Second Amendment

Overview of Oral Arguments in NYS Rifle and Pistol Association v. City of New York

The Court will likely dismiss the case as moot. But how? Through a quick, unsigned DIG? Or through a signed, divided opinion in June?

|The Volokh Conspiracy |

Yesterday, the Supreme Court heard oral argument in NYS Rifle and Pistol Association v. City of New York. Certiorari was granted in February 2019. After the grant, New York City repealed the challenged provisions of the premise license law. Subsequently, New York State enacted a law that made it impossible for New York City to reenact the challenged provisions. I discuss the background of this case in a Federalist Society SCOTUSBrief video.

Prior to oral argument, I predicted that the Supreme Court would dismiss the case as moot. My prediction has not changed after reading the transcript.

No "Collateral Consequences"

Chief Justice Roberts will likely cast the deciding vote. He did not ask any questions of Paul Clement, who represented the plaintiffs, or of Deputy Solicitor General Jeff Wall. He asked a few questions of Richard Dearing, who represented New York City.

First, Roberts asked if "there [is] any way in which any violation" of the repealed ordinance in the past "could prejudice a gun owner" in the future? Dearing replied, "Not that I can think of. The city is committed to to closing the book on that old rule and we're not going to take it into effect." Second, Roberts followed up, and asked, "Is there any way in which a finding of mootness would prejudice further options available to the Petitioners in this case, for example, seeking damages?" Dearing didn't think so. He stated that the Plaintiffs "never made any allegations related to damages" prior to the grant of certiorari. Dearing also stated that the Plaintiffs had never asserted that "past violations" could prejudice them in the future.

At that point, Justice Gorsuch interjected. He asked if there would be any "collateral consequences to anyone for violating the city's prior ban, any kind of collateral consequences." Dearing replied that there wouldn't be.

Chief Justice Roberts asked one final question. Would anyone be "prejudiced in any way, for example, with respect to qualifying for a  premises license under the new law" based on violating the old law." That is, would violating the old law justify the denial of a new license?  Dearing replied that no would be prejudiced. Roberts asked no further questions.

This representation reminded me of a similar colloquy from NFIB v. Sebelius. Solicitor General Verrilli represented that there were no "collateral consequences" for going uninsured. From pp. 179-180 of Unprecedented:

But if there was no mandate, what would happen if a person failed to purchase insurance? Justice Sotomayor asked the solicitor general whether there was any "collateral consequence for the failure to buy" health insurance—that is, would there be any criminal penalties for not buying insurance? The solicitor general responded, emphatically, "No." The only consequence would be that the person would have to pay a tax. . . .

Verrilli then offered an important "representation" to the Court on how the Obama administration viewed the law. This representation proved pivotal. The "only consequence" of not having health insurance was the "tax penalty." Verrilli noted that the government "made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the Treasury Department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty." In other words, there was no mandate or legal requirement to buy insurance, despite the statute stating that there was such a requirement.

Roberts's saving construction in NFIB relied on this representation:

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26,2012).

I think New York persuaded the Chief that there are no possible "collateral consequences" for past violations, and this controversy is no longer live. Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed to agree with New York. There are at least five votes for this position. What about the newest member of the Court? Justice Kavanaugh was silent. He did not say a word.

DIG or Decide?

If a majority of the Court agrees that the case is moot, there are two options going forward. First, the Court could simply dismiss the petition as improvidently granted at the December 6, 2019 conference. (This move is known as a DIG.) We would learn of the dismissal with the next release of orders, probably on December 9, 2019. These sorts of dismissals are unsigned. Justices can register their dissents from the DIG.

The upshot of this approach is that the Court could add another Second Amendment case to its docket, with an argument scheduled for March or April. Indeed, there are many gun cases that are fully briefed, that have been hanging in SCOTUS purgatory for months. There was obviously some appetite to weigh in on the Second Amendment, after nearly a decade of silence following McDonald v. Chicago. A quick DIG would allow the Justices to address another live case now.

Second, the Court could issue a signed opinion to explain why the controversy is moot. That decision would take some time to prepare, and would likely occasion a written dissent. The Court's mootness doctrine is quite muddled. Perhaps the Court could clean up the doctrine. However, this case is a terrible vehicle. The facts of this case are so unique. I'm not sure these specific conditions–the City repealed the ordinance, and the State prevented its re-enactment–would ever recur.

Mooting the Case

I can see one or more possible dissents. Justice Gorsuch seemed to accept Dearing's representation about the lack of collateral consequences. But on three occasions, he asked if there was some "delta" (that is, difference) between the relief the plaintiffs currently have, and the relief that could be awarded with a permanent injunction. Gorsuch may go along with the Chief here. Though, he was far more cynical about New York's post-certiorari strategy. He chastised the City's "herculean, late-breaking efforts to moot the case." Clement twice used the phrase "post-certiorari maneuvers." Wall used the term "post-grant maneuvering."

Justice Alito was, by far, the most critical of New York's strategy. He suggested that it is unfair to hold the Plaintiffs to a precise pleading standard, and demand "specific allegations in the complaint to defeat a claim of mootness that the plaintiffs had no reason whatsoever to anticipate until after we granted certiorari and the city decided to try to moot this case." He added "how could any plaintiff possibly have anticipated" they would need to seek damages "until you took the quite extraordinary step of trying to moot the case after we granted review?

Dearing replied, that the New York "state legislature has passed a new State law here," not New York City. Alito interjected, "Yeah. And did the city have nothing to do with the enactment of that law?" Dearing said that the City "supported the law," but there was nothing nefarious about this support. The new law was "a good thing, not a bad one. The government should respond to litigation, should assess its laws or other -or political subdivisions' laws when they are challenged." Dearing made a similar point earlier: "it's a good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." Justice Breyer likewise found New York's strategy was praiseworthy: "I don't think it's bad when people who have an argument settle their argument."

Text and History

There were a few colloquies about the merits. Paul Clement made a broader point of how the lower courts have approached the Second Amendment. He explained that the lower-courts have only used history to uphold laws; not to declare them unconstitutional:

The way the lower courts have interpreted Heller is like text, history, and tradition is a one-way ratchet.

If text, history, and tradition sort of allow this practice, then they'll uphold the law. But if text, history, and tradition are to the contrary, then the courts proceed to a watered-down form of scrutiny that's heightened in name only.

And I think this Court should reaffirm that text, history, and tradition essentially is the test and can be administered in a way that provides real protection for Second Amendment rights.

Jeff Wall presented a similar argument:

If I could turn to the merits for just a minute, I think all that the Petitioners are asking for, and it's a fairly modest ask, is for the Court to reiterate what it said in Heller, that the lower courts have been correct in starting with text and history and tradition, but they have created, as Mr. Clement said, this sort of asymmetry where they find that history and tradition can give a thumbs up to a law but not a thumbs down.

Justice Sotomayor was extremely skeptical about the Plaintiff's historical-based approach. She stated that the Court does not use such a framework in the First Amendment context:

In what other area, constitutional area, the First Amendment in particular, have we decided any case based solely on text, history, and tradition?

This seems sort of a made-up new standard. And I thought Heller was very careful to say we don't do that. We treat it like any other constitutional provision. And if I analogize this to the First Amendment, which is what Heller suggested we should do, this seems to me to be a time, place, and manner restriction. It may not pass any of the standards of scrutiny, but, if you're looking at a First Amendment right to speak, it's never absolute. There are some words that are not protected. We're going to have a different fight about that at some point. Or there are some weapons that are not protected, just like there might be some words that are not protected.

The emphasized sentences look like an aside about future battles to come. We can speculate about what "words" she is talking about. Justice Sotomayor's Iancu v. Brunetti dissent suggested that "one particularly egregious racial epithet" should not be protected by the First Amendment.

She continued:

We know under the First Amendment that there are time, place, and manner restrictions that a government can impose on the basis of safety and other things. On the basis of safety, you can't have a demonstration at will. You need a permit, and you have to have certain equipment and certain protections and certain things.

So, if I treat it in that way, we might have a fight about whether text, history, and tradition permits a time, manner, and place restriction of this type, but I don't know why that's a free-standing test.

Jeff Wall replied:

I understand the requirement that you carry the gun unloaded or that you do it in a locked container. But a ban is not a time, place, or manner restriction. And in determining which category it falls into and what's permissible, Heller said you start with text, history, and tradition.

And the Court commonly does that, even under the First Amendment with respect to categories, the Fourth Amendment for a search, the Seventh Amendment for the jury trial right. Heller just says you start here. And starting here, I think this is a straightforward case. There is no historical analogue and a contrary tradition.

Scrutiny

Justice Alito asked Dearing how the Court should review gun control laws.

JUSTICE ALITO: Well, how should -what methodology should the courts use in approaching Second Amendment questions?

If they conclude that text and history protect a --the text and history of the Second Amendment protect a particular activity, is that the end of the question or do they then go on and apply some level of scrutiny?

Dearing replied that history plays some role in the inquiry:

MR. DEARING: I think --I think, first, we look --we look to history and determine whether history answers the question one way or the other, whether it's constitutional or unconstitutional. . . .And in a significant number of cases, history will not speak with one voice or conclusively on that subject and then the right step is to move on to an assessment of justification and fit under a means and scrutiny approach.

Justice Alito also seemed to suggest that the now-repealed law was completely irrational, because it never actually promoted public safety:

JUSTICE ALITO: Mr. Dearing, are the --are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?

MR. DEARING: We --we --no, I don't think so. We made a judgment expressed by our police commissioner that --that it was consistent with public safety to repeal the prior rule and to move forward without it.

JUSTICE ALITO: Well, if they're not less safe, then what possible justification could there have been for the old rule, which you have abandoned? …

JUSTICE ALITO: So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?

I don't expect the Court to address the merits. Justice Breyer, if he is so inclined, may perpetually dissent from Heller. At one point, Dearing described Heller. Breyer said that he still did not agree:

MR. DEARING: If history conclusively shows that the restriction is impermissible, then I --I think --as in Heller, Heller is an example of that phenomenon. Heller determined without consulting means and scrutiny, that the --that the law in question sort of went to the core of and destroyed, in essence, the -the --the --the Second Amendment right and, therefore, was --and more severe than any -any historical, any analogous or prior law and its degree of burden on the Second Amendment -

JUSTICE BREYER: No -

MR. DEARING: --right.

JUSTICE BREYER: --you're supposed to do there, because you're correctly stating the views of some judges.

MR. DEARING: Right.

JUSTICE BREYER: And some judges had an opposite view.

MR. DEARING: I'm aware --I'm aware of that, that's correct.

(Laughter.)

Staten Island

My hometown of Staten Island was also referenced several times:

JUSTICE ALITO: Why will they have to work harder? Somebody who lives in midtown is stopped and --with a gun and the officer says, where are you going? I'm going to a firing range in Jersey City, which is right across the river.

That's tougher than, I'm going to a firing range in Staten Island. And I think three of your seven ranges are in Staten Island; am I right?

MR. DEARING: Two --two are in Staten Island. JUSTICE ALITO: Two are in Staten Island?

MR. DEARING: I think it is a little bit tougher but of course the --the person may not say Jersey City either.

JUSTICE ALITO: All right. How about somebody who lives in the north Bronx says, I'm going across the border to Westchester County. That's tougher for you to --to look into than,

yes, I'm going all the way to Staten Island?

MR. DEARING: Well, still the --still what happens in Staten Island is within the Police Department's jurisdiction.

Growing up, I was not even aware Staten Island had any shooting ranges.

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  1. There are some words that are not protected. We’re going to have a different fight about that at some point.

    As a general rule, if you’re hostile to the 2nd amendment, you’re hostile to the 1st. You might have some instrumental use for it at times, but as an actual right, capable of being invoked against a “good” cause? You’ll be hostile to it.

    My take is that we have 4 justices, (Maybe 3.5 at this point, it’s the flip of a coin whether RBG shows up on any given day.) who are going to vote to up hold basically any law hostile to gun rights. Though some of them don’t want to be open about it.

    And we have 4 justices who might be on board with upholding the 2nd amendment in a strong sense, as a real, first class civil liberty deserving of full enforcement. Though maybe only 1 open to enforcing it in it’s full, “every terrible implement of the soldier” glory; They’re not going to re-legalize machine guns, for instance.

    Then we’ve got Roberts, who isn’t particularly hostile to the 2nd amendment, but who really does not want protesters camping out on his lawn.

    So, yeah, if the 4 ‘liberals’ are willing to settle for mooting the case, Roberts is probably their man. If they insist on a ruling that actively attacks the 2nd amendment, Roberts *might* join the pro-2nd faction.

    But I’m betting on moot.

    1. The case is clearly moot.

      Honestly, while Alito is right that the Second Amendment should be adjudicated according to text and history (you and I probably differ as to what that means), he’s an embarrassment on the mootness question. Basically some conservatives love this case because it allows them to seek a right to bear arms on favorable ground- who could be against transporting your weapon to the firing range so that you can legally and responsibly practice shooting at targets, not human beings? So there’s a desperation to save this case, because they know the next “bear arms” case might involve an activity that is less sympathetic.

      But mootness is mootness. The principles are pretty neutral, and if the state didn’t moot the case here, literally nothing can moot a case, and we are in the realm of advisory opinions prohibited by Article III.

      1. Is the case moot, or, is this a case that is, “capable of repetition, yet evading review.” Tis not the first time gun control advocates have abdicated extreme positions when their cases crept upwards towards an eventual SCOTUS decision. That does not prevent them from imagining some new, slightly different, yet similarly oppressive burden on the right to bear arms.

        1. It won’t evade review on repetition, though. That’s when this exception would kick in – not as a prior restraint based on unbriefed evidence.

          1. Please just admit that the left will pass the most restrictive laws the judiciary allows them to. New York City, California, and Washington D.C. are great examples. If this case is mooted, then the Circuit Courts, including the 2nd where this decision originated, are back to their two-step “rational basis dishonestly described as intermediate scrutiny” garbage.

        2. How would it evade review? If someone passes this statute again, there will be no evasion of review unless it is repealed again.

          “Capable of repetition yet evading review” is about things like a pregnancy where there’s a time limit.

          1. Because they won’t pass the same law, just like women don’t get pregnant with the same child.

            The reason not to moot this case is because its an opportunity to draw clear lines for the lower courts who have been consistently frustrated by the overreach-then-abdicte tactic on this issue.

            1. Think about it some more. Pregnancy has one pretty big difference from laws.

              its an opportunity to draw clear lines for the lower courts
              This is literally an advisory opinion. American courts do not and have never done that.

      2. The case is not moot

        JUSTICE ALITO: So then why is this case moot? Because they didn’t get all that they wanted. They wanted a declaration that the old law was unconstitutional, period.
        And what they have obtained as a result of the new city ordinance and the new state law is a rule that says, yes, you can take the firearm to a firing range outside of New York City, but it must be a direct trip.
        It can’t include an hour spent with your mother.

        Roberts knows NYC is gaming the SC. If he has ANY desire for the SC to not be held to be a joke, he will go with reality, and the other four honest justices, and strike down the law.

        1. Alito is way ahead of his skis here. Mootness isn’t a remedies doctrine – parties getting what they want has nothing to do with it.

        2. If I gave Alito’s reasoning reasoning as to why it’s not moot on a federal courts exam….I would have lost a lot of points.

          1. The issue is pleadings more than mootness. The law is still very objectionable to the plaintiffs’. The problem is that it is not the law that they were suing over. But, the NY State legislature changed the law after the case had gone all the way through the appeals process and the Supreme Court granted cert.

            The state did this specifically so that they could claim the case was moot because the plaintiffs’ original pleadings were not specific enough to this new law. The State expects the plaintiffs to go and file an entirely new case about this new law, which it will then change if and when the case ever gets back before the court; wash, rinse and repeat.

            In the meantime a clearly unconstitutional burden on the right to bear arms remains in place while the state plays games with the court. To give an anology to this situation, imagine if a state enacted a law that said no newspaper could be printed without government approval of its content. Clearly that is a violation of the 1st Amendment. Then when someone takes the case to court, the state appeals the case and before a final ruling can be entered it changes the law to say “you can print newspapers without state approval of their content but only if it relates to sports, all political content still must be approved”. Is that case moot? By the state of New York’s logic and your logic it is. But, since we are at appeal, the plaintiffs can’t amend their pleadings to cover the new law, so they have to start all over again.

            It is a complete abuse of the mootness doctrine to allow the State of New York to get away with this.

            1. The law doesn’t exist anymore. Even assuming the State acted to avoid an adverse ruling (as safe assumption imo) there is no longer a case or controversy over an actual thing.

              Alito is angling for an advisory opinion with an untethered remedy.

              Wait to see if the state is playing games and tries to re-pass a law like this before you start with the strong medicine of prior restraint.

              1. is the second law sufficiently different from the first to create a new case or controversy? I don’t see how it is. Both laws put restrictions of the same character on the right to bear arms. It is just that the second is slightly less restrictive. The legal issues at play and the facts are exactly the same. It is the same case.

                What if the case involved a contract dispute over the sale of a house. The pleadings said “the brown house located at 99 Walnut Street”. Then before it got to the appellate court, the house was painted and was now red. Is it a new case or controversy? The house is now red not brown. The pleadings are wrong. No it wouldn’t be. And the reason is that there is a minimal level of factual changes to a case necessary for it to become a new case or controversy.

                This case is closer to that level than the brown house case. But, I don’t think it meets it nonetheless. If the law really were different rather than making a few minimal changes, I would agree that it was. But it isn’t. It is the same law just in a slightly altered form. They repainted the house in metaphorical terms.

                1. In that it is in existence, it’d be pretty different.

                  You are assuming a new law has been passed. It has not been. Wait for that, then we can talk.

                  1. So when Alabama passes a law prohibiting abortions, and because of political collusion to place sympathetic federal judges in place it doesn’t get enjoined, when it reaches the Supreme Court and the state replaces that law with another saying no abortions except on Sundays it would have to go back to the beginning?

            2. The issue is pleadings more than mootness. The law is still very objectionable to the plaintiffs’. The problem is that it is not the law that they were suing over. But, the NY State legislature changed the law after the case had gone all the way through the appeals process and the Supreme Court granted cert.

              Which, the state has the authority to do.

              Now if there’s something else that the plaintiffs still claim is unconstitutional, they can bring another suit and challenge that law.

            3. New York City has always promoted more restrictive laws on guns than New York State; even though the Sullivan Act of 1911 is supposedly a state law, the way it is enforced in NYC is way diff from the way it is enforced in NY State outside NYC. NYC has long refused to recognize handgun carry permits issued by NY State. Why would anyone expect NYC to honestly respect a NY State law restricting NYC’s power to over-regulate legal gun ownership? You would have to ignore the history of NYC gun law.

              1. Or, you know, never have had that case made or evidence entered on it during these proceedings.

                Maybe you’re right, maybe you’re not. But until a court decides on that matter, making a decision based on it would be pretty poor process, no?

                1. Right, and then if we win in court, assuming it rules in good faith, we’ll be back to square one after the city changes it slightly.

                  You know full well they’re acting in bad faith, but you dismiss it because you support what’s being done. In other words, fook off slaver.

                  1. I don’t know that, and neither do you.

                    Even if there were evidence of bad faith, and even if that had anything to do with mootness, if it’s not in the judicial record it doesn’t count for this case.
                    Attorneys need to bring these arguments in from the beginning; judges can’t just go beyond the brief and make rulings based on whatever they want.
                    You can see why that needs to be the case, right?

        3. “Because they didn’t get all that they wanted. They wanted a declaration that the old law was unconstitutional, period.”

          More precisely, they wanted an order protecting the plaintiff’s ability to exercise his rights in the future. He’s entitled to it if he can show that the state will likely attempt to do so.

          And the fact that the state went out of it’s way to try to moot the case in order to avoid such an order shows that the state would like to engage in such conduct in the future.

          1. The point of contention was New York City’s restrictions on legal handgun owners, not New York State’s laws.

            The attempt to moot the case shows (to me at least) that New York city and state fear that the Sullivan Act 1911 will be found unconstitutional if the right challenge is raised by the right plaintiff.

      3. “who could be against transporting your weapon to the firing range so that you can legally and responsibly practice shooting at targets, not human beings?”

        Well, obviously the legislature in NYC could be.

      4. Mootness, and whether or not something is clearly moot when brought before the Supreme Court is an interesting discussion.

        One of the Supreme Court’s most famous cases, Roe v Wade, potentially should’ve been dismissed due to mootness. The injury at discussion….the inability for Roe to get an abortion for her pregnancy….was clearly moot at the time of the argument, as her pregnancy was over, long ago.

        Now what New York has done here is interesting. They’ve clearly changed the law…as narrowly as possible….and just because the case went to review at the Supreme Court. This line by Alito is key. “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” At the least, it implies that the state of New York lied when defending the law in the Circuit Court.

        More generally, SCOTUS should not dismiss for mootness. The issues the SCOTUS addresses are typically beyond a single narrow case, and the court rulings affect a broader swath of society. It’s why the SCOTUS takes the cases it does in the first place. This narrow changing of a law AFTER it goes to review essentially seeks to dodge the SCOTUS, and the broader implications. It’s as if, when Roe v Wade went to trial, Texas changed the law, narrowly allowing just Roe to have an abortion. Then claimed the case was moot, so should be dismissed.

        1. Roe really is capable of repetition, yet evading review.

          There is nothing equivalent to a pregnancy with a time limit in this case.

          1. This case is clearly evading review, with the change in law.

            And the question is, are there similar laws which repeat the constitutional damages. And yes, there are.

            1. Evasion of review because the statute gets repealed is not what the doctrine deals with.

              In Roe, the abortion restrictions remained in effect to restrict the next pregnant woman.

      5. Mr. Esper wrote “…advisory opinions prohibited by Article III.”

        Are advisory opinions actually prohibited by the text, or are they not done simply because the early SCOTUS declined to issue one?

        1. There’s a very early like 1700s case the Court didn’t hear due to mootness, iirc.

          It comes from the Case or Controversy clause. There’s also a letter from the Chief Justice to President Washington declining to give an advisory opinion, citing separation of powers.

    2. I started reading this trying to care what these judges were saying and I couldn’t make myself care.

      It doesn’t matter anymore what they say. They don’t matter. Their rulings don’t matter. The only that that matters is the political bent and ideological agenda of the prosecuters, both Federal and local.

      1. Sorry you hate the Republic.

        1. Fuck off, slaver.

        2. My eyes are open to the reality around us.

          The reality is we are ruled by prosecutors and bureaucrats. Not rules or laws.

          I’m sorry if my observations and commentary of reality hurt your feelings.

          1. No need for you to vote, then. Or give money to any candidates.

            Have fun in your bitter resignation.

  2. What amuses me is if it’s not rendered moot the democrats did this to themselves. They had to push and push and push for silly unconstitutional rules.

    Those shenanigans and then trying to change the rule once it was headed to the supreme Court to try to avoid it like little weasels are why I hope it isnt made moot. You have to trust NYC in order to embrace the mootness and only the naive would do that.

    1. That’s true, the Supreme court would likely be OK with the states and cities just continuing to engage in petty harassment and a campaign of making gun ownership inconvenient. The majority certainly aren’t hard core gun rights people.

      But the anti-gunners don’t just dislike gun ownership, they hate it with an abiding passion. They can never resist going overboard for that reason.

      “Oft evil will shall evil mar.” It’s a fundamental truth of human nature.

      1. Now you see why I yearn for a civil war with a cleansing at the end. The 50 million Americans who are hardcore leftists won’t take defeat after a civil war with grace. They’ll still be here with their poisonous ideas. Unless they’re exterminated post-war, the same problem will be back within a generation or two.

  3. I foresee a third option:

    First, I doubt the court will DIG the case. They will dismiss but vacate the lower court opinion (Munsingwear doctrine).

    Second, I foresee a compromise. It may be more proper for the lower court to decide mootness. So I see them taking another case on the docket and holding this one until the 2nd case is decided, perhaps as a “compromise” to the obviously incensed justices. When the 2nd case is released, they may GVR this one and make the lower court assess mootness.

    I am not convinced though that the case is moot. Roberts will not only be thinking about this case, but the incentive to plays games created by mooting this case (Alito made this point). Mootness cuts against the conservatives now, but will also cut against liberals on their favorite topics down the line. At the very least, plaintiffs are still entitled to sue for damages under 1983.

    The main problem with this case is that mootness is a catch-22: Seems to me that the case is moot if and only if the underlying law was constitutional. If the law was constitutional, the plaintiffs got all they asked for in terms of more liberal transport. If the law was unconstitutional, plaintiffs are entitled to an injunction, negotiation of the scope of the injunction, negotiation the scope of any new transport restrictions , plus entitled to sue for damages under 1983.

    This is a terrible vehicle to clear up mootness doctrine, but because mootness is now implicated, maybe, I also think its a terrible case with which to issue a 2nd amendment opinion. It will be very messy. Ergo, a cleaner way to do this is to grant another case and GVR this case once that one is decided (and have the lower court address mootness).

    1. If the law is repealed, what relief would an injunction give the plaintiffs? How would it make them better off than they are now? Article III standing requires a court decision to give plaintiffs something concrete, not just the symbolic emotional satisfaction of feeling vindicated.

      1. Well, if the law had been struck down as unconstitutional, rather than merely repealed, they’d have been entitled to court costs, for one thing.

        For another, an injunction would be rather more binding than the pinkie promise NY actually gave them.

        1. Even if you’re very confident, assuming legislative bad faith by both the City and the State would create quite a sweeping new doctrine.

          1. Bad faith IS a real thing, you know. It got a fair list of states put in preclearance during the civil rights era.

            I think we’re long past the point where a similar regime of preclearance would be appropriate for firearms laws, given the degree of animus directed at this particular constitutional right.

            What we’re not, is anywhere near having the political power to impose that regime. Maybe someday, though.

            Anyway, waiting until cert was granted to repeal the law is, I think, adequate cause for assuming bad faith. As well as the unreasonable nature of the replacement. Can’t even take a potty break on the way to and from the range? Can’t stop for gas if you’re low? That’s petty harassment.

            1. Bad faith is real, but preemptively assuming such in a legislative body would be pretty unprecedented. Mooting a law to avoid a judgement isn’t an extraordinary practice; no more so than dropping a lawsuit for the same reason.

              In Civil Rights preclearance was the federal legislature binding state legislatures. If you want to talk legislating from the bench…

              1. Did I advocate that the judiciary institute this regime of preclearance? No, doing that would clearly be beyond their authority.

                OTOH, it’s entirely within their authority to conclude that the presumption of good faith stands rebutted when it comes to certain states and gun laws, and do what IS within their authority to combat it. Such as not letting them moot cases that would otherwise get offensive laws declared unconstitutional.

                1. There is no operational difference between your preemptive rebuttal and preclearance.

                  1. You are a real piece of work. Anyone who doesn’t see bad faith in what the city and state did , who doesn’t recognize all their previous illustrations of bad faith and working together, is just plain full of bad faith themselves.

                    1. And Alito is using a bad faith interpretation of what mootness means. Bad faith all around!

                    2. You’re super angry I’m not as paranoid as you are about gun control policies.

                      Meh.

                    3. It’s just so clearly moot.

                      What’s the bad faith here? The State, in bad faith, gave gun owners everything they were asking for?

                      I’d like to get some “bad faith” settlements like that for my clients!

                  2. Of course there is: Under a “pre-clearance” regime, the local government can’t put a law into effect without prior approval of a higher authority. The law dies if the higher authority simply ignores it.

                    Under my proposal, the local government can still enact laws, and put them into effect, but if they’re challenged in court, would no longer be afforded a presumption of good faith when it does things like repeal laws after they are challenged, or makes pinkie promises not to retaliate.

                    As long as they walked the straight and narrow, they could still do what they wanted. Under preclearance you’re not afforded that opportunity.

                    1. Operationally, however, every such law will be challenged in court. And without the presumption of good faith, guess where we return to.
                      Looks a lot like preclearence to me!

                    2. Yeah, it’s just like pre-clearance except for all the ways it’s different.

                    3. Formally different but functionally identical. Stop making judicial laws.

                    4. Lacking the “pre” part is NOT functionally different, that’s a major difference.

                      All I’m advocating the courts do is stop assuming that states that enact laws like this are on the up and up in everything they do.

                      For instance, the state’s counsel made a number of representations as to how the plaintiffs and people similarly situated would be treated going forward. The Court should not credit these representations, because the counsel was not in a position to bind the state.

                      The Court is, and the purpose of mooting the case was to prevent the Court from doing so.

                2. You are forgetting the “equal dignity of the states.”

                  Now, I think that’s BS, and preclearance should still be in place, but let’s be consistent.

                  And when NY or another state has a century long history of the most egregious offenses imaginable we can talk about it for gun laws.

                  1. NY literally waits for people legally traveling by air with firearms to be stranded in its airports by weather or mechanical problems, and then when they are, contrary to their plans, forced to take custody of their checked bags, they are arrested, their guns confiscated, and they are prosecuted for felony violation of NY’s gun laws.

                    That’s not egregious enough for you?

              2. Bad faith is real, but preemptively assuming such in a legislative body would be pretty unprecedented.

                It’s a core design imperitive when building a constitution — the ambitions must be set against each other and all that. Handing out rent seeking is “America’s national pastime”, etc.

                1. I have no idea what you’re saying here. The sweeping ‘bad actor states’ regime Brett wants isn’t about competing ambitions, or rent seeking.
                  It’s just reifying Brett’s hostility. Which, even if the Court agrees with it, isn’t something courts have, can, or should do.

                  1. It’s exactly what the courts did do, though, with civil rights law.

                    Eventually the judiciary just up and stopped pretending that the people demanding “separate” actually ever intended “equal”, and accepted that, whatever might be possible in theory, “separate but equal” wasn’t a real world thing, and so a constitution that mandated “equal” in practice prohibited “separate”.

                    You’re still embracing the fiction that is “reasonable regulation of firearms”, in the teeth of the reality that the regulation is driven by animus against the right guaranteed by the 2nd amendment, and is never in practice going to be reasonable so long as the regulators are afforded a presumption of good faith.

                    1. Evidence of your animus reality isn’t before the Court. And even if it were, didn’t we just discuss yesterday how motives of legislatures shouldn’t matter? Consistency.

                      But assuming motives can matter, the Court needs to decide they do matter here. And that would be quite a new doctrine, as I said. See Michael Masinter’s post below for the state of the law.

                      Your attempted parallel to Plessy shows how far out you are. You’re trying to argue that just as separate is inherently unequal, gun regulations are inherently unreasonable. Sorry, in this widely armed country I have a hard time paralelling gun owners to blacks in the Jim Crow South.

                      Gun control threads really are the craziest threads.

                    2. Eventually the judiciary just up and stopped pretending that the people demanding “separate” actually ever intended “equal”

                      The reason that happened is because there were literally no examples of racial segregationist legislation during the time period you are referencing that was not intended to harm black people.

                      Compare this to gender, which also gets heightened scrutiny, but where courts have sometimes upheld segregationist rules. Because sometimes gender segregation is not intended to harm women (e.g., bathrooms).

                      There’s no reason to apply the rule you want applied to gun legislation, because plenty of gun legislation (though I will concede not all of it) arises not out of hostility to Second Amendment rights but out of legitimate public safety concerns.

                    3. No Dilan, it does not arise out of legitimate safety concerns. If it did, laws wouldn’t be passed banning bayonet lugs and collapsible stocks. And states wouldn’t be arguing that a law that makes people FEEL safer provides an “important benefit.” And further, states would not pass laws that you can own a 10 round magazine, but only put 7 bullets in it.

                    4. Restore:

                      Not all gun legislation is assault weapons bans targeting cosmetic features (and I agree with you, those are stupid). There are also such things as background checks, gun registration statutes, limits on clips/magazines, licensing requirements, storage requirements, restrictions on purchase by mentally ill/violent offenders, and any number of other statutes that clearly are motivated by safety.

                    5. Not all gun legislation is assault weapons bans targeting cosmetic features (and I agree with you, those are stupid). There are also such things as background checks, gun registration statutes, limits on clips/magazines, licensing requirements, storage requirements, restrictions on purchase by mentally ill/violent offenders, and any number of other statutes that clearly are motivated by safety.

                      If limits on magazines were about safety, they wouldn’t exempt law enforcement, and they wouldn’t be passed in the absence of a national restriction. Storage requirements that require that a gun either be carried or locked away (even when in the shower, and when no kids live in the house) are not motivated by public safety.

                      If “background checks” for private sales were motivated by public safety, the left wouldn’t fight any attempts to open NICS up to private sellers.

                    6. “If “background checks” for private sales were motivated by public safety, the left wouldn’t fight any attempts to open NICS up to private sellers.”

                      This! The real purpose of the universal background check is to force all transfers to go through a dealer, requiring the dealer to keep a record of the transaction as if he were selling the gun himself,

                      The ATF can go through any FFA licensed dealers sale records at any time, without a warrant or probable cause.

                      It’s a back door to a gun registry.

                    7. Matthew, burdening gun owners with the expense of paying the FFL and having to go during business hours is also a “feature” of their scheme, in addition to the registry.

                      But further to that point, “universal background checks” CAN’T work without a registry. As it currently stands, the serial number trail only leads to the first store it is sold to after leaving the manufacturer and distributor. For example, let’s say I am living in Indiana and buy a Glock 19 in 2019. I then move to Tennessee in 2023 and bring it with me. While on a road trip to the Grand Canyon in 2026, I stop at a gun show in Western Oklahoma and meet you, and we negotiate for you to buy that Glock 19. Given that we’re both law abiding people, and since you’re a resident of Oklahoma and me of Tennessee, we follow the 1968 GCA requirements and go to an FFL in Oklahoma to do the transfer.

                      In 2035, that Glock ends up at a crime scene. Glock traces it back to the store I bought it from 16 years earlier and calls me. I say “You know, I sold it to a guy, legally at an FFL after meeting at a gun show. While I’m pretty sure it was on my road trip to Arizona, I can’t be sure, as I travel a lot. The sale might have been in Texas, or maybe it was Utah? I’m sorry my memory isn’t that good these days. I don’t remember what gun show I met the guy at or what his name was.”

                      We’ve both complied with all laws, and short of checking every 4473 at every FFL in America between Tennessee and Arizona (even assuming my memory was right), there is zero way to find the FFL that conducted the private sale transfer. Hence, private sale background checks CAN’T work without a registry. They need a digital database by which they can enter in a serial number and trace it in real time. And that absolutely will be the next demand after UBCs fail to actually do anything.

                    8. The purpose of closing exceptions to background checks is to make sure no felons buy guns.

                      Just because you guys are paranoid about confiscation doesn’t change the actual purpose of the law.

                    9. No, that’s the stated purpose, but it’s not the actual purpose. If it was, we wouldn’t allow 99% of false statement on 4473 crimes to go unprosecuted.

                    10. “The purpose of closing exceptions to background checks is to make sure no felons buy guns.”

                      That was the stated purpose. However, if that was the real purpose they could have opened the NICS to private sellers rather than trying to force private sales and transfers to go through licensed dealers.

          2. I’d add that you don’t need to talk about this particular case to attribute bad faith to NY and NYC on the topic of gun laws. NYC actually has an arrangement with the local airport to be notified when travelers with lawfully checked guns are stranded there by weather or mechanical problems, so that their guns can be confiscated and they can be prosecuted.

            That’s some pretty heavy duty evidence of bad faith and animus right there.

            1. If that is true, then you have fine grounds to sue separately on that grounds. Don’t use it for a collateral attack on a different law.

              1. Right, individually fight every act of oppression, but never allow a series of them to cause you to identify somebody as an oppressor.

                This isn’t a basis for attacking this particular law, which was offensive on so many grounds at once that it never could have survived Supreme court review. It’s just a basis for recognizing that the repeal after granting certiorari was an effort to avoid review, not an honest admission of error.

                1. That’s some extreme judicial supremecy there, Brett. Courts should not be identifying certain states as oppressors.

                  Maybe you could show a pattern of behavior to argue pretext, but that’s a high burden, and more importantly that’s not the argument before the Court.

                  1. “Courts should not be identifying certain states as oppressors.”

                    In your rush to condemn gun civil rights, you seem to have forgotten all the previous cases of bad faith and identifying certain states and cities as civil rights oppressors.

                    1. Be careful what you ask for, lest your state be declared an abortion rights oppressor.

                    2. As Krayt noted – supporting judicial supremacy to get a given policy you want is extremely myopic.

                    3. “As Krayt noted – supporting judicial supremacy to get a given policy you want is extremely myopic.”

                      “Judical Supremacy” is a pretty dramatic way of describing the application of the default voluntary cessation rule to state defendants, who here are clearly strategically mooting the case.

                    4. That’s not what Brett is arguing for, TiP.

                      Brett wants courts to start declaring states bad faith actors on gun that have a different standard of review applied to them.

                    5. Yes, Sarcastro, you’ve got it, finally. I want the courts to recognize that gun regulation is, in practice, more like segregated drinking fountains than like building codes. That it’s not normal legislation, motivated by normal legislative concerns.

                      It’s abusive legislation motivated by animus against the exercise of an explicit civil liberty. They are literally passing these laws because they don’t think anybody should have the right to own guns, and they want to infringe that right.

                      If “animus” is going to be a thing in judicial analysis, it should be applied to gun control.

                    6. Oh, I always got it, Brett. I just think it’s an awful idea.

                      Even assuming you are correct about New York – and your citation of something that seems to have resulted in a lost lawsuit is not a great sign for your damming characterization – that’s some judicial supremacy right there, Brett.

                      Do you know how hard it is to get an individual declared a vexatious litigant? And you want a similar judicially-created double standard for full-on states. Based on facts that aren’t part of the briefs, ffs.

                      For someone who rails against judicial overreach, you’ve really come around.

              2. Yes, we did, and some liberal circuit court judge basically held that FOPA doesn’t apply to air travel, and that even if it did, a cop can’t possibly be expected to know the laws at every destination and every origin, so that it’s good faith to arrest no matter what and figure out the law later.

                1. So your side lost and Brett wants another bite at the apple? That’s not as damning as you think it is.

                  1. Yeah it’s damning. It’s saying the judge is in on it.

                    1. What’s the point of another try then – this conspiracy seems vast.

                  2. Yeah, we “lost” because the umpire is on your side. He’s not calling balls and strikes as an independent arbiter.

                    1. This is Sarcastr0’s idea of a good-faith ruling:

                      http://www2.ca3.uscourts.gov/opinarch/123621p.pdf

                    2. Appeals Court opinions I really disagree with are a conspiracy against the Constitution!!!!!!1111!!!

                    3. Fuck off, slaver.

          3. “Even if you’re very confident, assuming legislative bad faith by both the City and the State would create quite a sweeping new doctrine.”

            Wouldn’t it simply apply the voluntary cessation doctrine (which is the default doctrine and is, more or less, an assumption of bad faith) to governmental litigants? Why should governmental defendants get a special doctrine?

            1. Because legislatures are not like individuals. They have to affirmatively act, in concert, to both stop and start actions.

              1. Legislators are individuals. If they are able to respond to the threat of a pending adverse judgement, they are able to respond when the threat goes away.

                1. Individual legislatures can respond however they want. To have force of law, a legislature must act under it’s lawmaking procedures. And that is not like an individual.

                  1. Again, if lawmakers can repeal a law as a response to the threat of an adverse judgement, they can restore it in response to an adverse judgement. Legislatures respond to incentives just like any other entity.

                    1. Repeating yourself doesn’t make your analogy better. Legislatures can’t turn on a dime, and if they do they know what a court will do. The Incentives are different.

                    2. “Legislatures can’t turn on a dime”

                      I dunno, the NY legislature seemed to move pretty quickly to try and make this case moot. Come to think of it, they didn’t exactly dally when passing the SAFE act either.

                    3. Did they, Absaroka? How much notice do you think they had?

                      Voluntary cession does not apply to legislatures, who need an affirmative act and consensus to cease doing something. It thus makes no sense to rope that doctrine in, unless you have a targeted outcome in mind.

                    4. If wikipedia has it right, the SAFE act was a response to shootings on Dec 14th and 24th, and (despite the holidays) the SAFE act passed the legislature during Jan 14/15 and signed an hour later.

                      Even congress can move quickly when it wants to – the US declared war on Japan on Dec 8th.

                      I may be missing your point. Sure, legislatures frequently move slowly – but that’s not a law of physics. When they want to, they can move within a couple of days.

                      Laidlaw wasn’t moot because the Laidlaw corporate board could have reopened the factory. Could they have done that any faster than 2 days (WWII) or a month (SAFE Act)?

                      Like I said, IANAL, so I appreciate the explanations, but I’m not following the ‘legislatures can’t act faster than court cases’ line of argument.

                    5. Fair enough – turn on a dime was facile language, but note that the distinctions I make are not speed-related, they are institutional.

                    6. Corporate boards are institutions, yes? If Laidlaw wasn’t moot because the corporate board couldn’t reverse its decision to close the factory, how is that different from the legislature/city council reversing their decision?

                      How are the incentives different? For that matter, what are the incentives against NY or NYC legislators passing laws that violate the 2A? Their voters, in aggregate, seem to like gun control almost as much as the Jim Crow voting public liked violating various civil rights.

                    7. That’s a fine argument. Except that the corporate legal fiction bites both ways.

                    8. iow, we legally treat corporations to be like an individual legally, with a few exceptions.

                      Indeed, that’s their original purpose.

          4. There is no need to assume any legislative bad faith by the City and the State in this case.

            I lived in NY for two years and went through their BS process to get a pistol permit. The entire system is set up to discourage and hassle law abiding gun owners from exercising their rights.

            1. Right, it’s not an assumption in the case of New York, it’s empirically proven.

              1. Empirically proven. Why not just take judicial notice and kick them out of the Union?

                Your substantive paranoia, no matter how confident you are of it, doesn’t change what procedures are.

                1. It’s not “paranoia” if they’re actually out to get you, Sarcastro.

                  And the procedures actually would permit the Supreme court to decide this case, you know that as well as anyone. They “can” declare the case moot, but they don’t have to.

                  1. I get you think they’re out to get you. But the sales of guns and ammo say otherwise.

                    If the Court decides to ignore their own mootness doctrine and decide the case, unless they have a humbdinger of an opinion explaining why, that’ll be a Raich-like sign that the Court is going to be a full-on conservative judicial expansionist. Enjoy. But you’re eating your legitimacy seed-corn.

                    1. “you’re eating your legitimacy seed-corn”

                      Like you think conservative doctrine is legitimate.

                      The liberals on the court have never, never been shy in pushing for maximalist liberal policies, it s a mug’s game for conservatives to continue to be cautious.

                    2. That conservatives push gun absolutism in the context of America’s evolving electorate seems inexplicable.

                      Which part of “less rural, less white, less intolerant, less religious, and less backward” is likely to make gun absolutism viable in America’s future?

                    3. Plus, of course, the precedent would be quite something to see applied below.
                      Is New York now in some judicially mandated doghouse for gun laws? Is there a special more narrow mootness doctrine for the Second Amendment? Some extra exception? Are we using procedural means to overrule the substance of Heller?

                    4. Bob, I do think conservative doctrine is legitimate. Just because you can’t disagree reasonably doesn’t mean we all can’t.

                    5. “I get you think they’re out to get you.”

                      In this case, “out to get you” means “wishes to impose unconstitutional regulations on guns and will do so in the absence of the threat of an injunction.” And in this case that’s exactly what the government did.

                    6. TiP, they have’t done that yet. I’m not sure you read the OP right.

                2. If it were possible, most conservatives would love to kick NY and California out of the union. And vaporize their residents so that they wouldn’t be able to move elsewhere.

                  1. I’d rather build walls around them, surrounded by moats with hungry alligators. Maybe a minefield or two. No vaporizing allowed. 🙂

      2. The main thing I can think of is it would allow people previously convicted of violations to have those convictions vacated. It would also give a concrete assurance that past violations cannot be held against them (rather than the mere assurances of a trial lawyer) as well as prevent the city or state (or any other jurisdiction) from re-enacting such laws

        1. A good point, but those people are not parties to this case.

      3. “If the law is repealed, what relief would an injunction give the plaintiffs?”

        The City is forbidden to revive the repealed law/policy?

      4. “If the law is repealed, what relief would an injunction give the plaintiffs? How would it make them better off than they are now?”

        They would have an order saying that they couldn’t restrict the plaintiff’s rights in the future. And the fact that the state expended so much effort trying to avoid being subject to such and order indicates that they are likely to try to restrict the activity in the future.

        1. What you are describing is called an advisory opinion. It’s not allowed.

  4. On the basis of safety, you can’t have a demonstration at will.

    Whew! I knew free speech zones well away from government officials one might want to petition were constitutional.

    1. Its almost as if they want to claim that demonstrations are unsafe until proven otherwise.

  5. I agree the case is moot because the legislature has given the plaintiffs the relief they sought in court. I also agree giving them what they asked for can’t be regarded by the courts as nefarious or reflecting some sort of bad motive.

    In general, I agree the 2nd Amendment creates an individual right. However, I would tie that right more closely to the text than Heller did, including connecting it to “a well regulated militia,” which I would regard as imposing some limitations on the right. Under a robust interpretation of state authority to regulate its militia, I think a state may well have substantial power to determine where and how firearms training can take place, and at least parts of the original ordinance might be constitutional under such an approach.

    1. The Constitution does not create rights. It recognizes that rights exist and declares the government that it may not infringe upon those rights. Except in the case of the 4th Amendment where the Constitution tells the government under what limited circumstances it may infringe upon our right to the security of our persons, houses, papers, and effects.

      1. As long as you take the position that if it’s not in the text it’s not a matter for judges, I wouldn’t disagree with you, and I’d agree “recognizes” would work just as well as “creates.”

        Perhaps the constitution reflects perfect insight into a Platonic universe of pre-existing rights. Perhaps there are other rights that are left to political branches to deal with.

        But that if the matter is, if the 2nd Amendment were repealed, it would be just as valid a constitutional amendment as the one that repealed the right to own a slave. And gun policy is a question Western democracies continue disagree on.

        I would follow the text here because the legitimacy of the rule of law lies at the foundation of our civil order and without if neither order nor justice nor freedom is possible. But that doesn’t mean I always agree with the text, or think its solutions are perfect or inherent in the nature of things.

        1. Creates and recognizes are not synonymous in this regard.

          Creates implies rights are a government grant of special privilege that can be taken away as deemed necessary by government.

          Recognizes acknowledges that rights inherently belong to each individual, and that infringing upon those rights is theft of the individual’s liberty.

        2. Perhaps the constitution reflects perfect insight into a Platonic universe of pre-existing rights. Perhaps there are other rights that are left to political branches to deal with.

          This is the root of all misunderstanding of the constitution.

          It is specifically crafted in such a way as to NOT have any perfect insight into any such rights. It is crafted in such a way that it explicitly acknowledges this, declaring that all rights and powers not explicitly granted to the government are reserved to the people (and the states).

          The constitution very deliberately an very explicitly does not allow “other rights” to be meddled with by other branches of the government. It says it in black and white – the government has exactly this set of limited powers, and no others. Anything reaching beyond those specific powers requires a constitutional amendment allowing it.

          Of course, doing that is inconvenient. So the legislature, executive and judiciary have decided among themselves to ignore this requirement.

          1. I don’t think you can say they have ignored it, given modern substantive due process doctrine. Plenty of unenumerated rights, from contraception and abortion to the right to travel, receive protection.

      2. The Constitution does not create rights. It recognizes that rights exist and declares the government that it may not infringe upon those rights. Except in the case of the 4th Amendment where the Constitution tells the government under what limited circumstances it may infringe upon our right to the security of our persons, houses, papers, and effects.

        The Constitution clearly creates rights. I mean, honestly, all constitutional rights are created. Absent constitutional language prohibiting infringements on free speech, for instance, it is entirely probable that courts would not recognize such rights. In the legal system, there is literally no such thing as a natural right. If something is a right, it is because the Constitution, a statute, or a court decision grants it to you. Otherwise it is worthless.

        But even if we assume some role for natural rights theory, plenty of rights in the Constitution are not natural rights. For instance, the right to have a jury trial if your civil suit is for more than $20 is not a natural right. The Fourth Amendment, as you point out, is not a natural right. Neither is the Third Amendment. Neither is the right to counsel.

        1. “The Constitution clearly creates rights. I mean, honestly, all constitutional rights are created.”

          Then why are people so mad about slavery? I mean, the thirteenth amendment hadn’t even been passed yet.

          1. Because they had a moral objection to it?

            You don’t need rights talk to debate ethics and morality, Twelve.

        2. Our rights exist regardless of whether or not the governments we live under actually recognize those rights.

          You are correct that courts and governments throughout the world are predisposed to ignore or deny the existence of an individual’s rights. To treat rights as privileges that can be bestowed or taken away at the whim of those who rule.

          It is the very purpose of the US Constitution and the Bill of Rights to keep such authoritarian impulses in check. To compel our government to respect our rights as inviolate. Both the rights specifically enumerated, as well as those rights not enumerated.

          1. In the real world, rights talk is meaningless without an enforcement mechanism. Which is why many people are in prison for things they thought they had a right to do.

            The purpose of the US Constitution was to charter a government and to expand the federal powers over what had been recognized in the failed Articles of Confederation. The purpose of the Bill of Rights was to ensure that the government actually respected rights that the framers thought should be respected. Both documents create enforceable rights, which are the only ones that matter.

            1. The purpose of the Bill of Rights was to ensure that the government actually respected rights that the framers thought should be respected. Both documents create enforceable rights, which are the only ones that matter.

              Esper, I would like to refer you to the 9th amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

              The Framers seem to have recognized that our individual civil rights exist independent of the document we call the Constitution. My personal take is from a constitutional perspective, things went sideways about 100 years ago (Wilson).

    2. Under this reading of the 2nd amendment, (Which, to be clear, is more than a little ahistorical, and ignores that the amendment assigns the right to “the people”, NOT “the militia”.) regulations that advance firearms ownership and proficiency are constitutional, but regulations aimed at impeding it, (As this law was.) would still be unconstitutional.

      It doesn’t advance a well regulated militia to make it difficult for people to practice with their firearms!

      It’s rather like, if the 1st amendment had said, “A well educated public being necessary to the security of a prosperous nation, Congress shall make no law infringing freedom of speech, or of the press…”; Congress could enact laws requiring people to read books, but couldn’t ban books, or stop you from traveling to and from book stores, because those sorts of laws would have the opposite aim from the one expressed in the amendment.

      1. “Regulated” has a meaning. For something to be regulated, there has to be a power to regulate. That’s a state power.

        The word “education” has no similar meaning. You can educate without any involvement from the state. Education can be interpreted as a completely individual right. But you can’t regulate without the state. Regulation can’t be interpreted as applying to the individual only without a really forced interpretation. I agree “right of the people” is individual, not state.

        Both phrases – one connoting a state power, the other an individual right – are present in the text. I would give the text an interpretation that gives both phrases their natural meaning, and harmonizes them.

        1. Regulated has a meaning, and at the time the 2nd amendment was written, that meaning was “made regular”; They meant by a well regulated militia, a militia that was well trained and equipped, not one that was under the thumb of a regulatory agency.

          1. Which is why things like the Militia Act of 1792 were empowered by the 2nd Amendment, which required men to obtain a rifle or musket, and specified amounts of ball and powder to fire.

            That’s your broccoli mandate right there, but only as it would standardize the militia.

            That’s also why a law requiring anyone to buy a standard issue M16 or M4 when they turn 18 would probably be constitutional, as it would regulate (make standard) the militia into conformity with the standing army.

          2. They meant by a well regulated militia, a militia that was well trained and equipped, not one that was under the thumb of a regulatory agency.

            Bullshit. The same Constitution gave the government the power to call up the militia (i.e., armed citizens under the Second Amendment) and train it, discipline it, and make rules governing it.

            1. Bullshit. The same Constitution gave the government the power to call up the militia (i.e., armed citizens under the Second Amendment) and train it, discipline it, and make rules governing it.

              Not by referring to those things as “regulating” the militia…you know, the word (and its meaning) that’s the subject of this sub-thread.

              As usual, the only bullshit here is in your posts.

              1. Even the NRA concedes that regulating the militia includes discipline and training.

                I mean, that’s basically undisputed. The disputes concern whether it is broader than that.

        2. ” I would give the text an interpretation that gives both phrases their natural meaning, and harmonizes them.”

          OK: Any infringement by the feds on the right of the people to keep and bear arms might be detrimental to a well regulated militia, and hence the security of a free state, so no infringement is permitted.

          There, both phrases are in beautiful harmony, each with their natural meaning intact. This is not the case with other potential interpretations, that allow some infringement.”

          1. Any infringement by the feds on the right of the people to keep and bear arms might be detrimental to a well regulated militia, and hence the security of a free state, so no infringement is permitted.

            That doesn’t harmonize them, and I can show that fairly easily. A requirement of weapons training as a condition of gun ownership is clearly permitted under the Second Amendment (discipline, training, regulation of the militia), and yet it would impose some “infringement” on the RKBA.

            1. “A requirement of weapons training as a condition of gun ownership is clearly permitted under the Second Amendment (discipline, training, regulation of the militia)”

              Not under an interpretation that harmonizes the two phrases, as your example demonstrates. Of course, a requirement of weapons training that in not conditional on gun ownership would be perfectly consistent on such an interpretation.

              1. So mandatory training for everyone whether they have a gun or not is fine, just so that you don’t infringe.

                A bit absurd, no?

                1. Absurd as driver’s training was in HS when I took it; You took the class whether or not you owned a car.

                2. “So mandatory training for everyone whether they have a gun or not is fine, just so that you don’t infringe.”

                  Mandatory training is permitted under the the enumerated powers of Congress. Infringement is prohibited by the 2A. This really isn’t that hard.

                  Heck, we have compulsory education, but nobody thinks we can make writing books conditional on attending school.

                  1. Mandatory training is permitted under the text of the Second Amendment. That’s literally what everyone concedes a well regulated militia must mean.

                    1. Look, it’s as simple as this: Mandatory training is permitted. That’s a Section 8 power of Congress.

                      Conditioning gun ownership on that training, not permitted. That’s 2nd amendment. The only thing the government can condition gun ownership on, (For adult citizens, of course.) is felony conviction, the same as any other civil right.

                      Because gun ownership is a civil right. That’s the crux of the matter: It’s a civil right, and we insist that it be treated like one.

                      So, what they COULD do, is to pass a law mandating universal firearms training, and make it a felony not to take it. THAT is within Congress’ power.

                      Then convict anybody who refuses to take it, and, ta da, only trained people can own guns.

                      But, you wouldn’t want to do that, because the objective here isn’t to make sure everybody with a gun is trained. No, the objective is to use training as another way to reduce the number of people who own guns.

                    2. Brett, the same people who enacted the Second Amendment passed the militia act, which gave the government the power to require EVERY male adult gun owner to participate in the militia.

                      So yes, prison time for any gun owner who refuses to obey lawful commands in the militia is perfectly constitutional. You just dislike it.

            2. A requirement of weapons training as a condition of gun ownership is clearly permitted under the Second Amendment (discipline, training, regulation of the militia)

              Not even close. Compulsory training for militia members, perhaps. But militia membership not being a prerequisite for gun ownership…

              I’m really curious how you managed to make through law school when you appear to possess the reasoning abilities of a lobotomized baboon.

              1. The framers defined the militia as basically everyone.

                Again, even the NRA concedes this stuff. Are you guys literally so batshit insane that the NRA is too liberal for you?

                1. Again, the NRA is not conceding what you’re advocating. That people be trained? Yes. That gun ownership be conditioned on training? No.

                  We want a return to the way things were when I was a kid, where you got firearms training in HS, just as a routine thing.

                  1. So your position is that a gun owner can reject membership in a well regulated militia?

                    Because the Militia Act said otherwise- written by the same people who wrote the Second Amendment.

                    1. He’s not saying that at all.

                      He’s saying that Congress can mandate militia service, that it can mandate training for that militia, that it can enact disciplinary rules for the militias actions (perhaps including a requirement that infantry training be completed before a called up militiaman can carry their weapon, and that it could then prosecute anyone who violated those mandates, silly as they may be.

                      And that doing so would have the effect of training anyone who possesses a gun lawfully, because they either finished militia training (and thus, gun training), or they didn’t and are now convicted felons.

                      He also argues that this is not the desires of the gun opponents though, which is why they don’t pursue something like this. Instead, the calls for firearm training are a ruse to further burden this one Civil right, and so the difficulty isn’t a side effect, it’s the intended purpose.

        3. ““Regulated” has a meaning. For something to be regulated, there has to be a power to regulate. That’s a state power.”

          But in the second amendment, the thing to be regulated is the militia, NOT the right of the people to keep and bear arms.

          1. How is “Shall not be infringed” so difficult to comprehend?

            Even if it said “Flying Monkeys being an important concept” before declaring “the right of the people to keep and bear arms shall not be infringed” the result would be the same. It says clearly and directly what the expected outcome is. No infringing on this right. The reason why is explanatory, not limiting.

            1. The same way that “Congress shall make no law abridging freedom of speech” does not mean that Congress is not entitled to make any laws criminalizing certain forms of unprotected speech.

              You see, interpreting legal texts is more complicated than just looking at a few words and saying “I say it means this” and sticking your tongue out like a 5 year old.

              It actually requires a great deal of skill and scholarship to interpret legal texts, which is why semester-long classes are devoted to the subject in law schools.

              1. It actually requires a great deal of skill and scholarship to interpret legal texts…

                And even something as simple as the difference between militia membership and the right to private firearms ownership continues to elude your grasp.

                1. That’s not what he’s talking about here. He’s putting forth the anodyne point that all rights have complicated contours, and that yelling ‘shall not be infringed’ over and over again does not end the matter, even if you really really want it to.

                  1. And so you’re allowed to go right up to the edge of total prohibition, so long as you stop short of that final step?

                    Let me yell it again: It doesn’t say, “shall not be utterly abolished”, it says, “shall not be infringed”. That’s got to mean something more than “anything goes as long as you don’t totally abolish the right”.

                    What we want is for this to be treated as a real civil right. That means the default presumption is that you CAN’T interfere with it, and any infringements have to be very well justified.

                    You can’t ban the Anarchist’s Cookbook, lock picking manuals, “How to Kill, volumes 1-5” and so forth. Why do you think you can ban a gun just because you imagine it better suited to committing a crime than some other gun, even though practically everybody who owns it doesn’t commit the crime?

                    Why do you think it in any way reasonable to say, “You can’t take your legally owned gun out of the city without our permission.” and then, when it looks like you’re going to lose at the Supreme court, change the law to say, “Well, you can, but if you stop to use a bathroom or get gas you’re a criminal.”?

                    Why? Because you really don’t concede that it’s a civil liberty, even though the Constitution identifies it as one. You’re committed to treating gun ownership as a privilege, which can be arbitrarily restricted. Indeed, should be arbitrarily restricted, in order to discourage people from exercising it.

                    Well, it’s not a privilege, it’s a right, and it needs to be treated as a real right, with ALL that implies.

                    And these sorts of laws would NEVER pass any level of scrutiny for a civil liberty that the courts were actually treating as a civil liberty. Heck, they’d have a tough time passing actual rational basis review for a non-civil liberty. Somebody could be transporting explosives, or toxic waste, and they’d still be permitted to stop occasionally to piss along the way!

                    Can you admit this? That these laws, infringing a genuine civil liberty, are not reasonable? That there’s no possible motivation for them except animus against the exercise of the right in question?

                    Why else no stopping to piss?

                    1. Brett, I never said you can go right up to the edge of prohibition. I have no doubt that gun regulations that aren’t sufficiently connected to the civic obligation of gun owners to participate in a regulated militia should be unconstitutional. I don’t even think the 1994 Assault Weapons Ban should have been constitutional!

                    2. BTW what I dislike about your side more than anything is the anti-government extreme libertarian crap. The Constitution protects your right to own guns. It also says you owe obligations to society and the government. It’s not a fun libertarian fantasy of overthrowing the government.

                      Gun ownership is a fricking responsibility. These things are deadly.

                    3. No one said you can go right up to the edge of prohibition. Though I get the impression that for you, every single ordinance that mentions guns goes right up to the edge of prohibition.

                    4. Where in the US Constitution does it say a single thing about “obligations to society and the government”?

                      Somehow, I cannot find a single “obligation” to either society or “the government” mentioned in my copy of the Constitution… are you sure you’re looking at the right country?

      2. Under this reading of the 2nd amendment, (Which, to be clear, is more than a little ahistorical, and ignores that the amendment assigns the right to “the people”, NOT “the militia”.) regulations that advance firearms ownership and proficiency are constitutional, but regulations aimed at impeding it, (As this law was.) would still be unconstitutional.

        There’s nothing ahistorical about reading the Second Amendment as having something to do with having a disciplined, trained, regulated fighting force, given that’s exactly what the thing actually says.

        I actually agree with you that under such a reading, gun regulations that don’t relate to the goal of discipline/training/regulation of the fighting force can be unconstitutional.

        The thing is, and I have said this before, but the Second Amendment is explicitly communitarian. You have this individual right because it benefits the public, and it is subject to public regulation. That’s the text.

        But the modern gun rights movement is libertarian. The reasons for this are varied, but it includes that the NRA has close relationships with the arms industry and a lot of the people who buy large numbers of weapons fantasize that they are NOT or may not be part of a community. So the NRA has to advance an ahistorical, dishonest, libertarian conception of the Second Amendment.

        The theory of the Second Amendment is like Switzerland, not Randy Weaver. It’s that we will arm the populace so that it can come together for the protection of the society and the government, if necessary, in the form of a disciplined, trained, regulated fighting force.

        1. The Second amendment is neither communitarian, nor libertarian, rather it seeks to achieve communitarian goals by libertarian means. It protects the collective militia against a government that might want to abolish it, by guaranteeing the right of individuals to be armed, so that militias may be raised in emergencies even if the people in charge desperately want it to be impossible.

          1. I think it seeks to achieve a communitarian goal by communitarian means.

            And given that the Constitution grants control of the militias, in emergencies, to the government (see the militia clause), and prohibits levying war against the government (see the treason clause), there’s no plausible reading where it is protecting the right of militias to fight the government.

            1. While true that’s a meaningless point. The founders (and I think, anyone who really considered it) don’t view revolutions as legal actions, but as extra-legal actions.

              No law, nor constitution, writings on tablets, or anything else ever explicitly allows for its overthrow, and yet each replaced what came before, tacitly acknowledging that there may come a point where the design under its aegis will also be overthrown.

              Funny too, is the commentary (not just yours) about anti-government Screeds, when military veterans are disproportionately gun owners and advocates (also: that the yahoos who make churlish YouTube videos tend not to be, but all groups have their yahoos).

        2. You have this individual right because it benefits the public

          No, you have this individual right because there is no more fundamental natural right than the right to self-defense. We have this amendment because some of the founders thought that providing explicit protection for it was doubly important due to have a well-functioning militia.

          1. No, the Second Amendment EXPLICITLY SAYS WE HAVE THIS BECAUSE OF THE MILITIA. AT SOME POINT YOU HAVE TO PAY ATTENTION TO THE FRICKING TEXT EVEN IF YOU DON’T LIKE IT.

            Jesus, conservatives are the worst judicial activists.

            1. You’re missing the point: It explicitly says we have this right. Yes, to safeguard the militia is why the right was guaranteed, rather than being left to the 9th amendment grab bag.

              But you can’t limit the right in the way you want based on its purpose, because the limits you want aren’t advancing that purpose.

              1. “You can’t limit statutory language because of its purpose” contradicts literally 400 years of statutory interpretation law, which the framers were aware of when they wrote the purpose clause.

                You need to go to law school and actually learn all the shit you don’t know.

    3. “In general, I agree the 2nd Amendment creates an individual right. However, I would tie that right more closely to the text than Heller did, including connecting it to “a well regulated militia,”

      But if we’re revisiting stuff, should we also revisit the P&I clause, passed partly to “…give to persons of the negro race…the right…to keep and carry arms wherever they went…”

    4. Rhode Island’s 1842 constitution, its first, provides:

      The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .

      Who has the liberty: the press or ANY PERSON?

      1. Sorry, that’s not a valid point. A press is an inanimate object, and can’t have rights, any more than a gun can have rights. The militia is not an inanimate object, and therefore it could have rights. The 2nd amendment could have said that the RKBA is reserved for the militia, and that would have made perfect grammatical and logical sense. But it didn’t.

    5. I agree the case is moot because the legislature has given the plaintiffs the relief they sought in court. I also agree giving them what they asked for can’t be regarded by the courts as nefarious or reflecting some sort of bad motive.

      In general, I agree the 2nd Amendment creates an individual right. However, I would tie that right more closely to the text than Heller did, including connecting it to “a well regulated militia,” which I would regard as imposing some limitations on the right. Under a robust interpretation of state authority to regulate its militia, I think a state may well have substantial power to determine where and how firearms training can take place, and at least parts of the original ordinance might be constitutional under such an approach.

      This is entirely correct.

    6. In general, I agree the 2nd Amendment creates an individual right.

      So prior to Amendment XIII, black Americans had no right to be free human beings? Note that I’m not asking if there was no legal protection for that right…but simply no such right at all.

      1. Given that a “right” means an enforceable claim against the state, I think it is much, much more accurate to say that they had an absolutely correct moral claim, but not an enforceable legal right. Indeed, there is a specific Supreme Court holding which was binding before the Thirteenth Amendment, that they had no rights.

        1. “Given that a “right” means an enforceable claim against the state, I think it is much, much more accurate to say that they had an absolutely correct moral claim, but not an enforceable legal right.”

          Did the Declaration of Independence claim that all men were endowed by their creator with enforceable claims against the state? That would be weird.

          Perhaps the “correct moral claim” to liberty that the thirteenth amendment finally got around to protecting is one of these inalienable rights.

          Why would the word means something different in the context of the bill of rights?

          “The enforceable claim against the state of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” is a pretty awkward way to phrase things.

          1. Come on, TiP. A rights-based moral system is good stuff, but relying on natural rights as the true source of legal rights is at best just legal positivism plus self-righteousness. Which we do not need more of.
            At worst, it’s a sort of legal solopsism where you get to create your own Real Bill of Rights and condemn all who do not agree with you based on no evidence other than your own vehemence. Which, again, we do not need more of.

            In the middle, it’s hand-waiving to shore up originalism from the worst of it’s moral implications. Your invocation of the Declaration is telling on that front, considering who wrote it.

  6. I’d also like to register my strong disagreement with Justice Alito’s no-rational-basis argument. Just as opposition to abortion is a completely rational position, favoring gun control and opposition to individually held firearms is a completely rational position. The position might be unconstitutional under the 2nd Amendment. But it is not unconstitutional under rational basis.

    It just doesn’t matter whether judges, or you or I, agree or disagree with these positions. In my view, it is not open to judges to take sides on long-debated, well-known social controversies by claiming that the side they disagree with is irrational.

    1. “In my view, it is not open to judges to take sides on long-debated, well-known social controversies by claiming that the side they disagree with is irrational.”

      Is there any limiting principle here? Let’s imagine the Nebraska legislature passes the following law: “Whereas droughts are a Bad Thing in farm country, and because abortions cause droughts, abortions shall be henceforth banned in Nebraska”. Your view is that judges ought not intervene by claiming that is irrational? That would seem to completely nullify constitutional protections.

      1. You’re assuming there’s a “long-debated, well-known social controversy” over whether abortions cause droughts.

        There isn’t.

    2. Abortion is not an enumerated right. The right to keep and bear arms is enumerated.

      1. That’s not a real distinction between rights, though; it’s just a talking point.

        1. You’d like to think so. You’d be happy talking any right to death.

          1. No, I just don’t agree with your take on what rights there are. Not the same as hostility to rights generally, but that is a neato strawman.

        2. Under a system of written law, that is absolutely a real distinction between rights. It distinguishes the rights that are debatable, and the rights that are unambiguously there until the Constitution is amended.

          1. That’s not how judicial review works, though. Binding precedent is no less binding than constitutional text.

            1. At the level of the Supreme court, there is no such thing as “binding precedent”, but there still should be “binding constitutional text”, if they take their oaths of office seriously.

              1. “if they take their oaths of office seriously”

                LOL

                Get serious please.

              2. Other than Thomas, they all respect Stare, which incorporates all interpretations of the text. Even the ones based on the Ninth that you don’t like as much.

                1. Yep. And that’s because the actual authors of the Constitution intended to import the common law system into the United States, and also intended to create unenumerated rights (see the Ninth Amendment).

                2. They all respect stare decisis except when they don’t. Roe v Wade wasn’t respecting stare decisis. New York v Sullivan wasn’t respecting stare decisis. Obergefel wasn’t respecting stare decisis.

                  Pick any random case a significant number of people would recognize, and the chances are it shat on stare decisis.

                  Then they start raving about stare decisis if anybody suggests overturning the results of their violation of it.

                  1. “They all respect stare decisis except when they don’t. Roe v Wade wasn’t respecting stare decisis. New York v Sullivan wasn’t respecting stare decisis. Obergefel wasn’t respecting stare decisis.”

                    Except for Thomas, stare decisis is used to prevent existing liberal doctrines from being repealed or stopping new conservative one. Its not intended to prevent “living constitution” jurisprudence.

                3. It’s not that all past precedents are inviolate – don’t pretend anyone was arguing that – it’s that you need extra oomph to overturn them.

                  Which is why when you’re arguing before the Court, or even writing at a law school, your briefs/articles are chock full of precedents. Because that’s where the Constitution gets applied to the real world, and that’s what persuades the Court.

                  1. “you need extra oomph to overturn them”

                    Only liberal causes provide the oomph. Funny that.

                    1. Sure, go full legal realism conservative whinging.
                      Which neatly obliterates the initial argument that abortion isn’t as much of a right as bearing arms. Because there are no longer any rights – it’s all instrumental.

                      Well played.

                  2. “It’s not that all past precedents are inviolate – don’t pretend anyone was arguing that ”

                    You were arguing precisely that, when you wrote “Binding precedent is no less binding than constitutional text.” The constitutional text is not just something you need “extra oomph” to overturn. A court — including the Supreme Court — can’t overturn it, no matter how much oomph is applied.

      2. That doesn’t make promoting gun control as social policy anymore irrational, though.

        1. No, unconstitutional policies could, potentially, be rational. They’re just precluded anyway until the Constitution is amended.

          Although at this point there’s very little room for anything to make gun control as a social policy any more irrational, it’s just about maxed out the possibilities there.

          1. It’s probably only irrational in the United States where there are more guns than people so any efforts at gun control will be derided as not making anyone any safer. It’s also irrational here because it is obvious that our current society has apparently reached the conclusion that mass shootings are not all that big of a deal, and that they are just part of life here in the same way that car accidents and particularly virulent flu strains are.

            I used to think that more hospital and funeral visits by policy makers might change things, you know actually seeing the bullet holes, the blood, the dying people, bodies, and grieving families, etc. But then I realized they actually visit all the time and nothing changes. In fact, Trump can give a grin and a thumbs up with an orphaned child at a hospital after a shooting and this is apparently a completely normal.

            Maybe it would change if they were in the ER or autopsy rooms? Would Alito’s attitude towards guns change if he actually had to watch people bleed out and die? Who knows. But probably not.

            Despite my liberal leanings I’ve come to the conclusion that gun control is irrational until enough people have been shot or watched their friends and family get murdered become policy makers and judges.

            In the mean time the best solution is probably to have some sort of national gun insurance program where a gun and ammunition tax pays for the medical and funeral expenses of gunshot victims.

            1. If you’re hoping for people to change their minds at the sight of blood, it’s not rationality you’re looking for, it’s sentimentality. You do realize that, right?

              If you want rationality, try the founders’ favorite criminologist, Cesare Beccaria:

              “False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that it has no remedy for evils, except destruction. The laws that forbid the carrying of arms are of such a nature. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

              THAT is the rational reasoning behind the right to keep and bear arms. You don’t want rationality, you want emotion.

              1. Don’t you think its rational to consider the actual physical harm caused by guns in determining gun policy? And even if it is sentimental, so what? Sentiment is used all the time to justify policies all the time. There’s no rule that says society needs to be governed only by whatever you consider to be rational when humans are an emotional people.

                Your version of rationality permits the justification of any sort of physical harm as long as it’s “rational.” Caring about the victims of genocide is sentimental under your theory if there is a “rational” reason to explain it. Maybe you just lack empathy and are morally deficient

                P.S. If the Founders’ favorite criminologist Cesare Beccaria carried any weight, there would be a much different conversation in this country about capital punishment and torture.

                1. Maybe you just lack empathy and are morally deficient

                  I don’t think it’s that. I think Brett and other gun rights advocates fear nuance.

                  And I get that. Because people fear nuance on the left too. There are plenty of pro-choicers, for instance, who don’t want to concede any moral issue with extremely late term abortions, for instance, because they don’t want to admit of any nuance and fear that once we start balancing, there’s nothing to stop people from balancing the core early term abortion right that is the central premise of the movement away.

                  So gun owners are fearful that if they concede the obvious- that some weapons are very dangerous and are going to require some pretty strict regulation- that ALL weapons will eventually be found to be dangerous and demanding of strict regulation.

                  The problem is, wishing things wouldn’t be nuanced doesn’t actually eliminate the need for nuance. It doesn’t actually justify aborting an 8th month fetus with no imminent birth defects that you might fear that early term abortions are restricted. And similarly, it doesn’t actually justify an absolutist reading of the Second Amendment (which clearly speaks of both militias and regulations) just because you are afraid of any consideration of dangerousness.

                  And we have a great example of this in the First Amendment. Does anyone truly believe that Black and Douglas’ version of the First Amendment, where not even the disclosure of American troop movements in a war would be restricted, where a public figure could never sue for libel even if a maliciously false statement destroyed her career, where child pornography is fully protected speech, would be a better interpretation than the doctrines we actually have? The reason we don’t use absolutism as our interpretative metric is because it actually doesn’t work- in fact, it ends up being ridiculous (and doesn’t concord with framers’ intent anyway).

                  1. It’s not that I fear nuance, it’s that I haven’t seen much of it in my life in this debate that wasn’t feigned.

                    As I mentioned to Sarcastro down-thread, I’m nearly 61, I’ve been in this fight since the 70’s. And though Alzheimer’s may get me yet, I’m not going to voluntarily pretend to have forgotten all I learned in 40 plus years of fighting gun control.

                    I’ve seen Kennedy propose a ban on “armor piercing” ammo, that was written so that it would ban all rifle ammo suitable for any game larger than squirrels.

                    I’ve seen the current background check system enacted into law with a provision barring retention of records, and the Clinton administration had to be taken to court to stop them from retaining them in violation of the law.

                    I’ve seen Josh Sugarmann of the VPC brag about coining the term ‘assault weapon’ on the basis that it confused people into thinking what they were trying to ban were machine guns. Yeah, he thought it was clever, came right out and admitted it.

                    I’ve seen the head of the supposedly independent Million Mom March, (100k at best.) decide that it was worth talking to a pro-gun group to see what they could agree on to save lives, and come back to find the lock on her office changed.

                    I’ve seen enough to convince any rational person that the only thing the gun control movement wants is to disarm anybody they can, under any excuse that works, and what they can get away with at any given moment is the limit of their “nuance”.

                    And I’m not going to pretend I haven’t seen all this just to make you happy. There is no good will, no spirit of compromise here, there are only diametrically opposed views of what should happen, and in the end one side will prevail, and I mean it to be mine.

                    1. What you are ignoring is that this isn’t how courts work. It may be how gun control advocates work, but in both abortion and the First Amendment context, courts don’t recognize absolute rights. They balance. And yet you would not claim that we have no free speech in America, or that America does not protect abortion rights.

                      There’s no reason to think that the courts can’t protect the core of Second Amendment rights while also allowing some restrictions of activities that really are a danger to society. Except that isn’t what the arms industry and the most vocal gun advocates want.

                    2. What “activities really are a danger to society” that are beyond owning and bearing arms? You sound like one of the liberals arguing for “reasonable restrictions,” and then declare all restrictions on owning nearly every firearm to be “reasonable.”

                    3. Nowhere have I said that all gun restrictions are reasonable.

                      I don’t, for instance, think that restrictions on cosmetic gun features, cast as an assault weapons ban, are reasonable. I think gun rights types were right on that one.

                      Nor do I think that the prohibition statutes in Heller or McDonald were reasonable.

                      In general, I think statutes that relate to the historical tie between gun ownership and civic participation, which are expressly linked in the Second Amendment text, are reasonable. So the government can require you to register your guns, store them safely, train, report for militia duty, pass an exam and a background check, and do other such things. On the other hand, regulations that do not relate to the government’s central role in ensuring an armed populace that can come to the defense of the state are presumptively unreasonable.

                    4. I actually agree with you on those. I don’t oppose registration because I think it’s facially unconstitutional, but because they’re used to confiscate. EVERY time.

                    5. “Nor do I think that the prohibition statutes in Heller or McDonald were reasonable.”

                      Well, that’s great and all, but the fact remains that practically everybody in the gun control movement declared the Heller decision an abomination, and has promised to get it overturned.

                      And that makes the prohibition statutes in Heller and McDonald a fair measure of what gun controllers mean by “reasonable” regulation: A total prohibition, or as close to it as they can get.

                    6. I think New York City and California’s laws are fairly good examples of what the left means by “reasonable and common sense background checks.” Hell, California requires an FFL transfer of ammo these days!

                  2. I agree with all of that.

                2. You can consider actual physical harm, and benefits, too, (People saved by deterring crime don’t bleed all over the place, that doesn’t make them unreal.) without counting on crying widows to change minds. No, you’re not going for rationality, you’re going for emotion.

                  In fact, you’ve stopped pretending, when challenged on it.

                  1. I like how you didn’t address the point that rationality can justify anything. Or the charge that you completely lack empathy. I guess you agree with that, and think your logic will save your soul.

                    But maybe I might have a different view because I have seen a crying mother in person describe how her teenage children were shot in the back. I saw the kids’ bullet ridden bodies laid out on the autopsy table, while a doctor and prosecutor methodically and dispassionately described the wounds. The boy’s kidney was obliterated.

                    Now, this wasn’t done with a gun that would ever be banned. It was a handgun. But if I saw that damage done to a kid and it was with a gun that I know could potentially be removed from society because it has no discernible purpose other than to do that to kids like those two? Why wouldn’t I want to do that?

                    Being a human is an emotional experience. Being ethical and moral is an emotional experience. I’m truly sorry you can’t appreciate that.

                    1. No, pretend rationality can justify anything, actual rationality can only justify rational things.

                      “But maybe I might have a different view because I have seen a crying mother in person describe how her teenage children were shot in the back.”

                      And resolved to deal with this by preventing the next crying mother from defending her child, while doing nothing to stop children from being shot in the back? If you are not rational about your means, you accomplish nothing you set out to do except by accident.

                    2. Yes because a rifle would have been readily available when her BF went nuts started choking her then and shot the kids in the driveway.

                      Oh also remember that time the Dayton cop was the good guy with the gun and 9 people were still murdered within 30 seconds? A readily available gun did not make them any safer. Or how could literally anyone in Las Vegas concert crowd defend themselves with a weapon? Start shooting back randomly at a hotel?

                      Ask yourself using your rational brain: is there ever going to be a body count so high that you’ll think maybe guns are in fact a problem and are never actually going to prevent most gun deaths?

                      Is it 100,000 a year? A million? How many people?

                    3. So LawTalkingGuy, what is your argument? To ban nearly every gun? Because what you’re describing is a consequence of gun ownership in general, not anything that can be prevented with “reasonableness.”

                    4. RestoreWesternHegemony,

                      I suppose in some sense what I want is a cultural recognition that a strong defense of guns and gun rights is at a certain point simply a strong defense of routine violence. Or even worse, a celebration of violence itself. And that is neither healthy for society nor moral. When you reject the notion that what guns do to human bodies matters in policy making, when you don’t even have an upper limit on how many humans you’re willing to see dead until you even reconsider your position, you are admitting that you’re okay with a lot of violence. And maybe you shouldn’t be.

                      (I know your version of morality requires the government to violently impose its will on your personal enemies, but most people (possibly even Brett) are hopefully not that far gone.)

                    5. I acknowledge that as long as guns are generally available, we will have occasional mass shootings. My issue is that you and people like you make the argument that you want “reasonable and common sense gun regulation,” but when you make reference to “how many bodies is too much” it’s clear that you’re really asking for a full ban and confiscation.

                    6. “I suppose in some sense what I want is a cultural recognition that a strong defense of guns and gun rights is at a certain point simply a strong defense of routine violence.”

                      I doubt you are going to get that recognition, because the gun rights community abhors violence. In particular, violence perpetrated against innocents. And we think that the best way to minimize violence against innocents is to make sure that innocents be able to effectively defend themselves. When you have a conflict between a 100 lb. woman and a 200 lb. attacker, disarming them both doesn’t improve things.

                      (and that’s putting aside the additional argument of whether the lady or the attacker is more likely to scrupulously obey gun bans)

                    7. Abhorring something so much you refuse to discuss it isn’t abhorrence – it’s denial.

                      And your switch mid-comment from a multi-person massacre to a one-on-one fight is a convenient switching of frames, is it not?

                      I do think the right to self defense trumps, but don’t ignore the costs.

                    8. “Abhorring something so much you refuse to discuss it isn’t abhorrence – it’s denial.”

                      Where the heck is that coming from? Believe me, I’m not denying mass shootings occur.

                      “And your switch mid-comment from a multi-person massacre to a one-on-one fight is a convenient switching of frames, is it not?”

                      Again, not getting your point. If a hundred people a year are getting killed by law darts, **and no one is being saved by lawn darts**, ban away. But guns aren’t like that. LTG has made several posts that **only** discuss the costs of gun ownership. If your position that pointing out he is ignoring half the balance sheet is somehow improper, we’ll have to disagree. If Brett had extolled the benefits of self defense in multiple posts, and someone pointed out that criminal misuse of guns also occurs, would you take them to task for convenient frame switching?

                      “I do think the right to self defense trumps, but don’t ignore the costs.”

                      I’m not. And LTG shouldn’t ignore the benefits.

    3. I would say that if your only basis is a clearly unconstitutional one, then it would not be a rational basis under the Constitution. Passing a law that no one was allowed to speak poorly of elected officials might be objectively rational depending on your viewpoint, but there is no rational basis that is supported under the Constitution.

      1. That’s not what the rational basis test is, though. There needs to be a legitimate government interest and the means the government uses needs to be rationally related to advancing that interest. That’s why we have strict scrutiny tests: so that even rational interests do not go against fundamental rights.

        Government interest: not having children in schools shot with AR-15s. I’d love to hear an argument that this somehow not a legitimate interest of government (especially state and local government.)

        Rational related means: mandatory AR-15 buybacks. It’s clearly rationally related to the interest, because it would advance the objective of having less AR-15s available to shoot children with.

        But, the Constitution may prohibit such a policy because the Second Amendment is a fundamental right. Since no one can (seriously) argue that there isn’t a rational basis for the policy, the Court needs to use strict scrutiny (or some other higher scrutiny level) to protect the right.

        1. In the case at hand, NYC admits their scheme did nothing to increase public safety. Where is the rational basis there?

        2. “That’s not what the rational basis test is, though. There needs to be a legitimate government interest and the means the government uses needs to be rationally related to advancing that interest. ”

          In practice, that’s not how the “rational basis” test actually operates, though. “Rational basis” is, in practice, more of a “not gibbering insanity basis”. The judge just has to be able to imagine a basis for the law that somebody could have held without being chewing on the furniture insane, and never mind if that was the actual basis for the law.

          “Intermediate” basis actually operates as “rational” basis is supposed to, and “strict scrutiny” in practice is more like “intermediate” basis, with basically nothing getting actual strict scrutiny except maybe abortion rights.

          But, let’s pretend that “rational basis” actually operates as advertised.

          In your example, for instance, not having school kids shot is indeed a legitimate government interest. Not having them shot with AR-15s, however, wouldn’t be, because there’s no rational reason to prefer that they be shot with AK-47s or hunting rifles or what have you; The rational interest is agnostic to the weapon that might be employed.

          So, a “buyback” of AR-15s can’t be rationally justified, because it does nothing to assure that the rational goal would be achieved, weapon substitution would render the effort utterly ineffectual.

          1. This seems to reject any form of incrementalism in policy as irrational. Just because there are other dangers doesn’t mean it’s not rational to mitigate one type of harm that it’s feasible to mitigate. It’s like saying there is no need to ban lead paint because there is lead in pipes. Or like rejecting a polio vaccine because you can still get typhoid.

            1. Well, no. The reason “incrementalism” doesn’t work here, is that school shootings aren’t random events, or the clockwork like result of physics and chemistry. They’re volitional acts.

              Because they’re volitional acts by sentient, even somewhat rational beings, you get near 100% substitution on means. You can’t say, “Half of all school shootings are done with this model of gun, so if we just ban it, that’s 50% less school shootings!”

              Because that doesn’t address motive, the person intent on a school shooting just selects some other gun, and commits the shooting anyway. Or, in the extreme, bombs the school. (The Bath school disaster, 38 dead, 58 injured.)

              Gun controllers typically discount almost entirely the volitional nature of gun crimes, because taking it into account reveals gun control to be an ineffective approach to preventing violence, and they ARE the gun control, not violence control, movement.

              1. Then why do countries with strict gun control have less mass school shootings (or bombings)?

                1. I don’t generally try to explain things that aren’t true.

                  Some countries with strict gun control have fewer shootings, some more.

                  But if I had to identify a real cause for the problem here in the US, I’d say it’s the media’s willingness to make anybody who picks up a gun and shoots up a school into a nation-wide celebrity. These are, to be blunt, copy-cat crimes. The media are encouraging them, and they know it.

                  The number of such incidents started climbing once the media, (And let’s be honest, they did this as part of a PR push for gun control.) started exhaustively reporting each incident nation-wide, instead of treating them as local news as they had before Columbine.

                  1. Anything passed 2015? And as far as the media goes, what are they supposed to do? Pretend that a bunch of people weren’t just murdered?

                    1. ***past

                    2. “And as far as the media goes, what are they supposed to do? Pretend that a bunch of people weren’t just murdered?”

                      Have a gander at dontnamethem dot org (trying to avoid perpetual ‘waiting for moderation’). The media voluntarily adopted guidelines about reporting celebrity suicides which have been successful in reducing copycats.

                      The Va Tech whacko stopped to mail a video rant to a TV station between his first and subsequent murders – and the media broadcast it for him. That’s indefensible. We’re making an implicit deal with whackos – shoot enough people and we will give you the notoriety you crave and air your grievances. When you reward behavior, you get more of it. We don’t have to keep making that deal.

                    3. “And as far as the media goes, what are they supposed to do? Pretend that a bunch of people weren’t just murdered?”

                      Sure. In fact, how about we pass a law banning all such reporting. First amendment, you say? Why is that more important than the second amendment? If you’re willing to entertain “reasonable restrictions” on the second, you should be equally willing to do so for the first. Would it have any actual impact? Who the **** knows? Let’s just try it and see. After all, that seems to be the standard for 2A violations.

                2. The countries with as you describe it “strict gun control” for the most part don’t allow gun ownership at all. They have de facto bans. But you never argue for that. You just argue for “reasonable common sense restrictions.”

                  1. Almost every last gun controller treated the Heller decision as an abomination which should be overturned. That’s still their position.

                    That makes DC’s pre-Heller gun laws the measure of what they think “reasonable common sense restrictions” look like. Or else they would have said, “Fair cop, laws like DC’s should be overturned.”

                    Always remember that: When they say “reasonable” they mean “total ban”.

                    1. Or, at the very least, they mean a total ban on magazine loaded semi-automatics. In their eyes, allowing us to keep one pump action shotgun or .38 revolver is “reasonable.”

                      Oh yeah, let’s also remember New York’s proposed law to limit ammo purchases to 20 rounds every 90 days because of course “No one needs more than that!”

    4. Alito’s point wasn’t that he didn’t see the purpose, but that the city itself didn’t think there was a purpose in their law.

      The point was that the City implicitly asserted a public danger rationale for these restrictions, but when they were repealed also claimed (at oral argument) that there was absolutely no increase in public danger from the less restrictive law. If the city thought that the more restrictive law would reduce crime – even if they’re wrong – they’d have at least a plausible legitimate public purpose in the law (whether their belief was rational or not is a separate question). But the city didn’t think that the more restrictive law would reduce crime more than a less restrictive law, so they could have had no legitimate public purpose in the law – only an illegitimate one.

      To use an analogy, suppose a state legitimately believes that an educated populace is necessary for the ongoing freedom of the state, so they pass mandatory education laws, including funding public schools. Then they pass a law requiring a person to prove that they can read before voting to prove that they are educated – that at least has a legitimate public purpose (even if we know that’s not why it was done historically). Then they require reading in Latin before voting (knowing that this will effectively restrict the franchise to only those who went to their elite private school. During litigation they agree that this doesn’t advance their educational Interest. Under your paradigm that would still pass muster.

      1. Exactly. ReaderY’s clumsy mischaracterization of Alito’s point is either a dishonest attempt at a poor straw man argument, or an indication of extremely sub-par literacy skills on his part.

    5. While it might be debatable what level of scrutiny is appropriate for laws related to the 2nd Amendment, rational basis it’s not!

  7. I never found mootness to be particularly muddled when I took federal courts back in the early 2000’s. At least no more so than any other procedural area. Is there one of the exceptions that would seem to apply? I’m not seeing any.

    I am unsurprised that the usual 2nd Amendment ‘they’re coming for our guns!’ crowd don’t much care about justiciability, but arguing that motives matter when a case becomes moot due to legislative action would be a bit counterproductive to other efforts, no?

    1. IANAL, so I’d be grateful to hear your opinion of this hypo: it’s Jim Crow time, and Clusterfrack, Alabama has a honkies only policy at the municipal pool. When the SC grants cert, Clusterfrack repeals its ordinance, and the AL legislature passes a law that municipal pools have to be open to everyone on Tuesday afternoon, if the sheriff certifies the swimmer has good moral character.

      Is the case now clearly moot?

      Alternatively, the AL law desegregates pools altogether, the case is tossed as moot, and next week the legislature and Clusterfrack repeal the changes. After all, what the legislature can do in two days, it can undo in two days.

      No problem, because the plaintiffs can just start a new multi year odyssey seeking relief? To my IANAL mores, that sounds pretty wrong. I’d love to hear the moral argument for that being the right way to have government work.

      1. Good analogy, because in fact, NYC and NY state law require “good moral character” to issue a pistol permit. Good moral character is hard to find in NY, particularly among its elected officials, so it is an easy way to dismiss pistol permit applications.

      2. For your first hypo, it’s basically the case at bar. Yeah, the case would be moot.
        There is an exception called ‘capable of repetition, but evading review.’ This does not fulfill the second criterion.
        Additionally, re-passing the ordinance may result in sanctions. But note that such a remedy is backwards-looking, not forwards-looking.

        For the second, that’s allowed. With such shenanigans a state could buy a few months. Don’t think a lower court would suspend injunctive relief in such a case. And at what cost those few months of dilatory action?

        Again, the point is the state needs to do the bad act before the court acts. Precrime isn’t a thing, even with gun control.

      3. IANAL, so I’d be grateful to hear your opinion of this hypo: it’s Jim Crow time, and Clusterfrack, Alabama has a honkies only policy at the municipal pool. When the SC grants cert, Clusterfrack repeals its ordinance, and the AL legislature passes a law that municipal pools have to be open to everyone on Tuesday afternoon, if the sheriff certifies the swimmer has good moral character.

        Is the case now clearly moot?

        Yes. You may file a new lawsuit if the sheriff is enforcing the “good moral character” requirement discriminatorily (see Yick Wo v. Hopkins), but your first suit is moot.

      4. Dilan, Sarc, thanks for the explanation.

    2. “I am unsurprised that the usual 2nd Amendment ‘they’re coming for our guns!’ crowd….”

      You say this as if to disparage that crowd. And why not, it’s not as if any major presidential candidates are calling for confiscation?

      “Hell yes, we’re going to take your AR-15, your AK-47.” Beto.

      1. Yeah, they’re – you’re paranoid. You love it, wallow in the victimization even as you have countless guns.

        Why else would you work so hard to cherry pick statements to generalize about an entire political party? Calling Beto a major candidate as though that means he speaks for Dems. Want me to start taking Hermain Cain as speaking GOP gospel?

        ‘Empirically proven’ that NY is acting in bad faith is ipse dixit BS. Complaining that your permit was inconvenient because you have a right, damn it, is again just wallowing in victimization, even as everyone who has that complaint seems to have gotten their permit.

        I agree with Heller. I think there is an individual right to self defense that the Second Amendment identifies. I think confiscation is clearly unconstitutional. But because I don’t think every gun control law is an attempt to ban all guns, I’m part of the evil leftist conspiracy to disarm and then enslave everyone.

        Paranoid.

        1. “wallow in the victimization even as you have countless guns”

          We think the people of New York and California, subject to rigid and draconian state gun control laws, deserve the protectiuon of the 2A as well as those in gun rights friendly states.

          1. Rigid and draconian, and yet with lots of guns nevertheless.

            And now you’re playing the victim on behalf of other people. You are not currently oppressed, and yet for the past three decades you have insisted that there are tyrants seeking to oppress you around every corner.

            That’s paranoia.

            Feel free to fight for more gun rights. But don’t argue secret conspiracies and lies amongst all who disagree with you.

          2. I live in California. I have no problem buying guns.

            1. Yep. We even have, gasp, gun shows!

            2. Can you get a Gen4 or Gen5 Glock? Can you get a magazine larger than 10 rounds?

              If you want a Glock 43, you can’t get one. Why is that okay?

        2. “Calling Beto a major candidate as though that means he speaks for Dems. ”

          You know, that would be a valid complaint if so damned many of the candidates weren’t on record agreeing with him, and polls didn’t show about 70% of Democrats supporting gun confiscation.

          1. I didn’t hear any objections from the panel.

            1. That’s not how debates work.

            2. Eh, a couple of them thought it wasn’t feasible. Which may mean no more than that they don’t want to die on that hill next year.

              1. Brett doing a great job of showing how no evidence against his paranoia will be believed.

                1. Look, Sarcastro, I’m going to be 61 in a month, it’s not like I’m new to this game, I’ve been part of this fight for a couple generations now. I’m not going to pretend that I haven’t learned anything about the opposition just to keep you from calling me “paranoid”.

                  1. You haven’t yet learned that you’re largely fighting phantoms, though.

                    I have no problem with your policy struggle as part of the normal political policy back-and-forth around Constitutional rights.

                    What I take issue with is how you demonize your opposition. You can call someone calling for a gun ban after a school shooting wrong, or misinformed. But you’re calling them evil. And you’re calling an entire political party evil.

                    Which allows you to argue stuff like ‘this case isn’t moot, because Dems are evil.’ or ‘this President isn’t legitimate because Dems are evil’ or ’round them up – they’re evil Dems.’

                    It’s not the fight, it’s the paranoia.

                    1. “But you’re calling them evil.”

                      For all I know they think they’re fighting for all that’s good in the world, and that this is so important that it justifies everything they do, every lie, every dirty trick, every assault on the rule of law.

                      Doesn’t matter, it makes them functionally evil anyway.

                    2. “demonize your opposition”

                      “you’re calling an entire political party evil. ”

                      Ever read your side? Racist, mysoginist are the nice terms they use.

                    3. Doesn’t give you license, Bob.

                    4. From the NY Times on Oct. 13:

                      “All 19 candidates support an assault weapons ban. The biggest disagreement: whether people who already own those weapons should be required to sell them to the government, or simply given the option to do so. There is also some support for a federal gun registry, an idea that many Democrats used to dismiss exasperatedly as gun-lobby scaremongering.

                      Former Vice President Joseph R. Biden Jr. is calling for a ban on all online sales of guns and gun parts, an unusually aggressive proposal. Senator Elizabeth Warren wants a 30 percent excise tax on guns and a 50 percent excise tax on ammunition. Thirteen candidates want to require a license to own a gun.”

                      I’m not paranoid, they really are out to take my guns, or make it extraordinarily expensive and inconvenient to keep and use them.

                      Stick that in your pipe and smoke it.

                  2. Forty years of losing in the culture war is a lot of losing, Brett.

                    How many years of failure will be enough for you?

                    1. Fuck off, slaver.

                    2. Forty years of losing this fight has gotten us to the point where shall issue concealed carry is the law of the land almost everywhere, you don’t need a concealed carry license in many states, and NYC repealed a gun law in the expectation that the Supreme court would strike it down.

                      If that’s what losing looks like, I’m fairly comfortable with it, and hope to continue losing.

          2. First, buybacks need not be complete confiscation – I’m against them, but don’t exclude the middle here.

            I’m still stuck on the fact that you think every Dem that doesn’t talk about mandatory buybacks is lying about their secret desire.

              1. Ahh, the cherry picker general is here.

        3. No one wants to ban or confiscate guns. Ever! It’s a crazy and paranoid idea!

          Beto O’Rourke: ‘Hell yes, we are going to take your AR-15’ – YouTube

          Quote:
          At the Democratic Presidental Debate, Beto O’Rourke promised to confiscate guns, to wild applause from the Democratic audience. And NOT A SINGLE ONE of the other Presidential candidates challenged or questioned him.

        4. even as you have countless guns

          Your inability to count past 7 is noted.

  8. Good Lord. Alito, and Gorsuch to a lesser extent, are being really shamelessly willfully obtuse about how litigation works generally in their effort to chastise New York. I can’t believe Alito is actually speculating about the relief the plaintiff could have sought but didn’t as a reason to save the case. I would be curious to know if Alito was ever this plaintiff friendly in any other context either at SCOTUS or the Third Circuit. A defendant taking steps to resolve a case before a ruling is not an “extraordinary step.” It happens all the time.

    1. Yet if this was simply a matter of missing the unconstitutionality of the law unruly it was pointed out, rather than gamesmanship, wouldn’t the repeal have happened 7 years ago, before the oppressed spent millions on litigation?

      1. Dem’s the breaks. The plaintiffs factored in whether they could obtain attorney’s fees when they filed. (And it is possible they will get them,.)

  9. that “one particularly egregious racial epithet” should not be protected by the First Amendment.

    By this I assume she only means that the n word shouldnt be trademarked or copyrightable (lame cop out position IMO), not that people should be jailed for shouting it into the ether (while not in the context of threats, incitement etc.)

    1. I’d assume she means to start with denying the word copyright and trademark status, and then work her way up to jailing people when the Overton window had been shifted far enough.

      Well, to be fair, at this point she just intends to hold onto her seat as long as possible in the hope she can run out the clock, and somebody other than Trump picks her successor. I doubt she’s making any long term plans.

  10. As a matter of mootness law, this seems like an easy case. Consider, for example, Flanigan’s Enterprises v. City of Sandy Springs, a first and fourteenth amendment challenge to a city ordinance that the city repealed only after oral argument before the en banc court of appeals made clear that it would lose. https://www.leagle.com/decision/infco20170823066 The court of appeals held the claims for declaratory and injunctive relief moot despite the timing of the repeal, and even held that repeal mooted a claim for nominal damages arising from the past enforcement of the ordinance.

    Without the second amendment focus, this is an easy mootness case. The Court can decide a second amendment case when it has a real case before it; as noted, there are plenty in the pipeline.

    1. It is kinda neat that when it is the government in action an admission of guilt cannot be used against them, and is instead used to absolve them of responsibility.

      1. Think a bit – why do you think the law is as it is? Is it just to let the government off the hook, or might there be a prudential reason why mootness should apply in these cases?

        1. Yes, it’s just to let the government off the hook. The government’s own courts routinely do things just to let the government off the hook.

          1. Yeah, the Founders added the Case or Controversy requirement to Article III because they really loved loopholes.

  11. If SCOTUS declares the case moot, aren’t they offering a roadmap for uncontitutional laws to live on.

    A state merely repeals the unconstitutional law when certiorari is granted, and passes a new identical law when the mooting decision is handed down.

    For example, restrictive abortion laws that may come to SCOTUS in the foreseeable future. Why can’t the states use that tactic to avoid a decision on the merits?

    Or is the tactic too obvious to mention, and should we expect all the justices to be fully aware of the consequences?

    1. There’s an exception called ‘capable of repetition, but evading review’ that would apply.

      But it’s not a prior restraint like this would be.

      1. I think there are some issues with applying that doctrine to the legislative backtrack scenario. Unlike the classic example of a pregnancy, it’s not a naturally occurring phenomenon that will always be finished before judicial review can be completed.

        There are also other tools to force the issue: like refusing to stay any injunctions so that the defendant state or city can either take their shot at SCOTUS or never be able to enforce the law anyway.

        1. That seems to me to be the proper resolution of this case. I have to think a bit about the actual mechanisms but the proper result is for this case to be declared moot but the plaintiffs be allowed to amend their pleadings to cover this new law and the state be enjoined for any enforcement of the new law until the new case is resolved completely. That way you don’t risk creating a bad precident with regard to mootness but you also do not reward the state for clearing trying to abuse the mootness doctrine to enforce a likely unconstitutional law. How exactly the court would do that I am not sure, but that would be the best result in this case I think.

      2. How is this prior restraint? That makes no sense. The example he gives is exactly what is going on here. And declaring this case moot creates the exact opportunity for abuse he describes.

        1. The state has not yet acted to put the law back into place – that’s where the evasion would come in, and that’s why any action now is prior restraint.

          1. To allow them to act would be to allow them to enforce a likely unconstitutional law and evade judicial review by making incremental legislative changes.

            Even if the court were to adopt my strategy below and make the plaintiffs’ refile but enjoin the state from enforcing the law, that places a very large burden on the plaintiffs since they will have to continue to pay legal fees and incur costs to get the law struck down. Who is to say that they have the resources for that? And if they don’t, my solution allows the state to get away with an unconstitutional law.

            Ultimately, the problem is not that there isn’t a real case or controversy, which is what mootness is designed to prevent. There is absolutely a real case and controversy about the new law. The problem is that the Plaintiffs’ pleadings don’t reflect that exact case or controversy. They reflect a slightly different one involving this new slightly amended law. I don’t think the law is different enough to create a new case or controversy sufficient to render the pleadings moot. This is not what mootness was created to prevent.

            1. What are you talking about? How would they evade?

              Your burden argument proves way too much. You just pulled all hypothetical lawsuits into justifiability analysis across the board. That’s why courts don’t play with hypotheticals like that.

          2. Except that many of the states and cities are capable of repetition but evading review using this very tactic. While NYC enacted the law and the State enacted a law which invalidated the city law, the state could readily and easily repeal theirs. Since NYC’s law is still on the books it’s back in action.

            If you really don’t think state legislatures play shenanigans you may want to take a gander at the last time Republicans held NC state legislature.

            1. Could, sure. But hasn’t. So they haven’t really done the repetition bit.

              Maybe they will, but lets deal with reality here. Especially because at that point, they will be unable to evade review.

  12. …and Kagen equating transporting firearms, unloaded in a locked container, with ammunition locked in a separate container, as a form of “carrying” – as though to keep arms in your home is one thing and to bear arms is satisfied by this doubly-locked up gun and ammunition contrivance – just hideous. While Justice Thomas noted elsewhere “I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen” – Kagen relents to admit bearing arms *does* allow transporting them unloaded and locked in a separate container from ammunition in a continuous and uninterrupted journey.

    To this end, the guy who drives the UPS truck delivering shotguns to Bass Pro is “bearing arms”…

  13. God, Alito is such a tool.

    I’ll assume he got caught up in the heat of the moment, wanting a win for his side. Not a great look for a Justice, but they are human.

    I don’t think I see the Court overturning Federal Courts 101 on this hill.

  14. Not surprising Ginsburg arguing mootness, similar to agruing against standing in Gratz.

    Whats to stop for performing similar stunts that DC continued to pull after the Heller case

  15. Not surprising Ginsburg arguing mootness, similar to agruing against standing in Gratz.

    Whats to stop NY & NYC from performing similar stunts that DC continued to pull after the Heller case.

    typo corrected

    1. It’s not surprising, because it’s the correct result. Alito is the one who’s getting a C in federal courts right now.

  16. Let’s try this comparison for some of you, because I think it’s apt to happen.

    State abortion law passed: you can’t have an abortion past 8 weeks.
    Courts: Yeah that’s not going to work.
    State fights it until it’s granted cert, then passes a law that says you can’t have an abortion past 9 weeks and argues the case is moot because the law is changed and their petition doesn’t address the new law.

    The restrictions still exist in an excessive form, is still more restrictive than what the plaintiff’s wanted, but because of the change they now have to start over because their petition wasn’t specific to the new state law and will have to file a new case back at the bottom.

    This is what NY state did. This is what DC did, it’s what all the most restrictive states and cities do. They do it on purpose because they know that they can get away with it repeatedly.

    Give as little as possible at the last moment possible to force a new case that will again take years to work through the courts.

    Just remember if you support this sort of shenanigan because you happen to agree with that particular restriction, then it can be used against the restrictions you disagree with as well and you’ll be stuck with the results or your hypocrisy, or both.

    1. The fact that you need to assume pretextual and non-material changes in your hypo should tell you why this case is moot.

      If you want to argue the changes are non-material, do so. But no one is doing that, they’re just speculating about what evil New York is gonna do. Or even acting like that’s what it did already.

      1. We’re not speculating about what evil New York is gonna do. We’re speculating about what evil New York is gonna do next.

        And that’s a significant difference.

        1. That’s a meaningless distinction, Brett – those two sentences mean the same thing.

      2. You’re telling me that the government is “benevolent” in it’s actions in this case? Because that’s what you’re arguing. Every state is capable of repetition and evasion otherwise the restrictive and obviously unconstitutional abortion laws that were passed most recently wouldn’t have occurred would they?

        I don’t need to assume anything. NY has at least one case where a person traveling through NY according to federal transport laws have been arrested and charged with possession of an unregistered fire arm because their plane was diverted from it’s original location to NY. A pure representation of acting in bad faith because they can.

        Heck there’s a case in the north east where the state arrested a man transporting fire arms (via federal transport regulations) because he was in a car accident before he got to his destination.

        So no I’m not assuming the benevolence of the state to do anything less than whatever they can to very specifically avoid actual case law occurring that would permanently bar them from repeating their shenanigan. That way, they can specifically repeat it. Just like the states that have repeated the restrictive abortion laws.

        1. The part that I find so infuriating is that leftists seem to get angry that we won’t infer good faith from rulings that are obviously in bad faith. It’s like they think we’re morally obligated to take their manifest lies at face value.

        2. I’m arguing your hypothetical is not analogous to this case. I’ve said nothing about New York State.

          A finding of benevolence is not part of judicial analysis. It’s especially not part of judiciablity analysis. Just because you think a state is real bad doesn’t mean you get to ignore judicial procedures based on your own speculation about what they’re totally gonna do.

          I also think changing laws to avoid a judicial opinion is fine.

          1. Oh okay so we’ll just play back and forth with swapping laws out with various minor changes specifically to avoid a judicial review with the same net effect because that’s “fine”.

            1. Lets wait and see if a state actually does that before we start worrying about it. Thus far we have one repeal.

              If a legislature actually starts playing such games, rest assured courts have ways of dealing with that.

              But when such games remain hypothetical, no need to act.

          2. The hypothetical is what they’re doing with abortion laws. So you support that kind of crap with abortion laws?

            1. Yes. Justiciability is the same regardless of what the laws are about. I’m for rule of law, whether it’s my axe getting gored or yours.

              Whether guns or abortion, you need to wait for states to actually try and get a would-have-been-struck-down law back on the books before you condemn them for doing so.

              1. …axe getting gored?

    2. Not to mention that the fact that it takes years to work through the courts is a problem itself. When homosexuals filed lawsuits to get a right to “marry,” their judges ruled in their favor on a Tuesday, with clerks granting “marriage” licenses on Wednesday.

  17. Liberals, your “judges” on the Circuit Courts have upheld:

    – $340 licensing fees to keep a handgun at home
    – “Assault weapons bans” based on cosmetics on the grounds that it might make people “feel safer.”
    – A storage law requiring guns to be locked, even while in the shower for a few minutes
    – “May issue” carry laws that are basically no issue to anyone
    – The transport law in question in this case
    – A ban on >10 round magazines
    – California’s gun registry that bans Gen4 Glock 19s, but allows Gen3 Glock 19s

    There are many, many more from the past 11 years of ignoring Heller. Please describe an example of a law that you DON’T think would be a “reasonable common sense restriction.”

    1. Thank you! And that’s just the tip of the iceberg.

  18. I think 3ducerist hit the issue squarely on its head in his post, above; but I think this has been glossed over, or ignored, even willfully so, by the Joshua Blackman, and most commenters.

    That is, that NY has repealed this law because they do not want to subject the regulatory principle to SCOTUS review; and those opposing mooting the case may want to render an opinion.

    It is unfair, and an insult to the court, in my opinion, to repeal a law in response to a grant of cert. I have no doubt as to the motives of the city, as they don’t want a ruling that will thwart their practice of making it extremely inconvenient, expensive, and legally perilous to own a gun. I only hope those opposed to mooting the case on SCOTUS choose to opine, on the core issue, or on the repeal maneuver, or both.

    I find NYC’s actions in this case analogous to SLAPP – strategic lawsuits against public participation; bear with me, please. I would call the city’s actions a strategic repeal against SCOTUS opinion – SRASO, if you will; not as catchy an acronym as SLAPP, but you get the idea, I hope. “We repealed the law in question, so you must moot!” – avoiding an opinion that will prevent a similar law to be enacted going forward. And the city can harass those seeking to exercise their 2nd Amendment rights – forever. They are using the courts to drag out contests of laws and regulations ad infinitum, exhausting the contestants’ funds and even their lives.

    I hope this maneuver can be ended, and also that the NYSRPA will prevail.

    (FWIW, I lived in NYC for 25 years and was a member of the NYSRPA.)

    1. the regulatory principle to SCOTUS review

      ? What principle is this? No one is entitled or mandated to get SCOTUS review.

      It is unfair, and an insult to the court, in my opinion, to repeal a law in response to a grant of cert.
      Unfair? An insult? Legislative action in anticipation of losing litigation or even appeal is not some norm-violating rarity.

      You didn’t get your perfect case. Such is litigation. And so your side is having a ‘lets rationalize our rage against judicial procedures’ tantrum.

      Comparing this to the speech-chilling SLAPP needs a lot more work. Mootness is a neutral doctrine – it has nothing in particular to do with the Second Amendment except as applied.

      1. I didn’t say anyone is entitled. I’m saying that governments that game the system by passing obnoxious laws and regulations and then repealing them AFTER cert has been granted should be rebuked, and the heart of the issue regulated or legislated addressed.

        1. The wrong has been ended. Regardless of what you think should be, the Constitution says no – there needs to be a case or controversy.

          1. No, you are wrong! Justice Thomas in his majority opinion in Spencer v. Kemna, 523 U. S. 1, 17 (1998):

            “Although a case would generally be moot in such circumstances, this Court’s precedents recognize an exception to the mootness doctrine for a controversy that is ‘capable of repetition, yet evading review.’ ”

            I think that certainly applies here, as not everything has been remedied by the repeal and the state law, such as the restrictions on pauses and side trips, or even the concept of limiting one’s travel outside the home with the pistol.

            1. This would not evade review.

              It’s been covered in this very thread.

    2. “Justice delayed is justice denied” only applies to killing fetuses and having gay anal sex.

      1. Mootness applies to all subjects. It is not surprising that gun folks are making it out as though it’s been created by liberals to target them.

        1. Okay, suppose a state passed a law that, in order to slow the spread of HIV, a gay man couldn’t engage in his craft without a latex condom. Such gay man then brought a suit on multiple grounds, one that he is allergic to latex and as such couldn’t comply with the law and two, that it’s unconstitutional on EP grounds because the law targets him and not heterosexuals. The Supreme Court grants cert, and the state changes the law to permit non-latex condoms. However, the equal protection issue isn’t addressed.

          Is the case moot?

          1. Addressed in my 3:43 pm post.

            …Buttsex is a craft now?

  19. If states were smart, they would pass a law that says that any law automatically sunsets 10 seconds before a mandate issues that it is unconstitutional.

    1. And create a time paradox? Have you gone mad?!

  20. The only reason there is a big push for “gun control” and all of this controversy, is because disarming the populace is the crucial step in furthering the control and subjugation of the people. The imagined is real, the bad guys really are bad, and the forces of evil long to bring the whole world under a single boot of oppression.

    1. the forces of evil

      LOL.

      1. Seriously, what kind of Protocols of the Elders of Liberalism world is this worldwide conspiracy BS from?

        Watching Millennial Lawyer spiral down into Jade Helm 15/Agenda 21 conspiracizing has been pretty horifarious.

      2. Laugh it up, useful idiot!

        Seriously though, you are taking this far too literally or otherwise the wrong way. I have zero idea what any of the conspiracy theories you are rattling off are all about, and I make no claims based on any theories of conspiracies whatsoever. Keep your frothing derangement in check.

        Maybe this will help you. The founders explicitly gave the reasoning behind–the singular purpose of, the 2nd amendment. Some people explicitly disagree with that logic, that singular purpose. Get it? One man’s oppression is another man’s utopian freedom.

        1. and the forces of evil long to bring the whole world under a single boot of oppression.
          That’s a conspiracy, chief. It’s also pretty frothing and deranged. Insisting that that that those that argue fewer guns means fewer gun-based problems are actually secretly working to enslave you is paranoia. That’s the logic that makes people shoot other people and post manifestos.
          And that has nothing to do with the Founders.

          Of course, you’re also wrong on your Constitutional analysis and even your history. The Founders didn’t give a single reasoning behind anything. Particularly here, where the freaking text of the Second gives a reason that is not what you’re talking about.

          1. Not a conspiracy at all, nor any kind of supposition — just my characterization and reasoned opinion of the known facts. Your strawman is made of straw. As you know, I consistently acknowledge the existence of good intentions among those who have a different opinion. To the extent of those good intentions, the differing opinion is merely this: that the “progressive” designs for the government of humanity are good, workable, and would be benevolent in result rather than oppressive. Now, bad intentions also exist. For most day to day political divisions, they may lie on either side. By some accounts, most Republican voters are pure dupes, rubes tricked into giving tax breaks to greedy malevolent billionaires. The same sort of analysis can be given of the other side. But the ostensible disagreement is not some new thing: the debate over more vs less government power, regulation, and centralization. Nor is it some secret thing where the opinions and viewpoints of various folks lie on the vast spectra of these questions. So don’t be so obtuse and histrionic. But do feel free to argue your positions, make your distinctions of degree, and so on. Since you brought up bloodshed, you might consider attempting to take the biggest picture view you can muster, grounded in history.

            Now, on to the founders. Hamilton wrote in Federalist No. 28, “if the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense,” a right which he declared to be “paramount.” Patrick Henry said, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.” Noah Webster: “Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.” Theodore Sedgwick said it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”

            I could go on. So, what was that you were saying? You’re plain wrong as usual.

            1. Thank you, excellent post.

  21. First, the Court could simply dismiss the petition as improvidently granted at the December 6, 2019 conference. (This move is known as a DIG.) We would learn of the dismissal with the next release of orders, probably on December 9, 2019.

    Or, Roberts could fail to fall for NY’s scam.

    Which seems to be the more likely proposition, given that the were no DIG today

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