    And zero consequences for the under courts for this failure. Where to the under courts get publicly punished for allowing this?

    Not just zero consequence to the lower court, zero consequence to NY. And their simply moving back to status qou ante midstream means this tactic can be attempted over and over.
    I guess time will tell, but as noted, delayed/denied.
    and "chilled"= denied as well.
     

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