NYSRPA v. City of NY

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SCOTUS Punts Most 2A Cases Again (Updated)

May 18, 2020 by 3 Comments

The Supreme Court has their conference on Fridays to examine which cases they wish to take and the ones they don’t. They announce the results on Monday in the Orders of the Court. Not all pending cases are sent to conference but those that are can be denied certiorari (or mandamus), accepted, or passed on to another week’s conference.

The Orders of the Court released this morning indicate that they punted all the major Second Amendment cases to the next week. The exception was Bradley Beers v. Barr which dealt with the denial of Second Amendment rights to those who had been involuntarily committed no matter how long ago.

In that case, the Supreme Court granted certiorari, vacated the judgment, and sent it back to the 3rd Circuit to dismiss as moot.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

Unfortunately, I don’t know enough about the Beers case to say why the Supreme Court said it was moot.

The Polite Society Podcast will have attorney Cody Wisniewski of the Mountain States Legal Foundation as our guest tonight. He will be discussing these potential cases and why he considered the finding of moot in NYSRPA v City of New York was not the end of the world for 2A cases. I will have a link up later where you can watch this on Facebook Live.

Cody was one of the attorneys who brought the case that forced New Mexico Gov. Michelle Lujan Grisham (D-NM) to reopen some gun stores in that state.

UPDATE: Thanks to Rob at 2A Updates I have an answer as to why the Beers case was considered moot. Mr. Beers has been cleared by the State of Pennsylvania, was granted a firearms license, and now has a legally owned firearm.

UPDATE II: The link to the Facebook Live broadcast of the Polite Society Podcast can be found here. It starts at approximately 7:05pm EDT tonight.

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All Existing 2A Cases Before SCOTUS Still Alive

May 4, 2020 by 3 Comments

The Supreme Court Order List released this morning denied certiorari to a number of cases. However, they did not deny nor grant certiorari to any of the 11 existing Second Amendment related cases that were sent for consideration at Friday’s conference.

This means that cases dealing with everything from interstate sales to carry to microstamping are still alive. I am keeping my fingers crossed that one or more of them will be granted certiorari. The dissents plus Kavanaugh’s concurrence in NYSRPA v. City of New York indicate at least four votes to hear Second Amendment cases. It only takes four votes but realistically you would need five or more to be assured of a pro-2A ruling.

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WSJ Editorial Board Gets It Right

April 28, 2020 by 3 Comments

The Wall Street Journal published a scathing editorial today on the Supreme Court deciding to moot NYSRPA v City of New York. I think they got it right. For a co-equal branch of government to cower before the threats of senators like Sheldon Whitehouse should be unthinkable. Unfortunately, it wasn’t.

What an enormous abdication. The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.

The editorial then takes note of Justice Alito’s dissent which was joined by Justice Gorsuch in whole and by Justice Thomas in part.

The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”

On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.

Looking at Justice Kavanaugh’s concurrence, the editorial board found it “curious”.

Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.

They note that the Supreme Court has been timid on the Second Amendment and is treating it as a second class right. Moreover, if shrill threats from the Whitehouses of the world and the media can sway the Court, then we can expect it to escalate on this and other issues.

They conclude on the role of Chief Justice John Roberts.

The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.

I wish Kavanaugh was more like his fellow Georgetown Prep classmate Justice Gorsuch. I said back when Kavanaugh was selected that he wasn’t my first choice. I much preferred Tom Hardiman and Raymond Kethledge. Both had better backgrounds on the Second Amendment. Moreover, neither were Ivy League law grads which I found to be a big plus.

My only hope is that the Court does take one or more of the Second Amendment cases that are still out there awaiting cert. Ideally, they would take one of the carry cases, Mance v. Barr, and Pena v. Horan. That threesome with the correct decision would allow carry outside the home, poke holes in GCA68, and do away with the California handgun roster.

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Supreme Court Punts On NYSRPA V. City Of NY

April 27, 2020 by 2 Comments

The US Supreme Court issued its ruling on New York State Rifle and Pistol Association v. City of New York today. The bottom line is that they punted in a 6-3 decision finding the case moot.

More as I read the opinion and the dissents.

I know we wished for more but this, as much as I hate it, was not unexpected after the City of New York changed its regulations.

UPDATE: From Jonathan Adler at the Volokh Conspiracy.

Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.

For what it’s worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh’s concurrence got things right: “petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.” In addition, there is ample cause for concern that “some federal and state courts may not be properly applying Heller and McDonald.” Accordingly, Kavanaugh wrote: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

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NYSRPA Starts The Day At SCOTUS

December 2, 2019 by 3 Comments

The oral argument in the NY State Rifle and Pistol Association versus City of New York is the top of the calendar today for the Supreme Court. This marks the first Second Amendment case to reach this stage since 2010’s McDonald v. Chicago.

The oral arguments are being recorded. The Supreme Court also will make transcripts available. Both will be available on Friday after the Court’s regular conference.

For a more contemporaneous report on the proceedings without the mainstream media slant, Tom Gresham of Gun Talk was given media credentials to cover the case and will be posting on Twitter. His Twitter feed is found here. Alternatively, his Twitter handle is @guntalk. He also will be doing a Facebook livestream before and after the session. You can find it here.

All I can say regarding the case is to keep your fingers crossed. The US government has taken the position that the case is not moot. Paul Clement who will be arguing on behalf of the NYSRPA agrees in his response.

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Update On NYSRPA V. City Of New York

October 15, 2019 by

The Supreme Court released new orders relating to oral arguments in New York State Rifle and Pistol Association v. City of New York.

The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Neal Goldfarb for leave to participate in oral argument as amicus curiae and for divided argument is denied.

The Supreme Court usually approves the request of the Solicitor General to participate in oral arguments as amicus curiae and will grant his or her request for divided argument.

As to Mr. Goldfarb, he is the only one of those submitting amicus briefs who requested to participate in the oral argument. From what I can tell, he is something of a gadfly who wants to apply linguistics to the legal interpretation. His brief insists that the Court was wrong in its interpretation of language in DC v. Heller.

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NYSRPA v City Of New York Lives On (Updated)

October 8, 2019 by 2 Comments

The Supreme Court opened its October term today and released a number of orders. Included in this was an order denying New York City’s suggestion of mootness in NYSRPA v. City of New York

18-280
NY STATE RIFLE & PISTOL, ET AL. V. NEW YORK, NY, ET AL.


The Respondents’ Suggestion of Mootness is denied. The question of mootness will be subject to further consideration at
oral argument, and the parties should be prepared to discuss it.

This is good news for those of us wanting the case to be decided.

UPDATE

I asked the Law Department of the City of New York if they had any comment on the denial of the Suggestion of Mootness. Here is what I received from their press secretary.

We look forward to addressing the issues at the December oral argument.

Nick Paolucci
Press Secretary

I guess that is as close to saying “No Comment” as you can get without actually saying it.

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How Not To Win Friends And Influence Justices

August 14, 2019 by 5 Comments

Sen. Sheldon Whitehouse (D-RI) considers himself worthy of authoring an amicus brief for a case before the Supreme Court. He should think again. Despite a long legal career before being elected to the Senate which culminated with him serving as both the Attorney General of Rhode Island for one term and before that as the Clinton-appointed US Attorney for Rhode Island, his brief in NY State Rifle and Pistol Association v. City of New York is a polemic and not an argument.

Moreover, as the son and grandson of diplomats, you would have thought somewhere along the line it would have rubbed off on him how to be diplomatic towards those that matter. Daddy served as deputy ambassador to the Republic of Vietnam followed up as the ambassador to Laos and then Thailand. Granddad was ambassador to Guatemala and Colombia and served earlier on the commission that wrote the Treaty of Versailles.

Whitehouse was joined in this polemic, I mean amicus brief, by Senators Dick Durbin (D-IL), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), and Kirsten Gillibrand (D-NY) who are all lawyers by training. They begin the brief arguing that the NYSRPA, the petitioners, are asking the Court to be their allies in ” a “project”
to expand the Second Amendment and thwart gun-safety (sic) regulations.” They continue that it is no wonder polls show the Supreme Court is “motivated mainly by politics.” It goes downhill from here.

They then argue that it was the National Rifle Association, the Federalist Society, and other conservative groups fought to make sure that Justices Gorsuch and Kavanaugh would be on the Court to “break the tie” in favor of the Second Amendment. It goes on to say about the Federalist Society:

The Society counts over eighty-six percent of
Trump administration nominees to the circuit courts
of appeal and to this Court as active members. It is
not yet clear who the powerful funders are behind
Leonard Leo and the Federalist Society judicial
selection effort, nor what took place as the Federalist
Society was “insourced” into the Trump
administration’s judicial selection process.5 But
massive political spending and secrecy are rarely a
salubrious combination.

In other words, these fine senators are pissed off that President Trump has nominated active members of an organization dedicated to an interpretation of the Constitution that preserves the original meaning. They would much prefer those of the Living Constitution stripe.

This brief then goes on to attack the amicus briefs in favor of the NY State Rifle and Pistol Association implying that they are stooges of the NRA. Eight of the amici are affiliated with the NRA. However, most of those are from only one amicus brief – that of the National Sheriffs Association. Then, heaven forbid, a number of amici are 503(c)(4) social welfare organization who are not required to disclose their donors. As the secretary of the Maryland Democratic Party might note, this makes them harder to dox. Of course much of this is ludicrous. Accusing groups like the Pink Pistols and GOA of being stooges of the NRA is laughable.

Whitehouse ends Section I of the brief with this.

Out in the real world, Americans are murdered
each day with firearms in classrooms or movie
theaters or churches or city streets, and a generation
of preschoolers is being trained in active-shooter
survival drills. In the cloistered confines of this
Court, and notwithstanding the public imperatives of
these massacres, the NRA and its allies brashly
presume, in word and deed, that they have a friendly
audience for their “project.”

You might think Whitehouse might now try to curry favor with the justices in Section II and you’d be wrong. After a few paragraphs saying how the Court shouldn’t be answering moot questions and legislating from the bench, he then accuses the Court’s majority of being the tools of big business, the GOP, and fat cats.

Recent patterns raise legitimate questions about
whether these limits remain. From October Term
2005 through October Term 2017, this Court issued
78 5-4 (or 5-3) opinions in which justices appointed by
Republican presidents provided all five votes in the
majority. In 73 of these 5-4 decisions, the cases
concerned interests important to the big funders,
corporate influencers, and political base of the
Republican Party. And in each of these 73 cases,
those partisan interests prevailed.

Then he accuses the petitioners of engaging in strategic “faux litigation”. What he is speaking of is strategic civil rights litigation with carefully chosen plaintiffs and with the purpose of building precedent. The interesting historical aspect of this is that the model for this strategic litigation was none other than the NAACP Legal Defense Fund run at the time by future Justice Thurgood Marshall.

For example, we have seen flocks of
“freedom-based public interest law” organizations
that exist only to change public policy through
litigation, and which often do not disclose their
funders. We have seen behavioral signals, like
litigants who rush to lose cases in lower courts “as
quickly as practicable and without argument, so that
[they] can expeditiously take their claims to the
Supreme Court” (ordinarily, in litigation, litigants
seek to win).
Almost invariably, and as we have seen in this case, such plaintiffs are accompanied by
throngs of professional amici, whose common funding
sources and connections to the organizations behind
the supposed party-in-interest are obscured by
ineffective disclosure rules.

Instead of being flattered, Whitehouse seems to say how dare these dirty, low down conservatives imitate the tactics and strategies of the Left!

He then ends the brief with a threat.

The Supreme Court is not well. And the people
know it. Perhaps the Court can heal itself before the
public demands it be “restructured in order to reduce
the influence of politics.” Particularly on the urgent
issue of gun control, a nation desperately needs it to
heal.

Whitehouse is no FDR but he thinks his threat of packing the Court is going to sway it. His demeaning attitude should irritate even the most ardent liberals on the Court. Whether this case is ultimately dismissed as moot or not, there will be more cases that have even more impact for Second Amendment rights that are now or soon will be in the pipeline.

UPDATE: I’m not the only one who found Whitehouse’s brief to be a polemic and not a real argument. Prof. William Jacobson at Legal Insurrection covered it as well. Note the comments. I agree with the person who said ” The Court should strike the brief without a right to refile an amended brief, and impose sanctions.”

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The Anti’s Are Getting Worried About A Supreme Court Case

March 29, 2019 by 4 Comments

The Supreme Court agreed to hear NY State Rifle and Pistol Association v. The City of New York in January. The case involves an absurd New York City regulation that forbids those with handgun permits from taking their legally owned handguns outside the city limits of New York. These permits only allow a person to keep the handgun in their residence or to practice at one of only seven firing ranges within the city limits. They cannot take their handguns to vacation homes, to ranges outside the city limits, or to competitions outside the city regardless of how it is stored.

Yesterday, Ladd Everitt, Director of One Pulse for America and formerly the communications director for Coalition to Stop Gun Violence (sic), had an op-ed in the New York Daily News urging the city to repeal its handgun transport ordinance. This is the same Ladd Everitt who delighted in portraying those of us in the gun culture as “insurrectionists” and leading demonstrations outside NRA headquarters that attracted about a dozen protesters.

From his op-ed:

A ruling in NYSRPA vs. NYC could overturn not only the city’s gun transport reg, but also “may-issue” laws governing concealed carry of firearms in public in New York and seven other states. Carry licenses are more difficult to obtain than premises licenses in NYC. Law enforcement officials have discretion to deny carry licenses to applicants with a history of violence. The NRA spent $1 million to get Kavanaugh confirmed to the Supreme Court because they believe he will provide the decisive fifth vote to eliminate such discretion by declaring a new, individual right to carry guns in public.


New York City leaders don’t have to fall into the trap the NRA is baiting for them. It is within the authority of NYPD Commissioner James O’Neill to revise or repeal the regulation at the center of NYSRPA vs. NYC. If he took this step (conceivably with the blessing of Mayor de Blasio) and cleared the way for premises licensees to transport secured firearms to locations outside the city, the plaintiffs’ stated grievance would be remedied. The Supreme Court might decide to drop the case before ruling on it.

Ladd may be an asshole but he isn’t dumb. He realizes the danger to the gun control lobby if the Supreme Court rules against New York City which they probably would in all likelihood. In addition to his concerns about may-issue concealed carry permits, the Supreme Court could finally clarify the standard to be used by lower courts in deciding Second Amendment cases. If they said it must be strict scrutiny and they backed this up by taking cases where courts applied intermediate scrutiny, it would open the door to a large round of 2A litigation.

Mayor Adrian Fenty of the District of Columbia was sure of the rightness of DC’s ban on handguns. He decided that DC would appeal their loss in the Court of Appeals in the Heller case to the Supreme Court. We know that turned into DC v. Heller and a recognition that the Second Amendment was an individual right.

Ladd concludes by saying:

It’s true that allowing New York City residents to transport guns outside the city would entail certain public safety risks, even if the practice was regulated. But with the gun violence epidemic increasing in the United States, our communities simply cannot withstand newfound constitutional protections for violent “good guys with a gun.” Now is the time for the NYPD to step up and protect all Americans by repealing NYC’s gun transport ordinance.

I love Ladd’s hyperbole even when he is way off base. The problem isn’t with honest citizens who own a firearm, perhaps have a carry permit, and who engage in armed self-defense. The problem is with violent criminal actors (to use Dr. William Aprill’s phrase). They view gun laws as something to be ignored just like they ignore the laws dealing with theft, assault, and homicide.

When you see a Michael Bloomberg, a Shannon Watts, or one of the Brady co-presidents calling for New York City to ditch this law and moot the NYSRPA case, then you will know the gun control lobby is really running scared. Coming as this op-ed does from the periphery of the gun control lobby, it is a sign that some are awakening. I just hope the rest continue along with their smug, elitist attitudes thinking that they can’t lose.