NYC CCW case is at SCOTUS!

jcutonilli · Mar 14, 2021

press1280 said:
How do you know Roberts voted to hear NYSRPA?

If they don't take this case then I don't know. I don't know enough about the inner workings of SCOTUS to say for sure. For example, would the justices (or clerks) be aware of the lawsuits coming up from NJ, and perhaps try to steer the court away from this case in hopes of taking that case since NJ doesn't differentiate between open and concealed carry? NYC hasn't tried to steer them away or make any big deal over CC/OC, which they could have done.

Maybe you can answer what magic phrases were written in NYSRPA that got the court to bite in that case?

I never said that Roberts voted to hear NYSRPA. SCOTUS does not reveal the votes. I am presuming that Roberts gave sufficient assurances that he would vote to overturn the case (support the 2A) that at least four justices voted to hear the case, which is why I used the term "apparently agreed".

I suspect the justices are too busy with writing opinions and reviewing cert petitions to really worry about speculative issues such as potential cases.

There are no magic phrases needed. You can't read past the second paragraph without reading about the lack of substantiated data.

The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety.

They called into question whether the intermediate scrutiny standard was followed. I don't think they did a good job arguing the case, but they at least called into question the validity of the lower court's arguments.

The limited applicability may have also helped.

press1280 · Mar 15, 2021

jcutonilli said:
I never said that Roberts voted to hear NYSRPA. SCOTUS does not reveal the votes. I am presuming that Roberts gave sufficient assurances that he would vote to overturn the case (support the 2A) that at least four justices voted to hear the case, which is why I used the term "apparently agreed".

I suspect the justices are too busy with writing opinions and reviewing cert petitions to really worry about speculative issues such as potential cases.

There are no magic phrases needed. You can't read past the second paragraph without reading about the lack of substantiated data.

They called into question whether the intermediate scrutiny standard was followed. I don't think they did a good job arguing the case, but they at least called into question the validity of the lower court's arguments.

The limited applicability may have also helped.

You said Roberts apparently agreed to hear the case. That seems like a vote to me, but whatever the case is I believe the limited applicability may have helped because even if he didn't vote to hear the case I believe the 4 conservatives believed Roberts wouldn't fight them on overturning the law in NYSRPA.

I think the data has been thrown toward the court on numerous past petitions and obviously hasn't fared well (with regard to public carry). While some amici briefs may yet provide this I'm very skeptical that's going to carry the day for a cert grant, especially when the other side will give their phony Brady/LCAV data.

jcutonilli · Mar 15, 2021

press1280 said:
You said Roberts apparently agreed to hear the case. That seems like a vote to me, but whatever the case is I believe the limited applicability may have helped because even if he didn't vote to hear the case I believe the 4 conservatives believed Roberts wouldn't fight them on overturning the law in NYSRPA.

I think the data has been thrown toward the court on numerous past petitions and obviously hasn't fared well (with regard to public carry). While some amici briefs may yet provide this I'm very skeptical that's going to carry the day for a cert grant, especially when the other side will give their phony Brady/LCAV data.

Data has been thrown toward the court and has not fared well because it is simply thrown toward the court without regard to how the court evaluates it. It is not a 2A issue it is a Constitutional one that affects all of our rights when public safety is involved. Korematsu is an infamous example and the Court only recently said that it was wrongly decided, but failed to explain why it was wrongly decided. What happens is that the government presents evidence and the courts accept it without really evaluating it.

The Brady/LCAV data is not exactly phony. The data is mostly correlation based without any demonstration of causation. It is speculative at best and would only be able to meet rational basis because it does not demonstrate causation. Intermediate scrutiny requires a demonstration of causation.

You don't read that in any of the petitioners briefs nor the amicus briefs. The real problem is the arguments presented and not the Court itself.

press1280 · Mar 19, 2021

https://www.supremecourt.gov/Docket...210122154401104_20-843 Amici Brief States.pdf

What about the states brief?

As I understand there’s a word limit for the petitioners briefings so pages of stats may not be in their best interest.

jcutonilli · Mar 20, 2021

press1280 said:
https://www.supremecourt.gov/Docket...210122154401104_20-843 Amici Brief States.pdf

What about the states brief?

As I understand there’s a word limit for the petitioners briefings so pages of stats may not be in their best interest.

I think it makes some good points by pointing out some deficiencies with the other sides data but it appears to get into a stat duel. They say their stats says one thing. The respondents use different stats that say something different. The Court does not really have the expertise to figure out which side is correct. My general impression is that it still focused mostly on why their interpretation of the 2A is correct and the court should take the case because they are correct.

HaveBlue · Mar 20, 2021

I’m of the opinion that congress should be swayed by stats. The court should be looking to see if the state law comports with the COTUS, not stats.

The SCOTUS wasn’t meant to the “other” legislature. The one that fixes all the unpopular legislation.

jcutonilli · Mar 20, 2021

HaveBlue said:
I’m of the opinion that congress should be swayed by stats. The court should be looking to see if the state law comports with the COTUS, not stats.

The SCOTUS wasn’t meant to the “other” legislature. The one that fixes all the unpopular legislation.

Being swayed by stats is not always a good thing. It depends on which stats they are swayed by. Here in MD the legislature seems swayed by correlations that do not demonstrate the causations attributed.

The courts do evaluate if the state law comports with the COTUS. SCOTUS has determined that, like most rights, the 2A is not unlimited. Heller was not exactly clear on how to determine if the right is limited under various scenarios/laws. One of the ways that is used (and mentioned in Heller) is scrutiny. Stats often play a role in the scrutiny process. The courts try and stay out of issues that they deem political, which is one of the problems with dueling stats, they appear political to many courts.

Occam · Mar 20, 2021

jcutonilli said:
Being swayed by stats is not always a good thing.

No, NOT always a good thing. Philosophically speaking, I don't care if a thorough ban and total door to door confiscation of every gun in the country and the installation of magnetometers at every door in the country would - statistically - reduce some types of crime. The principle of self defense is morally superior to stats that argue there's a better way.

The Founders made multiple constitution-writing decisions that favored principle over numbers. Damn straight they did.

Bob A · Mar 21, 2021

Lies, damn lies, and statistics - in increasing level of dissimulation.

daNattyFatty · Mar 21, 2021

HaveBlue said:
I’m of the opinion that congress should be swayed by stats. The court should be looking to see if the state law comports with the COTUS, not stats.

The SCOTUS wasn’t meant to the “other” legislature. The one that fixes all the unpopular legislation.

I think, instead of stats, you mean “actual evidence.”

At any rate, good luck with that ever happening!

Sent from my iPhone using Tapatalk Pro

jcutonilli · Mar 21, 2021

daNattyFatty said:
I think, instead of stats, you mean “actual evidence.”

At any rate, good luck with that ever happening!

Sent from my iPhone using Tapatalk Pro

There is "actual evidence" that guns are used to commit crimes. The other side does a good job presenting this evidence.

Many legislatures use this "actual evidence" to take away the ability of the people to provide public safety so that the government can claim it is protecting it citizens even though it has no obligation to protect any individual citizen.

HaveBlue · Mar 22, 2021

jcutonilli said:
There is "actual evidence" that guns are used to commit crimes. The other side does a good job presenting this evidence.

Many legislatures use this "actual evidence" to take away the ability of the people to provide public safety so that the government can claim it is protecting it citizens even though it has no obligation to protect any individual citizen.

But it’s ridiculous evidence.

By the same measure, “clothing” is used to commit crimes. A vanishingly small number of crimes are committed by people without clothing. By the same logic, while guns may be useful but evidence suggests that clothing is essential to nearly every class of violent crime.

Cars and even public transportation are incredibly powerful enablers of criminal activity and deaths. Escape, assault & anonymity among them. Almost no one thinks people should be imprisoned for 10 years for installing a muffler on a car. Electric cars are particularly dangerous because they are quiet.

Adults with functional brains (our forefathers came from this group) know that guns don’t cause crime any more than cars or clothing. A simple ratio of gun owners to crimes, the number of guns owned to crimes, the number of CCW permit holds to criminal activity by that group. All show the exact opposite of their “evidence”

Spending millions of taxpayer dollars debating otherwise, is fraudulent misuse of those dollars.

Thank you for your thoughtful contributions to these threads. You regularly make me re-evaluate my positions.

Respectfully,
HaveBlue

jcutonilli · Mar 23, 2021

HaveBlue said:
But it’s ridiculous evidence.

By the same measure, “clothing” is used to commit crimes. A vanishingly small number of crimes are committed by people without clothing. By the same logic, while guns may be useful but evidence suggests that clothing is essential to nearly every class of violent crime.

Cars and even public transportation are incredibly powerful enablers of criminal activity and deaths. Escape, assault & anonymity among them. Almost no one thinks people should be imprisoned for 10 years for installing a muffler on a car. Electric cars are particularly dangerous because they are quiet.

Adults with functional brains (our forefathers came from this group) know that guns don’t cause crime any more than cars or clothing. A simple ratio of gun owners to crimes, the number of guns owned to crimes, the number of CCW permit holds to criminal activity by that group. All show the exact opposite of their “evidence”

Spending millions of taxpayer dollars debating otherwise, is fraudulent misuse of those dollars.

Thank you for your thoughtful contributions to these threads. You regularly make me re-evaluate my positions.

Respectfully,
HaveBlue

I am not sure I would classify the criminal use of guns as ridiculous evidence. It seems to me to be an observation and a negative consequence of the right to keep and bear arms.

The error that occurs is when the legislatures try and use that evidence to take away everyone else's rights. You correctly point out that it is not the gun.

One area that everyone seems to neglect is the public safety benefit of people having guns. When you get down to the individual level, the only way to protect anyone is through the individual. By allowing individuals to protect themselves, society is better protected. Simply saying its my right does not demonstrate any societal benefit. We should all be saying it is for the children or it is about saving that one life.

Occam · Mar 23, 2021

jcutonilli said:
Simply saying its my right does not demonstrate any societal benefit. We should all be saying it is for the children or it is about saving that one life.

And to whatever extent bringing stats/stories into what should be a case/debate about constitutional principles, the evidence - both individually anecdotal and in large sweeping collections of data studied and rendered more than once by academics, including in cooperation with the government in studies recent enough to pass argumentative muster - says that personally owned firearms, both at home and out at work or “on the street,” are used far more often (wildly so) to prevent bodily harm or stop violence in progress than are ever used to hurt somebody by criminals. As in, tens of thousands of times a year and - depending on the standard by which one measures - hundreds of thousands of times every single year, and almost always without firing a shot.

But the matter isn’t one of competing stats, any more than a 1A case should be evaluated by comparing the number of people speaking a less popular opinion to the number of people speaking a popular one.

wjackcooper · Mar 23, 2021

We can be optimistic:

The reason, in short, is: Heller/McDonald prohibits interest-balancing (safety v. 2A) via intermediate scrutiny.*

*https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ Scroll down to (62 – 63).

The longer explanation is: The present 2A litigation strategy of the most able pro 2A Constitutional lawyers in the country mirrors the following:

(1) That the record shows interest-balancing via intermediate scrutiny is the go to, subjective (i.e., guns are bad) technique most favored by Judicial 2A saboteurs.*
(2) That the 2A problem is Breyer’s interest-balancing via intermediate scrutiny dissent in Heller is controlling law (despite Heller/ McDonald) in much of the country.**
(3) That interest-balancing arguments (no matter how framed and how much the data is massaged) are subjective (i.e., emotion dependent) and consequently almost certain losers before almost all Democrat and a few Republican (guns v. no guns, no contest) Judicial appointees.***
(4) That Heller/McDonald’s originalism (i.e., text, history, and tradition) approach . . . if enforced, will neuter the safety v 2A , intermediate scrutiny trap. ****
(5) That the SC can now be dominated (thanks to Donald Trump and Amy Barrett) by Justices who are apt to compel the text, history, and tradition approach to the 2A.***** - ******

Regards
Jack

*A subjective test with which a court weighs competing interests, https://www.law.cornell.edu/wex/balancing_test
**DISTRICT OF COLUMBIA v. HELLER (Breyer’s dissent) https://www.law.cornell.edu/supct/html/07-290.ZD1.html
*** The Second Amendment as a Normal Right (Ruling out ad hoc interest-balancing) https://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/
**** Justice Breyer's Triumph in the Third Battle over the Second Amendment https://www.gwlr.org/wp-content/uploads/2018/04/80-Geo.-Wash.-L.-Rev.-703.pdf
***** Page 51 of Kavanaugh’s dissent : https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf
****** Barrett’s history-first approach: https://www.scotusblog.com/2020/10/...story-first-approach-to-the-second-amendment/

jcutonilli · Mar 23, 2021

wjackcooper said:
We can be optimistic:

The reason, in short, is: Heller/McDonald prohibits interest-balancing (safety v. 2A) via intermediate scrutiny.*

*https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ Scroll down to (62 – 63).

The longer explanation is: The present 2A litigation strategy of the most able pro 2A Constitutional lawyers in the country mirrors the following:

(1) That the record shows interest-balancing via intermediate scrutiny is the go to, subjective (i.e., guns are bad) technique most favored by Judicial 2A saboteurs.*
(2) That the 2A problem is Breyer’s interest-balancing via intermediate scrutiny dissent in Heller is controlling law (despite Heller/ McDonald) in much of the country.**
(3) That interest-balancing arguments (no matter how framed and how much the data is massaged) are subjective (i.e., emotion dependent) and consequently almost certain losers before almost all Democrat and a few Republican (guns v. no guns, no contest) Judicial appointees.***
(4) That Heller/McDonald’s originalism (i.e., text, history, and tradition) approach . . . if enforced, will neuter the safety v 2A , intermediate scrutiny trap. ****
(5) That the SC can now be dominated (thanks to Donald Trump and Amy Barrett) by Justices who are apt to compel the text, history, and tradition approach to the 2A.***** - ******

Regards
Jack

*A subjective test with which a court weighs competing interests, https://www.law.cornell.edu/wex/balancing_test
**DISTRICT OF COLUMBIA v. HELLER (Breyer’s dissent) https://www.law.cornell.edu/supct/html/07-290.ZD1.html
*** The Second Amendment as a Normal Right (Ruling out ad hoc interest-balancing) https://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/
**** Justice Breyer's Triumph in the Third Battle over the Second Amendment https://www.gwlr.org/wp-content/uploads/2018/04/80-Geo.-Wash.-L.-Rev.-703.pdf
***** Page 51 of Kavanaugh’s dissent : https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf
****** Barrett’s history-first approach: https://www.scotusblog.com/2020/10/...story-first-approach-to-the-second-amendment/

Did you even read the quote? The first sentence demonstrates that interest-balancing and intermediate scrutiny are two different things. Specifically they stated

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

The court routinely uses it for certain 1A issues https://www.law.cornell.edu/wex/intermediate_scrutiny

Heller does indicated that the DC law would not pass intermediate scrutiny. The specific quote is

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

The problem is that these "most able pro 2A Constitutional lawyers in the country" cannot articulate why the intermediate scrutiny the lower courts are applying is not actually intermediate scrutiny. All they can really do is make baseless claims that it is really rational basis. No explanation is given as to why.

The answer is rather simple. The "evidence" that is presented does not demonstrate that it will alleviate the stated harms in a direct and material way. The evidence is simply correlations without the required causation. If you want the court to properly respond, you need to make the appropriate arguments.

jcutonilli · Mar 23, 2021

Occam said:
And to whatever extent bringing stats/stories into what should be a case/debate about constitutional principles, the evidence - both individually anecdotal and in large sweeping collections of data studied and rendered more than once by academics, including in cooperation with the government in studies recent enough to pass argumentative muster - says that personally owned firearms, both at home and out at work or “on the street,” are used far more often (wildly so) to prevent bodily harm or stop violence in progress than are ever used to hurt somebody by criminals. As in, tens of thousands of times a year and - depending on the standard by which one measures - hundreds of thousands of times every single year, and almost always without firing a shot.

But the matter isn’t one of competing stats, any more than a 1A case should be evaluated by comparing the number of people speaking a less popular opinion to the number of people speaking a popular one.

It is not really about stats, it is about properly framing the question so it can be properly understood.

The other side argues the negative side of firearm ownership. Firearms certainly can be dangerous when used improperly. There is no denying that fact.

The government also has a police power to protect society. https://en.wikipedia.org/wiki/Police_power_(United_States_constitutional_law).

Any appeal to "its my right" gets destroyed by this police power. No only do you have to demonstrate that what you are doing furthers this protection of society, but that the government's use of police power is limited.

HaveBlue · Mar 23, 2021

jcutonilli said:
I am not sure I would classify the criminal use of guns as ridiculous evidence. It seems to me to be an observation and a negative consequence of the right to keep and bear arms.

The error that occurs is when the legislatures try and use that evidence to take away everyone else's rights. You correctly point out that it is not the gun.

One area that everyone seems to neglect is the public safety benefit of people having guns. When you get down to the individual level, the only way to protect anyone is through the individual. By allowing individuals to protect themselves, society is better protected. Simply saying its my right does not demonstrate any societal benefit. We should all be saying it is for the children or it is about saving that one life.

I don’t see it having a negative consequence at all. A gun is a tool. It provides a tactical advantage. Like clothing, a car, an axe, a baseball bat or even a rope. Food and shelter keep mass murders healthy & comfortable and give them privacy. A gun is nothing without a person with intent. A gun is barely more than 300 year old technology. The fact that criminals misuse guns along with other tools might be considered evidence but only in an obtuse Monty Python sketch performed by idiots clapping coconut shells together or convincing actors. Not by rational people.

The sad part is that the people who present this “evidence” don’t believe it themselves. They aren’t idiots but they are actors. In order for their designs to be realized, they cannot tolerate anything less than full compliance.

Nowhere on earth do Criminals depend on 2nd amendment protections to obtain weapons of war. Just look at all of the countries on earth without it. Afghanistan, Africa, Central America etc. no 2A there. Somehow the cartels are awash in machine guns. No 2A there to blame for cartel slaughter. No NRA selling murder insurance there. Even they are bright enough to not shoot their trafficking victims.

The real error occurs when legislators don’t read the constitution. If they cared one whit about children, they would be marching in Chicago. Scammers can be scammed but not by repeating their scam. Exposing them as hypocritical doesn’t work either. The people that believe in them only care about intentions, not results.

press1280 · Mar 26, 2021

Conference is today. I didn't see anything from Clement (or anyone else) on SCOTUS' website. Hopefully the court gets informed of the Young CA9 debacle.

I'm predicting a re-list for this week at least.

press1280 · Mar 29, 2021

press1280 said:
Conference is today. I didn't see anything from Clement (or anyone else) on SCOTUS' website. Hopefully the court gets informed of the Young CA9 debacle.

I'm predicting a re-list for this week at least.

And my prediction is correct, not on today’s orders list.

NYC CCW case is at SCOTUS!

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