SCOTUS Accepts Carry Case

In Orders of the Court released this morning, the Supreme Court granted certiorari in NY State Rifle and Pistol Association v. Corlett et al. This is a case that challenges New York’s requirement to show cause for issuance of a carry permit.

20-843 NEW YORK STATE RIFLE, ET AL. V. CORLETT, KEITH M., ET AL.


The petition for a writ of certiorari is granted limited to
the following question: Whether the State’s denial of
petitioners’ applications for concealed-carry licenses for
self-defense violated the Second Amendment.

From the Washington Post:

The court will hear the challenge to a century-old New York gun control law in the term that begins in October. It is considering a law that requires those who seek a permit to carry a concealed weapon show a special need for self-defense. It is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.

The individual plaintiffs in the case – Robert Nash and Brandon Koch – have permits to carry outside the home for hunting and target practice purposes. However, they were turned down when they requested carry permits for self-defense.

It takes four justices to agree to take a case. Last year, the court turned down a number of Second Amendment cases. The operating consensus was that the conservatives on the court were unsure of where Chief Justice John Roberts would come down. Now, however, with the addition of Justice Amy Coney Barrett, that has changed and there are five potentially reliable Second Amendment votes.

Assuming that the court agrees that there carry outside the home for self-defense is a key component of the Second Amendment, Chief Justice Roberts will have a hard decision. If he goes along with the majority, he gets to assign the opinion or reserve it for himself. If he is in the minority, then the assignment choice goes to the longest serving Associate Justice in the majority. In this case that would be Justice Clarence Thomas who has telegraphed many times his frustration with the court’s refusal to treat the Second Amendment as any thing other than a second-class right. Part of me hopes that Roberts is in the minority because that means a stronger decision in favor of the Second Amendment.

Alan Gottlieb On Denial Of Cert In 2A Cases

Alan Gottlieb of the Second Amendment Foundation issued a strongly worded statement today on the Supreme Court’s denial of certiorari in virtually every Second Amendment Case before it. The only case that touches on the Second Amendment remaining is Rodriguez v. San Jose. Given that property was taken by the police and not returned, you could easily make the argument that it was a takings case and not a 2A case.

“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts.

“He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.

“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the individual right to keep and bear arms.

“There is still one more case pending cert before the high court that was filed by the SAF. It is known as Rodriguez v. San Jose, a firearms confiscation case out of the State of California.”

Alan is 100% correct. This needs to be laid at the feet of John Roberts. One does wonder what sort of blackmail material that the Obama Administration and/or the liberal wing of the Court has on him that he has gone so wobbly. It is either that or a pathetic need to be loved by the mainstream media elites.

He wants the “Roberts Court” to be respected. However, the Chief Justice should remember that respect is earned and not given. He sure as hell didn’t earn any respect today.

In a time when there is unrest in our streets and the pandemic has led to an increase in crime in many locations, the need for the Court to reaffirm its rulings in Heller and McDonald was now.

They had 10 chances and they blew every bloody one of them.

Supreme Court Decides To Be A Doormat

In the face of numerous US District and Appeals Courts flat out ignoring its rulings in Heller and McDonald, the Supreme Court has obviously decided they preferred to be a doormat. In today’s Orders of the Court, virtually every single case dealing with the Second Amendment had certiorari denied. The only remaining case is Rodriguez v. San Jose which involves the confiscation of firearms from a non-prohibited person. (Last sentence is a correction from the original post)

With the exception of Rogers v. Grewal, a New Jersey carry case, all the other cases were denied certiorari without any comment or dissent. I don’t count the granting of permission to file an amicus brief and then denying cert as the Court did with Mance and Cheeseman as a comment.

The across the board denial of certiorari could mean a number of things. First, it could be a strategic move by Justices Thomas, Alito, Gorsuch, and Kavanaugh to not bring a case where they weren’t sure they had the vote of Chief Justice John Roberts. He seems more interested in his own legacy as it will be written by the Washington elite and liberal academia. The man has lost all semblance of a spine. You saw it with clarity in his decision in the ObamaCare case. Roberts either sees himself as the successor to Justice Kennedy’s man in the middle or has decided to go full-Souter.

Second, it could mean the more conservative justices are waiting until such time as Justice Ginsberg is off the Court in hopes that President Trump will appoint someone would vote to respect the Second Amendment. This, too, has risk as the presidential election appears to be a toss-up right now and Ginsberg keeps hanging on (and on and on) despite her health issues.

Third, a number of the justices find the Second Amendment “icky” and any attempt to go beyond Heller and McDonald is a bridge too far. Certainly the liberal four are in this camp and they are depending upon the lower courts to continue to emasculate those rulings. They consider the Second Amendment a second-class civil right.

Fourth, it means that the Roberts Court has no self-respect and doesn’t give a big rat’s ass if their rulings are roundly ignored by the lower courts. We all know that if it a lower court ignored a ruling on abortion or some other most favored “right”, the Court would have been all over it and swatted the lower court down like flies.

I will examine Justice Thomas’ dissent on the denial of certiorari in Rogers v Grewal in which Justice Kavanaugh joined in part in a subsequent blog post. There is a lot there. I do find it instructive that the only justice to actually face racial discrimination is the primary supporter on the Court of the Second Amendment.

SCOTUS Punts Most 2A Cases Again (Updated)

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.

2A Cases Still Alive

All 11 Second Amendment cases that are still pending before the Supreme Court have been redistributed for conference on Friday, May 15th.

Scroll through the embedded tweet to see all the cases.

Figuring out what the Supreme Court will do is like reading tea leaves. That said, I still think the SCOTUS will take one or more of these cases and hold the rest for remand based upon their final opinion.

All Existing 2A Cases Before SCOTUS Still Alive

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.

Technology, The Second Amendment, And Hong Kong

The pro-democracy protests in Hong Kong should be instructive for everyone in this country. You have a territory that was once a colony of Britain and is now essentially a vassal state of Red China. The people there have never been entirely free. While freer as a British colony, they were still ruled by edicts from London. Now as part of China with the “one country, two systems” policy, they are still ruled from afar. What they want is what we take for granted in the US – human rights, freedom, and democracy.

These protesters understand something that all the Democrats running for president, much of the media, and even too many Republicans don’t. That is the real purpose of the Second Amendment.

Anthony Wallace/AFP/Getty Images

They don’t plan to go duck hunting or deer hunting in Hong Kong. They fully understand the Second Amendment is what gives the people the power to change or overthrow a tyrannical government. While former presidential candidate Rep. Eric “Nuke’em” Swalwell is incredulous that people armed with mere small arms could take on a world power, one need only look to Afghanistan or to our former adversaries in Vietnam.

Modern technology gives the pro-democracy protesters a communication advantage that is hard to stop. They have found that Tinder can be used for more than hookups and that Poke’man Go isn’t just for my son-in-law to drive my daughter crazy.

Posting information about protests on Tinder is just one of several creative ways Hongkongers are using technology to mobilize people. For more than eight weeks now, technology has been at the center of organizing demonstrations against a controversial extradition bill.

People primarily communicated through Telegram groups and streamed their actions on gaming platform Twitch. As violence has escalated in recent weeks, though, police have been cracking down harder. So now protesters are resorting to more unorthodox methods of organizing and communicating online.

One of those methods, besides Tinder, is Pokémon Go.

When the Hong Kong police denied protesters permission to march in one of the city’s suburban neighborhoods on safety grounds, the protesters decided to say that they weren’t going for a march — they were just showing up for a game of Pokémon Go.

Rather than sneaking out messages like dissidents did using samizdat in the old Soviet Union, protesters are using Apple’s peer-to-peer AirDrop to pass on information to visitors from the rest of China. These visitors normally would only hear what the government allowed them to hear in China.

What makes AirDrop the ideal communication tool in this case is that it bypasses Chinese censors; news of protests in Hong Kong against the extradition bill have been blocked on popular social media platforms in China such as Weibo, WeChat and Baidu

I don’t know what will eventually happen in Hong Kong. Nonetheless, we in the United States should be paying attention. This is true especially now that you have media and technology giants controlling some much of what we see and hear. When you combine that with the statist nature of most politicians, right or left, it becomes an imperative that alternate voices are heard. You know like ones that ask the hard questions about the efficacy of background checks or red flag laws.

Dave Hardy’s Presentation At Second Amendment Symposium

Lincoln Memorial University’s Duncan School of Law held a Second Amendment Symposium on January 18th in Knoxville, Tennessee. I would have loved to attend this but I was leaving the next day for the SHOT Show. The symposium featured scholars who represented both the standard model and the collective rights model of the Second Amendment. Representing the standard  model were Clayton Cramer, Stephen Halbrook, David Kopel, and Dave Hardy. The representatives of the collective rights model were Carl Bogus and Robert Spitzer.

Dave Hardy’s presentation has been published to YouTube. While the audio isn’t the best, it is still worth listening to if you are interested in the history of the Second Amendment and what the Founding Fathers intended when they added it to the Bill of Rights.

Dave writes of his presentation:

The theme is that Second Amendment had two independent purposes; one does not control the other. The militia phrase is indeed militia-centric, and the right to arms clause is focused on an individual right. James Madison and the First Congress were trying to satisfy two different constituencies, one of which wanted to protect the militia, the other of which wanted to guarantee an individual right to arms. They chose to appeal to both. This means that the individual right guaranteed is not one only for militia use; they were two separate ideas, and one is not a restriction on the other, anymore than the First Amendment’s guarantee of a right to religious exercise means that its freedom of the press only protects books on theology.

 It will be interesting to read the papers that will come out of this symposium. I have an email in to the LMU Law Review asking when they will be published. I’ll update this when I get a response.