NYC CCW case is at SCOTUS!

jcutonilli · Oct 29, 2021

camo556 said:
https://www.scotusblog.com/2021/10/...limits-on-carrying-a-concealed-gun-in-public/

New York’s arguments

The state does not dispute that there is a right to carry a gun outside the home for self-defense. It maintains, however, that the right is not absolute: A state can require, as New York has here, that anyone who wants to carry a handgun around other members of the public must show an actual need for protection. This kind of restriction, the state argues, is consistent with the practice in both England and the United States for the past 700 years, where the “[h]istory shows that local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas.” If anything, the state tells the justices, the New York law is in fact “less restrictive than many public-carry laws in place” in early American history.

How is that game over?

jcutonilli · Oct 29, 2021

pcfixer said:
Yes. I agree with above...
BUT.

so, does this equate to "public safety" two step?

No, that is just grandstanding.

The "public safety" two step is the intermediate scrutiny process that the lower courts typically used to evaluate firearm laws

https://harvardlawreview.org/2014/04/the-second-amendment-as-a-normal-right/

press1280 · Oct 29, 2021

delaware_export said:
Interesting that the article here says that 65% of applicants receive unrestricted CC permits.

Of interest would be number of total applicants, and some unknown associated knowing that if an applicant says.. for self defense, they will be rejected and any time and money associated with the application.

Much like Hawaii I’d assume that people just don’t apply any more because the application forms are preprinted with a big red DENIED in the “official use only” section.

You're on the right track. Assuming that 65% number is correct, remember this is statewide.
Most of the upstate counties are de facto shall issue and much more conservative, so more people there would naturally want the CCW. And of course those in NYC know they likely won't get it so they won't apply at all.

Kharn · Oct 29, 2021

press1280 said:
You're on the right track. Assuming that 65% number is correct, remember this is statewide.
Most of the upstate counties are de facto shall issue and much more conservative, so more people there would naturally want the CCW. And of course those in NYC know they likely won't get it so they won't apply at all.

Like Maryland claiming 90+% approval rate for CCWs, when they would (supposedly) offer the applicant their check back if they dropped their application in the shredder at the interview. And when you'd ask the trooper at the barracks for the forms and fingerprinting, he would tell you you'd never get it, so don't bother.

camo556 · Oct 29, 2021

jcutonilli said:
How is that game over?

Do zombies know they're dead?

wjackcooper · Oct 29, 2021

Bear with me, pun intended:

(1) The SC’s presented question is not: Whether concealed-carry is protected by the Second Amendment.
(2) The presented question is: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

If the Court wanted to ask the singular first question it would have done so . . . N.Y. has opted for “concealed,” but denies permits for “self-defense.” The SC’s question is - does this violate the 2A? The answer to the SC’s presented question hinges on “denial . . . for self-defense.” The 2A’s right to bear and N.Y.’s right to choose the method are not seriously debatable.

In any event, the N.Y. carry mode question was neutered years ago by licensing of concealed-carry.* The “denial . . . of concealed-carry licenses for self-defense” presents the 2A violation question.** As pointed out by camo 556: Given that in N.Y. open-carry is prohibited and concealed-carry is legal, then “denial” (based on lack of “proper cause”) of the required license to carry concealed clearly violates the 2A’s “right to bear. . . in a pocket . . . for self-defense.”***

It is unlikely; but N.Y. could attempt to have the SC moot this case by simply stipulating to commence issuing “for self-defense” as “proper cause” without changing a single word of its statute.

Clement has this case postured at 5/4, or maybe 6/3 for a 2A win.

Yea!

Regards
Jack

* http://www.gwlr.org/wp-content/uploads/2017/01/85-Geo.-Wash.-L.-Rev.-284.pdf p. 294 “In 2012, the Seventh Circuit overturned the last remaining state ban on concealed carry, making concealed carry now legal, to some degree, in all fifty states.” [ About 20 are Constitutional carry, 22 shall issue and 8 may issue - as pointed out by pcfixer and press1280.]

** https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdf
July 13th 2021, Brief of petitioners pages 15 & 16 “To carry a firearm outside the home, New York provides members of the general public with a single option: obtain a license to “have and carry” a “pistol or revolver ... concealed.”

*** https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Heller pages 10 & 11: “[T]he Constitution’s Second Amendment . . . indicate: . . . bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action . . .’”

https://supreme.justia.com/cases/federal/us/561/742/#tab-opinion-1963369 McDonald page 1, paragraph 1: “Two years ago, in District of Columbia v. Heller, 554 U. S. 742, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . .”

https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdfJuly 13th 2021, Brief of petitioners p. 38, “This Court’s opinion in Caetano v. Massachusetts likewise makes sense only on the understanding that the Second Amendment is not a homebound right.”

camo556 · Oct 29, 2021

☝️☝️

wjackcooper said:
The 2A’s right to bear and N.Y.’s right to choose the method are not seriously debatable.

Except on the internet. :lol2:

pcfixer · Oct 29, 2021

https://www.cnn.com/2021/10/29/politics/second-amendment-kavanaugh-barrett/index.html

pcfixer · Oct 29, 2021

wjackcooper said:
Bear with me, pun intended:

(1) The SC’s presented question is not: Whether concealed-carry is protected by the Second Amendment.
(2) The presented question is: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

If the Court wanted to ask the singular first question it would have done so . . . N.Y. has opted for “concealed,” but denies permits for “self-defense.” The SC’s question is - does this violate the 2A? The answer to the SC’s presented question hinges on “denial . . . for self-defense.” The 2A’s right to bear and N.Y.’s right to choose the method are not seriously debatable.

In any event, the N.Y. carry mode question was neutered years ago by licensing of concealed-carry.* The “denial . . . of concealed-carry licenses for self-defense” presents the 2A violation question.** As pointed out by camo 556: Given that in N.Y. open-carry is prohibited and concealed-carry is legal, then “denial” (based on lack of “proper cause”) of the required license to carry concealed clearly violates the 2A’s “right to bear. . . in a pocket . . . for self-defense.”***

It is unlikely; but N.Y. could attempt to have the SC moot this case by simply stipulating to commence issuing “for self-defense” as “proper cause” without changing a single word of its statute.

Clement has this case postured at 5/4, or maybe 6/3 for a 2A win.

Yea!

Regards
Jack

* http://www.gwlr.org/wp-content/uploads/2017/01/85-Geo.-Wash.-L.-Rev.-284.pdf p. 294 “In 2012, the Seventh Circuit overturned the last remaining state ban on concealed carry, making concealed carry now legal, to some degree, in all fifty states.” [ About 20 are Constitutional carry, 22 shall issue and 8 may issue - as pointed out by pcfixer and press1280.]

** https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdf
July 13th 2021, Brief of petitioners pages 15 & 16 “To carry a firearm outside the home, New York provides members of the general public with a single option: obtain a license to “have and carry” a “pistol or revolver ... concealed.”

*** https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Heller pages 10 & 11: “[T]he Constitution’s Second Amendment . . . indicate: . . . bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action . . .’”

https://supreme.justia.com/cases/federal/us/561/742/#tab-opinion-1963369 McDonald page 1, paragraph 1: “Two years ago, in District of Columbia v. Heller, 554 U. S. 742, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . .”

https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdfJuly 13th 2021, Brief of petitioners p. 38, “This Court’s opinion in Caetano v. Massachusetts likewise makes sense only on the understanding that the Second Amendment is not a homebound right.”

Thank You..

At this point in time really doesn't matter that one can argue over what part of the 2A is protected or not. Really, does not matter that during the antebellum period laws were formed to prohibit the carrying concealed.

TODAY. NOW 5 days before this case will be heard..... About 20 are Constitutional carry, 22 shall issue and 8 may issue - States.
https://www.usconcealedcarry.com/resources/ccw_reciprocity_map/

""The Second Amendment codifies a pre-existing right The Constitution doesn't grant or create rights; it recognizes and protects rights that inherently exist. This is why the Founders used the word "unalienable" previously in the Declaration of Independence; these rights cannot be created or taken away.""

There are now 18.66 million people that have a concealed carry permit or license in the United States. This stat is from the Concealed Carry Report for 2019 by the Crime Prevention Research Center.

jcutonilli · Oct 29, 2021

wjackcooper said:
Bear with me, pun intended:

(1) The SC’s presented question is not: Whether concealed-carry is protected by the Second Amendment.
(2) The presented question is: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

If the Court wanted to ask the singular first question it would have done so . . . N.Y. has opted for “concealed,” but denies permits for “self-defense.” The SC’s question is - does this violate the 2A? The answer to the SC’s presented question hinges on “denial . . . for self-defense.” The 2A’s right to bear and N.Y.’s right to choose the method are not seriously debatable.

In any event, the N.Y. carry mode question was neutered years ago by licensing of concealed-carry.* The “denial . . . of concealed-carry licenses for self-defense” presents the 2A violation question.** As pointed out by camo 556: Given that in N.Y. open-carry is prohibited and concealed-carry is legal, then “denial” (based on lack of “proper cause”) of the required license to carry concealed clearly violates the 2A’s “right to bear. . . in a pocket . . . for self-defense.”***

It is unlikely; but N.Y. could attempt to have the SC moot this case by simply stipulating to commence issuing “for self-defense” as “proper cause” without changing a single word of its statute.

Clement has this case postured at 5/4, or maybe 6/3 for a 2A win.

Yea!

Regards
Jack

* http://www.gwlr.org/wp-content/uploads/2017/01/85-Geo.-Wash.-L.-Rev.-284.pdf p. 294 “In 2012, the Seventh Circuit overturned the last remaining state ban on concealed carry, making concealed carry now legal, to some degree, in all fifty states.” [ About 20 are Constitutional carry, 22 shall issue and 8 may issue - as pointed out by pcfixer and press1280.]

** https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdf
July 13th 2021, Brief of petitioners pages 15 & 16 “To carry a firearm outside the home, New York provides members of the general public with a single option: obtain a license to “have and carry” a “pistol or revolver ... concealed.”

*** https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Heller pages 10 & 11: “[T]he Constitution’s Second Amendment . . . indicate: . . . bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action . . .’”

https://supreme.justia.com/cases/federal/us/561/742/#tab-opinion-1963369 McDonald page 1, paragraph 1: “Two years ago, in District of Columbia v. Heller, 554 U. S. 742, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . .”

https://www.supremecourt.gov/Docket....13 FINAL NYSRPA v. Corlett Opening Brief.pdfJuly 13th 2021, Brief of petitioners p. 38, “This Court’s opinion in Caetano v. Massachusetts likewise makes sense only on the understanding that the Second Amendment is not a homebound right.”

This case does not hinge on the “denial . . . for self-defense.” Heller made it clear that core part of the right was for self-defense. That question has already been answered.

One of the things that Heller articulated was that the right was not unlimited and that there were historical prohibitions. The real question that needs to be answered is whether concealed carry is really part of the right. If it is not then the answer is no, the State did not violate the right because concealed carry is not part of the right. If it is part of the right, then they need to figure out any relevant limitations.

You claim that NY's right to choose the method is not seriously debatable, but you provide no justification as to why that is the case. NY certainly is not arguing that position. They believe it is not part of the right so they are free to regulate concealed carry any way they choose.

Moore v Madigan https://casetext.com/case/moore-v-madigan-6 does not appear to be a concealed carry case. It appears to to have been about carry. It was the legislature that determined IL should have concealed carry rather than the courts.

press1280 · Oct 29, 2021

jcutonilli said:
This case does not hinge on the “denial . . . for self-defense.” Heller made it clear that core part of the right was for self-defense. That question has already been answered.

One of the things that Heller articulated was that the right was not unlimited and that there were historical prohibitions. The real question that needs to be answered is whether concealed carry is really part of the right. If it is not then the answer is no, the State did not violate the right because concealed carry is not part of the right. If it is part of the right, then they need to figure out any relevant limitations.

You claim that NY's right to choose the method is not seriously debatable, but you provide no justification as to why that is the case. NY certainly is not arguing that position. They believe it is not part of the right so they are free to regulate concealed carry any way they choose.

Moore v Madigan https://casetext.com/case/moore-v-madigan-6 does not appear to be a concealed carry case. It appears to to have been about carry. It was the legislature that determined IL should have concealed carry rather than the courts.

If it's not part of the right, and they ban open carry, but also say the right isn't homebound, isn't that a contradiction on their part?

jcutonilli · Oct 29, 2021

pcfixer said:
Thank You..

At this point in time really doesn't matter the one can argue over what part of the 2A is protected or not. Really, does not matter that during the antebellum period laws were formed to prohibit the carrying concealed.

TODAY. NOW 5 days before this case will be heard..... About 20 are Constitutional carry, 22 shall issue and 8 may issue - States.
https://www.usconcealedcarry.com/resources/ccw_reciprocity_map/

""The Second Amendment codifies a pre-existing right The Constitution doesn't grant or create rights; it recognizes and protects rights that inherently exist. This is why the Founders used the word "unalienable" previously in the Declaration of Independence; these rights cannot be created or taken away.""

There are now 18.66 million people that have a concealed carry permit or license in the United States. This stat is from the Concealed Carry Report for 2019 by the Crime Prevention Research Center.

Can you make up your mind. Either the 2A codifies a pre-existing right, and history matters, or it does not.

delaware_export · Oct 29, 2021

Well, just one thought in the number of states and issue / type count.

While 8 are listed as MAY issue, remember that ?half?4/8? of those MAY issue states are MAY, BUT WONT issue to average citizens.

HI being the worst, but NY NJ MD CA Being such states. Some of those have lenient area, where counties issue permits, but it’s inconsistent. And many of the usual culprit states accord no rights to out of state citizens. 100% denial, or policies of won’t issue. At least that’s my understanding. Which would be the next issue…

Does my right from search without warrant end when I cross a state line? Free speech? Religion? Etc.

press1280 · Oct 29, 2021

delaware_export said:
Well, just one thought in the number of states and issue / type count.

While 8 are listed as MAY issue, remember that ?half?4/8? of those MAY issue states are MAY, BUT WONT issue to average citizens.

HI being the worst, but NY NJ MD CA Being such states. Some of those have lenient area, where counties issue permits, but it’s inconsistent. And many of the usual culprit states accord no rights to out of state citizens. 100% denial, or policies of won’t issue. At least that’s my understanding. Which would be the next issue…

Does my right from search without warrant end when I cross a state line? Free speech? Religion? Etc.

No but according to NY it ends where people are congregating

Boxcab · Oct 29, 2021

press1280 said:
No but according to NY it ends where people are congregating

Where the right is most needed.

A person is dangerous, people are worse.

.

Sent from my SM-G950U using Tapatalk

camo556 · Oct 29, 2021

https://reason.com/volokh/2021/10/29/luttig-versus-kopel-on-the-right-to-bear-arms/

Kharn · Oct 29, 2021

We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights.
I think their article is pretty good.

Concealed-carry laws based on local knowledge help stop domestic violence
Chicken Little needs to hide in the coop and hope the fox never breaks in.

kcbrown · Oct 29, 2021

lazarus said:
Okay. But what if a billionaire wanted to privately develop a nuclear weapon and then decide to use it on a city? Unless there is a defacto ban because of laws that make it literally impossible to comply with no matter the private resources, then there would be no legal method to stop said billionaire from developing that nuke. And then nothing to stop them from using it except constant monitoring and being prepared to act at the slightest indication they might.

There are crazy people in the world. Even crazy rich people. Laws generally don’t stop bad guys. But the more resources it takes, whether that is money, time or effort, the more likely it IS possible to “catch” someone doing something like developing a private nuke. Or chemical weapons. Or biological weapons. WMD. Etc.

Perhaps. I'm certainly willing to be convinced of that. I suppose the difference is that with a ban on WMDs, you have more opportunity to stop the deployment, whereas without that opportunity is limited.

But that's the main difference I can think of.

I don’t think we are particularly less free by the government not allowing private ownership of weapons of mass destruction.

Yeah, well, you can say that about most specific prohibitions. Every little prohibition reduces liberty in some way, but after each individual prohibition, you're not really that much less free than you were before.

But that wasn't my point. The question isn't how much liberty we have in the presence of a ban, it's whether or not liberty can be restored without that which is banned. On that, everything hinges.

If WMDs are necessary for the citizenry to prevail over a tyrannical government, then you have two choices: either give up your right to liberty, or allow the citizenry to own WMDs. If you have to make that choice, what's it going to be?

Now look ahead a bit. How certain are you that the citizenry will never need WMDs in order to prevail over a tyrannical government? You'd better be sure, because once you allow a ban on something like that, you'll never be able to reverse it. Never. It means if you're wrong, then you're dooming the citizenry to servitude.

lazarus · Oct 29, 2021

kcbrown said:
Perhaps. I'm certainly willing to be convinced of that. I suppose the difference is that with a ban on WMDs, you have more opportunity to stop the deployment, whereas without that opportunity is limited.

But that's the main difference I can think of.

Yeah, well, you can say that about most specific prohibitions. Every little prohibition reduces liberty in some way, but after each individual prohibition, you're not really that much less free than you were before.

But that wasn't my point. The question isn't how much liberty we have in the presence of a ban, it's whether or not liberty can be restored without that which is banned. On that, everything hinges.

If WMDs are necessary for the citizenry to prevail over a tyrannical government, then you have two choices: either give up your right to liberty, or allow the citizenry to own WMDs. If you have to make that choice, what's it going to be?

Now look ahead a bit. How certain are you that the citizenry will never need WMDs in order to prevail over a tyrannical government? You'd better be sure, because once you allow a ban on something like that, you'll never be able to reverse it. Never. It means if you're wrong, then you're dooming the citizenry to servitude.

I think an issue though is a weapon of mass destruction doesn’t simply empower the citizenry over its government. It also gives tyranny to any small group of citizens or even an individual over society if they so sought to exercise that.

kcbrown · Oct 29, 2021

jcutonilli said:
Bans do force arms into the unusual category and away from "common use". The legitimacy of the ban depends on the reasons why. If there are legitimate reasons then it should be acceptable.

Why should "legitimate reasons" be acceptable in the face of a fundamental right, as opposed to, say, "overwhelmingly necessary reasons"?

All sorts of things have "legitimate reasons". Even bans on political speech have "legitimate reasons". But those bans fall in the face of the right to speech.

"Legitimate reasons" is little different from "rational basis", no?

The Geneva Convention would be an example of legitimate bans on commonly used arms.

Those are bans on use by governments. And nobody has any real power to enforce them. They are gentlemen's agreements, nothing more.

The continued use may become unacceptable in society. Bioweapons would be an example of unusual arms that should not be allowed to become common.

And if possession of bioweapons by the citizenry proves to be necessary to enable the citizenry to remain free of tyranny? Then what?

There certainly are illegitimate bans also. Bans that prevent the public from common use, but not government. Most bans tend to be illegitimate.

I tend to agree, obviously.

The reason that I believe we should look at police use is that its very nature is societal based and would define common use.

I'm not sure I follow. Certainly, the police tend to interact with the citizenry, but the police have special powers that the citizenry does not, just as the military has special powers that the citizenry does not. Is that not enough to argue that the police have "special needs" which override any claim that their use should be considered part of the "common use" equation?

I still don't see how you can cleanly differentiate between the police and the military on this. About the only thing you can say that's truly different between them is that the police turn their arms on the citizenry, whilst the military thus far has not. This is clearly not enough to justify a "common use" standard that excludes the military when one of the purposes of the right is for the citizenry to be able to prevail against that same military in the event the government turns it against the citizenry.

The military were used as police at the time of the founding. We separated this function out, which is why there is not a much of a direct link to the military.

That's relevant only as far as it goes. But the purpose of the 2nd Amendment is more than just defense of the individual or even of the state. Its purpose is also the defense of liberty, especially in the face of an oppressive government.

Common use is looking at what is included in the right, while not typically possessed by law-abiding citizens for lawful purposes is looking at what is excluded.

That's true, but misses the point. The point is that the Court said that all bearable weapons are facially protected. If you combine that with the "not typically possessed" rule, you get one set of protected weapons.

If you use "common use" as the metric, you get a different set of protected weapons, and notably a much smaller one, depending on what exactly you mean by "common". And it's a static one at that, because the government can, through bans, force arms to never become common, unless "common" actually means "typically possessed by law-abiding citizens for lawful purposes".

And then you have the problem of what "common" means in the first place. If it means "possessed by law abiding citizens for lawful purposes more often than not", then that's just the same as saying that an arm is protected unless it's "not typically possessed by law abiding citizens for lawful purposes". If that's how you're figuring that "common" is defined then the M-16 obviously qualifies as being protected.

I think the key word is lawful and can be understood to represent societal standards. It is typically considered unlawful to wage war against civilians.

The difference is that in war, "lawful" is defined solely by the victors. For the citizens, it's the government that, on its face, defines "lawful". And therein lies the problem and the solution. The government's legitimate powers are limited, explicitly defined and constrained by the Constitution itself. The Constitution is the supreme law. This means that protection of the right to arms is the law, above all others. When the government enacts a ban against arms, it breaks that law unless those arms are outside of the scope of the right. "Lawful", then, is ultimately defined by the right itself, and its scope.

That scope is that which was originally understood by the founding generation. It is not static, because it includes the originally understood principles behind it, and those principles apply to the current prevailing circumstances, which then gets you the current operative scope. To the degree that the principles the founders understood includes societal standards, the current scope will adhere to those standards. But only to that degree.

You can escape the use of numbers. What needs to be determined is if the are "possessed more often than not". If they are only possessed by a limited number of highly specialized officers, then they are not possessed more often than not, but if most officers are using them as backup, then it could be argued that they are possessed more often than not.

Well, "more often than not" is just another way of saying that you have a 50% possession cutoff, above which the arm would be considered "typically possessed" (or "commonly possessed"). So it's a way of implicitly stating a number without explicitly stating it.

NYC CCW case is at SCOTUS!

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