Supreme Court Takes Major NRA Second Amendment Case from New York

[esqappellate]

I think you are mixing up the months. There was a conference on Friday April 17th, but May 17th is a Sunday. The next conference after this Friday (May 1st) will be the next Friday, May 8th.

See https://www.supremecourt.gov/ for the calendar

Right you are! I was looking at April. So sorry for the confusion.

 

[esqappellate]

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)?

That's his style. He doesn't purport to decide anything until he has to. He sees that as necessary in his role as Chief Justice. Personally, I see that as a good thing for the Court as an institution. In this case, if he had joined Kavanaugh's concurrence it would have been messy, as there would have been still no binding Opinion of the Court on the merits, as the judgment was that the case was moot and a moot case does not establish binding precedent (it can't, by definition). That's no way to run a railroad.

 

[esqappellate]

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.

It is quite possible for the Court to consolidate the three NJ cases. There is a facial challenge (IIRC) in all three, so there is really no need to do so as a decision in one on that issue will be controlling on all three. I tend to think that they will simply take the lead case (Rogers) since it was first and it has Clement as counsel. This Court has a lot of respect for him. We'll see. I'm ok with either route.

 

[Knuckle Dragger]

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.

Unsurprisingly, your assessment is logical, if not perhaps a little wishful. If the court did indeed seek to 'clear the decks' of gun cases, they'd do preciously as you posit. However, I'm not unconvinced that they won't deny cert on some of the petitions and save those issues for another time. Your plan would also make OT2020 the 'gun term'. I'm not sure if they want to do that.

I'll just add that I'm not unhappy that they're pushing these decisions out of an election cycle.

 

[rascal]

Roberts has all but but publicly and directly announced he will side against whatever side forces a Second Amendment issue to SCOTUS. He hasn't said so directly but it has leaked out of the court for years that he doesn't want any. His statement back in December showed he would vote with the left bloc on NYNRA on mooting this. There are scores of legal journal and other articles saying that he clearly signaled there was no way he was going to rule they way NYNRA wanted.

Very few Second Amendment cases, or any cases at SCOTUS are about the merits. There are exceptions but almost all of them go along party alignment 4:4 with Roberts in position to swing. He swings more often right, but he also has made it clear he is not going to be definitive in any gun case ans he wont be boxed in. It is very likely the other side of the Wren case, which was not only DC but all the may issue states, sussed out Roberts would be vindictive if he was forced by them to settle the split. The message seems to be: force me and I will go against you.

So mooting the case was the openly desired solution for the one guy who was in the decision making position. I don't think Roberts will not give us what we want in any of the pending cases. Certainly not strict scrutiny. He does not want to preside or even rule on any more 5:4s than necessary.

Either Trump wins and we go to 95% a chance he will replace RGB and ~50/50 he will replace Breyer. Or Biden wins and game over since the Dems will pack the court sighting Gorsuch appointment as illegitimate and game over for gun rights in the courts.

 

[esqappellate]

Roberts has all but but publicly and directly announced he will side against whatever side forces a Second Amendment issue to SCOTUS. He hasn't said so directly but it has leaked out of the court for years that he doesn't want any. His statement back in December showed he would vote with the left bloc on NYNRA on mooting this. There are scores of legal journal and other articles saying that he clearly signaled there was no way he was going to rule they way NYNRA wanted.

Very few Second Amendment cases, or any cases at SCOTUS are about the merits. There are exceptions but almost all of them go along party alignment 4:4 with Roberts in position to swing. He swings more often right, but he also has made it clear he is not going to be definitive in any gun case ans he wont be boxed in. It is very likely the other side of the Wren case, which was not only DC but all the may issue states, sussed out Roberts would be vindictive if he was forced by them to settle the split. The message seems to be: force me and I will go against you.

So mooting the case was the openly desired solution for the one guy who was in the decision making position. I don't think Roberts will not give us what we want in any of the pending cases. Certainly not strict scrutiny. He does not want to preside or even rule on any more 5:4s than necessary.

Either Trump wins and we go to 95% a chance he will replace RGB and ~50/50 he will replace Breyer. Or Biden wins and game over since the Dems will pack the court sighting Gorsuch appointment as illegitimate and game over for gun rights in the courts.

Cites please.

 

[Inigoes]

What are the odds of getting a Per Curiam decision out of any of the remaining ten scheduled for conference?

 

[esqappellate]

What are the odds of getting a Per Curiam decision out of any of the remaining ten scheduled for conference?

Zero on the merits. Of course, I am being a little factious, as anything is possible. I don't think anything has happened to moot any of these cases. So Zero, or at least zero until there is a decision on the merits in one of these cases.

 

[rascal]

Cites please.

cites on gun cases being virtually totally political appointer aligned? This is already extensively documented on close important vote (like Heller) :
https://insight.kellogg.northwester...-more-ideological-when-casting-the-swing-vote

There is less of a pronounced effect on certain non-2A civil liberties due to nexus of some left views and some libertarian views. so you get outlier examples of say Thomas and RBG on the same side, but those are outliers. The overall increase in partisanship and its profound footprint on 2A and many other areas of law is clear. heller went precisely partisan.

Or on cites on Roberts signaling five months ago he not side with NYNRA and would moot?
December 2019:

All four members of the Court’s liberal minority appeared to believe that the court lacks jurisdiction to hear the case, and Chief Justice John Roberts asked a few questions suggesting that he is sympathetic to this view.

https://www.vox.com/2019/12/2/20991...d-amendment-guns-roberts-new-york-state-rifle

December 2019

:But it appeared likely that Chief Justice John Roberts would side with the court’s liberals to dismiss the matter altogether as moot.

https://www.cnbc.com/2019/12/02/supreme-court-shows-little-appetite-for-expanding-gun-rights.html

We knew all along that
a) for and against strict scrutiny on NYNRA would be 4:4 exactly on partisan lines; and; b) the only other consideration, hte only salient factor at all would be Roberts, who months ago signaled he would not be forced and would moot.

I have a former intern who worked for me while in senior year undergrad and first year of law school who became a scotus clerk. She has since gone gone into private practice, but we talk socially a fair amount. She did not clerk for Roberts but she has told me several times Roberts does not want to go beyond Heller.

2A case votes almost never go on the merits -- but are almost always decided (and predictable) on the partisan composition of the federal courts deciding them

 

[danb]

An important fact I bet only one person (now two) in this thread know:

The key quote in the PC, which is directly on point:

However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may,if necessary, amend their pleadings or develop the record more fully.

Was written by.....

SCALIA, J., delivered the opinion for a unanimous Court.

In other words, Roberts and Kavanaugh pretty much did what all past courts have done when confronted with the mootness issue in NYSRPA. Were Scalia alive, he probably would have done the same thing (those are his words, lol).

https://supreme.justia.com/cases/federal/us/494/472/

 

[press1280]

cites on gun cases being virtually totally political appointer aligned? This is already extensively documented on close important vote (like Heller) :
https://insight.kellogg.northwester...-more-ideological-when-casting-the-swing-vote

There is less of a pronounced effect on certain non-2A civil liberties due to nexus of some left views and some libertarian views. so you get outlier examples of say Thomas and RBG on the same side, but those are outliers. The overall increase in partisanship and its profound footprint on 2A and many other areas of law is clear. heller went precisely partisan.

Or on cites on Roberts signaling five months ago he not side with NYNRA and would moot?
December 2019: https://www.vox.com/2019/12/2/20991...d-amendment-guns-roberts-new-york-state-rifle

December 2019https://www.cnbc.com/2019/12/02/supreme-court-shows-little-appetite-for-expanding-gun-rights.html

We knew all along that
a) for and against strict scrutiny on NYNRA would be 4:4 exactly on partisan lines; and; b) the only other consideration, hte only salient factor at all would be Roberts, who months ago signaled he would not be forced and would moot.

I have a former intern who worked for me while in senior year undergrad and first year of law school who became a scotus clerk. She has since gone gone into private practice, but we talk socially a fair amount. She did not clerk for Roberts but she has told me several times Roberts does not want to go beyond Heller.

2A case votes almost never go on the merits -- but are almost always decided (and predictable) on the partisan composition of the federal courts deciding them

While Roberts may not want to go past Heller necessarily, what happens when cert is granted in a case where the government doesn’t fold and the case is clear cut?
It’ll be a binary choice. Status quo won’t be a choice.

 

[esqappellate]

cites on gun cases being virtually totally political appointer aligned? This is already extensively documented on close important vote (like Heller) :
https://insight.kellogg.northwester...-more-ideological-when-casting-the-swing-vote

There is less of a pronounced effect on certain non-2A civil liberties due to nexus of some left views and some libertarian views. so you get outlier examples of say Thomas and RBG on the same side, but those are outliers. The overall increase in partisanship and its profound footprint on 2A and many other areas of law is clear. heller went precisely partisan.

Or on cites on Roberts signaling five months ago he not side with NYNRA and would moot?
December 2019: https://www.vox.com/2019/12/2/20991...d-amendment-guns-roberts-new-york-state-rifle

December 2019https://www.cnbc.com/2019/12/02/supreme-court-shows-little-appetite-for-expanding-gun-rights.html

We knew all along that
a) for and against strict scrutiny on NYNRA would be 4:4 exactly on partisan lines; and; b) the only other consideration, hte only salient factor at all would be Roberts, who months ago signaled he would not be forced and would moot.

I have a former intern who worked for me while in senior year undergrad and first year of law school who became a scotus clerk. She has since gone gone into private practice, but we talk socially a fair amount. She did not clerk for Roberts but she has told me several times Roberts does not want to go beyond Heller.

2A case votes almost never go on the merits -- but are almost always decided (and predictable) on the partisan composition of the federal courts deciding them

Heck, I also predicted that the case would be held to be moot, especially after oral argument. No one would accuse me of being anti 2A. (At least I hope not). FWIW, I think that was the right decision on the facts. What is interesting in the outcome is not that result, but that Justice Kavanaugh filed a concurring opinion saying what he did, as did Alito, Thomas and Gorsuch in dissent. None of these guys had to say anything about the merits. As for the Chief, nothing in your cites suggests how he would actually vote. Has the Court been criticized as political. Sure. Personally, I don't see the Court as partisan (as in D or R), but it is certainly split along rough ideological / judicial philosophy lines. But even that can be a poor predictor. See, e.g., the split in this week's decision in the Georgia copyright case. In other cases, Gorsuch has joined the liberals and Kagen has joined the conservatives. As to whether Roberts will go beyond Heller, even if true, that all depends on what Heller means to him. He is going to have to decide, as there will be a cert grant in one of these cases and he will undoubtedly influence the case selected. That's part of the reason why I think Pena is such a good candidate for cert, as not even the liberals will go to the mattresses to defend the stupid California microstamping law. Not even politicians in Congress will make that a campaign issue. We shall see.

 

[swamplynx]

While Roberts may not want to go past Heller necessarily, what happens when cert is granted in a case where the government doesn’t fold and the case is clear cut?
It’ll be a binary choice. Status quo won’t be a choice.

Right. When forced, is he really going to decimate the right because he is forced into putting his big boy pants on and making a decision he doesn't want to have to make?

When the court was 4-4, waiting for Scalia's seat to be filled, a 4-4 decision resulted in the circuit decision standing and no SCOTUS precedent for the case. Can there be such thing as a 4-4-1 decision? Where Roberts doesn't sign on to either opinion? Or do you have to vote one way or the other?

 

[esqappellate]

An important fact I bet only one person (now two) in this thread know:

The key quote in the PC, which is directly on point:



Was written by.....



In other words, Roberts and Kavanaugh pretty much did what all past courts have done when confronted with the mootness issue in NYSRPA. Were Scalia alive, he probably would have done the same thing (those are his words, lol).

https://supreme.justia.com/cases/federal/us/494/472/

Having litigated mootness doctrine for years, I can say that Lewis is solid precedent.

 

[press1280]

Heck, I also predicted that the case would be held to be moot, especially after oral argument. No one would accuse me of being anti 2A. (At least I hope not). FWIW, I think that was the right decision on the facts. What is interesting in the outcome is not that result, but that Justice Kavanaugh filed a concurring opinion saying what he did, as did Alito, Thomas and Gorsuch in dissent. None of these guys had to say anything about the merits. As for the Chief, nothing in your cites suggest how he would actually vote. Has the Court been criticized as political. Sure. Personally, I don't see the Court as partisan (as in D or R), but it is certainly split along rough ideological / judicial philosophy lines. But even that can be a poor predictor. See, e.g., the split in this week's decision in the Georgia copyright case. In other cases, Gorsuch as joined the liberals and Kagen have joined the conservatives. As to whether Roberts will go beyond Heller, even if true, that all depends on what Heller means to him. He is going to have to decide, as there will be a cert grant in one of these cases and he will undoubtedly influence the case selected. That's part of the reason why I think Pena is such a good candidate for cert, as not even the liberals will go to the mattresses to defend the stupid California microstamping law. Not even politicians in Congress will make that a campaign issue. We shall see.

Here's a hypothetical for you. What if the CA legislature repeals the law after cert is granted just like here.
Any chance Roberts and Kavanaugh change their stance regarding mootness?

 

[esqappellate]

Right. When forced, is he really going to decimate the right because he is forced into putting his big boy pants on and making a decision he doesn't want to have to make?

When the court was 4-4, waiting for Scalia's seat to be filled, a 4-4 decision resulted in the circuit decision standing and no SCOTUS precedent for the case. Can there be such thing as a 4-4-1 decision? Where Roberts doesn't sign on to either opinion? Or do you have to vote one way or the other?

4-1-4? Sure, it happens. When no opinion has support of a majority, then the Marks doctrine comes into play as to the binding effect of the decision. Marks v. United States, 430 U.S. 188 (1977). See Ramos v. Louisiana, No. 18-5924 (April 20, 2020) ("According to Marks, when 'a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’").

 

[esqappellate]

Here's a hypothetical for you. What if the CA legislature repeals the law after cert is granted just like here.
Any chance Roberts and Kavanaugh change their stance regarding mootness?

Nope. If that happens, I would count that as a win, and also a shot across the bow to State legislatures.

 

[rambling_one]

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.

RIP to all who are within twenty years of being a centenarian.

 

[kcbrown]

Nope. If that happens, I would count that as a win, and also a shot across the bow to State legislatures.

And if the legislature passes it again immediately after the case is disposed of? And then repeals it again if the resulting new case gets to the Supreme Court?

The legislature can re-pass the law just as quickly as it repealed it.



Sent from my iPhone using Tapatalk

 

[esqappellate]

And if the legislature passes it again immediately after the case is disposed of? And then repeals it again if the resulting new case gets to the Supreme Court?

The legislature can re-pass the law just as quickly as it repealed it.



Sent from my iPhone using Tapatalk

Yes, it could. That is the tension inherent in co-equal branches and the federal system. It isn't pretty or very neat. At some point, one side will give up. During the Brown v. Board of Education era, there was massive resistance of this sort to desegregation. Eventually, the Court won. You would not like it very much if the Court abandoned judicial restraint. That's a two-edged sword.