Second Circuit NYC transport law upheld

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Clement was a significant player in both Heller and McDonald.

    Heller:
    BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

    PAUL D. CLEMENT
    Solicitor General
    Counsel of Record


    Mar 18 2008 Argued. For petitioners: Walter Dellinger, Washington, D.C. For United States as amicus curiae: Paul D. Clement, Solicitor General, Department of Justice, Washington, D.C. For respondent: Alan Gura, Alexandria, Va.

    McDonald:
    Mar 02 2010 Argued. For petitioners: Alan Gura, Alexandria, Va. For respondents National Rifle Association, In.c, et al. in support of petitioners: Paul D. Clement, Washington, D. C. For respondents: James A. Feldman, Special Assistant Corporation Counsel, Washington, D. C.

    This is a case where two different thing can be correct. He does appear to have argued both cases, but he is not listed as an attorney in either case. In the case of Heller he was no longer Solicitor General when the case was decided so the records reflect that change.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    There could be many many many reasons that the Supreme Court has not taken a case. Reasons that have nothing to do with the "quality" or substance of the arguments. The Supreme Court likes to see a circuit split (among other things). You could submit the perfect brief with the perfect arguments with the perfect litigants, but if you are the first, you might get denied because no split. In fact Gorsuch in one of today's cases commented that maybe the court would be better served to remand one of today's cases to allow an issue raised at arguments percolate further.

    4 years ago, no one could imagine that there was a circuit split on public carry - let alone that D.C. would be shall issue before MD! Here we are now, with a solid split.

    Roberts court overturns precedents less than prior courts. The flip side, Roberts court allow issues to percolate a lot more before they take a case . For something as controversial as public carry of guns, they will let the issue percolate for a long time, I think.

    But if you really think its the quality or substance of arguments that are preventing us from getting to court, rather than the Roberts court exceedingly deliberative and slow approach to taking cases, then there is an easy fix. Submit amicus briefs! Then you will have definitive proof whether its the arguments or some other issue.

    I understand that there are a myriad of reasons why SCOTUS takes cases and they certainly do let the cases percolate. Have you ever thought of why they do that? It seems to me that they want the lower courts to flesh out the problems and possible solutions. They wait until better solutions have been developed and then resolve any needed conflicts.

    If all you do is present the same argument over and over, how is the better solutions supposed to develop? SCOTUS can wait as long as it needs.

    I take a more cynical view of the amicus briefs. They work well to augment the nuances of an argument, but how well to they really work if there is something substantial missing from the argument? In the case of SCOTUS, it would seem to imply that the issues have not been flushed out and that more time is needed to resolve these issues. The presents of an amicus brief could actually undermine a reason for cert.

    You have stated that "I'd bet on Paul Clement over random internet guy every day that ends in y", which implies that you have already dismissed any argument based solely on who makes the argument. Why won't the courts to the same? How does that imply that there is "definitive proof whether its the arguments or some other issue" when arguments do not even appear to be a factor in your analysis?
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I understand that there are a myriad of reasons why SCOTUS takes cases and they certainly do let the cases percolate. Have you ever thought of why they do that? It seems to me that they want the lower courts to flesh out the problems and possible solutions. They wait until better solutions have been developed and then resolve any needed conflicts.

    If all you do is present the same argument over and over, how is the better solutions supposed to develop? SCOTUS can wait as long as it needs.

    I take a more cynical view of the amicus briefs. They work well to augment the nuances of an argument, but how well to they really work if there is something substantial missing from the argument? In the case of SCOTUS, it would seem to imply that the issues have not been flushed out and that more time is needed to resolve these issues. The presents of an amicus brief could actually undermine a reason for cert.

    You have stated that "I'd bet on Paul Clement over random internet guy every day that ends in y", which implies that you have already dismissed any argument based solely on who makes the argument. Why won't the courts to the same? How does that imply that there is "definitive proof whether its the arguments or some other issue" when arguments do not even appear to be a factor in your analysis?

    There just haven't been any major splits, until Wrenn. I'm betting that's why they haven't taken anything other than Caetano.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    There just haven't been any major splits, until Wrenn. I'm betting that's why they haven't taken anything other than Caetano.

    I believe that splits are symptoms that the court system is not heading in a consistent reasonable direction, but splits are not the real reason they take cases. They take cases that have no split and don't take cases that have splits. The fact that there is a split does not really seem to matter.

    What really matters is how to resolve the differences. Sometimes it is really obvious and other times it is not. When it is obvious, they take the case and when it is not, they let the issue percolate through the lower courts and wait until a better solution comes to light. The recent comment Gorsuch made about letting the issue percolate in the lower court, highlights how difficult this can be. Sometimes it may first appear that there is a way, but upon further examination the way is not as clear as they thought.

    With respect to the 2A, the issues are not really that resolved. The lower courts have split from the Heller decision and SCOTUS has not taken the issue up. They are not using text and history to decide the case, they are using 1A jurisprudence instead. With Caetano, the reasoning departed drastically from the norm and they sent the issue to the lower court to resolve the issue.

    The issue that needs to be resolved is where do you draw the line between public safety and individual 2A rights. Heller resolved that it was an individual right, but never really resolved where that line falls. They took an authoritarian stand and simply dictated the results rather than explain the underlying reasons. I suspect Scalia understood the negative implications of using the 1A jurisprudence, but could not articulate why it is not appropriate. The case could be resolved without the explanation.

    When you look at how all of the other 2A cases have been argued, they all appeal to the authority of Heller. The lower courts have decided to use 1A jurisprudence instead. Why should the court not follow the 1A jurisprudence? Technically SCOTUS said not to, but they also claims banning handguns in the home would fail these standards. Why should the lower courts not use 1A jurisprudence? People claim that the courts are not really applying intermediate scrutiny, but I have not seen the reasons that support this conclusion.

    The problem is not that the 1A jurisprudence is bad, but the way the court implements it is flawed. They appeal to the consequences and let the ends justify the means. The government cites noble ends, public safety. They neglect the means on how that is achieved. They do convince themselves that there is some kind of relationship, but there does not appear to be any standard on how much of a relationship is required. Guns certainly do have a negative effect on public safety when used unlawfully. They neglect the fact that there is no effect when they are used lawfully.

    A famous case that everone agrees is improperly decided is Korematsu. The concept of judicial review levels was just beginning in Korematsu. In its decision, it acknowledged that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

    In Korematsu, the driving factor was public safety (just like 2A cases). Specifically, it was related to espionage and sabotage. It appears that they simply deferred to the government’s findings because they “cannot reject as unfounded the judgment of the military authorities”. The dissent pointed out that "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." They also cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting).

    Korematsu was not officially overturned by the Supreme Court until recently (Trump v. Hawaii, 585 U.S. ___ (2018)). “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).”

    It is easy to retroactively determine that Korematsu was wrong the day it was decided when the threat against the US no longer exists. The reasoning supplied by the court was not that Japanese Americans don’t have rights, they readily acknowledge that they do and that legal restrictions on them are “immediately suspect”. The flaw in the reasoning has to do with the amount of deference to the military. The majority never questioned whether there was sufficient justification. This is the same problem with 2A rights, too much deference to public safety.

    What makes the government safety interest strong is the aggregation of the various individual acts. If the right is purely about an individual’s rights, then it is indeed weak because the government has no real obligation to the individual. Fortunately, the individual right to self-defense can be aggregated in the same manner the government uses to aggregate the individual incidents together to demonstrate a public safety issue.

    When each individual’s self-defense is aggregated together, you get one way the public’s safety is provided. Each individual protects themselves and the aggregated safety is achieved. This is because each individual is considered part of the public. It also highlights another flaw in the reasoning of the court. They are using circular reasoning, where public safety is used to deny the public its ability to protect itself. This circular reasoning is not readily apparent if you look at only the individual's right and don't include everyone else's individual right.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I believe that splits are symptoms that the court system is not heading in a consistent reasonable direction, but splits are not the real reason they take cases. They take cases that have no split and don't take cases that have splits. The fact that there is a split does not really seem to matter.

    What really matters is how to resolve the differences. Sometimes it is really obvious and other times it is not. When it is obvious, they take the case and when it is not, they let the issue percolate through the lower courts and wait until a better solution comes to light. The recent comment Gorsuch made about letting the issue percolate in the lower court, highlights how difficult this can be. Sometimes it may first appear that there is a way, but upon further examination the way is not as clear as they thought.

    With respect to the 2A, the issues are not really that resolved. The lower courts have split from the Heller decision and SCOTUS has not taken the issue up. They are not using text and history to decide the case, they are using 1A jurisprudence instead. With Caetano, the reasoning departed drastically from the norm and they sent the issue to the lower court to resolve the issue.

    The issue that needs to be resolved is where do you draw the line between public safety and individual 2A rights. Heller resolved that it was an individual right, but never really resolved where that line falls. They took an authoritarian stand and simply dictated the results rather than explain the underlying reasons. I suspect Scalia understood the negative implications of using the 1A jurisprudence, but could not articulate why it is not appropriate. The case could be resolved without the explanation.

    When you look at how all of the other 2A cases have been argued, they all appeal to the authority of Heller. The lower courts have decided to use 1A jurisprudence instead. Why should the court not follow the 1A jurisprudence? Technically SCOTUS said not to, but they also claims banning handguns in the home would fail these standards. Why should the lower courts not use 1A jurisprudence? People claim that the courts are not really applying intermediate scrutiny, but I have not seen the reasons that support this conclusion.

    The problem is not that the 1A jurisprudence is bad, but the way the court implements it is flawed. They appeal to the consequences and let the ends justify the means. The government cites noble ends, public safety. They neglect the means on how that is achieved. They do convince themselves that there is some kind of relationship, but there does not appear to be any standard on how much of a relationship is required. Guns certainly do have a negative effect on public safety when used unlawfully. They neglect the fact that there is no effect when they are used lawfully.

    A famous case that everone agrees is improperly decided is Korematsu. The concept of judicial review levels was just beginning in Korematsu. In its decision, it acknowledged that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

    In Korematsu, the driving factor was public safety (just like 2A cases). Specifically, it was related to espionage and sabotage. It appears that they simply deferred to the government’s findings because they “cannot reject as unfounded the judgment of the military authorities”. The dissent pointed out that "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." They also cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting).

    Korematsu was not officially overturned by the Supreme Court until recently (Trump v. Hawaii, 585 U.S. ___ (2018)). “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).”

    It is easy to retroactively determine that Korematsu was wrong the day it was decided when the threat against the US no longer exists. The reasoning supplied by the court was not that Japanese Americans don’t have rights, they readily acknowledge that they do and that legal restrictions on them are “immediately suspect”. The flaw in the reasoning has to do with the amount of deference to the military. The majority never questioned whether there was sufficient justification. This is the same problem with 2A rights, too much deference to public safety.

    What makes the government safety interest strong is the aggregation of the various individual acts. If the right is purely about an individual’s rights, then it is indeed weak because the government has no real obligation to the individual. Fortunately, the individual right to self-defense can be aggregated in the same manner the government uses to aggregate the individual incidents together to demonstrate a public safety issue.

    When each individual’s self-defense is aggregated together, you get one way the public’s safety is provided. Each individual protects themselves and the aggregated safety is achieved. This is because each individual is considered part of the public. It also highlights another flaw in the reasoning of the court. They are using circular reasoning, where public safety is used to deny the public its ability to protect itself. This circular reasoning is not readily apparent if you look at only the individual's right and don't include everyone else's individual right.


    I read upwards of 90% of cases SCOTUS grants are the result of a split. The ones that aren't splits are likely cases where the lower court got it so wrong and SCOTUS was (or nearly was) unanimous in slapping it down.
    There's a remaining category for "one of a kind" cases like Bush v. Gore but that wouldn't apply here.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I read upwards of 90% of cases SCOTUS grants are the result of a split. The ones that aren't splits are likely cases where the lower court got it so wrong and SCOTUS was (or nearly was) unanimous in slapping it down.
    There's a remaining category for "one of a kind" cases like Bush v. Gore but that wouldn't apply here.

    If all you look at are the cases that they grant, you are creating a confirmation bias. It says nothing about the cases that they don't grant. If they reject a lot of splits, they are not not really looking for the split.

    As stated previously https://law.yale.edu/system/files/documents/pdf/Intellectual_Life/EvolutionofConflict.pdf looks at split cases that were rejected. They found that a split is rarely granted during the first split. Some take 20 years or more to resolve.

    Based on this data, I do not believe they are simply looking for splits. The fact that 90% of the cases they take are splits indicates that they are looking for particular types of cases that help to improve the court system.

    If you keep making the same argument, I suspect it will be a long time before the court resolves the split since the additional cases do not really advance anything.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    If all you look at are the cases that they grant, you are creating a confirmation bias. It says nothing about the cases that they don't grant. If they reject a lot of splits, they are not not really looking for the split.

    As stated previously https://law.yale.edu/system/files/documents/pdf/Intellectual_Life/EvolutionofConflict.pdf looks at split cases that were rejected. They found that a split is rarely granted during the first split. Some take 20 years or more to resolve.

    Based on this data, I do not believe they are simply looking for splits. The fact that 90% of the cases they take are splits indicates that they are looking for particular types of cases that help to improve the court system.

    If you keep making the same argument, I suspect it will be a long time before the court resolves the split since the additional cases do not really advance anything.

    Well, sure. Not every case is a good vehicle to settle a split, and not every split is an important question of law. Plus, a lot of appellants exaggerate the degree of a split. The Roberts court has even telegraphed its desire to narrow or overrule certain precedents... yet it takes 4-6 years for the right case to percolate and get accepted to for review (I am thinking for example of Janus v. AFSCME 2018 whose ruling was telegraphed in 2014 Harris v Quinn and Knox vs SEIU in 2012). It took the Roberts court 6 years to do do what it said it was going to do in 2012.

    Until Wrenn, there was not even a very clear split. Now that there is, it still might be 4 years for the right case to percolate. The best chance we have is probably Young (Hawaii) ... but even that case might not go to SCOTUS until 2020.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Well, sure. Not every case is a good vehicle to settle a split, and not every split is an important question of law. Plus, a lot of appellants exaggerate the degree of a split. The Roberts court has even telegraphed its desire to narrow or overrule certain precedents... yet it takes 4-6 years for the right case to percolate and get accepted to for review (I am thinking for example of Janus v. AFSCME 2018 whose ruling was telegraphed in 2014 Harris v Quinn and Knox vs SEIU in 2012). It took the Roberts court 6 years to do do what it said it was going to do in 2012.

    Until Wrenn, there was not even a very clear split. Now that there is, it still might be 4 years for the right case to percolate. The best chance we have is probably Young (Hawaii) ... but even that case might not go to SCOTUS until 2020.

    It likely takes a while to address what the SCOTUS wants, but how does this have anything to do with the lower court departing from established precedent?

    IF you bothered to read the article, the split was self identified by the lower court, not by they lawyers arguing the case. Lawyers exaggerating their case is not a factor in the article.

    Since these splits originate in the lower court, SCOTUS could stop it right way when it is petitioned for cert. The prevailing wisdom is that now that there is a split, SCOTUS will grant cert because 90% of the cases address cert. The data shows that cert is rarely granted the first time around.

    Caetano was not a split, yet it was granted.

    I would disagree that there was not even a clear split. What is very clear is that the lower courts have split from Heller in the methodology established by Heller. Wren is simply the lower court being more faithful to Heller. The lower courts have used another methodology used for other constitutional rights. If there is nothing wrong with the methodology the lower court uses why should SCOTUS step in and change something that does not appear to be wrong? SCOTUS generally addresses bigger picture issues and does not address individual issues.

    I get the fact that this case appears to give an outcome that violates 2A, but what is the systemic issue that needs to change. The petition says "New York left this perverse one-of-a-kind prohibition on its books." Why should SCOTUS step in if this is an individual issue?

    I agree the petition clearly identifies bad outcomes, but why is it happening? Is this case simply the misapplication of a properly stated rule of law? While I don't think so, the petitions seems more oriented towards the outcomes.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    It likely takes a while to address what the SCOTUS wants, but how does this have anything to do with the lower court departing from established precedent?

    Is the precedent established?

    even if it is: A petition for a writ of certiorari is rarely granted when the asserted error consists of the misapplication of a properly stated rule of law.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407

    Note this argument (page 21) by NYC on FOPA, 18 usc 926A:

    Lunetta explained the need to be able to effectively monitor and enforce the limits on the transport of handguns in public by individuals who have only a premises license, and not a carry license (id. at 26-27). The federal government reached the same (not opposite, see Pet. at 2, 14)) conclusion in the federal Firearm Owners Protection Act. That statute authorizes only individuals with a carry license, not those who hold a premises license, to transport locked and unloaded handguns between States where they hold carry rights. 18 U.S.C. § 926A.

    Of course, Section 926A says nothing about a carry license or even a license at all. It refers to the "place" where a person may "possess and carry" but does not define "place" as a State.
     

    MJD438

    Ultimate Member
    MDS Supporter
    Feb 28, 2012
    5,849
    Somewhere in MD
    Who did the formatting for this one?. I just started reading it and it is a lot harder to read when it is not centered

    Looks like a standard so that it can be printed for the small-size journal notebooks we see the legislators use in Naptown. Wonder if SCOTUS uses the same type of notebooks?
     

    GTOGUNNER

    IANAL, PATRIOT PICKET!!
    Patriot Picket
    Dec 16, 2010
    5,492
    Carroll County!
    Who did the formatting for this one?. I just started reading it and it is a lot harder to read when it is not centered

    yea crazy.

    Had an FBI friend that worked for J. Edgar Hoover. Hoover would make notes in the margins of reports he received.

    My friends boss, sent J. Edgar Hoover a report. Typed, double spaced, 1/2" margins.

    Hoover sent the report back and across the text he wrote "watch the borders" .
    Can't tell you how many FBI agents were sent Texas, Cali and Arizona.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Who did the formatting for this one?. I just started reading it and it is a lot harder to read when it is not centered

    Looks like a standard so that it can be printed for the small-size journal notebooks we see the legislators use in Naptown. Wonder if SCOTUS uses the same type of notebooks?

    SCOTUS uses a nonstandard 6 1/8- by 9 1/4-inch booklet format. They also require an 8 1/2 by 11 submission. It appears that it is an 8 1/2 by 11 size paper for the 6 1/8- by 9 1/4-inch booklet format. It appears set up for binding the booklet format so that the alternating pages have a 1 inch margin at the binding edge.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    I want to ask NYC's lawyers why they think a right to kill babies and bugger other men in the arse is paramount, but enumerated gun rights are not.
     

    wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    While I get that having a circuit split is important to review the cert opp rests almost entirely on that this is a outlier place.
    Well sure but if it were any other right and one place was violating in a ergerious manner the Supreme Court would get involved.
    What if only one major city engaged in racism or curbed political protest. Would that be a argument for denial?
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    While I get that having a circuit split is important to review the cert opp rests almost entirely on that this is a outlier place.
    Well sure but if it were any other right and one place was violating in a ergerious manner the Supreme Court would get involved.
    What if only one major city engaged in racism or curbed political protest. Would that be a argument for denial?

    If pages 4 and 5 (where they describe the restrictions on a premesis permit with glee) alone aren't enough for a GVR with a gigantic "what is wrong with you?!" in the orders list, we need to add another originalist Justice.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    If pages 4 and 5 (where they describe the restrictions on a premesis permit with glee) alone aren't enough for a GVR with a gigantic "what is wrong with you?!" in the orders list, we need to add another originalist Justice.

    They also admit that reducing the number of guns carried in public is the goal in and of itself, not reducing crime.
     

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