2020 Dec 16: “NRA Takes Concealed Carry Case to US Sup Ct” - NYSRPA v. Corlett

[SandHill]

Originally Posted by TruOil

Umm, last I checked, the First Amendment has no such "shall not be infringed" language. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

To abridge means "to curtail." The fact that the Congress used different words suggests they intended a different meaning.

OK, so let's say I concede that there is a distinction between "abridge" and "infringe" which is meaningful in this context. Let's further assume, arguendo, that "abridge" menas exceptions are permitted, and "shall not be infringed" means "no exceptions."

Where does that lead us in practical terms? Is it your position that the Second Amendment means you can "bear" any weapon, anyplace, any time, with no "exceptions?" Say for example that you wanted to bear an M249 and a couple of drums of ammo while attending an AOC town hall. Is that your right? How about in a federal courthouse while the Ninth Circuit is considering a gun rights case?

If so, as I asserted above, that is not a mainstream view. Even Scalia made it clear that was not what Heller meant. There is no judicial or legislative precedent for the position that the Second Amendment means "no exceptions" and there is 230 years worth of precedent for "exceptions."

[Paladin]

Originally Posted by press1280

Wow...this case wasn't on the radar. Doesn't look like its even on the SCOTUS docket yet.

It is now.

https://www.supremecourt.gov/search....ic/20-843.html

[SandHill]

Originally Posted by Paladin

It is now.

https://www.supremecourt.gov/search....ic/20-843.html

Awesome, OP. Bringing us the news before it happens!

[Citizen_B]

Originally Posted by kuug

They most certainly did not rule on NYSRPA v NYC on legal technicalities.

Originally Posted by mrrabbit

Straight from the horses (SCOTUS) mouth:

"After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a secondhome or shooting range outside of the city, which is the pre-cise relief that petitioners requested in the prayer for relief in their complaint."

Lesson to the wise:

If you ask for it in your "prayer for relief", and the defendant gives it to you...case can be mooted.

If you don't like the way your case might get mooted, make sure your prayer for relief specifies a "burrito", not a "taco".

Mr. Rabbit and I final agree! NY State gave specifically and exactly what NYSRPA requested. If you follow the letter of the law, the case MUST be mooted. The fact NY State did it right when cert was granted is the gamesmanship part. Personally I hated the fact SCOTUS did that as it sends the message they won't step out of their lane and smack down games, but they did acknowledge the timing of the regulation change as BS.

[TruOil]

Originally Posted by SandHill

OK, so let's say I concede that there is a distinction between "abridge" and "infringe" which is meaningful in this context. Let's further assume, arguendo, that "abridge" menas exceptions are permitted, and "shall not be infringed" means "no exceptions."

Where does that lead us in practical terms? Is it your position that the Second Amendment means you can "bear" any weapon, anyplace, any time, with no "exceptions?" Say for example that you wanted to bear an M249 and a couple of drums of ammo while attending an AOC town hall. Is that your right? How about in a federal courthouse while the Ninth Circuit is considering a gun rights case?

If so, as I asserted above, that is not a mainstream view. Even Scalia made it clear that was not what Heller meant. There is no judicial or legislative precedent for the position that the Second Amendment means "no exceptions" and there is 230 years worth of precedent for "exceptions."

You know of course that private ownership of cannon was not uncommon, and for all I know is still legal. (Black powder cannon are legal in California, for example.) Prior to the NFA, ownership of fully automatic weapons was legal, and remained so after the NFA as long as one was willing to undergo a background check and pay a tax. Private ownership of machine guns is still legal, for that matter, as long as the firearm was manufactured prior to a date certain. I understand where Scalia went in Heller, but I have to wonder how much of that was in order to get Roberts to sign on an obtain a majority. Allowing full bore freedom was likely a bridge too far, even if that was the intent of the Amendment. Where we get into trouble is by allowing restrictions of the right as to "time, place and manner" as is the case with the First Amendment cases, as such limitations can be used to justify urban carrying bans and the GFSZA.

[sulla123]

I see the usual windbags are in full throated chest thumping. I'll check back when there's news on the case. Excluding Paladin from the windbag description, of course.

[Paladin]

Just thinking about what sort of timeline we’re facing:

2020 mid-Dec: request cert; response request, response extensions, Response and Reply
2021 mid-March: distribute then grant cert for next fall; briefs
2021 October: orals
2022 January or later: decision/opinion

A long shot would be a relatively quick GVR with a per curiam opinion ala Caetano. But I doubt that, even with a dissent, because I think Thomas wants to write & sign a magnum opus 2nd A opinion as his legacy.

[press1280]

Originally Posted by Paladin

Just thinking about what sort of timeline we’re facing:

2020 mid-Dec: request cert; then extensions, Response and Reply
2021 mid-March: distribute then grant cert for next fall
2021 October: orals
2022 January or later: decision/opinion

A long shot would be a relatively quick GVR with a per curiam opinion ala Caetano. But I doubt that, even with a dissent, because I think Thomas wants to write & sign a magnum opus 2nd A opinion as his legacy.

I doubt we get a per curiam just based on the fact the court has booted so many of these cases already. Too contentious.

[kuug]

Originally Posted by mrrabbit

Straight from the horses (SCOTUS) mouth:

"After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a secondhome or shooting range outside of the city, which is the pre-cise relief that petitioners requested in the prayer for relief in their complaint."

Lesson to the wise:

If you ask for it in your "prayer for relief", and the defendant gives it to you...case can be mooted.

If you don't like the way your case might get mooted, make sure your prayer for relief specifies a "burrito", not a "taco".

Oh, and as myself and another Calgunner noted before - the whole homeless question was completely ignored by ALL parties - never presented in any way throughout the litigation.

=8-|

Yes I'm sure Roberts, who seemed to have a heavy interest in killing off the case when his power as the court's center was threatened with court packing, would say that plaintiffs received all relief they wanted. That is certainly not the conclusion that the attorney for the plaintiffs showed or what precedent showed

Originally Posted by Alito

Thus, in this case, we must apply the well-established standards for determining whether a case is moot, and un-der those standards, we still have a live case before us. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, “a case ‘becomes moot only when it is impossible for a court to grant any ef-fectual relief whatever to the prevailing party.’” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). “‘As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Ibid. (emphasis added).

Roberts and his fellow activist justices ignored precedent, plaintiffs did not receive the injunction they asked for as relief. The case was not moot, it was dismissed for political reasons.

[Paladin]

NY Solicitor General submitted a request today for a thirty-day extension to file its opposition to granting cert from January 22 to February 22.

https://www.supremecourt.gov/DocketP...n%20motion.pdf

[press1280]

Originally Posted by Paladin

NY Solicitor General submitted a request today for a thirty-day extension to file its opposition to granting cert from January 22 to February 22.

https://www.supremecourt.gov/DocketP...n%20motion.pdf

This probably won't be the first such request either.

[kuug]

Originally Posted by press1280

This probably won't be the first such request either.

It’s quite normal for the defending party to request an extension. It’s extremely out of the norm for them not to. In any case, this one won’t be heard until Fall, if they even grant cert at all.


Sent from my iPhone using Tapatalk

[NiceGuyInSanJose]

Originally Posted by Paladin

NY Solicitor General submitted a request today for a thirty-day extension to file its opposition to granting cert from January 22 to February 22.

https://www.supremecourt.gov/DocketP...n%20motion.pdf

But jan 22 to feb 22 is actually 31 days....

[Paladin]

Originally Posted by Paladin

NY Solicitor General submitted a request today for a thirty-day extension to file its opposition to granting cert from January 22 to February 22.

https://www.supremecourt.gov/DocketP...n%20motion.pdf

The motion was granted yesterday.

[Paladin]

Originally Posted by CCWFacts

There's almost no reason for pessimism in this case.

“Call for KC Brown or Fabio Gets Goosed at the white courtesy phone.”

[Paladin]

Amicus brief by FPC & FPFoundation filed today.

[Paladin]

3 more amicus briefs submitted yesterday.

[seaweedsoyboy]

Thank you for your updates Paladin!

[OCEquestrian]

Originally Posted by Paladin

Amicus brief by FPC & FPFoundation filed today.

And with a simple amicus brief AS USUAL, both organizations claim to be a preeminent supporter of gun rights when soliciting millions of $ from gun owners pissed off at LaPierre's suits...claiming to be as much or more effective as the NRA and the NRA state affiliates that actually PAY for all this litigation.

[BAJ475]

Originally Posted by SandHill

OK, so let's say I concede that there is a distinction between "abridge" and "infringe" which is meaningful in this context. Let's further assume, arguendo, that "abridge" menas exceptions are permitted, and "shall not be infringed" means "no exceptions."

Where does that lead us in practical terms? Is it your position that the Second Amendment means you can "bear" any weapon, anyplace, any time, with no "exceptions?" Say for example that you wanted to bear an M249 and a couple of drums of ammo while attending an AOC town hall. Is that your right? How about in a federal courthouse while the Ninth Circuit is considering a gun rights case?

If so, as I asserted above, that is not a mainstream view. Even Scalia made it clear that was not what Heller meant. There is no judicial or legislative precedent for the position that the Second Amendment means "no exceptions" and there is 230 years worth of precedent for "exceptions."

Those sound like great ideas.
Being serious. IMHO, even if the Court grants cert and ultimately holds that the 2A guarantees the right of law abiding persons to carry outside of the home and that the states cannot impose good cause, special need or similar conditions on that right, very little will have been gained on a national level. The vast majority of the states are shall issue for residents and many are also shall issue to non-residents. Many of the states that do not issue to non-residents, nonetheless recognize and honor permits from other states. In many CA counties, self-defense is sufficient good cause. So, for these people what, if anything, is gained? While it is a hot button issue for us, might the court consider that since it would only effect CA, NY, MA, CT, NJ, DE, MD & HI and not the other 42 states, it is not of sufficient national importance to grant cert?

[Phiremin]

Originally Posted by BAJ475

Those sound like great ideas.
Being serious. IMHO, even if the Court grants cert and ultimately holds that the 2A guarantees the right of law abiding persons to carry outside of the home and that the states cannot impose good cause, special need or similar conditions on that right, very little will have been gained on a national level. The vast majority of the states are shall issue for residents and many are also shall issue to non-residents. Many of the states that do not issue to non-residents, nonetheless recognize and honor permits from other states. In many CA counties, self-defense is sufficient good cause. So, for these people what, if anything, is gained? While it is a hot button issue for us, might the court consider that since it would only effect CA, NY, MA, CT, NJ, DE, MD & HI and not the other 42 states, it is not of sufficient national importance to grant cert?

First, a decision could have national importance if the court goes after “intermediate scrutiny”. They could change the standard of review for all gun control laws.
Second, those 8 states represent more than a quarter of the people living in this country. I’d say that meets the bar for “national importance”.

[Phiremin]

So, will SCOTUS take the case? On paper they should. They granted cert to a 2A case last year only to find it moot. However, 4 justices basically said “it’s time to take a 2A case”. Looking at the history of his dissents, we also know Thomas seems to have a particular interest in right-to-carry cases.
While they did decline to take several 2A cases last spring, it was only after weeks of deliberation. There is no other reasonable conclusion except that Roberts was not seen a a reliable vote or he outright threatened to join the liberals. With ACB on the bench, Roberts doesn’t matter anymore.
HOWEVER, court packing remains a threat. I don’t think they would have support today to pack the court, but a high profile controversial decision on guns or abortion could change that.
In, “the switch in time that saved nine”, we’ve seen the court act to preserve the institution itself by compromising on “New Deal” programs. So, do they take this case (we know they have 4 votes for cert and very likely have a majority) or do they defer until the packing threat had passed even though the clock may be ticking on Thomas?

[BAJ475]

Originally Posted by Phiremin

First, a decision could have national importance if the court goes after “intermediate scrutiny”. They could change the standard of review for all gun control laws.
Second, those 8 states represent more than a quarter of the people living in this country. I’d say that meets the bar for “national importance”.

I probably should not have used the phrase “national importance.” My point was merely that it would not effect the majority of us who live in areas where we are not even asked for a reason or, if asked, self defense is sufficient good cause.

I agree that if the court grants cert and goes after “intermediate scrutiny” that would be monumental. I hope Thomas, Alito, Gorsuch, Kavanaugh and Barrett see this case as their opportunity to put an end to any interest balancing approach in 2A cases.

For fun, let's assume that the court takes this case and holds that the Second Amendment protects the right to carry in public. The next question will be: can one state bar law-abiding citizens of another state from exercising their Second Amendment rights in that state? If the answer is no, we won't need Congress to enact national reciprocity laws. I can see it now. John Doe, a resident of the state of Idaho versus the State of California.

Then, for icing on the cake would be an opinion that the Second Amendment protect all weapons commonly possessed for lawful purposes, such as AR15s.

[Phiremin]

Originally Posted by BAJ475

For fun, let's assume that the court takes this case and holds that the Second Amendment protects the right to carry in public. The next question will be: can one state bar law-abiding citizens of another state from exercising their Second Amendment rights in that state? If the answer is no, we won't need Congress to enact national reciprocity laws. I can see it now. John Doe, a resident of the state of Idaho versus the State of California

My best guess is that SCOTUS affirms a right to carry, but doesn’t knock down permitting. In other words, “must issue” becomes the law of the land, but they don’t go so far as “constitutional carry” (ie no permit needed).

States like the ones you mention above (CA, NY, NJ, HI etc) will implement crazy permit requirements; you must pass Marine Scout Sniper school, carry $1 million in liability insurance, take a gun safety class that doesn’t exists because we’ll refuse to certify instructors and then you may carry a musket on your birthday.

These states will know that you can’t deny a constitutional right to those from another state or treat them differently (equal protection clause), but they will say “you need a permit issued by our state to carry in our state”. CA isn’t going to recognize out of state permits

Then, it’s back to the courts

[press1280]

Originally Posted by Phiremin

So, will SCOTUS take the case? On paper they should. They granted cert to a 2A case last year only to find it moot. However, 4 justices basically said “it’s time to take a 2A case”. Looking at the history of his dissents, we also know Thomas seems to have a particular interest in right-to-carry cases.
While they did decline to take several 2A cases last spring, it was only after weeks of deliberation. There is no other reasonable conclusion except that Roberts was not seen a a reliable vote or he outright threatened to join the liberals. With ACB on the bench, Roberts doesn’t matter anymore.
HOWEVER, court packing remains a threat. I don’t think they would have support today to pack the court, but a high profile controversial decision on guns or abortion could change that.
In, “the switch in time that saved nine”, we’ve seen the court act to preserve the institution itself by compromising on “New Deal” programs. So, do they take this case (we know they have 4 votes for cert and very likely have a majority) or do they defer until the packing threat had passed even though the clock may be ticking on Thomas?

If the court decides to take this case then likely we won't have an opinion until June 2022, right before the midterms. That's a really bad time for the Dems to start talking about court packing.
It's a great case for them to take up, the only downside is this case is CCW-only. A case from NJ or MD leaves the OC/CC controversy out of the mix and thus may be easier for the court to decide.

[mrrabbit]

Bumped . . .

. . . because someone couldn't be bothered to scroll halfway down the Index and see the obvious.

=8-(

[sulla123]

Originally Posted by press1280

If the court decides to take this case then likely we won't have an opinion until June 2022, right before the midterms. That's a really bad time for the Dems to start talking about court packing.
It's a great case for them to take up, the only downside is this case is CCW-only. A case from NJ or MD leaves the OC/CC controversy out of the mix and thus may be easier for the court to decide.

Most liberal sheep have no idea what that is, or would see anything wrong with it.

[sulla123]

I did an awful job raising my kids. Of the four, only one is mildly center. The other three are full throated progressive windbags that I am seriously considering kicking out of my house the second college is over so they can begin paying the ridiculous taxes espoused by the idiots they voted for.

[Paladin]

Please keep this thread on topic...

[Sputnik]

So did the NY SG get his opposition brief filed? Today was the deadline, correct?

Edit: question answered in the first post link to the docket.

[cbruno3333]

I think this is the last stand for carry outside the home in blue America. If they deny cert here, I'm not sure what legal vehicle could take down "may issue". I think the reply brief was written well enough to convince Roberts to deny cert, and strongly played to his desires to not rock the apple cart. ACB still a wildcard...

[Paladin]

Originally Posted by cbruno3333

I think this is the last stand for carry outside the home in blue America. If they deny cert here, I'm not sure what legal vehicle could take down "may issue"....

Young, Nichols or Flanagan....

[wireless]

Originally Posted by cbruno3333

I think this is the last stand for carry outside the home in blue America. If they deny cert here, I'm not sure what legal vehicle could take down "may issue". I think the reply brief was written well enough to convince Roberts to deny cert, and strongly played to his desires to not rock the apple cart. ACB still a wildcard...

Robert’s is a no. I suspect 4 wouldn’t vote for cert unless they thought they had the votes. Kavanaugh and ACB, they’ve had some strong 2A opinions, but if they will extend that to carry, I’m not sure.

[press1280]

Originally Posted by wireless

Robert’s is a no. I suspect 4 wouldn’t vote for cert unless they thought they had the votes. Kavanaugh and ACB, they’ve had some strong 2A opinions, but if they will extend that to carry, I’m not sure.

Kavanaugh joined Thomas on the dissent of the NJ carry case after NYSRPA was mooted. So I think he's good. ACB and Alito, who hasn't said a word on any of the public carry cases, are unknowns along with Roberts.

[mrrabbit]

Originally Posted by press1280

Kavanaugh joined Thomas on the dissent of the NJ carry case after NYSRPA was mooted. So I think he's good. ACB and Alito, who hasn't said a word on any of the public carry cases, are unknowns along with Roberts.

Thomas = Pro 2A / Pro Heller
Alito = Pro 2A / Pro Heller
Kavanaugh = Pro 2A AND Pro Establishment / Pro Heller

Roberts = Pro Establishment / Pro Heller

Gorsuch = Pro Establishment / Recognizes Heller as Precedent
Barrett = Pro Establishment / Recognizes Heller as Precedent
Kagan = Pro Establishment / Recognizes Heller as Precedent
Sotomayor = Pro Establishment / Recognizes Heller as Precendent

Breyer = Pro Establishment / Anti-Heller

It's 3-6 folks, and you can see the fundamental reason why.

Also, Kavanaugh just like Bill Barr is Hillary's cleanup guy from Arkansas, he will not allow any criminal prosecution to make it past SCOTUS unscathed.

Barrett is Bush's cleanup lady in Florida, and she will cover for the Bush family when necessary.

=8-|

[mrrabbit]

Originally Posted by Paladin

Young, Nichols or Flanagan....

The District Court judge for Flanagan already called out Flanagan for being a concealed carry case and made it crystal clear - they're not getting a Peruta redo.

So Flanagan is pretty much dead, especially since the conflicted NRA lawyer couldn't make the necessary argument due to his involvement in another case in which he argues exactly the opposite.

So it's really:

Young and Nichols

Young = Ball artfully place in Hawaii's hands: "Give us something!"

Nichols = CA Penal Code + Strike Through Pen


If you really think about it, Mr. Nichols and Mr. Beck together have put CA9 in something of a pickle - even with any kind of moot action by Hawaii or California.

=8-|

[Offwidth]

If course, here he is. The internet expert. All the judges and lawyers just don't know.