NYC CCW case is at SCOTUS!

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  • press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I think you are missing WHY banning open carry but allowing CC is permissible. Both Moore and Wren are in the split isn't real section. This section is about simply looking at differences between the cases to demonstrate that they are different and there really isn't a split.

    The reasons why NYS thinks NY's laws are correct is listed in reason III (why the decision is correct) Reason III.A demonstrates that they believe history and tradition show that the decision is correct, which is the same type of reasoning found in the Young en banc majority opinion.

    I have not done a detailed comparison between the Young majority opinion and the reasons listed in reason III.A of the BIO, but they do seem similar based on my recollection and do not appear to be any appreciable change in their theory.

    Well, I'm not missing it (FWIW), but NY isn't pondering this very much either. On this section you point out NY brings up the antebellum cases regarding open carry being preferred over concealed carry but then proceeds to essentially trash them and attribute them to white slave owners keeping order over their slaves. Now it's been a while since I read those opinions but I don't recall slavery being mentioned in any of them.

    I guess we'll see what NY does with further briefing but I do not expect them to come out and say that the right doesn't extend outside the home so we are free to regulate it any way we please. They will instead try to convince the court that their laws are "longstanding" and not a complete ban so it'll pass a watered down intermediate scrutiny.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Well, I'm not missing it (FWIW), but NY isn't pondering this very much either. On this section you point out NY brings up the antebellum cases regarding open carry being preferred over concealed carry but then proceeds to essentially trash them and attribute them to white slave owners keeping order over their slaves. Now it's been a while since I read those opinions but I don't recall slavery being mentioned in any of them.

    I guess we'll see what NY does with further briefing but I do not expect them to come out and say that the right doesn't extend outside the home so we are free to regulate it any way we please. They will instead try to convince the court that their laws are "longstanding" and not a complete ban so it'll pass a watered down intermediate scrutiny.

    You certainly did not explain why in your last post.

    I do think NY has pondered the question. I think their explanation about why open carry was allowed in the South had more to do about regional differences than slavery itself.

    While I think you have a point that NY does not explicitly state that the right does not extend outside the home like the en banc Young majority, the effect is the same, limited ability to carry outside the home. The underlying reasoning in both cases are based on similar interpretations of history.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    You certainly did not explain why in your last post.

    I do think NY has pondered the question. I think their explanation about why open carry was allowed in the South had more to do about regional differences than slavery itself.

    While I think you have a point that NY does not explicitly state that the right does not extend outside the home like the en banc Young majority, the effect is the same, limited ability to carry outside the home. The underlying reasoning in both cases are based on similar interpretations of history.

    I think the slavery mention is more than just pointing out a regional difference. It's an attempt (a thinly veiled one at that) to try to get the court to disregard those precedents as some kind of racist holdovers. Although they are referring to open carry specifically, they're pretty damaging to NY's case. They don't have any case law from the time period that's that on point. The cases they want to cite miss the mark, like Andrews v. State. Some states considered revolvers to be gang banger instruments (or just not "military" weapons) and banned carry of those. But they always miss the part of the opinion that points out that carry bans of protected arms goes too far.

    And why can (or specifically would) the court ban OC but allow for (shall issue) CCW?
    I've put out a number of reasons why I think so, some are my legal opinion (IANAL just a fan!) and some are just based on political reality.
    The Peruta and Rogers dissent shows 2 and possibly 3 justices ready to go on this point. Not to mention the court is VERY nervous over these issues. The opinion LEAST likely to cause any shockwaves would be to allow the state to choose the manner of carry so long as it can't be withheld because the state wants to ration it.
    Legally speaking Baldwin and the Heller passages about concealed carry are not rock solid holdings and more or less refer to examples of laws that were upheld since one avenue (open carry) was freely available.
    Lastly the open vs concealed issue has largely been ignored by recent opinions (Wrenn, Moore), showing if the state isn't going to push back on the issue, then neither will the court, which I expect SCOTUS to also not spend a lot of time on either.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I think the slavery mention is more than just pointing out a regional difference. It's an attempt (a thinly veiled one at that) to try to get the court to disregard those precedents as some kind of racist holdovers. Although they are referring to open carry specifically, they're pretty damaging to NY's case. They don't have any case law from the time period that's that on point. The cases they want to cite miss the mark, like Andrews v. State. Some states considered revolvers to be gang banger instruments (or just not "military" weapons) and banned carry of those. But they always miss the part of the opinion that points out that carry bans of protected arms goes too far.

    And why can (or specifically would) the court ban OC but allow for (shall issue) CCW?
    I've put out a number of reasons why I think so, some are my legal opinion (IANAL just a fan!) and some are just based on political reality.
    The Peruta and Rogers dissent shows 2 and possibly 3 justices ready to go on this point. Not to mention the court is VERY nervous over these issues. The opinion LEAST likely to cause any shockwaves would be to allow the state to choose the manner of carry so long as it can't be withheld because the state wants to ration it.
    Legally speaking Baldwin and the Heller passages about concealed carry are not rock solid holdings and more or less refer to examples of laws that were upheld since one avenue (open carry) was freely available.
    Lastly the open vs concealed issue has largely been ignored by recent opinions (Wrenn, Moore), showing if the state isn't going to push back on the issue, then neither will the court, which I expect SCOTUS to also not spend a lot of time on either.

    Cases like Andrews v State are not as straightforward as you make them out to be. While the Court upheld the individual right, it also upheld the statute under which he was charged. The other side likes to use cases like this to demonstrate that the state can regulate concealable weapons. This case was also cited by the Young en banc to support their position as to why carrying of concealable weapons are not part of the right.

    Courts don't really ban OC and allow CCW, they review laws that the legislature created. The court's decisions are based on the arguments presented. I believe what you will find is that the plaintiff's don't typically challenge the OC ban, they ask for the CCW part of the right (eg Peruta)

    The historical prohibitions on CCW in Heller are not that difficult to overcome once you point out the reasoning those courts used to reach their opinions.

    The problem is that the plaintiffs in this case have not really pointed out the reasoning behind the historical prohibitions, they have instead decided to rely on the fact that there is some kind of right outside the home and the state bans OC. Peruta demonstrates the weaknesses in that approach.

    What concerns me about this case is that SCOTUS narrowed the question presented to focus on concealed carry. The plaintiffs don't seem to focus on concealed carry and rely on open vs concealed carry to help decide the issue.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Cases like Andrews v State are not as straightforward as you make them out to be. While the Court upheld the individual right, it also upheld the statute under which he was charged. The other side likes to use cases like this to demonstrate that the state can regulate concealable weapons. This case was also cited by the Young en banc to support their position as to why carrying of concealable weapons are not part of the right.

    Courts don't really ban OC and allow CCW, they review laws that the legislature created. The court's decisions are based on the arguments presented. I believe what you will find is that the plaintiff's don't typically challenge the OC ban, they ask for the CCW part of the right (eg Peruta)

    The historical prohibitions on CCW in Heller are not that difficult to overcome once you point out the reasoning those courts used to reach their opinions.

    The problem is that the plaintiffs in this case have not really pointed out the reasoning behind the historical prohibitions, they have instead decided to rely on the fact that there is some kind of right outside the home and the state bans OC. Peruta demonstrates the weaknesses in that approach.

    What concerns me about this case is that SCOTUS narrowed the question presented to focus on concealed carry. The plaintiffs don't seem to focus on concealed carry and rely on open vs concealed carry to help decide the issue.

    Agreed that the other side tries to use these cases to show "concealable" weapons can be regulated. But that brings up a BIG problem that they cannot shake. If "concealable" weapons are the problem, that would normally lead one to think they want open carry instead. No, they do just the opposite. They are trying to have it both ways and claim concealable weapons (or concealed carry) is the problem, yet they ban the other form of carry and license concealed carry. It probably would be more honest of them to just go with the CA9 Young interpretation.
    Honestly I don't think SCOTUS will have any interest in trying to separate handguns by "concealable" and "non-concealable", I don't think the states will try to make that claim either (most handguns are legal AND concealable). The Andrews case and others like it are used simply to muddy the waters. The "concealable" bans also (if explored) lead down historically to a bad place, and that is poor and minorities being disarmed since the "concealable" arms were typically much cheaper than the army/navy/horseman's pistols which were always protected. In Heller we also saw that protected arms are now what is in "common use" and not having to necessarily be military weapons.
    The court simply isn't going there and to my knowledge other than Young no other post Heller court has gone there either. And does anyone think the Young majority, if presented with open long gun carry, would OK that? HELL NO. They'd come up with some other BS reason.

    As far as the numerous challenges go I have never seen anyone ask for the CCW part of the right. The argument is always that the state can regulate the manner, and the current law shows the state's preference (in NY's case it's CCW). I think it's reasonable considering the state isn't claiming a contrary view and overturning NY's open carry ban is much more problematic than simply striking the good cause clause of the CCW law. IANAL but I think by asking for a small sliver rather than a whole meal puts you in a better winning position.

    On Peruta we had 2 justices slamming that opinion. Justice Thomas saw it for what it was, and that is CA9 looking at the law in a vacuum instead of the law in total. I don't know if I'd be relying on CA9's reasoning in Peruta and Young, the legal gymnastics to uphold a complete carry ban were gold medal worthy.

    On the cert question I can't say. I did cringe a little when I first saw it, but OTOH it's somewhat illogical for the court to grant a case to essentially decide one aspect (CC) and leave the OC aspect for another day. It's more likely they want a more definitive answer that they won't have to answer yet again. It also begs the question of who actually re-writes the question (does the court vote on it, is it randomly handed to a particular justice, is it handed to a clerk,exc.)?
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    SC Rule 27:
    "A case ordinarily will not be called for argument less than two weeks after the brief on the merits for the respondent or appellee is due. "

    The Court also does not intentionally wait for the petitioner's reply before argument, but the lag between the brief on the merits for the respondent and the scheduled argument date allows a significant amount of time for the reply brief.

    NYSRPA and Bruen already mutually agreed to two extensions and Bruen received an additional two weeks beyond the time afforded to NYSRPA during those extensions. Bruen requesting an extension for himself would be unseemly but not unexpected.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    SC Rule 27:
    "A case ordinarily will not be called for argument less than two weeks after the brief on the merits for the respondent or appellee is due. "

    The Court also does not intentionally wait for the petitioner's reply before argument, but the lag between the brief on the merits for the respondent and the scheduled argument date allows a significant amount of time for the reply brief.

    NYSRPA and Bruen already mutually agreed to two extensions and Bruen received an additional two weeks beyond the time afforded to NYSRPA during those extensions. Bruen requesting an extension for himself would be unseemly but not unexpected.

    In that case I think we should still be on track for November , whenever they put out the calendar for that month
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Agreed that the other side tries to use these cases to show "concealable" weapons can be regulated. But that brings up a BIG problem that they cannot shake. If "concealable" weapons are the problem, that would normally lead one to think they want open carry instead. No, they do just the opposite. They are trying to have it both ways and claim concealable weapons (or concealed carry) is the problem, yet they ban the other form of carry and license concealed carry. It probably would be more honest of them to just go with the CA9 Young interpretation.
    Honestly I don't think SCOTUS will have any interest in trying to separate handguns by "concealable" and "non-concealable", I don't think the states will try to make that claim either (most handguns are legal AND concealable). The Andrews case and others like it are used simply to muddy the waters. The "concealable" bans also (if explored) lead down historically to a bad place, and that is poor and minorities being disarmed since the "concealable" arms were typically much cheaper than the army/navy/horseman's pistols which were always protected. In Heller we also saw that protected arms are now what is in "common use" and not having to necessarily be military weapons.
    The court simply isn't going there and to my knowledge other than Young no other post Heller court has gone there either. And does anyone think the Young majority, if presented with open long gun carry, would OK that? HELL NO. They'd come up with some other BS reason.

    As far as the numerous challenges go I have never seen anyone ask for the CCW part of the right. The argument is always that the state can regulate the manner, and the current law shows the state's preference (in NY's case it's CCW). I think it's reasonable considering the state isn't claiming a contrary view and overturning NY's open carry ban is much more problematic than simply striking the good cause clause of the CCW law. IANAL but I think by asking for a small sliver rather than a whole meal puts you in a better winning position.

    On Peruta we had 2 justices slamming that opinion. Justice Thomas saw it for what it was, and that is CA9 looking at the law in a vacuum instead of the law in total. I don't know if I'd be relying on CA9's reasoning in Peruta and Young, the legal gymnastics to uphold a complete carry ban were gold medal worthy.

    On the cert question I can't say. I did cringe a little when I first saw it, but OTOH it's somewhat illogical for the court to grant a case to essentially decide one aspect (CC) and leave the OC aspect for another day. It's more likely they want a more definitive answer that they won't have to answer yet again. It also begs the question of who actually re-writes the question (does the court vote on it, is it randomly handed to a particular justice, is it handed to a clerk,exc.)?

    I don't think the other side sees the open carry ban as a problem. They see the typical firearm being carried as being concealable. Concealable does not necessary mean it has to be concealed, only that it has that ability.

    The opening brief does not use the term "common use" although it does refer to handguns as common arms or common weapons. One of the things I dislike about this opening brief is that it does not really help resolve the conflict between concealed arms and common use. This may lead to a more narrow muddled ruling that may require more litigation to clarify the issue.

    I can't comment on whether the plaintiffs specifically ask for the CCW part of the right, but what ever portion of the law they do challenge seems to impact the CCW part of the right. We will see how this issue gets addressed by the Court.

    Justice Thomas has certainly been the most vocal about 2A issues. I am not sure he fully grasps the issues that need to be resolved, which is why he can never get more than one other justice to join his 2A dissents. Peruta and Young are based on historical prohibitions that were specifically mentioned in Heller. Hopefully the dissent in Young will help him to better understand these historical prohibitions so they don't get misunderstood like in Peruta and Young.

    I believe part of the vote to grant cert includes which questions they take. We will see if the oral argument sheds more light on their reasoning to make the question about concealed carry.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    In that case I think we should still be on track for November , whenever they put out the calendar for that month

    The last request for extension specifically mentioned that the revised schedule would still allow a Nov oral argument. They will likely release the Nov calendar at the end of this week or next week.
     

    motorcoachdoug

    Ultimate Member
    MDS Supporter
    No matter what arguments are hashed out here in MSI between now and when the case is heard, it is still a waiting game to see how SCOTUS will rule when they are ready to rule. I hope no matter how they do rule, they give Barron Herr Frosh a massive headache since Herr Barron has been forcing his personal will and beliefs upon us little people here in this state..
     
    Last edited:

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I don't think the other side sees the open carry ban as a problem. They see the typical firearm being carried as being concealable. Concealable does not necessary mean it has to be concealed, only that it has that ability.

    The opening brief does not use the term "common use" although it does refer to handguns as common arms or common weapons. One of the things I dislike about this opening brief is that it does not really help resolve the conflict between concealed arms and common use. This may lead to a more narrow muddled ruling that may require more litigation to clarify the issue.

    I can't comment on whether the plaintiffs specifically ask for the CCW part of the right, but what ever portion of the law they do challenge seems to impact the CCW part of the right. We will see how this issue gets addressed by the Court.

    Justice Thomas has certainly been the most vocal about 2A issues. I am not sure he fully grasps the issues that need to be resolved, which is why he can never get more than one other justice to join his 2A dissents. Peruta and Young are based on historical prohibitions that were specifically mentioned in Heller. Hopefully the dissent in Young will help him to better understand these historical prohibitions so they don't get misunderstood like in Peruta and Young.

    I believe part of the vote to grant cert includes which questions they take. We will see if the oral argument sheds more light on their reasoning to make the question about concealed carry.

    I don't know if anyone else knows, but overall of the recent cert grants (non-2A cases), are the questions generally re-worded and HOW are they re-worded?
    When I look at this question, it is a question of the facts at hand. They were denied CCW licenses using self defense as the reason and alleged it violated the 2A. Pretty basic. We don't know who wrote the question so I'm skeptical as far as reading an opinion out of it. The question was re-written also for Heller, but over half the court members turned over since then, so using that as a template is probably not helpful. Not to mention internal court workings may have changed (like using re-lists to avoid DIGs).
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I’ve been following this thread with interest but it is a labyrinthic conversation to me. Is there an opinion as to what the most realistic best and worst case results are likely to be?

    I think the numbers alone suggest that there will be a favorable result. I don't believe they put the best argument forward so it is unclear as to how favorable the result will be. I believe the result will be less favorable than it should be, but we need to wait for oral argument to get a better sense of where SCOTUS may end up.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I don't know if anyone else knows, but overall of the recent cert grants (non-2A cases), are the questions generally re-worded and HOW are they re-worded?
    When I look at this question, it is a question of the facts at hand. They were denied CCW licenses using self defense as the reason and alleged it violated the 2A. Pretty basic. We don't know who wrote the question so I'm skeptical as far as reading an opinion out of it. The question was re-written also for Heller, but over half the court members turned over since then, so using that as a template is probably not helpful. Not to mention internal court workings may have changed (like using re-lists to avoid DIGs).

    From https://www.scotusblog.com/2013/06/frequently-asked-questions-orders/
    Question: What does it mean if, for example, the Court grants certiorari “limited to question one”?

    Answer: For the lion’s share of cases, the Court has near-total discretion not only with regard to what cases it choose to review on the merits, but also with regard to what issues it reviews in those cases. So although the parties seeking Supreme Court review must identify the questions that they are asking the Court to review (that is, they are not just asking the Court to decide whether the entire lower court’s decision was right or wrong), the Court can decide to only review some of the issues presented in the case. In that scenario, the Court’s order granting review might say something like “[t]he petition for a writ of certiorari is granted limited to Question 1 of the petition.” But the Court could also opt to review an entirely different question, or to reword the question that it was asked to review. In that scenario, the order list might say something like “[t]he petition for a writ of certiorari is granted limited to the following question: . . . .”

    You may also want to read https://www.cocklelegalbriefs.com/blog/preparing-your-brief/formulating-question-presented/

    and
    https://reason.com/volokh/2021/04/2...nt-in-nys-rifle-pistol-association-v-corlett/

    and
    https://reason.com/volokh/2021/04/3...association-v-corlett/?itm_source=parsely-api

    The word occasionally is used which suggests that SCOTUS typically accepts the question presented but will modify the question when appropriate.

    Apparently the question in Heller was also modified.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    From https://www.scotusblog.com/2013/06/frequently-asked-questions-orders/


    You may also want to read https://www.cocklelegalbriefs.com/blog/preparing-your-brief/formulating-question-presented/

    and
    https://reason.com/volokh/2021/04/2...nt-in-nys-rifle-pistol-association-v-corlett/

    and
    https://reason.com/volokh/2021/04/3...association-v-corlett/?itm_source=parsely-api

    The word occasionally is used which suggests that SCOTUS typically accepts the question presented but will modify the question when appropriate.

    Apparently the question in Heller was also modified.

    Some good reads there but the first link pretty much indicates a get-to-the-point approach on the QP.
    The reason.com links do speculate on some side issues (organizational standing) and also on the open carry issue.
     

    Biggfoot44

    Ultimate Member
    Aug 2, 2009
    32,877
    " Concealable "

    I have an observation on this one . Look to not just the actual NFA , but especially the legislative history and intent . Bottom line was that Concealable meant Handguns generally .


    The original aim of the NFA was to Ban Pistols . With the process involved , and tax stamp of $200 in 1934 dollars being a de facto ban for almost all citizens . To put in context , in 1934 a $20 was an expensive pistol , and this was 10X . Think a $7k tax stamp today .


    SBR , SBS , etc were enumerated simply because they could be used as a substitute for a pistol , and they thought that SBR and SBS should be regulated and taxed equally as pistol .

    So the long standing definition of a " Concealable Firearm " includes anything less than 26 inches OAL , not a differentation between a 1911 and a Defective Special .
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I have an observation on this one . Look to not just the actual NFA , but especially the legislative history and intent . Bottom line was that Concealable meant Handguns generally .


    The original aim of the NFA was to Ban Pistols . With the process involved , and tax stamp of $200 in 1934 dollars being a de facto ban for almost all citizens . To put in context , in 1934 a $20 was an expensive pistol , and this was 10X . Think a $7k tax stamp today .


    SBR , SBS , etc were enumerated simply because they could be used as a substitute for a pistol , and they thought that SBR and SBS should be regulated and taxed equally as pistol .

    So the long standing definition of a " Concealable Firearm " includes anything less than 26 inches OAL , not a differentation between a 1911 and a Defective Special .

    The legislative intent of the Sullivan Law was certainly dubious but assuming the intent was genuine it's highly unlikely there was much if any discussion of a RKBA issue since the 2A hadn't been incorporated (had been found NOT incorporated not too long before in fact) and NY never had RKBA protections in their constitution.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    I’ve been following this thread with interest but it is a labyrinthic conversation to me. Is there an opinion as to what the most realistic best and worst case results are likely to be?

    Barrett is not on record with a significant 2A opinion for lawful individuals.

    Roberts is iffy depending on political winds.

    Breyer, Kagan, and Sotomayor are hard no's.

    Thomas has repeatedly dissented from denial of cert, Peruta being his most memorable.

    Alito wrote the concurrence in Caetano

    Gorsuch concurred with Thomas in Peruta

    Kavanaugh dissented in Heller II at the circuit court, saying DC's AWB violated Heller on magazines and ARs.

    Best case it's 6:3 for constitutional carry.
    Worst case 5:4 for Heller overturned because someone dies before oral argument and Roberts switches sides.
    Likely #1: 5:4 for strong shall issue, with a very weak concurring in the judgment by Roberts.
    Likely #2 6:3 for very weak shall issue written by Roberts, multiple conservatives concurring in the judgement but complaining about Roberts.

    Ruling released the last week of June 2022.
     

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