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New York State Rifle & Pistol Association v. The City of New York


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#91 Charles Nichols

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Posted 02 May 2019 - 03:19 AM

Now we wait for Mance v. Barr, Pena v. Horan, Rogers v. Grewal, and Gould v. Moran.  SCOTUS is on vacation.  The justices return for a private conference on Thursday, May 9th. They have granted cert petitions after their private conferences but we typically don't know if a cert petition has been granted, denied, rescheduled, or relisted until the Orders List is released, typically the following Monday unless that Monday is a Court holiday.

 

It is likely we will not hear anything about the two "carry" cases (Rogers and Gould) until the justices have had a couple of weeks to review the brief in opposition filed in Gould which is due on May 6th.  Gould did not file a motion for an extension of time (motions are due 10 days before the due date).  I do not know the deadline for file a waiver to respond but assuming that a brief in opposition is filed instead of a waiver then that would make the case ready for the June 13th private conference which is two weeks before the end of the current term.  



#92 kwc

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Posted 08 May 2019 - 06:27 AM

The opening brief has been filed. Here's the link:

https://www.supremec...oners FINAL.pdf
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#93 Flynn

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Posted 08 May 2019 - 10:48 AM

This case and a well written opinion has the ability to re-shape and liberate the 2nd nationwide, let's hope that the SCOTUS doesn't whiff it!


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#94 kwc

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Posted 08 May 2019 - 03:10 PM

This case and a well written opinion has the ability to re-shape and liberate the 2nd nationwide, let's hope that the SCOTUS doesn't whiff it!


From a layperson's perspective it appears strong. Let's hope it all works out for the good!
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#95 Flynn

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Posted 08 May 2019 - 03:34 PM

 

This case and a well written opinion has the ability to re-shape and liberate the 2nd nationwide, let's hope that the SCOTUS doesn't whiff it!


From a layperson's perspective it appears strong. Let's hope it all works out for the good!

 

 

I have little doubt the NY law won't withstand the current SCOTUS case, but how broad the impact will be nationwide will depend solely on the wording of the opinion, lets hope they toss in a zinger like 'strict scrutiny' that alone will allow a vast majority of anti-gun laws to fall.

 

I do feel it's a very solid case, probalby could not ask for a better one right now as a foot in the door.


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#96 Euler

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Posted 08 May 2019 - 04:36 PM

... lets hope they toss in a zinger like 'strict scrutiny' that alone will allow a vast majority of anti-gun laws to fall.
...


If the only thing necessary to suspend a constitutionally protected civil liberty is a good reason, then the constitutional protection afforded that civil liberty is meaningless.

Those are Scalia's words, although I may not have gotten them all exactly. It's his argument to require strict scrutiny for any law that affects the Bill of Rights, because you need only a good reason to withstand intermediate scrutiny (and any reason at all, even one that isn't good, to withstand rational basis).
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

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#97 Charles Nichols

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Posted 08 May 2019 - 10:34 PM

Folks seem to be ignorant of the fact that the levels of scrutiny were invented to uphold unconstitutional laws.  They are judicial interest balancing frameworks which both Heller and McDonald rejected.  If SCOTUS says that judges must apply strict scrutiny in a future case then it will not be judges like Justice Kavanaugh deciding whether or not the challenged law passes strict scrutiny, it will be Judges like your very own Easterbrook who held that "feelings" are sufficient to uphold gun bans based on heightened scrutiny.  We have had a decade of courts watering down intermediate scrutiny to less than rational basis review.  If SCOTUS choses strict scrutiny over "Text, history and tradition" then we will see the inferior courts water down strict scrutiny to less than rational basis review.

 

Keep this in mind, when a law is upheld under any of the tiers of scrutiny that does not mean that the law does not violate the Constitution.  It means that in the opinion of the courts the violation of the right is justifiable.

 

The text, history and tradition test does not allow this.

 

If you are wondering why the mouthpieces of the so-called gun-rights groups are advocating strict scrutiny it is because the text, history and tradition test means there is no right to concealed carry, no Second Amendment right for convicted felons (at least not for the historical common law felonies), and no Second Amendment right for the mentally ill.  They think strict scrutiny will erase that part of the Heller and McDonald decisions.

 

It won't.

 

https://youtu.be/hmrfyYBdA-E

 



#98 kevinmcc

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Posted 16 May 2019 - 03:52 AM

Here is the amicus brief filed by Firearms Policy Foundation, Firearms Policy Coalitions, and the Calguns Foundation in support of the petitioners on May, 14th 2019.

Take a read. What do you think?

Attached File  2019-5-14-fpc-fpf-cgf-nysrpa-merits-brief.pdf   192.41KB   42 downloads
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#99 Euler

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Posted 16 May 2019 - 06:12 AM

The amici brief makes essentially three points.

1. The right to keep and bear arms is not somehow of lesser importance than other, possibly socially favored, rights.

2. Whether tiered scrutiny is applied to this case or text/history/tradition is applied, either is enough to show that the lower courts' upholding of the NYC statute limiting transport of firearms fails the respective test.

The text/history/tradition standard is that "shall not be infringed" is a constitutional prohibition on government power against any law that restricts the right to keep and bear arms. As such, virtually no firearm law would be constitutional, including NYC's prohibition of transport of firearms.

The tiered scrutiny levels are about making rational laws that achieve their stated goals and, as applied to inalienable rights, constitutionally protected civil liberties are not an unlimited license to commit crime. Since there is no basis to establish that prohibiting legal firearm owners from transporting their firearms prevents them from committing any crime, the prohibition of transport is an unconstitutional infringement.

3. The brief provides several examples, including this case, of how other courts have purported to apply heightened scrutiny to second amendment cases, but the arguments supposedly substantiating heightened scrutiny have been a pretense for no such thing. It then provides examples for how heightened scrutiny should be applied, drawing similarity to several first amendment cases. It urges the court to provide stronger guidance to lower courts on how to apply stricter scrutiny to second amendment cases.

Personally, I think it's a good brief. The points it makes fulfill the dual purpose of resolving the case at hand as well as casting it in a broader context that makes it worth the court's time and effort. Urging the court to provide stronger guidance to lower courts is much needed, but I suspect a favorable decision in this case is still unlikely to be a detailed instructional example of how other courts should better decide second amendment cases. I also think the brief loses some steam bouncing between advocating strict scrutiny and at least intermediate scrutiny.

I also think NYC is going to lose. That NYC proposed amending its laws to forestall an unfavorable judgment makes me believe that NYC thinks it's going to lose, too. Depending how and to what extent the court shreds NYC's firearm permitting regime, it could have implications for spawning challenges to other firearm permits across the country.
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#100 ChicagoRonin70

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Posted 20 May 2019 - 12:14 AM

Here is the amicus brief filed by Firearms Policy Foundation, Firearms Policy Coalitions, and the Calguns Foundation in support of the petitioners on May, 14th 2019.

Take a read. What do you think?

attachicon.gif2019-5-14-fpc-fpf-cgf-nysrpa-merits-brief.pdf

 

That's extremely well written and justified, but in the end it is ridiculous to the extreme to have to explain the unambiguous nature of what the Constitution actually means on both this point and every other Right protected—NOT granted—by it:

 

No government unit or agent thereof has ANY right to infringe on the People's rights in ANY presumptively lawful activity, whatsoever. The state or its agents ONLY have the right to restrict the rights or punish a member of the People if that particular individual commits an act that interferes with the rights of other people, or breaks a law that is Constitutionally supported in every way. This is not up to interpretation or Judicial oversight.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

Who gets to keep and read books? The Media? Or is it the People?

 

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#101 press1280

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Posted 20 May 2019 - 11:31 AM

NYC will lose. Even the few amicus briefs that argue for watered down intermediate scrutiny are not defending the law itself.

#102 chislinger

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Posted 21 May 2019 - 02:06 PM

NYC will lose. Even the few amicus briefs that argue for watered down intermediate scrutiny are not defending the law itself.

They're hoping that if they all but concede defeat the SCOTUS will issue a very narrow ruling thus not putting their other unconstitutional gun laws in immediate jeopardy.
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#103 Flynn

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Posted 21 May 2019 - 04:06 PM

 

NYC will lose. Even the few amicus briefs that argue for watered down intermediate scrutiny are not defending the law itself.

They're hoping that if they all but concede defeat the SCOTUS will issue a very narrow ruling thus not putting their other unconstitutional gun laws in immediate jeopardy.

 

 

My hope is that the SCOTUS if finally addressing a gun case again beause they feel they now have the judges necessary to put some real bite in the Heller ruling that has all but been ignored by many states.  Even if NY conceeds defeat, because it's literally a slap in the face to the Heller ruling, I hope the court issues a strongly worded ruling that makes the rest of the gun grabbing states and lower court judges take notice that the 2nd is a civil right and should be treated as such.


Edited by Flynn, 21 May 2019 - 04:06 PM.

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#104 Charles Nichols

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Posted 21 May 2019 - 10:05 PM

 

 

NYC will lose. Even the few amicus briefs that argue for watered down intermediate scrutiny are not defending the law itself.

They're hoping that if they all but concede defeat the SCOTUS will issue a very narrow ruling thus not putting their other unconstitutional gun laws in immediate jeopardy.

 

 

My hope is that the SCOTUS if finally addressing a gun case again because they feel they now have the judges necessary to put some real bite in the Heller ruling that has all but been ignored by many states.  Even if NY conceeds defeat, because it's literally a slap in the face to the Heller ruling, I hope the court issues a strongly worded ruling that makes the rest of the gun grabbing states and lower court judges take notice that the 2nd is a civil right and should be treated as such.

 

Justices waiting to vote for a cert petition until they feel they have the votes certainly sounds plausible but the evidence is to the contrary. Click on this link and then click on the "docket" links which show which justices voted to grant cert.  The cert memos as well are very revealing. http://epstein.wustl...=3&y=93#bHeader



#105 skinnyb82

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Posted 22 May 2019 - 12:43 PM

I'm afraid this will be another ruling that is narrow in scope. That's what the Court had been doing lately. They dodge the elephant in the room and tiptoe through the tulips to come to a conclusion so as to not ruffle feathers. I would love to see a BRIGHT red line drawn but I'm not very optimistic. Just look at cases like Carpenter (phone location data protected under 4A?), Masterpiece Cakeshop (arguably not narrow but case by case basis), Burwell v. Hobby Lobby and its progeny (RFRA), Harris v. Quinn, Town of Greece v. Galloway, bunch of 4A cases I can't think of at the moment. Not all in same term but the "Roberts Court." Heller was narrow in that it didn't provide a bright line so it gave circuit courts plenty of ammo to come up with some legal nonsense to justify gun control measures. Pauley v. White, a qualified immunity case, is another one...or White v. Pauley, can't remember who appellant was. Sent from my VS987 using Tapatalk
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#106 JTHunter

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Posted 22 May 2019 - 10:01 PM

Don't count your chickens too quickly.

Kavanaugh has recently sided with the liberals on the SC so he may not be as "conservative", as "Constitutional" as originally thought to be.


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#107 SiliconSorcerer

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Posted 24 May 2019 - 08:21 AM

I'm planning for the day that every firearm over 10 years old disappears overnight and moves to the black market, Illinois wants to be FIRST in the nation for something I guess will be it.   

 

Everyone will go light their imaginary transfer paperwork for every firearm they own over 10 years old and "Don't Recall" where it went legally.   

All sales of these firearms will now be sold not only without even a FOID requirement but forced to be sold "under the table". 

 

Yes this should work out well. 


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#108 Ranger

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Posted 24 May 2019 - 10:38 AM

I'd sure feel more comfortable with another solid pro-second amendment support on SCOTUS; but we're better off than we had been for a while.

 

Some interesting reading

 

https://reason.com/tag/guns/

 

https://reason.com/2...-public-places/

 

https://reason.com/volokh

 

https://www.gun-nuttery.com/rtc.php



#109 BobPistol

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Posted 25 May 2019 - 11:02 AM

Don't count your chickens too quickly.

Kavanaugh has recently sided with the liberals on the SC so he may not be as "conservative", as "Constitutional" as originally thought to be.

 

Context?

LWW's do sometimes side with the Constitution.   Sometimes. 


The Second Amendment of the Constitution protects the rest.

#110 kevinmcc

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Posted 25 May 2019 - 11:51 AM

Don't count your chickens too quickly.

Kavanaugh has recently sided with the liberals on the SC so he may not be as "conservative", as "Constitutional" as originally thought to be.

Kavanaugh is not a Constitutional judge. He clearly states that he considers the length that a law has been enacted.

Trump's proposed replaces for Ginsberg has stated the something.

Which I find worry some for getting the NFA overtuerned, 85 years in law and counting.


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#111 transplant

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Posted 26 May 2019 - 06:48 PM

Click on this link and then click on the "docket" links which show which justices voted to grant cert.  The cert memos as well are very revealing. http://epstein.wustl...=3&y=93#bHeader


I'm lost. All I see is stuff from the year 1993 in that link under Docket.

#112 transplant

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Posted 26 May 2019 - 06:53 PM

Click on this link and then click on the "docket" links which show which justices voted to grant cert.  The cert memos as well are very revealing. http://epstein.wustl...=3&y=93#bHeader


I'm lost. All I see is stuff from the year 1993 in that link under Docket.


This:

https://www.supremec...lic/18-280.html

...shows that Ginsburg was involved in things like:

Application (17A1393) granted by Justice Ginsburg extending the time to file until August 3, 2018.


But that does not appear to be very consequential. It appears clerical.

#113 Flynn

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Posted 26 May 2019 - 08:00 PM

Let's also not forget that until Heller liberals were pushing to grant 'certification' to gun cases to give them more enforcement powers because the court was considered friendly to their causes, Heller upended that all and put a wrench into their plans.

 

Sure the current court could rule against expanding gun rights it's always a possibility, but personally I feel more confident in the current court upholding and restoring gun rights vs any previous court makeup during my entire adult life.

 

I personally won't condemn/belittle Kavanuagh on 2nd views until and unless he proves to be anti-2nd in his rulings on the Supreme Court.


Edited by Flynn, 26 May 2019 - 08:02 PM.

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#114 Charles Nichols

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Posted 27 May 2019 - 04:37 PM

 

Click on this link and then click on the "docket" links which show which justices voted to grant cert.  The cert memos as well are very revealing. http://epstein.wustl...=3&y=93#bHeader


I'm lost. All I see is stuff from the year 1993 in that link under Docket.

 

I've attached a screen shot of the web page.  There are links to eight SCOTUS terms in the left column.  Links to 6,336 records in the middle column, and links to the cert petition/grant/deny/result sheets under the column labeled "docket" and links to the cert petition memos under the column labelled "memo."

 

Blackmun.png



#115 MrTriple

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Posted 29 May 2019 - 08:19 PM

Don't count your chickens too quickly.
Kavanaugh has recently sided with the liberals on the SC so he may not be as "conservative", as "Constitutional" as originally thought to be.

This isn't the correct way to look at this. We cannot use individual cases to try and determine how a justice will rule in one case versus another. Their viewpoints can vary wildly, even if they are considered "conservative" or "liberal".

In the Apple case, Kavanaugh demonstrated a far superior understanding of the underlying issues than the other conservatives did. He understood the technology behind Apple's App Store, and rightfully ruled that they were engaging in monopolistic business practices. The conservatives demonstrated that they did not understand these issues, and we should be glad the court sided with consumers on this one.

To try and to extrapolate and use this as a yardstick for determining how any justice will rule on any other, unrelated case does not properly take into account the fact that their views vary wildly on different issues, even for two justices who are on the same side of the aisle politically.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

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#116 MrTriple

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Posted 29 May 2019 - 08:40 PM

Not to be a Negative Nancy, but when you have judges who will uphold a ban based on people's perceived fear, what makes you think a strict scrutiny requirement will change anything?

If they think a ban is in the best interests of preserving public safety against evil black rifles, they're still going to rule that way.

The only way I see previous rulings and unconstitutional laws falling like dominoes is if they all make their way up to SCOTUS, and that'll be a damn long game of dominoes...

Hypothetically this could happen.

Hypothetically.

In actual practice? Probably not.

See, the Supreme Court is likely taking this case so that they can issue a narrow ruling that will establish a new, very strict standard (no pun intended) that the lower courts cannot ignore, and cannot weasel their way out of.

We need to remember that the lower courts do not want their rulings overturned at the Supreme Court. It's embarrassing, especially when the justices issue a scathing ruling or vacate/remand order, to boot.

The establishment of strict scrutiny or, perhaps, an even stricter new test, will serve as a warning to the lower courts that the Supreme Court isn't gonna tolerate their messing around with the second amendment anymore. The lower courts understand this, and will apply strict scrutiny faithfully.

Edited by MrTriple, 29 May 2019 - 08:40 PM.

"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless




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