Second Circuit NYC transport law upheld

[esqappellate]

If the standard of review is text, history, and tradition, does that effectively wipe out any intermediate scrutiny opinions and return everything to a blank slate?

It does wipe out levels of scrutiny and it looks to either the founding (1789) or the adoption of the 14th Amendment (1868), to determine whether a given sort of gun regulation was present at the time. It's not a blank slate but a vastly different slate. For the best examples, look to Wrenn and Young opinions and Kavanaugh's Heller II dissent.

 

[press1280]

This particular law is so egregious to be on [almost] on par with Heller and McDonald total bans.

It seems the court does not like total bans, so I'm cautiously optimistic about this one.

We can count on liberal overreach to get a slap down from the court. Also, I'm thinking there will be clear, direct, unambiguous language that goes with this decision - not like the ambiguity in the 2A...

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I'm not sure if this qualifies as that; we're still only dealing with a premises permit. There is a full carry permit "available" which isn't at issue here.

 

[jcutonilli]

It's the difference between a cert petition and a merits brief. I guess is that the merits brief will focus on this standard of review much more than the cert petition did -- it is fully preserved by the petition. We shall see. My guess is that Clement will ask for text, history and tradition as the standard, not tiers of scrutiny ala Kavanaugh's dissent in Heller II and that holding would be profoundly important. I don't think decision will be limited to this NYC law. That would make it pretty senseless to grant cert. As for the prior cases, we have new a new majority on the Court and that means that the 4 to grant have figured out that they have 5 to a majority. In any event, any win would be better than what we have now.

I get that there is a difference between the cert petition and the merits brief, but I don't see any better argument in the CA brief either.

Kavanaugh's dissent was appropriate given that it was around the time Heller and McDonald were decided and that was what was expected. Unfortunately that was almost 8 years ago. I am unsure any of the lower courts have faithfully followed Heller with respect to text, history and tradition. How is saying just follow Heller again going to really change anything?

 

[jcutonilli]

This particular law is so egregious to be on [almost] on par with Heller and McDonald total bans.

It seems the court does not like total bans, so I'm cautiously optimistic about this one.

We can count on liberal overreach to get a slap down from the court. Also, I'm thinking there will be clear, direct, unambiguous language that goes with this decision - not like the ambiguity in the 2A...

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How do you explain Jackson? Not much different from Heller.

This case is not a total ban either. Apparently being able to rent a gun somewhere else makes everything ok.

 

[danb]

How do you explain Jackson? Not much different from Heller.

This case is not a total ban either. Apparently being able to rent a gun somewhere else makes everything ok.

keep mind, the Supreme Court let a lot of bad 2nd amendment decisions, esp at the ninth, stand before Heller. Not too long before Heller, the ninth called the 2nd amendment a collective right.

We never really know why the Supreme Court denies cert among the thousands of cases it gets.

 

[whistlersmother]

How do you explain Jackson? Not much different from Heller.

This case is not a total ban either. Apparently being able to rent a gun somewhere else makes everything ok.

I can't explain Jackson - only those that voted not to grant cert can do that.

I can speculate with the best of them, though...

One thing is certain, we're going to find out how much of a friend Gorsuch and Kavanaugh are going to be AND if Robert is anything other than wishy-washy.

Maybe we'll all get a surprise and see Kagan vote with Thomas on this one...

 

[esqappellate]

I get that there is a difference between the cert petition and the merits brief, but I don't see any better argument in the CA brief either.

Kavanaugh's dissent was appropriate given that it was around the time Heller and McDonald were decided and that was what was expected. Unfortunately that was almost 8 years ago. I am unsure any of the lower courts have faithfully followed Heller with respect to text, history and tradition. How is saying just follow Heller again going to really change anything?

Because this time, maybe, the SCT majority will say that the courts *may not* use tiers of scrutiny and instead *must* use text, history and tradition. Not even the most dishonest lower court would use tiers after such a holding. And in constitutional analysis, denials of cert of prior cases are legally irrelevant, meaning you can't argue from a cert denial. What matters are the cases the court has taken and ruled. That the court passed on an almost identical situation in a prior case in which cert was denied is utterly beside the point.

 

[Kharn]

NJ loves to argue cert denied is as good as if they won on the merits, but I can't think of any other jurisdiction who tries that baloney.

 

[CrueChief]

NJ loves to argue cert denied is as good as if they won on the merits, but I can't think of any other jurisdiction who tries that baloney.

Well in a manner of speaking it is a win. If the law stands for the time being its a win. If the losing side never gets another chance then it stays a win.

 

[fidelity]

Suppose they could get 5 justices to strike down the NYC ordinance and their method of determining why they could limit the 2A as unconditional. But also suppose that some of the more liberal justices would join the ruling in striking down the ordinance but one that was less harsh in attacking whatever sort of balancing prescription NYC applied. Who controls this? The chief justice? Personally, I would prefer a stronger ruling from 5 vs a more dilute ruling from 7. Only bring it up because I can see liberal justices viewing the restriction as having gone too far.

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[BALBZ]

I wish I had the knowledge you guys have. I am having a tough time understanding all this but I am excited to see what happens and hopefully it will be a win for us. We need a big win at some point it is getting real old watching our 2A right get removed constantly.

I wish I had something more to add but for the time being I will be reading and learning! Carry on.

 

[fidelity]

Here is the liberal news media spin on the decision to hear the case ...

Supreme Court Will Review New York City Gun Law
https://nyti.ms/2S3DZ6C

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October.

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment. [bs - removing an arbitrary restriction isn't expanding a right, it's restoring it. Moreover, what's to say that the court wouldn't have heard this case when Scalia and Kennedy were on it, before Gorsuch and Kavanaugh]

“It could be a landmark case with major implications for gun policy,” said Adam Winkler, the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” “The case could articulate broad principles about the Second Amendment, and especially the Second Amendment outside the home.” [obligatory vapid Winkler quote. Why do they always interview this guy? He's hyping the potential outcome in part because he wants the continued attention.]

Court scholars said Justice Kavanaugh’s replacement of Justice Kennedy could lead to an abrupt lurch from the court’s previous decisions. [lurch from what decisions? They haven't heard a significant 2A case in a decade - and both McDonald and Heller restored gun owner rights. Maybe they wouldn't lurch/change directions but continue down this same path]

...

The Supreme Court’s new majority seems ready to continue a project begun in 2008, when the court, by a 5-to-4 vote, established an individual right to keep guns in the home for self-defense. That decision, District of Columbia v. Heller, was both revolutionary and in its way quite limited. Exactly what the Second Amendment protects has been in dispute ever since.

Justice Antonin Scalia’s majority opinion in the Heller decision included an important limiting passage that was almost certainly the price of Justice Kennedy’s fifth vote. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Since the Heller decision, lower courts have overwhelmingly upheld state and local gun control laws. The Supreme Court, in turn, has refused to hear appeals from those decisions. Justice Kavanaugh’s arrival changed that.

Last year, dissenting from the court’s decision not to hear a Second Amendment case, Justice Clarence Thomas wrote that the court was abdicating its duty to protect an important constitutional right.

“As evidenced by our continued inaction in this area,” he wrote, “the Second Amendment is a disfavored right in this court.”

“The right to keep and bear arms is apparently this court’s constitutional orphan,” Justice Thomas wrote. “And the lower courts seem to have gotten the message.”

...

In urging the Supreme Court to hear their appeal in the case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, the challengers said the restrictions imposed by the New York City ordinance were unique in the nation and made no sense.

“Only New York City flatly prohibits its residents from removing their lawfully purchased and duly registered handguns from the city limits, even to transport them (unloaded, and locked up) to second homes at which they are constitutionally entitled to possess them, or to out-of-city shooting ranges or competitions at which they are constitutionally entitled to hone their safe and effective use,” the challengers’ brief said.

“That prohibition does not even make sense on its own terms,” the brief said. “It has the perverse consequences of forcing New Yorkers to leave their handguns behind in their vacant residences whenever they leave the city for an extended period of time.”

Lawyers for the city responded that the law was justified by public safety considerations. Before 2001, their brief said, the city offered a license that allowed owners to take their guns to shooting ranges outside the city.

The Police Department, the brief said, “observed widespread abuses.” Firing ranges in the city must keep detailed records, the brief said, but people with the old licenses who were found with guns outside their homes could claim to be headed to a range outside the city that did not keep such records.

Mayor Bill de Blasio, responding to a reporter’s question about the Supreme Court’s decision to hear the case, said at a news conference on Tuesday that the city would vigorously defend its law.

“We, every single day, are working to make this the safest big city in America,” he said. “We need the laws that we have that protect against guns being on our streets and we will fight to protect ourselves, that’s the bottom line.”

Mr. Waldman said he was surprised the Supreme Court agreed to hear such a minor Second Amendment case when it has ducked some major ones.

“It’s a city ordinance, not a state law,” Mr. Waldman said. “This particular rule is unusual. It may be the only one of its kind in the country.”

“The justices,” he said, “may see this as a way to start addressing gun rights outside the home in a quirky and incremental manner.”

The court will hear arguments in the case in its next term, which starts in October, and may not issue a decision until 2020.

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[jcutonilli]

Because this time, maybe, the SCT majority will say that the courts *may not* use tiers of scrutiny and instead *must* use text, history and tradition. Not even the most dishonest lower court would use tiers after such a holding. And in constitutional analysis, denials of cert of prior cases are legally irrelevant, meaning you can't argue from a cert denial. What matters are the cases the court has taken and ruled. That the court passed on an almost identical situation in a prior case in which cert was denied is utterly beside the point.

While the fact that cert was denied is not legally relevant, the reasons it was denied may be very relevant. I seem to recall the main reason given by the lower courts for not following explicitly is that it can be confusing as to which history and tradition to follow because some say one thing while other aspects say something else.

For example, Heller seems to say that history and tradition do not allow concealed carry. Does that mean the 2a does not protect concealed carry? That was the CA9 decision in Peruta. Young seems to come to the same conclusion. I am not sure I would interpret the history and tradition the same way.

I suspect the lower courts can craft a biased interpretation of the history and tradition just as easily as they can a scrutiny bases one. The key to winning is to be able to explain why the courts overstepped their bounds. The arguments to date don't really explain why.

 

[aireyc]

Suppose they could get 5 justices to strike down the NYC ordinance and their method of determining why they could limit the 2A as unconditional. But also suppose that some of the more liberal justices would join the ruling in striking down the ordinance but one that was less harsh in attacking whatever sort of balancing prescription NYC applied. Who controls this? The chief justice? Personally, I would prefer a stronger ruling from 5 vs a more dilute ruling from 7. Only bring it up because I can see liberal justices viewing the restriction as having gone too far.

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I'm pretty sure in that case you'd have the 5-4 majority opinion and then the other justices could concur in the judgment or concur in part. The 5-4 would be controlling. The Chief Justice will determine who writes the opinion if he is in the majority. Otherwise, the most senior justice in the majority makes that determination.

 

[fidelity]

Thanks. Found some pertinent discussion here as well ...

https://www.thetruthaboutguns.com/2...t-to-ny-state-rifle-pistol-assn-v-city-of-ny/

With good points by commentator LKB on the potential dilution issue ...

It is possible that the Court will strike down the NYC laws, but does so under intermediate scrutiny (as part of a John Roberts campaign to get some of the liberal wing to sign on to the opinion)? It’s possible, but I do not think Roberts will fall for that. (As I have said before, Clarence Thomas is no dummy, and he’s unlikely to risk undermining Heller unless he is confident that he has the votes.)

It is possible that we get a plurality opinion, where a majority (possibly even a unanimous court) votes to reverse, but fragments such that there is no reasoning for the decision that commands a majority (e.g., unanimous per curiam opinion reversing but giving no reasoning; concurrence by Thomas/Alito/Goresuch/Kavanaugh that applying strict scrutiny, fundamental 2A rights are infringed; concurrence by Roberts / Breyer / Kagan that applying intermediate scrutiny, 2A rights are infringed; concurrence by Kagan / Sotomayor / RBG that the NYC law impermissibly infringes the right to travel; concurrence by Goresuch / Roberts / Thomas / Alito that the NYC law impermissibly burdens interstate commerce)? Possible, yes; likely, no.

LKB has another excellent post in that thread about future predictions.

(He's also quoted extensively by the guy who wrote the article/blog post and seems to have significant federal court experience. He's mostly focused on the implications for scrutiny and the effect it would have on other 2A rulings - similar to what esqappellate raised.)

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[Inigoes]

While the fact that cert was denied is not legally relevant, the reasons it was denied may be very relevant. I seem to recall the main reason given by the lower courts for not following explicitly is that it can be confusing as to which history and tradition to follow because some say one thing while other aspects say something else.

For example, Heller seems to say that history and tradition do not allow concealed carry. Does that mean the 2a does not protect concealed carry? That was the CA9 decision in Peruta. Young seems to come to the same conclusion. I am not sure I would interpret the history and tradition the same way.

I suspect the lower courts can craft a biased interpretation of the history and tradition just as easily as they can a scrutiny bases one. The key to winning is to be able to explain why the courts overstepped their bounds. The arguments to date don't really explain why.

History and tradition, point more to acceptance of open carry.

Look at law enforcement today, there will be people who argue about training and tactics, but officer friendly always open carry when armed. Soldiers do the same.

Hostorically, concealed carry had a negative connotation due to ambushing the prey.

 

[Allen65]

I don't think this case will have any effect on CC, unless it does so indirectly by stomping down on misapplication of intermediate scrutiny and rational basis in 2A cases.

This case is about fundamental firearms ownership issues, including transport between homes, and self defense of home was a core element of Heller.

 

[Adolph Oliver Bush]

They'll continue to do so as long as they're comfortable and fed. Once the dollar collapses, all bets are off.

^^^^This.

 

[Blacksmith101]

On Fox Business this morning Judge Napolitano predicted "sweeping changes in the right to bear arms" (approximate quote I will try to find the exact words).

 

[Occam]

On Fox Business this morning Judge Napolitano predicted "sweeping changes in the right to bear arms" (approximate quote I will try to find the exact words).

Judge N is slowly adapting to the media gig's need to say click-worthy things. He's frequently quite sober and objective about things, but sometimes strays into more provocative territory for, I suspect, a bit of entertainment value and pot stirring. I'd rather hear him say HOW he expects it to change, and on what basis. Otherwise, it's more like that ancient Chinese curse: "May you live in interesting times."