Supreme Court

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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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It Was A Big Day For Amicus Briefs

May 15, 2019 by

Monday and Tuesday were big days for amicus briefs in NY State Rifle & Pistol Association et al. v. City of New York. By my count, there were 25 briefs submitted pro and con but mostly in favor of NYSRPA. Obviously, when you have 25 briefs that is a lot of reading. I haven’t even begun to start.

In Favor of New York City

In Favor of Neither Petititioner

In Favor of NY State Rifle and Pistol Association

The counsels of record for the petititioners (NYSRPA) read like a who’s who of Second Amendment attorneys. You have Alan Gura, Stephen Halbrook, Dave Kopel, Don Kilmer, Stephen Stamboulieh, David Jensen, Dan Schmutter, Dave Hardy, and the list goes on. If you have been following Second Amendment law for the last 10-15 years you would have come across them one way or another.

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SCOTUS To New York City – Motion Denied

April 29, 2019 by

The City of New York had filed a motion to hold the briefing schedule in NY State Rifle and Pistol Association v. City of New York in abeyance. Their argument was that since the NYPD were proposing to modify regulations on transport for those with premises permits that the briefing schedule should be suspended. In other words, we say we are going to change the regulations in question which might moot the case so don’t make us go to all the work necessary to respond to the plaintiffs.

In the orders issued by the Supreme Court today, their motion was denied.

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


The motion of respondents to hold the briefing schedule in
abeyance is denied.

Paul Clement is the attorney of record for the NY State Rifle & Pistol Association and opposed this motion to hold briefing in abeyance. He said that “a stay is neither necessary nor appropriate” and then went to note the case was over six years old.

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NYC Blinks. Unfortunately

April 15, 2019 by 3 Comments

When the Supreme Court surprised us by granting certiorari in NY State Rifle & Pistol Association v. City of New York et al, those of us in the pro-rights community rejoiced. This would be the first major Second Amendment case involving firearms accepted for cert since McDonald v. Chicago. A number of states as well as a number of gun rights organizations filed amicus briefs urging the Court to accept the case. As issue in the case was a New York City law that forbid those with handgun licenses from traveling outside the city limits with their handguns. They were only allowed to transport their handgun to one of seven licensed ranges within the city.

It was felt that this case might be used to establish both the right to carry outside the home and to set the standard that should be used in Second Amendment cases. David Kopel said the case offered the opportunity to “to begin reining in lower court nullification of the Supreme Court’s precedents in District of Columbia v. Heller and McDonald v. City of Chicago.” Brian Doherty writing in Reason noted that the Second Circuit “believed that the constitutional right to keep and bear arms pretty much only counts in the home, and thus these transport laws do not harm its core purpose.” He went on to say the many American believe their right to self defense does not end when they step out the door of their home.

At the end of March I noted an op-ed by Ladd Everitt, Director of George Takai’s gun control organization One Pulse for America, which urged the City of New York and the NYPD to change the law forbidding transport. I postulated that the gun control lobby was getting a bit nervous by this case and wanted the city to do what it took to moot the case. While I don’t think Everitt’s op-ed would case the City of New York to reevaluate its law, I’m sure some heavy hitters among the gun prohibitionists getting on-board this bandwagon would.

Michael Bloomberg’s wholly funded mouthpiece, The Trace, ran a story on Monday on the case and by Friday the City of New York had filed a motion with the Supreme Court advising them that the NYPD was engaging in a proposed rulemaking that would moot the case.

From the city’s attorney:

The Court granted the petition for a
writ of certiorari in this case on January 22, 2019, and petitioners’ merits brief is
currently due on May 7, 2019.


I write to advise the Court of a proposed rulemaking. If adopted in
accordance with established procedures, the proposed rule would render this case
moot before the parties complete the merits briefing in this case. For this reason, I
also write to request that the Court stay the current briefing schedule pending final
action on the proposed rule.

The proposed rule would allow residents with a premises permit for their handgun to transport them, unloaded, in a locked container, with the ammo in a separate container to:

  • Another premises of the licensee where the licensee is authorized to
    have and possess a handgun;
  • A small-arms range/shooting club authorized by law to operate as
    such, whether located within or outside New York City; and
  • A shooting competition at which the licensee may possess the handgun
    consistent with the law applicable at the place of the competition.

The NRA-ILA released a statement calling the move, in essence, a sham.

“The City of New York clearly knows that its current restrictions on the carrying and transportation of lawfully owned firearms are unconstitutional and will fail under any standard of constitutional review, as the NRA has been saying for years. Today, it asked the U.S. Supreme Court to ignore the Constitution and allow the City to slow walk a narrow expansion of its current policy through a lengthy bureaucratic process — the result of which, even if adopted, would still unduly infringe upon the fundamental, individual right to keep and bear arms under the Second Amendment. That is not how things work in the Supreme Court; the Court does not put its review on hold while the government embarks on a journey that at best might fix only a limited part of the constitutional defect. This is nothing more than a naked attempt by New York City to resist Supreme Court review of policies that even New York must recognize as inconsistent with the holdings in District of Columbia v. Heller and McDonald v. City of Chicago. The City of New York did not respect its citizens’ Second Amendment rights before the Supreme Court granted review in this case and it will not respect them going forward. We are confident that the Court will reject New York’s desperate attempt to avoid review of its blatantly unconstitutional laws.”

 I’m not sure the NRA is correct in being confident that the Supreme Court will reject New York City’s request to hold off on briefing the case. Given the chance to avoid the issue, I think the Supreme Court as led by Chief Justice Roberts may do just that. They have had many other opportunities to take another Second Amendment case and have punted.

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Remington Plans To Appeal Connecticut Supreme Court Ruling To SCOTUS

April 9, 2019 by

The Connecticut Supreme Court ruled on March 14th that the Protection of Lawful Commerce in Arms Act did not protect Remington and its fellow defendants in a case brought by families of some of the Newtown murder victims. The split decision allowed the case to go back to the trial court level for adjudication. Given the strong dissent in the case and the way the majority made up a rationale out of whole cloth to support their decision, it was only a matter of time before an appeal was filed with the United States Supreme Court.

Remington filed a motion with the Connecticut Supreme Court yesterday requesting a stay in the decision as they plan to appeal to the SCOTUS.

Remington is filing a Petition for Certiorari in the United States Supreme Court in
accordance with the applicable Rules of the United States Supreme Court. The basis
for jurisdiction in the Supreme Court is this Court’s decision on an important federal
question that conflicts with a decision of a United States court of appeals. U.S. Sup. Ct.
R. 10. Specifically, Remington will ask the United States Supreme Court to consider
and decide whether CUTPA is the type of statute Congress intended to serve as a “predicate statute” under § 7903(5)(A)(iii) of the PLCAA, a violation of which may
deprive firearm manufacturers and sellers threshold immunity against being sued. See
15 U.S.C. § 7902(a) (“A qualified civil liability action may not be brought in any Federal
or State court.”). As this Court recognized, “courts that have construed the predicate
exception are divided” on whether Congress intended for violation of statutes, like
CUTPA, to serve as an exception to PLCAA immunity. Soto, 331 Conn. at 136.

The motion goes on to give a legal rationale for the issuance of a stay.

The Court should stay proceedings pending the United States Supreme Court’s
decision to either deny Remington’s Petition for Certiorari or its decision on the merits of
the case. Practice Book § 71-7 provides:

When a case has gone to judgment in the state Supreme Court and
a party to the action wishes to obtain a stay of execution pending a
decision in the case by the United States Supreme Court, that party
shall, within twenty days of the judgment, file a motion for stay with
the appellate clerk directed to the state Supreme Court. The filing of
the motion shall operate as a stay pending the state Supreme
Court’s decision thereon.

If proceedings are not stayed and Remington is required to undergo the costly
and time-consuming burdens of litigation, including further discovery, motion practice
and possibly trial, it will irreparably lose the intended benefit of threshold PLCAA
immunity from suit. The United States Supreme Court has consistently recognized that
“[u]ntil … threshold immunity is resolved, discovery should not be allowed.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).

According to the Associated Press, Remington has until June to file the actual petition for a writ of certiorari. The same article quotes the attorney for the plaintiffs as saying, “is a matter of law for the state of Connecticut.” Given that the case revolved around the supremacy of Federal law in what is arguably a Federal matter, this is a case that should be heard by the SCOTUS. That is, if they want to preserve the intent of Congress and the Supremacy Clause of the US Constitution.

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Bumpstocks Didn’t Get Stay – What To Do Now

April 8, 2019 by 3 Comments

This past Friday the US Supreme Court denied the plaintiffs in Guedes et al v. BATFE and Codrea v. Barr a stay in the bump stock ban rule and referred the request back to the Circuit Court for the DC Circuit.

18A1019 GUEDES, DAMIEN, ET AL. V. BUREAU OF ALCOHOL, ET AL.


The application for stay, presented to The Chief Justice
and by him referred to the Court, is denied.


Applicants request that if we deny this application we
grant a limited stay of 120 hours to allow them to come into
compliance with the Final Rule. We refer the issue of such a
stay to the D.C. Circuit for its consideration.


Justice Thomas and Justice Gorsuch would grant the
application.

So where does this leave the case now?

The Firearms Policy Foundation released a statement by email along with the response of the Circuit Court on Sunday evening. If you do have a bump stock and are a member of one of the organizations such as Florida Carry or the Firearms Policy Foundation, you have until 5pm, Wednesday, April 10, 2019 to legally turn it in.

From FPF:

On Friday, the Supreme Court denied our legal team’s request
for a stay (i.e., postponement) of the ATF’s Final
Rule re-classifying “bump-stock-type” devices as illegal
machineguns while we continue to litigate the various claims we raised
in our lawsuit and in the other consolidated cases. The D.C. Circuit
subsequently ordered the following:

PER CURIAM ORDER [1781463] filed that,
based on the government’s representation that it will not enforce the
Bump-Stock Rule against the named plaintiffs or their bona fide
members before 5:00 p.m. on Wednesday, April 10, 2019, the emergency
joint motion to extend stay order [1781365-2] be denied and the
administrative stay entered on March 23, 2019, and clarified on March
25, 2019, be dissolved. The Clerk is directed to issue the mandate
forthwith. Before Judges: Henderson, Srinivasan and Millett. [19-5042,
19-5044]



The Government (DOJ/ATF) has agreed to allow the individual
plaintiffs in Guedes, et al. v. BATFE, et al. and the
organizational plaintiffs’ – i.e., Firearms Policy Foundation, Florida
Carry, Inc., and Madison Society Foundation, Inc. — bona fide members
(as well as the individuals in the consolidated Codrea, et
al. action) to come into compliance with the new Final Rule by
5p.m. on Wednesday, April 10, 2019. The Government also represented
that it “will also retain the bump stocks” that are provided to them
in compliance efforts until our legal action is completely
concluded.


Friday’s Supreme Court decision to deny the stay we requested was
disappointing but not entirely unexpected. But importantly, there is
much litigation left before the cases are disposed of. Our team is
currently working on a petition for en banc rehearing by the
full D.C. Circuit. And we are prepared, if need be, to petition the
U.S. Supreme Court for a writ of certiorari (review).


We maintain that the Government’s new rule is unconstitutional and
unlawful. And we will continue to aggressively litigate this case and
work to defend American gun owners from this unlawful ban mandated
by President Donald Trump. Updates will continue to be posted to our
BumpstockCase.com
case webpage.


In an abundance of caution, we wanted to make you aware of how the
Final Rule could affect owners of affected devices. As set forth in
the Final
Rule, 83 Fed.Reg. 66530, and according
to the ATF, a bump-stock-type device owner’s options are:


1) Destroy the bump-stock device according to the ATF’s published
“Bump
Stock Destruction Instructions”; or,


2) Surrender it/them to the “nearest” ATF office. (ATF advises that
it is best to make an appointment beforehand with the nearest ATF
office.) You can find your local ATF field office and their phone
number at https://www.atf.gov/contact/local-atf-offices.


Non-compliance with the ATF’s Final Rule (i.e., continued
possession of a bump-stock-type device) could lead to serious criminal
liability. Individuals (or a company/organization) who
maintain possession of an affected device can be prosecuted for
unlawful possession of a putative machinegun, where he/she/they can be
imprisoned for up to 10 years and fined up to $250,000 (or more in
some cases) per violation.


Chief Counsel Joshua Prince of Firearms Industry Consulting Group,
a division of Civil Rights Defense Firm, P.C., who is representing
Firearms Policy Foundation and numerous other plaintiffs in
Guedes, et al. v. BATFE, et al., has suggested that
individuals who wish to comply with the ATF’s Final Rule by
surrendering their device to the ATF do so under protest.


As you may be aware, both ATF’s
website relating to bump-stock devices and the Final
Rule, 83 Fed.Reg. 66530, declare that “current possessors also
have the option to abandon bump-stock-type devices at the nearest ATF
office.” In spite of that, however, some reports
(and our own experience) suggest that not all ATF local offices are
accepting bump-stock devices. Thus, you should call the local ATF
office before you travel there to confirm that they are, indeed,
accepting affected devices.


If they are accepting such devices, then make them aware that you
intend to visit their office to surrender your bump-stock device(s)
under protest and inquire as to whether they have any specific
procedures for your entry into the building.


Before you go, you will want to take pictures of your bump-stock
device(s), in case there is ever a question as to the condition, make,
and model of it/them. And you should also consider preparing a letter,
such as the Sample Letter provided below, to advise the ATF that you
are providing them your bump-stock device(s) under protest.


When you go, provide the ATF agent handling your matter with a copy
of the letter and demand that they provide you with a property receipt
that reflects their receipt of your bump-stock device(s) and specifies
the make and model of the device(s). Be aware that they may attempt to
have you sign an ATF 3400.1 Form – Consent to Forfeiture or
Destruction of Property and Waiver of Notice – which you
should NOT sign under ANY circumstance. In the event that
they ask you to sign an ATF 3400.1, inform them that the
only ATF form you are willing to sign is an
ATF 3400.23 – Receipt of Property and Other Items. If they argue at
all with you, politely tell them to review the internal memo that ATF
circulated regarding the right of individuals to surrender
bump-stock-type devices under protest and those individual’s right to
refuse to sign an ATF 3400.1 form.


It would also be prudent to separately document your experience of
the encounter in writing – such as the date and time of your visit,
the location of the ATF office you went to, the names or other
identifying information (ID #, etc.) of all ATF agents or persons you
spoke with, the details of all discussions, and any other information
they told or provided you – and keep it in a safe place.


You can also let our team know if the ATF in any way refuses or
rejects your attempt to comply with the Final Rule. You can submit a
report of your issue to hotline@fpchq.org and/or contact
your attorney for specific legal advice.


In the event that ATF elects to institute a forfeiture action
against your property, they are required to serve you with a copy. If
that happens, you should immediately contact an attorney, preferably
one who specializes in federal firearms law, if you wish to challenge
ATF’s ability to forfeit your property. Again, you can submit a report
of your issue to hotline@fpchq.org, but always
contact your attorney for specific legal advice.


Again, we will continue to aggressively litigate this case and work
to defend American gun owners from this unlawful and unconstitutional
ban.


If you are able, please help support this important lawsuit and our
fight for your rights by making a tax-deductible donation at FightATF.com.

NOTE: This message and its contents are intended to provide
general information only. It is not intended to provide legal advice.
You should always contact your attorney if you want or need specific
legal advice. 

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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.

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A Sign Of Things To Come?

February 20, 2019 by 5 Comments

Rogers et al v. Gurbir Grewal et al is a case from New Jersey that is a challenge to the state’s may-issue concealed carry law. It is currently on appeal to the Supreme Court seeking a writ of certiorari after the Third Circuit said New Jersey’s law met intermediate scrutiny.

In late January, the attorneys for New Jersey filed a waiver saying they didn’t intended to file a response to the petition for a writ of certiorari by Thomas Rogers and the New Jersey Association of Rifle and Pistol Clubs. This could be taken as a sign that New Jersey fully expected the Supreme Court to summarily deny the petition for a writ of certiorari.

As Guns.com reported earlier today, the Supreme Court has now issued an order requiring New Jersey to file a response by March 21st.

The Association of New Jersey Rifle and Pistol Clubs issued a release yesterday that said, in part:

Today, the U.S. Supreme Court required the State of New Jersey to file a brief in response to ANJRPC’s petition asking the High Court to hear its challenge to NJ’s carry laws. Under the Supreme Court’s order, the State of New Jersey is required to file papers by March 21, arguing why the High Court should not agree to hear ANJRPC’s appeal. NJ had previously ignored the appeal.


While the move is not a guarantee that the Supreme Court will agree to hear the appeal, the fact that the court is requiring NJ to take a position on ANJRPC’s request is significant, and signals that the court is not willing to take any action without first hearing from both sides.

The case has attracted a number of amicus briefs on behalf of Rogers and ANJRPC. These include briefs from the National African American Gun Association,  a number of law enforcement groups and state gun associations, the Second Amendment Foundation, the National Rifle Association, and the American Civil Rights Union. There is also an amicus brief in support of Rogers from the attorney generals and governors of 24 states which was organized by Arizona Attorney General Mark Brnovich.

As the petition for the writ notes, Mr. Rogers met all the requirements for a carry permit from the state of New Jersey with the exception of showing a direct threat to his life. He has been robbed at gun point and manages an ATM service company which, by definition, involves large amounts of cash. Police in Wall Township, NJ agreed he met the training eligibility requirements but “he failed to show Justifiable Need.”

One can only hope that this move by the Supreme Court is a positive sign and that they will finally take up a carry case. This is especially true as there are diverging opinions between the circuits as well as a divergence in the proper level of scrutiny.