NYC CCW case is at SCOTUS!

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  • press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Yet another poor argument made by Clement in this case. He also failed to directly answer the narrowed question accepted by the court.

    Courts generally don't answer questions that were not raised. If anyone thought that the applicability of the 2A outside the home was an issue, they should have been raised. This issue was not raise so it is not relevant to the SCOTUS decision in Caetano.

    I will say that Clement's brief spends almost all of its time explaining bearing arms generally outside the home. I did not see much specifically explaining the "need" standard, which isn't permissible whether it be for abortion or for protest permits. I don't feel they have to really go overboard with the open v. concealed argument since NY has implicitly conceded this but the standard of issuance is indeed the heart of the disagreement between the parties and one could make the argument that the re-written question also points in this direction.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Yet another poor argument made by Clement in this case. He also failed to directly answer the narrowed question accepted by the court.

    Courts generally don't answer questions that were not raised. If anyone thought that the applicability of the 2A outside the home was an issue, they should have been raised. This issue was not raise so it is not relevant to the SCOTUS decision in Caetano.

    Good grief!

    A Harvard Law honors graduate who has argued over 100 cases before the Supreme Court, not to mention the supporting lawyers in one of the most prestigious law firms in the country and the dozen, or more other able attorneys who filed amicus briefs, plus their supporting lawyers (i.e., a total of probably twenty five or thirty lawyers) all have no clue!

    Thanks for sharing this very, very important information!

    Regards
    Jack
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Good grief!

    A Harvard Law honors graduate who has argued over 100 cases before the Supreme Court, not to mention the supporting lawyers in one of the most prestigious law firms in the country and the dozen, or more other able attorneys who filed amicus briefs, plus their supporting lawyers (i.e., a total of probably twenty five or thirty lawyers) all have no clue!

    Regards
    Jack

    Even smart, highly competent people can suffer from groupthink, although I would give Clement the benefit of the doubt. JC makes a good point that it might be time to at least try a different approach.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I will say that Clement's brief spends almost all of its time explaining bearing arms generally outside the home. I did not see much specifically explaining the "need" standard, which isn't permissible whether it be for abortion or for protest permits. I don't feel they have to really go overboard with the open v. concealed argument since NY has implicitly conceded this but the standard of issuance is indeed the heart of the disagreement between the parties and one could make the argument that the re-written question also points in this direction.

    While I agree that bearing arms generally outside the home needs to addressed, the brief should not focus almost exclusively on the general aspect as was done here. You don't need to really address the open v concealed argument because SCOTUS took that argument off the table.

    SCOTUS chose to focus on the concealed part of the right. The problem is that Heller pointed out the historical prohibition on concealed carry. It directly implicates the question SCOTUS accepted and no one really answered it directly.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Good grief!

    A Harvard Law honors graduate who has argued over 100 cases before the Supreme Court, not to mention the supporting lawyers in one of the most prestigious law firms in the country and the dozen, or more other able attorneys who filed amicus briefs, plus their supporting lawyers (i.e., a total of probably twenty five or thirty lawyers) all have no clue!

    Thanks for sharing this very, very important information!

    Regards
    Jack

    You have not challenged my analysis of Clement's take on Caetano. I can only conclude that you have not found any flaws in my logic.

    I am sure that Clement is one of the top lawyers in the country. He is a very articulate person, which is why I believe he gets so many opportunities to present cases before SCOTUS.

    This is not really a Clement problem, it is a 2A lawyer problem. Clement was not the only one that did not really answer the question SCOTUS accepted. None of the lawyers in the many amicus briefs that were filed did any better. None of them really answered SCOTUS's question.

    If you really want to understand why SCOTUS is reluctant to take 2A cases, this is the perfect illustration. Nobody answered the question SCOTUS wanted an answer to. In this case the question was quite clear and still no direct answer. Why should SCOTUS take 2A cases, if there are no clear answers to what they are looking for?
     

    DanGuy48

    Ultimate Member
    You have not challenged my analysis of Clement's take on Caetano. I can only conclude that you have not found any flaws in my logic.

    I am sure that Clement is one of the top lawyers in the country. He is a very articulate person, which is why I believe he gets so many opportunities to present cases before SCOTUS.

    This is not really a Clement problem, it is a 2A lawyer problem. Clement was not the only one that did not really answer the question SCOTUS accepted. None of the lawyers in the many amicus briefs that were filed did any better. None of them really answered SCOTUS's question.

    If you really want to understand why SCOTUS is reluctant to take 2A cases, this is the perfect illustration. Nobody answered the question SCOTUS wanted an answer to. In this case the question was quite clear and still no direct answer. Why should SCOTUS take 2A cases, if there are no clear answers to what they are looking for?

    OK, I’ll make myself look dumb, what is it they are looking for?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    OK, I’ll make myself look dumb, what is it they are looking for?

    First of all there is nothing definitive. All they have specifically said this that they are looking for compelling reasons. These compelling reasons tend to be indicative of systematic issues that need to be solved. Splits between circuits (different decisions reached in similar cases) tend to indicate a systematic issue.

    I think they look beyond they fact that there are systematic issues and evaluate how the case will help resolve the systematic issues. They ultimately have to resolve the issue with the case. If there is not a clear resolution or it brings up too many other issues then they will pass even if the systematic issue remains.

    With the 2A cases little is said about what really needs to be done to correct court errors. Everyone claims the courts are getting intermediate scrutiny wrong, but they are very vague when explaining why the courts are getting intermediate scrutiny wrong.

    In this case SCOTUS presented a very clear question about concealed carry. Instead of answering the question directly, the plaintiffs mainly talk about the right to carry in general.
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    OK, I’ll make myself look dumb, what is it they are looking for?

    Mainly, they're looking for a damaged party, like with Caetano. Her arrest for exercising her right to self defense was the damage. This current case, they sought to conceal firearms outside the home, which can be regulated by the state. Most likely, the court will decide this case under equal protection within their 2nd Amendment right to self defense, as others in New York City have gotten permits for such.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    First of all there is nothing definitive. All they have specifically said this that they are looking for compelling reasons. These compelling reasons tend to be indicative of systematic issues that need to be solved. Splits between circuits (different decisions reached in similar cases) tend to indicate a systematic issue.

    I think they look beyond they fact that there are systematic issues and evaluate how the case will help resolve the systematic issues. They ultimately have to resolve the issue with the case. If there is not a clear resolution or it brings up too many other issues then they will pass even if the systematic issue remains.

    With the 2A cases little is said about what really needs to be done to correct court errors. Everyone claims the courts are getting intermediate scrutiny wrong, but they are very vague when explaining why the courts are getting intermediate scrutiny wrong.

    In this case SCOTUS presented a very clear question about concealed carry. Instead of answering the question directly, the plaintiffs mainly talk about the right to carry in general.

    Actually section II in Clement's brief does lay out the nature of the "need" standard fairly well.
    I'm still not sure why they have to make some specific CCW argument here. Perhaps they don't say it explicitly but both sides agree on the CC vs. OC point. How often does a court step in and tell parties that are in agreement that you're both wrong? Why wouldn't they just accept the premise here and move on? That's what happened in Wrenn.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Mainly, they're looking for a damaged party, like with Caetano. Her arrest for exercising her right to self defense was the damage. This current case, they sought to conceal firearms outside the home, which can be regulated by the state. Most likely, the court will decide this case under equal protection within their 2nd Amendment right to self defense, as others in New York City have gotten permits for such.

    SCOTUS does not look specifically for a damaged party. What you are referring to is standing. While SCOTUS does occasionally address issues related to standing, it is not an issue they address with most cases. The parties would need to raise the issue and I don't believe standing has been raised in this case.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Actually section II in Clement's brief does lay out the nature of the "need" standard fairly well.
    I'm still not sure why they have to make some specific CCW argument here. Perhaps they don't say it explicitly but both sides agree on the CC vs. OC point. How often does a court step in and tell parties that are in agreement that you're both wrong? Why wouldn't they just accept the premise here and move on? That's what happened in Wrenn.

    The "need" standard does not necessarily relate to CCW. The plaintiffs are talking about "need" with respect to carry outside the home and not necessarily CCW in particular.

    The original question talked about the 2A, while this case is about CCW. Heller specifically talked about historical prohibitions on CCW being lawful under the 2A and state analogues. I don't see that SCOTUS has a choice given what is currently written in Heller about CCW and the 2A. I believe SCOTUS changed the question to ensure that the issue would get addressed. Whether CCW is actually part of the 2A did not really get addressed, so it is unclear exactly what will happen.
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    SCOTUS does not look specifically for a damaged party. What you are referring to is standing. While SCOTUS does occasionally address issues related to standing, it is not an issue they address with most cases. The parties would need to raise the issue and I don't believe standing has been raised in this case.

    They take judicial notice whether there is or not through cert. grant or denial. They do so, without public notice to the matter. Sorry, but I'm siding with a former US Supreme Court Justice.

    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)

    MR. JUSTICE BRANDEIS, concurring.

    The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

    5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. [Footnote 2/6] Tyler v. The Judges, 179 U.S.

    Page 297 U. S. 348

    405; Hendrick v. Maryland, 235 U. S. 610, 235 U. S. 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 283 U. S. 99-100. In Fairchild v. Hughes, 258 U. S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U. S. 447, the challenge of the federal Maternity Act was not entertained, although made by the Commonwealth on behalf of all its citizens.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    They take judicial notice whether there is or not through cert. grant or denial. They do so, without public notice to the matter. Sorry, but I'm siding with a former US Supreme Court Justice.

    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)

    MR. JUSTICE BRANDEIS, concurring.

    The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

    5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. [Footnote 2/6] Tyler v. The Judges, 179 U.S.

    Page 297 U. S. 348

    405; Hendrick v. Maryland, 235 U. S. 610, 235 U. S. 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 283 U. S. 99-100. In Fairchild v. Hughes, 258 U. S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U. S. 447, the challenge of the federal Maternity Act was not entertained, although made by the Commonwealth on behalf of all its citizens.

    Standing https://en.wikipedia.org/wiki/Standing_(law) was made up by Brandis in the 20s not the 30s. It also requires more than just injury.

    Ashwander https://en.wikipedia.org/wiki/Ashwander_v._Tennessee_Valley_Authority is where the concept of constitutional avoidance was first introduced. The issue of standing was raised by the government (TVA) and was an issue in that case.
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    Standing https://en.wikipedia.org/wiki/Standing_(law) was made up by Brandis in the 20s not the 30s. It also requires more than just injury.

    Ashwander https://en.wikipedia.org/wiki/Ashwander_v._Tennessee_Valley_Authority is where the concept of constitutional avoidance was first introduced. The issue of standing was raised by the government (TVA) and was an issue in that case.

    The clear point made was, no injured party to a personal or property right, and they typically don't take the case. It was a general reference to ANY case, not the Ashwander case at hand. Also, and obviously, since that was the 5th point of reference, there are other points Brandeis mentioned for not taking a case. Since the McDonald case, they've taken one 2nd Amendment case that had an actual injured party. Caetano's injury was the arrest for exercising her 2nd Amendment right to self defense. Consistent with what Brandeis said, all the numerous other cases, which didn't have an actual injured party, they didn't take. Say what you want, but I'm with Brandeis on this. He's batting 100%.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The "need" standard does not necessarily relate to CCW. The plaintiffs are talking about "need" with respect to carry outside the home and not necessarily CCW in particular.

    The original question talked about the 2A, while this case is about CCW. Heller specifically talked about historical prohibitions on CCW being lawful under the 2A and state analogues. I don't see that SCOTUS has a choice given what is currently written in Heller about CCW and the 2A. I believe SCOTUS changed the question to ensure that the issue would get addressed. Whether CCW is actually part of the 2A did not really get addressed, so it is unclear exactly what will happen.

    So are you saying the plaintiffs need to push CCW as part of the right, regardless of what the open carry situation is? So push Bliss v. Commonwealth hard?
    I'm pretty sure plaintiffs or amici have said that the state may regulate the manner of carry, but cannot prohibit it all together. This would seem consistent with Heller and obviously consistent with defendants.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The clear point made was, no injured party to a personal or property right, and they typically don't take the case. It was a general reference to ANY case, not the Ashwander case at hand. Also, and obviously, since that was the 5th point of reference, there are other points Brandeis mentioned for not taking a case. Since the McDonald case, they've taken one 2nd Amendment case that had an actual injured party. Caetano's injury was the arrest for exercising her 2nd Amendment right to self defense. Consistent with what Brandeis said, all the numerous other cases, which didn't have an actual injured party, they didn't take. Say what you want, but I'm with Brandeis on this. He's batting 100%.

    The wrong point was made. Standing is an issue that certainly is a reason to dismiss cases. It does get litigated in the lower courts. SCOTUS does look into the issue on occasion, but it is not the primary reason for denying cert. The other side tends to raise the issue of standing when appropriate such as the Ashwander case you pointed out.

    SCOTUS has taken other 2A cases. NYSRPA v NYC was granted cert and there was no arrests made in the case. While the case was dismissed, it happened because NYS and NYC changed their law to address what NYSRPA asked for. NYC raised the issue after the law was changed.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The clear point made was, no injured party to a personal or property right, and they typically don't take the case. It was a general reference to ANY case, not the Ashwander case at hand. Also, and obviously, since that was the 5th point of reference, there are other points Brandeis mentioned for not taking a case. Since the McDonald case, they've taken one 2nd Amendment case that had an actual injured party. Caetano's injury was the arrest for exercising her 2nd Amendment right to self defense. Consistent with what Brandeis said, all the numerous other cases, which didn't have an actual injured party, they didn't take. Say what you want, but I'm with Brandeis on this. He's batting 100%.

    An arrest isn't required for standing. Denial of a license qualifies as an injuiry.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    So are you saying the plaintiffs need to push CCW as part of the right, regardless of what the open carry situation is? So push Bliss v. Commonwealth hard?
    I'm pretty sure plaintiffs or amici have said that the state may regulate the manner of carry, but cannot prohibit it all together. This would seem consistent with Heller and obviously consistent with defendants.

    It depends on what you are asking for. It seems the plaintiffs are asking for the ability to carry concealed. They need to demonstrate that CCW is part of the right. If you don't, you set up Pertua.

    Bliss seems to be more of an anomaly. The reasoning in Bliss suggests a more unlimited right compared to Heller's acknowledgement that it is not unlimited.

    All that really need to be done is to point out the consistent reasoning in most/all of the concealed carry cases. They are really about banning the criminal use of unusual arms. This is consistent with dangerous and unusual pointed out by Heller. CCW is simply not considered unusual anymore. The dissent in Young figured this out. I don't understand why any of the other 2A lawyers can't figure this out.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    It depends on what you are asking for. It seems the plaintiffs are asking for the ability to carry concealed. They need to demonstrate that CCW is part of the right. If you don't, you set up Pertua.

    Bliss seems to be more of an anomaly. The reasoning in Bliss suggests a more unlimited right compared to Heller's acknowledgement that it is not unlimited.

    All that really need to be done is to point out the consistent reasoning in most/all of the concealed carry cases. They are really about banning the criminal use of unusual arms. This is consistent with dangerous and unusual pointed out by Heller. CCW is simply not considered unusual anymore. The dissent in Young figured this out. I don't understand why any of the other 2A lawyers can't figure this out.

    Not to beat a dead horse but what a waste of the court's time to pull a Peruta knowing full well our side will be back (in fact Young's there right now) again for open carry. 2 judges are on record opposing Peruta and I don't see a majority either 1) Enforcing open carry over concealed OR 2) Ruling the 2A doesn't extend past the doorstep

    I agree for the most part on Bliss, but the best case made for CCW is the fact no state outright bans it anymore, at least statutorily. That and when open carry is banned the state has made it's bed, now it's time to sleep in it. Amici have covered this. The LEO brief is all about stats on CCW licensees, exc. Now I don't know how the court views amici briefs vs the plaintiff/defendant briefs. If Clement doesn't bring it up but amici does, what does that mean?
     

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