Guns

Supreme Court Seems Poised To Rule Against New York Gun Law

A majority of the Court voiced skepticism about the state’s conceal-carry licensing scheme.

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The U.S. Supreme Court heard oral arguments today in its biggest Second Amendment case in over a decade. After nearly two hours of questions, discussion, and debate, a majority of the Court seemed ready to recognize at least some sort of Second Amendment right to carry a concealed weapon for purposes of self-defense outside of the home. What was less clear was whether the Court would recognize a limited right or a more sweeping one in its final decision on the matter.

At issue in New York State Rifle & Pistol Association v. Bruen is the constitutionality of a state law requiring anyone seeking a license to carry a concealed handgun in public to first satisfy a local official that he has "proper cause" to do so. According to the state, a "generalized" wish to carry a concealed weapon for self-defense purposes is not sufficient to meet the proper cause standard.

Justice Brett Kavanaugh seemed particularly troubled by how much discretion that standard places in the hands of local licensing officials. "That's the real concern, isn't it?" Kavanaugh said to New York Solicitor General Barbara Underwood. "With any constitutional right, if it's the discretion of an individual [licensing] officer, that seems inconsistent with an objective constitutional right." And why, Kavanaugh also asked, "isn't it good enough to say I live in a violent area and I want to defend myself?"

Justice Amy Coney Barrett pressed Paul Clement, the lawyer for the gun rights side, to explain what sort of regulations would pass muster under his approach. "If you concede, as I think the historical record requires you to, that the states did outlaw guns in sensitive places," Barrett asked Clement, how do we determine what counts as a sensitive place? One of the big questions here, Barrett said later, is "how can the state fairly regulate. Because everybody agrees there have to be some regulations and it might not always be the case that we can find exact historical analogues" to guide the way.

Justice Clarence Thomas asked Underwood whether New York's position wasn't too one-size-fits-all for the state's many varied residents. "It's one thing to talk about Manhattan" and to talk about forbidding the carrying of guns on the campus of New York University, Thomas told the state's solicitor general. "It's another to talk about rural upstate New York."

Clement seemed to acknowledge at one point that Thomas' rural vs. urban distinction would allow his individual clients, who live in upstate New York, to prevail while at the same time letting the Court avoid issuing a broader Second Amendment ruling that also impacted gun control in New York City.

Kavanaugh's focus on the discretionary nature of New York's licensing scheme also pointed the way to a narrower win for the Second Amendment side. In effect, the Court might say that constitutional rights deserve better treatment than a discretionary state regime like this one and then tell New York to go back to the drawing board.

A decision in New York State Rifle & Pistol Association v. Bruen is expected by late June 2022.

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  1. SCOTUS, how about recognizing 2A as it is written? Thanks.

    1. They don't even recognize the 11th amendment as written. They read it as a general sovereign immunity for the states when on the plain text it only bars lawsuits by citizens of one state against a different state.

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  2. Wtf argument is it that i have more need for a gun in upstate NY than in Manhattan?

    1. I'm far more concerned about thugs on the streets (if I ever happened to set foot in NYC again, which I doubt), than coyotes in the Adirondacks (which is a far more likely place to find me).

    2. In Manhattan, the police are (theoretically) only minutes away. In rural areas, first responder time is considerably longer.

      Whether or not you agree with that position (and I'm not sure I do), it's at least plausible enough to justify different rules.

      1. Sure, but why just guns? That kind of difference in environment and interests would be enough to justify all sorts of different laws for urban and rural areas, and completely separate governments to legislate and enforce such laws. Are we going to start splitting states up into their urban and rural components? And what of the suburbs, which do they count as? And what of rural areas that get colonized by urbanites, can urban areas start asserting jurisdiction over those colonies?

        1. Quite frequently, there are very different laws for rural and urban areas. Zoning, hunting, construction, even air traffic control are all examples state and national laws have different rules depending on location type.

          And, believe it or not, we do generally split states up into their urban and rural components. We most often call them counties. And, yes, they get their own distinct levels of government and distinct laws. And being closer to the actual needs of the people, they can (sometimes) tailor their laws accordingly.

          1. So if I live in a rural area, I can practice medicine and order medications by delivery service, because I’m so far from any actual physicians?

            Then, can I practice criminal law without training, because the closest licensed attorney is 65 miles away, for most of the hunting season?

            Distance to licensed professionals and trained law enforcement seems a pretty dumb way to decide who can practice a profession or carry self defense firearms.

            The standard should be: I live in a free country and can do as I wish, as long as I’m not harming myself or anyone else. If other people trust my ability to practice veterinary obstetrics, that should be between me and them, not the state.

            And I just love delivering calves!

            1. m, I'm not saying what the rule on occupational licensing should be. I'm merely saying that there is a legally (and morally) plausible basis for differences in what the law could be.

              I agree with you that occupational licensing does more harm than good and that we should treat customers like adults competent to make their own decisions. But after society has decided that occupational licensing is "good", it is plausible to consider availability of licensees when determining whether or how to enforce that licensing regime.

      2. It is widely understood that the police have no obligation to protect you; much more likely they arrive at least several minutes after they are called and then begin to investigate the crime that has already happened; aka "clean up the mess [which consists of your blood and internal organs]."

        If you truly value your personal safety, assume the responsibility for being your own first line of defense.

      3. a) Theoretically, and

        b) when seconds count, the police are only minutes away.

      4. "In Manhattan, the police are (theoretically) only minutes away."

        When seconds count, the police are minutes away.

        .

        1. That is a terrific argument against the "police are good enough" argument generally.
          It does not, however, invalidate the assessment that personal carry might be even more important when the police are an hour away. I'm just answering Bubba's original question noting that there is a legally plausible argument for treating urban and rural areas differently.

      5. Not anymore. They might lose half of their officers over vaccine oppression.

      6. Absurd logic. America was rural when the 2A was conceived and written into law and in part it was written so that EVERYONE could get their hands on a gun if they needed to form a militia and take down a rogue government regardless of 'response' time.

        1. You're saying that need has been mitigated over time?

          Both for self protection and resisting a rogue government? If the framers could appear today, just what part of our "government" would they even recognize? And I'm just addressing the BOR.

      7. You say the difference between urban and rural it’s plausible enough for different rules, that makes sense for parking, noise, street vending, etc. But you aren’t really saying it should make a difference in people’s constitutional rights are you?

        Because you can make a lot of distinctions based on urban and rural, speech can be more disruptive in an urban environment, and because policing is more challenging maybe your 4th amendment privacy interests, and 5th amendment self incrimination rights are less compelling.

        1. Correct: Either it's a right or it isn't. And I'm not talking about going through a metal detector at a federal courthouse where there is a legitimate need to screen people for weapons; I'm taking about living in an urban or even semi urban area and for law abiding persons [WE are not the problem, by they way] being able to exercise their 2A and all other rights. When you start making it "dependent" it seems to erode rather quickly and expansively.

      8. In Manhattan, the police are (theoretically) only minutes away. In rural areas, first responder time is considerably longer.

        Here, let me fix this--

        'When seconds count, the police are just minutes away'.

        In upstate New York, people have their guns. And they will continue to have them no matter what laws idiot dems pass. They will conceal them or not, at their pleasure.

        This is not about anything rural. It's about defending yourself in the shitholes democrats and the left have turned our cities into.

        Anything less that an across the board 'citizens have the right to carry their guns wherever and however they want' is a loss.

      9. No it's not. Gonzales vs Castle Rock stated that the Police have no obligation to protect an individual or group of individuals. That puts responsibility for your protection on you.

  3. Clement seemed to acknowledge at one point that Thomas' rural vs. urban distinction would allow his individual clients, who live in upstate New York, to prevail while at the same time letting the Court avoid issuing a broader Second Amendment ruling that also impacted gun control in New York City.

    That distinction would certainly eliminate one possible solution to problems that occur (on other issues) at the state level. If states were able to split themselves in two self-governing entities, that split would likely be on urban/rural lines. If each of those two was then its own state, I would guess that guns would be one of those issues where DeRpdom would not allow a different state to do different things

  4. Justice Amy Coney Barrett pressed Paul Clement, the lawyer for the gun rights side, to explain what sort of regulations would pass muster under his approach. "If you concede, as I think the historical record requires you to, that the states did outlaw guns in sensitive places,"

    It would totally sink his case, but it would have been epic if Clement had retorted "Shall not be infringed is pretty clear your honor, so no regulations actually pass constitutional muster."

    And states outlawing guns in the past was just as unconstitutional, and in many cases racist as all hell.

    1. Any law with positive reasons to deny a permit, like a felony conviction, probably would pass constitutional muster.

      Or any law prohibiting everyone, including LEO's, from carrying weapons in a designated area is probably OK.

      Although, "... shall not be infringed." seems pretty specific.

    2. Clement had pretty good answers to most of the sensitive places questions:

      1. They aren’t challenging the sensitive place aspects of NY law.

      2. Any public place the general public can go without access restrictions shouldn’t qualify as a sensitive place.

      1. "Any public place the general public can go without access restrictions shouldn’t qualify as a sensitive place."

        You put it better than I did above; outside of courthouses, airports, etc. why should there be a restriction on ANY constitutional right?

        1. Permit? As in permission from the state? Go ask Reason or the New York Times for their permit and get back to me.

      2. He's defending a right judges typically aren't very comfortable with, so baby steps are sort of appropriate.

        Shouldn't be necessary, but if it came down to fully upholding the 2nd amendment, "every terrible implement of the soldier", or fully striking it down, I suspect there's a majority on the Court even now to strike it down. The legal community are NOT in love with this particular right.

  5. CJ Roberts will narrow the legal questions, that is his MO. That is also why he gets more consensus on his decisions.

    1. Now if the state of New York had called it a "Permit Tax," then of course he would let it stand.

      1. Well, that's how they handled machine guns, isn't it? They levied an outrageously high tax on them, and then when it developed too many people were willing to pay it, stopped accepting payment.

        So, I suppose the state could simply require an annual license fee of $10M, and refuse to accept payment of it...

    2. I would be delighted to see a 5-4 decision written by Thomas. Not just because it would be better, (Though it would.) but also for the burn to Roberts.

      1. Roberts will vote 6-3 precisely so that he can write the opinion.

        Don't be fooled by a 6-3. If not for ACB, Roberts would have betrayed this issue too

        1. I think the odds favor Justice Barrett writing the decision.

          1. Thomas my first hope, Barrett, maybe Gorsuch, second.

            Roberts is a world class fence sitting consensus whore. Who doesn't respect the Constitution.

  6. >>Barrett said later, is "how can the state fairly regulate. Because everybody agrees there have to be some regulations

    um, no Amy Comey, not everybody agrees.

  7. Based on this reporting, it sounds as though Kavanaugh is the most pro 2A among them.

    I think we all know that is not the case.

    1. Maybe the implication is he's the most likely to side with Roberts on trashing 2A for some obscure but statist jurisprudential reason, and is therefore the "swing vote" here?

      See, I worry more about ACB and the way that question was phrased... but maybe I'm just paranoid about this stuff.

      1. Never forget that the majority attends the same country club and law school reunion events.

        At the end of the day, they want to be able to go to a park, shop, attend social gatherings with everyone else they know in liberal Washington DC suburbs.

        They don’t really care about the law as much as fitting in.

        1. They must party with Matt and the boys too.

      2. It’s hard to get that conclusion from reading the transcript. Kavenaugh kept referring to shall issue as the the standard, he was definitely not buying the discretionary “good cause” regime for a fundamental constitutional right.

        And I think it was he that emphasized that Text, History, and Tradition means first you go to the text, if the text is clear your done. And if the text is clear, there is no scrutiny needed.

        1. "And if the text is clear, there is no scrutiny needed."

          Certainly not intermediate.

        2. "And if the text is clear, there is no scrutiny needed."

          Great! About that right to trial by jury in ALL criminal cases, and any civil case involving more than $20... I believe the text is pretty clear.

  8. My prediction has been they say the 'may issue' component of the licensing scheme has to go, and NY responds by adding some other poison pill to their licensing scheme and we're talking about that being litigated...ten years from now.

    "Oh, of course you can have a permit, just complete your 10,000 hours of mandatory training"

    1. I believe the poison bill is that they might just not issue any permits, claiming lack of funding or under-staffing and wait for the lawsuits.

  9. Which clause in the constitution makes the clear distinction on urban vs rural when it comes to the Bill of Rights?

  10. Thank goodness Hillary Clinton didn't nominate the last three Supreme Court justices, or we'd be talking about how badly the Court was wrecking our Second Amendment rights rather than how they were increasingly protecting them on an incremental basis.

    1. True. Thankfully, it wasn’t her turn.

      1. Best thing Trump could ever do, second to his 200+ appointments to the federal judiciary; keep that broom riding hubristic cunt out of the Oval Office.

    1. So you're going to use an example where the cop is the bad actor to defend the position that only cops should carry guns?

      Maybe you just missed all the statistics showing that concealed-carry permit holders are among the most law-abiding folks in the database? This article doesn't mention it but others have crunched the numbers and shown that concealed-carry permit holders are about an order of magnitude more law-abiding than the police themselves.

      1. That and the fact that millions of gun owners (LEO and non-LEO) did not do that, never have, and never will.

      2. Odd to grab an AP story from a Canadian paper about a case in Florida. W hen my folks lived in Pinellas County there were a lot of snowbirds from Ontario. This case still hasn't been tried.

        https://www.wtsp.com/article/news/local/pascocounty/curtis-reeves-pasco-county-movie-theater-shooting/67-18a1c5d4-94c0-4f6a-874b-c74be3b2e0f7

    2. Classic 'critical thinking' by yet another liberal ignoramus who probably sold his home and moved his family 2,000 miles, because one day, ten years ago, his town was hit by a tornado.

    3. Only, if ONLY, all those people who DON'T have a concealed carry permit, who aren't law abiding, and who don't belong to organizations like the NRA, GOA, NAGR, and SAF...would just stop shooting people.

      The gun homicide rate would be something like 0.00000001.

      IOW, the popcorn shooter.

  11. Only in the mind of a lefty does "keep and bear" not mean to keep or bear, and "shall not be infringed" means that right can be eliminated entirely

  12. Hopefully SCOTUS is gunning for this draconian anti-2A law.

    1. At least the straight shooting ones will.

      1. May they bust a cap up its ass.

  13. Since rural areas tend to be more small-L libertarian and Republican, it would be amusing to hear the screams of anguish if a sheriff made a policy of not approving registered Democrats (the grounds being that Democrats are far and away the most likely to commit crime).

  14. As far as I'm concerned, New York can put whatever requirements they want on concealed carry...

    ... but then they have to allow open carry.

  15. The SC as presently configured is an illegitimate institution, created by a combination of electoral college overrides of popular will and cynical political maneuvering on a level previously never achieved. 5 of the 9 justices - a majority - were appointed by Presidents who the majority of voters had rejected, 1 seat was stolen from a twice elected president (and therefore the majority of Americans who voted for him twice) and another was rushed through while a presidential election was actually underway and the appointment given to the ultimate - and predicted at that time - loser.

    The result is a court out of touch on with American voters, who of course are intended to impact the court since the president appoints them. In fact, if not for the stolen seat, the court would have been a liberal court from 2016 until 2020, in sync with the will of the people, and if the Senate GOP had not rushed through an appointment by their loser candidate last year, it would have remained so today. There is no reason to respect or honor the SC decisions until such time as balance is restored by new appointments, however that may occur.

    1. And the moron of the day award goes to ----- ^

    2. "The result is a court out of touch on with American voters,"

      That is not how it works; the courts were never intended nor should be reflective of trends, democratic or otherwise. It is not their job to be super legislators for life, appointed to appease whatever "majority" may be ascendant at the time or to impose the desires of such.

      Their job is to interpret, apply and uphold and protect the Constitution of the United States. And a central tenant of doing that job is to insure that no majority, self proclaimed or otherwise, can override those rights enshrined therein, not even against the least of a minority.

      If you don't like it call for a constitutional convention. And I also ask that you dig really really deep, and ask yourself if you are just being a partisan hack. Because you sure look like one to me.

    3. "The result is a court out of touch on with American voters"

      "a LIBERAL court from 2016 until 2020"

      Joe Friday just revealed that he hates separation of power and checks and balances. He wants activist judges. Not independent judges. I expected nothing less from you. You are fascist scum and will see more defeat.

      1. JF wants what he thinks is "correct" by any means necessary.

        1. Mike Laursen or however you spell him said Joe Friday is an LAPD officer. So just another fascist reject from California. Explains a lot. Naturally, Friday's views are de-calibrated and skewed in a way that he can't grasp.

          https://reason.com/2021/11/05/voters-are-done-with-covid-19-and-pandemic-powered-officials/?comments=true#comment-9194323

  16. The right to self-defense is the paramount human right. Without it, all other rights are moot. Only tyrants and their sycophants deny or disparage it.

    The usurpations of the NY legislature have been tolerated for far too long.

    -jcr

  17. Anyone have some house at Manhattan?

    1. I drink Manhattans.

  18. After nearly two hours of questions, discussion, and debate, a majority of the Court seemed ready to recognize at least some sort of Second Amendment right to carry a concealed weapon for purposes of self-defense outside of the home. What was less clear was whether the Court would recognize a limited right or a more sweeping one in its final decision on the matter.

    "some sort of Second Amendment right . . . "recognized a limited right . . . "

    Rights are never sort of. They are never limited. They are full and unregulated, no ifs ands or buts.

    1. As someone posted above,

      "Any public place the general public can go without access restrictions shouldn’t qualify as a sensitive place."

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