Supreme Court Takes Major NRA Second Amendment Case from New York

esqappellate · Jul 13, 2019

danb said:
It's a risky strategy. They still have to address merits, in case the Supreme court decides it's not moot. The case is moot when SCOTUS says it is, not when NYC decides it is.

Which means that if they get 15000 words, they spend 7500 on mootness and 7500 on merits- addressing neither one well. Or 0 words on merits- and 15000 on mootness, and SCOTUS decides it's not moot. And boom! They lose merits.

It is a risky move. It is also dumb for another reason. They are essentially telling the Court that it will not get the benefit of a merits brief. That's pretty arrogant. Courts don't generally like being treated that way....

Blacksmith101 · Jul 13, 2019

I would guess that Courts generally are not happy with attempts to moot cases just to avoid a decision although they may not have a choice in some cases.

Allen65 · Jul 13, 2019

esqappellate said:
It is a risky move. It is also dumb for another reason. They are essentially telling the Court that it will not get the benefit of a merits brief. That's pretty arrogant. Courts don't generally like being treated that way....

Why are they doing this? These sorts of behind the scenes legal maneuvers mean nothing to the constituency they want to virtue signal to. It just seems like all downside and no potential for gain, and a bunch of attorneys from NY should have enough brain cells amongst them to do a risk analysis. What's their calculus?

bbrown · Jul 13, 2019

Allen65 said:
Why are they doing this? These sorts of behind the scenes legal maneuvers mean nothing to the constituency they want to virtue signal to. It just seems like all downside and no potential for gain, and a bunch of attorneys from NY should have enough brain cells amongst them to do a risk analysis. What's their calculus?

Money. It all comes down to money.

Fedora · Jul 13, 2019

esqappellate said:
They are essentially telling the Court that it will not get the benefit of a merits brief.

So what happens if there is no merits brief? The appellant gets the win?

Perhaps it's misremembering, but I recall reading somewhere that short-barreled shotguns became restricted items because the appellant's attorney didn't show up for SCOTUS orals. If memory is correct, would that not be precedential?

Kharn · Jul 13, 2019

Fedora said:
So what happens if there is no merits brief? The appellant gets the win?

Perhaps it's misremembering, but I recall reading somewhere that short-barreled shotguns became restricted items because the appellant's attorney didn't show up for SCOTUS orals. If memory is correct, would that not be precedential?

The SC can appoint a third party (a lawyer from the SC bar) to represent a side of the argument that the SC wants to hear, like in the CA gay marriage case when the state refused to defend the law.

Nobody · Jul 13, 2019

Way back when in this thread i asked what is the result of a win in this case and some one said shall issue for the whole U. Could someone explain if this is true or speculation.

Thanks

Nobody

CrueChief · Jul 13, 2019

Nobody said:
Way back when in this thread i asked what is the result of a win in this case and some one said shall issue for the whole U. Could someone explain if this is true or speculation.

Thanks

Nobody

It's not likely this case by itself makes anywhere shall issue. The best we can hope for is most likely a firm determination of what level of scrutiny 2A laws need applied to them. Since this is just about transporting from one place to another and not "carry" itself.

Nobody · Jul 13, 2019

CrueChief said:
It's not likely this case by itself makes anywhere shall issue. The best we can hope for is most likely a firm determination of what level of scrutiny 2A laws need applied to them. Since this is just about transporting from one place to another and not "carry" itself.

Thank you

Nobody

CurlyDave · Jul 14, 2019

CrueChief said:
It's not likely this case by itself makes anywhere shall issue. The best we can hope for is most likely a firm determination of what level of scrutiny 2A laws need applied to them. Since this is just about transporting from one place to another and not "carry" itself.

BUT, if the proper level of scrutiny comes in as "strict scrutiny" that could eventually lead to open carry being almost universal.

I don't know the odds on getting strict scrutiny, but they are a lot better than zero, since the original law supposedly passed "intermediate scrutiny", which is the level immediately below strict.

abean4187 · Jul 14, 2019

You also have to take into account that if strict scrutiny is required via this decision, a lot of circuit court decisions that did not go our way can be retried since strict scrutiny was not applied to essentially all of them originally.

danb · Jul 14, 2019

I think people have way too high expectations for this case. Robert's court is going to issue a narrow ruling. I expect it to be something along the lines of the US Attorney General amicus brief- which has the potential to be misunderstood. US AG brief essentially says "bear" includes transport. Well, duh. But I think a narrow ruling will lead to the misinterpretation that bear only includes transport. A narrow ruling along the lines of the US AG brief will sow more confusion and litigation than it solves. But the Robert's court really likes these narrow rulings. And lately, plurality opinions.The Supreme Court might remand these cases being held and the lower courts revisit them and say "well if bear includes more than transport the Supreme Court needs to say so."

When wishing for an opinion from the Roberts court, be careful what you wish for!

Setting aside the NYC antics and arrogance, if the case is mooted it's still a win. Plaintiffs get everything they asked for, the circuit court order is vacated, and everyone is on notice that the Supreme Court is going to take some 2A cases. The justices who voted for cert, plus any who were in doubt, will feel vindicated that NYC pulled all the stops and conceded. Plus we avoid the doubt of a Roberts ruling that could get misinterpreted. Or a plurality opinion.

If this case is mooted i think it's likely that they will likely take Rogers or Pena, either of which would be better than this case.

Of course if NYC pisses off the court with its arrogance and goads it into a broader ruling, I'll take that too.

CrueChief · Jul 14, 2019

CurlyDave said:
BUT, if the proper level of scrutiny comes in as "strict scrutiny" that could eventually lead to open carry being almost universal.

I don't know the odds on getting strict scrutiny, but they are a lot better than zero, since the original law supposedly passed "intermediate scrutiny", which is the level immediately below strict.

This why I said "this case by itself" would not have an effect on carry, but would require additional decisions. It may lead to it but not decide it.

wjackcooper · Jul 14, 2019

Seems to me that bear, transport, & carry are synonyms; but then - Roberts wrote an opinion (re Obama Care) defining a penalty as a tax (or vice versa) so who knows. Trump may need at least one, maybe two, more S.C. appointments before Second Amendment litigation outcomes become reasonably predictable.

Regards
Jack

CurlyDave · Jul 15, 2019

wjackcooper said:
Seems to me that bear, transport, & carry are synonyms; but then - Roberts wrote an opinion (re Obama Care) defining a penalty as a tax (or vice versa) so who knows. Trump may need at least one, maybe two, more S.C. appointments before Second Amendment litigation outcomes become reasonably predictable.

Regards
Jack

Bear would typically mean a loaded weapon, at the ready in case of confrontation. Either by an assailant or an enemy if part of a militia.

Transport could easily be unloaded in a locked container with ammunition in a separate locked container.

wjackcooper · Jul 15, 2019

1733 English Dictionary (original public meaning) where conservative Justices likely would start:

https://babel.hathitrust.org/cgi/pt?id=hvd.hw3d4k&view=1up&seq=5

BEAR (V.) to ſubmit to, or ſuffer ſuch uſage as one's ſuperiors think fit to beſtow upon us; alſo to carry, to hold up or ſupport; to ield, bring forth, or produce; in Heraldry, e who has a coat of arms is ſaid to be ºr the ſeveral charges or ordinaries contained in the eſcutcheon; with the Gu...

...is to carry goods from one town or city to another, upon horſes, in waggons, &c. alſo a cant word for a ſet of rogues who watch at inns to get intelligence of what perſons it may be worth while to rob, who go and in- form the gang with it, but do not appear in the fact for fear of a diſcovery. CARRI..

..ther. TRANSPORT (V.) to revive or make joy- ful, to raviſh with pleaſure, extaſy, or fome ſudden rapture of mind; alſo to ſhip of, or ſend beyond ſeas to ſome foreign colony, nation, &c. and this is ſometimes meant of trafficking in goods, or baniſhing of crimi- nals for offences committed againſt t...

Regards
Jack

wjackcooper · Jul 15, 2019

A Dictionary of the English Language - Samuel Johnson – 1755

This one is closer to 1787:

https://johnsonsdictionaryonline.com/bear-verb-active/

Regards
Jack

Occam · Jul 15, 2019

All they have to do is spend an evening with a glass of bourbon and a copy of Joyce Lee Malcom's book on the history (as it relates to our founders' intention with the Bill of Rights in general and the 2A in particular) of all of this: https://www.amazon.com/Keep-Bear-Arms-Origins-Anglo-American/dp/0674893077

Here's some discussion about her, in the context of her almost single-handedly giving us Heller:

https://www.nationalreview.com/magazine/2018/04/16/the-nice-girl-who-saved-the-second-amendment/

Point is, there is NO question about what "bear" meant when the phrase was built into our nation's founding charter, and there's zero confusion about the founders' clear intent that law abiding citizens had every right to be personally armed as they saw fit, and in fact had something of a cultural duty to be so.

wjackcooper · Jul 15, 2019

Yep, I am familiar with her work, but as a practical matter the Constitution means whatever five Justices say it means. Given demographic trends, my hope is that Trump appointments can, and will, fortify the Second Amendment for at least a few decades.

Regards
Jack

Some Guy · Jul 15, 2019

wjackcooper said:
A Dictionary of the English Language - Samuel Johnson – 1755

This one is closer to 1787:

https://johnsonsdictionaryonline.com/bear-verb-active/

Regards
Jack

Thanks, Jack.

Supreme Court Takes Major NRA Second Amendment Case from New York

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