Supreme Court Takes Major NRA Second Amendment Case from New York

[jcutonilli]

Why not? What could possibly be the incentive for them not to?

They would loose all credibility with the court.

 

[Bob A]

They would loose all credibility with the court.

There's some question in my mind whether the Court has any credibility with the states.

District and appellate courts have been treating Heller et al as liners for their bird cages for ten long years. State AGs and legislatures have been ignoring the COTUS for some time, and the last bastion of that document continues to teeter on the tipping point to the extent that raises the question whether there exists a Supreme Law of the Land, at all.

IMHO, of course.

 

[jcutonilli]

There's some question in my mind whether the Court has any credibility with the states.

District and appellate courts have been treating Heller et al as liners for their bird cages for ten long years. State AGs and legislatures have been ignoring the COTUS for some time, and the last bastion of that document continues to teeter on the tipping point to the extent that raises the question whether there exists a Supreme Law of the Land, at all.

IMHO, of course.

I don't think it is as simple as the district and appellate courts improperly interpreting Heller. SCOTUS certainly has not stepped in to correct the lower courts.

One of the problems is that Heller is not well defined and allows multiple interpretations of what was said. The lower courts claim they are following some interpretation of Heller along with other SCOTUS precedent. There is some basis for their interpretation.

Another problem is how the plaintiffs argue the case. They present the case as if there was only one correct interpretation. They do not explain the errors of the lower court. What rules is SCOTUS supposed to adopt to correct the problem? I don't believe Roberts is willing to adopt strict scrutiny

SCOTUS gets way more cases than they can hear. They have the luxury of waiting until they find a case that can fill in missing pieces.

 

[Bob A]

I don't think it is as simple as the district and appellate courts improperly interpreting Heller. SCOTUS certainly has not stepped in to correct the lower courts.

One of the problems is that Heller is not well defined and allows multiple interpretations of what was said. The lower courts claim they are following some interpretation of Heller along with other SCOTUS precedent. There is some basis for their interpretation.

Another problem is how the plaintiffs argue the case. They present the case as if there was only one correct interpretation. They do not explain the errors of the lower court. What rules is SCOTUS supposed to adopt to correct the problem? I don't believe Roberts is willing to adopt strict scrutiny

SCOTUS gets way more cases than they can hear. They have the luxury of waiting until they find a case that can fill in missing pieces.

I would take issue with your statement that lower courts misinterpret Heller. It seems to me that they ignore it. That seems to be a political stance rather than judicial confusion. I'd wager that a strong majority of the anti-2A decisions are rendered by judges appointed by the left.

The court system was intended to balance the political legislature by adhering to the COTUS, and the definitions of that document originating from SCOTUS. Since legislatures prefer to write vague laws, thus dumping blame on the court system - deniability, as it were - the courts are essentially writing the laws by virtue of their decisions. Obviously not their intended role.

A big problem with legislating from the Bench in this fashion is that it serves to reinforce the tyranny of the majority, another issue that was supposed to be dealt with in the COTUS, but subsequently undermined in the holy name of "democracy." Once access to the Senate was turned into a direct popular election, that deliberative body became merely another organ of the Parties, rather than a check on the populism of the House.

I'm not competent to debate the stance of the various plaintiffs, but briefs I've read by Clement, Gura, and our own Wolfwood don't seem shy regarding illuminating the errors in their opponents' positions.

 

[whistlersmother]

They would loose all credibility with the court.

So? Lower courts ignore SCOTUS on 2A issues and have the backs of the legislatures that would remove the right.

SCOTUS has allowed this to go on, thus endangering ALL their decisions. Why should a state follow a decision on abortion when another state ignores decision on 2A.

The court is becoming irrelevant by their own inaction.

 

[ironpony]

Makes one lose faith in the fact T45 is appointing judges.
Is this another case where the attorneys presented the case improperly so judges actually could not rule effectively?

Come on Friday lololol.

 

[Cal68]

Mance v Barr (18-663) whether the federal government can prohibit interstate handgun sales

Pena v Horan (18-843) (California) whether possession of a gun can be limited to "safe" guns

Rogers v Grewal (18-824) (New Jersey) whether the government can require a "special need" in order to allow carry outside the house

Gould v Lipson (18-1272) (Massachusetts) whether the government can require a "special need" in order to allow carry outside the house

Ciolek v New Jersey (19-114) whether the government can require a "justifiable need" in order to grant a carry permit

Cheeseman v Polillo (19-27) (New Jersey) whether licenses can require a "justifiable need" for possessing a gun

Worman v Healey (19-404) (Massachusetts) whether "assault weapons" and "large capacity feeding devices" can be banned

Malpasso v Pallozzi (19-423) (Maryland) whether licenses can require a "good and substantial reason" for possessing a gun

Culp v. Raoul (19-487) (Illinois) Whether the Second Amendment right to keep and bear arms requires Illinois to allow qualified non-residents to apply for an Illinois concealed-carry license.

Wilson v. Cook County (19-704) (Illinois) Whether the Second Amendment allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are in common use at this time.

Thanks for summarizing the main intent of each of these cases for a non-lawyer like me. It seems that all of these cases break down into about 3ish buckets including concealed carry and mandating licensing requirements to own a handgun. If they had to choose one of these categories to take on, which one would have the best chance of getting 5 votes and being struck down as being unconstitutional?

Cal68

 

[Cal68]

Looking through that list, I see several groupings.

Group 1: Rogers v Grewal, Gould v Lipson, Ciolek v New Jersey, Malpasso v Pallozzi. These all deal with the question of whether or not the state can demand an especially "good" reason for issue of a carry permit.

Group 2: Pena v Horan, Pena v Horan, Wilson v. Cook County. These all deal with the question of whether or not the state has the power to regulate the sale or possession of firearms otherwise in common use.

Cheeseman? That might be the lowest hanging fruit.

Sorry all, I had not seen this post before I posted my previous message. I was hoping that they would take up a case in Group 1 but we will know pretty soon which one they choose. I hope that they do take up one at least.

Cal68

 

[press1280]

Thanks for summarizing the main intent of each of these cases for a non-lawyer like me. It seems that all of these cases break down into about 3ish buckets including concealed carry and mandating licensing requirements to own a handgun. If they had to choose one of these categories to take on, which one would have the best chance of getting 5 votes and being struck down as being unconstitutional?

Cal68

Pena is my vote, as it's just an illogical law from the get go and doesn't "pull on heart strings" like concealed carry or AW would
IMO it would be like what happened in this case, that is, that even the most ardent antis wouldn't defend the underlying law and would just want it to go away to prevent "expanding gun rights"

 

[press1280]

I tend to doubt that they will consolidate these cases, especially since Gould is from a different circuit with a different law. They will pick a lead case and they tend to do that with the counsel they trust the most, viz., Clement, who is counsel for Rogers (and who argued NYC). Petitioner in Pena is represented by Gura. Another solid choice of counsel.

I think the 3 NJ cases could get consolidated correct?

In any event I believe the court takes 1 case (with the caveat that if they choose a NJ case then those 3 get consolidated) and the others are held just like with NYSRPA. I still don't see them taking 2 totally separate cases.

 

[KevinK]

I hope all the legal-minded folks here are right, and the SCOTUS is just waiting for the best 2A case.

Unfortunately, I'm in the MDS camp that believes I'll be dead before Maryland goes shall issue.

My thanks to all those that help to explain things to legalistic chumps like me.

 

[whistlersmother]

I hope all the legal-minded folks here are right, and the SCOTUS is just waiting for the best 2A case.

Unfortunately, I'm in the MDS camp that believes I'll be dead before Maryland goes shall issue.

My thanks to all those that help to explain things to legalistic chumps like me.

Regardless of which camp, now we wait, either optimistically or pessimistically.

At least Friday is NOT 2 weeks away (unless 3% is not 3%).

I will happily be wrong if one or more is granted cert.

 

[press1280]

Makes one lose faith in the fact T45 is appointing judges.
Is this another case where the attorneys presented the case improperly so judges actually could not rule effectively?

Come on Friday lololol.

I don't know if it was presented improperly per se but the fact they didn't ask for damages from the beginning seems to have been the Achilles heel. The city would have had to pay and essentially admit they were wrong.

They now get to spin it that they were simply making their laws uniform statewide.

 

[press1280]

Regardless of which camp, now we wait, either optimistically or pessimistically.

At least Friday is NOT 2 weeks away (unless 3% is not 3%).

I will happily be wrong if one or more is granted cert.

I think we may have to wait a bit AGAIN. These cases pretty much got put on ice the second they got to conference, so I'm doubting there was much if any discussion on them. I'm thinking we start from square one and we may be in line for a few relists before a case is taken.
That said I'd certainly be happy if I'm wrong and they jump on a case when the orders come out next week.

 

[press1280]

I hope all the legal-minded folks here are right, and the SCOTUS is just waiting for the best 2A case.

Unfortunately, I'm in the MDS camp that believes I'll be dead before Maryland goes shall issue.

My thanks to all those that help to explain things to legalistic chumps like me.

With all the different cases there are going to conference it's hard to imagine them simply denying cert to all of them and walking away. I mean, at that point, what the heck could they be waiting for (other than an RBG replacement)?

 

[press1280]

“This ruling should come as a relief to every American worried about keeping their family safe from gun violence,” said Shannon Watts, founder of Moms Demand Action. “The NRA and its allies are losing everywhere from state legislatures to boardrooms, which means the courts are their last hope. But they’ll keep losing there too, because the courts have ruled time and again that common-sense gun laws are constitutional.” -Shannon Watts


Does she understand the case was mooted because the law she’s in favor of was repealed? That’s the opposite of winning, Shannon.

She's definitely out there. Even the amicus briefs of the most ardent anti-gunners didn't defend the NYC law.

 

[danb]

They did not throw all these cases on the conference list only to deny them. Whomever suggested that is not paying attention: Keep in mind cases like Guedes v. BATFE have already been denied during this period (3/2/2020) (there are some others). If they wanted to deny these cases, they would have.

They will pick a case argued by Clement (most likely) or Gura, and which presents a square circuit split. Provided those cases offer a clean vehicle and don't have underlying problems.

When/if they pick a carry case, what will be in the back of their mind is that NYC defended its transport ban vigorously with a large parade of horribles, then conceded within a few months once cert was granted. The credibility of any parade of horribles with shall issue will be damaged by that fact (and the fact that all 9 work in DC which is now shall issue).

Maybe they pick more than one!

 

[press1280]

They did not throw all these cases on the conference list only to deny them. Whomever suggested that is not paying attention: Keep in mind cases like Guedes v. BATFE have already been denied during this period (3/2/2020) (there are some others). If they wanted to deny these cases, they would have.

They will pick a case argued by Clement (most likely) or Gura, and which presents a square circuit split. Provided those cases offer a clean vehicle and don't have underlying problems.

When/if they pick a carry case, what will be in the back of their mind is that NYC defended its transport ban vigorously with a large parade of horribles, then conceded within a few months once cert was granted. The credibility of any parade of horribles with shall issue will be damaged by that fact (and the fact that all 9 work in DC which is now shall issue).

Maybe they pick more than one!

I think Guedes was a takings clause case, not a 2A case?

There were a few 2A cases denied cert, but if memory serves they were really poor pro se cases. Any 2A case with a lick of credibility got held.

 

[press1280]

Since folks are going out on a limb, I will too. I tend to agree that the case was moot. It is telling that Kavanaugh agreed. But in so doing, Kavanaugh indicated a need to grant cert in 2A case and cited his dissent in Heller II as setting for the proper standard of review (text, history and tradition), precisely the standard articulated by Alito in dissent (as Kavanangh noted). Both he and the 3 dissenters intimated that the lower courts, state and federal, were misconstruing Heller and McDonald. There are plainly 4 votes to grant cert and I think they will grant cert. The only question is which case they will pick. They have a big selection right now. The conventional wisdom is that they will pick Rogers, as there is a square conflict in the circuits with the decision in Wrenn and resolution of such conflicts is exactly what the Court is supposed to do. But I see Pena (the California microstamping case) as a candidate as well, given the total absurdity of the 9th circuit's ruling and the outrageous nature of the requirement. Of course, there is no need for the Court to pick one case. They could grant cert in two cases. Pena would be the obvious choice for an "in common use" decision and Rogers would be the best case for an "outside the home" ruling (the Third Circuit's decision in Drake, which was controlling in Rogers, is a real outlier in its reasoning). A decision in Pena would dispose of Wilson and Worman (the AWB) and a decision in Rogers would take care of all the carry cases. They need not address Mance (the federal ban on interstate sale of handguns), except a GVR to instruct the court of appeals to apply the proper test on the remand. The rest of the cases can continue to be held while the Court is considering these cases. The most delicious part of this dream scenario is that the NYC's gambit would fail, big time, and the Court can put an institutional thumb in the eye of Senator Whitehouse and his misbegotten crowd all at the same time. Of course, I could be dead wrong and they could deny cert in all these cases and put Heller and McDonald into purgatory for the foreseeable future. But I just don't see that happening, given Kavanaugh's opinion and that of the dissent. FWIW, I think that the Chief is solid. Further affivant sayth not.

A question here for you Esq-

I'm hearing a lot of folks asking why Roberts didn't join into Kavanaugh's concurrence. Since Kav agreed with Alito's 2A analysis (and that had 3 judges signing on), if Roberts had signed onto Kavanaugh's concurrence, wouldn't that have effectively made Alito's analysis an opinion (5 judges agreeing on the analysis)?

 

[danb]

I think Guedes was a takings clause case, not a 2A case?

There were a few 2A cases denied cert, but if memory serves they were really poor pro se cases. Any 2A case with a lick of credibility got held.

Ciolek is a pro se case and got held.

Medina v. Barr got denied and that one was Gura.