After NYS Rifle & Pistol is dismissed, SCOTUS distributes 10 Second Amendment Cases for 5/1/2020 Conference (Updated)

Four justices have signaled they are ready to take a 2nd Amendment case. Are there 5 votes to reverse?

On Monday, the Supreme Court decided NY State Rifle & Pistol Association. (Let me know if you'd like an edited copy.). Four Justices signaled they were ready to take another Second Amendment case.

Justice Kavanaugh wrote in his concurrence:

And I share Justice ALITO's concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

Justice Alito wrote in his dissent, joined by Justices Thomas and Gorsuch:

We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.

Immediately after the case was decided, the Supreme Court distributed 6 Second Amendment cases for the May 1, 2020 conference (H/T to the Duke Center for Firearms Blog.)

1. Mance v. Barr (5th Circuit) - challenge to federal prohibition on out-of-state handgun purchases
2. Pena v. Horan (9th Circuit) - challenge to California's prohibition on "unsafe" handguns (including "microstamping" requirement)
3. Gould v. Lipson (1st Circuit) - challenge to Massachusetts's "may issue" conceal carry licensing regime
4. Rogers v. Grewal (3rd Circuit) - challenge to New Jersey's "may issue" conceal carry licensing regime
5. Cheeseman v. Polillo (N.J. Supreme Court) -  challenge to New Jersey's "may issue" conceal carry licensing regime
6. Ciolek v. New Jersey (N.J. Supreme Court ) - challenge to New Jersey's "may issue" conceal carry licensing regime

Mance v. Barr is the oldest case on the list. My colleague Alan Gura filed this petition in November 2018. It was originally distributed for the 3/29/2019 conference. But then was "rescheduled." The petition was then distributed at the 4/12/19 conference. Yesterday, the Court scheduled the next distribution for 5/1/2020. This petition is an excellent vehicle if the Court wants a law-profile case that won't reach any sweeping rulings.

Or, if the Court wants to take a conceal carry case, Rogers v. Grewal has been floating around since December 2018. (I am engaged in several gun-related cases with the New Jersey Attorney General). The two criminal prosecution cases can be held over, and vacated if Rogers prevails.

Once the Court decides one, or more of these cases, and clarifies the appropriate level of scrutiny, the other cases can be GVR'd.

Update: SCOTUSBlog located four more Second Amendment cases that were distributed for the 5/1/20 conference:

1. Worman v. Healey (1st Circuit) - challenge to Massachusetts ban on "assault weapons" and large-capacity magazines
2. Malpasso v. Pallozzi (4th Circuit) - challenge to Maryland's "may issue" conceal carry license regime
3. Culp v. Raoul (7th Circuit) - Challenge to Illinois's ban on allowing non-residents to apply for conceal carry license
4. Wilson v. Cook County (7th Circuit) - Challenge to Cook County's ban on "assault weapons" and large-capacity magazines

We should know Monday morning whether there is a new grant. And invariably, the local governments will try to moot the cases. Again.

Comments

[Aktenberg]

I really hope Kavanagh and the other three vote to grant cert to one of them. If Roberts wants to maintain his good graces with Georgetown liberals, make him say so publicly. No doing so simply by denying cert.

[KevinP]

Excellent. New Jersey may end up being the vehicle for restoring the Second Amendment.

[Aktenberg]

Rest assured though, that even with a positive ruling, the courts will give the states at least a year to get a constitutional framework into place. There won't be the sense of urgency that there is when a woman wants to kill her baby and when a same-sex couple wants a marriage license.

[Rev. Arthur L. Kirkland]

If clingers go all-in on gun nuttery, then reverse Roe v. Wade, "urgency" seems destined to become something conservatives come to regret next year, as the Court is enlarged, the House is enlarged (bringing the Electoral College with it), and the liberal-libertarian mainstream becomes even more forceful about shaping American progress against Republicans' efforts and wishes than we have observed since the '50s or 60s.

There are just not enough bigots, guns nuts, old-timey religious zealots, white nationalists, and poorly educated Americans left -- not even in the desolate southern and rural stretches -- to arrange effective reversal of the culture war tide.

So do your damnedest, clingers . . . so far as your betters permit.

[Mr. Jwpvysig, Jr.]

You do a damn good job of discrediting yourself.

[Rev. Arthur L. Kirkland]

Please demonstrate my ignorance by recounting how and when Republicans are to reverse the culture war tide that has worked against conservatives for more than a half-century.

Bonus: Precisely when will

(1) creationism return to legitimate science classrooms;

(2) gay marriage be rescinded nationwide;

(3) abortion be criminalized in states with at least 30 percent of the American population;

and

(4) black men be forced to lower their gaze in the company of white women in at least three of Mississippi, West Virginia, Alabama, South Carolina, Oklahoma, Wyoming, Idaho, Montana, Tennessee, and Kentucky?

Good luck, clinger.

[FiftycalTX2]

Do you get paid for trying to play the race card everywhere for everything? Is it the DNC or chi-coms that have you on the payroll? Or both, since there isn't much difference between them.

[Rev. Arthur L. Kirkland]

Great comment at a white, male clinger blog.

[Sarcastr0]

1. Saying 'no more bans' as was the case for abortion and gay marriage is easier to implement than 'here's the new framework'.

2. There are plenty of reasons why having an unwanted child and getting to marry someone you love may indeed be more urgent than being able to purchase a firearm asap.

3. Calling it a baby begs the question.

[Brett Bellmore]

1. Roe put forth a new framework.

2. Nope.

3. Nope.

[Sarcastr0]

1. Roe's main initial action was invalidating state laws that banned abortion. Do you disagree?
2. Just because you can't see it, doesn't mean it doesn't exist.
3. At this point, it's looking like terminal solipsism.

[Aktenberg]

You really enjoy lying, don't you?

[Leo Marvin]

Show where he lied.

I won't hold my breath.

[Brett Bellmore]

As I point out, Roe v Wade invented this whole "trimester" scheme. In what world is that not a "framework"?

[Leo Marvin]

You and he disagreed over how to frame an arguable point. His argument is no more a lie than yours is.

[Aktenberg]

He lied by knowingly making distinctions where there are none

[Leo Marvin]

I don't doubt that in your world, opinions which contradict yours are considered lies. Here on planet Earth, they're called disagreements.

[Brett Bellmore]

1. Of course I disagree. Remember "trimesters"?

2. That's your line in regards to babies. If today you got a credible threat against your life, and you could be attacked tomorrow, that's not more urgent than a pregnancy that might result in you being a "mother" most of a year from today?

3. Calling it a "baby" is what basically everybody who doesn't mean to kill it does.

[Aktenberg]

"Marrying someone you love" is not a Constitutional right. The RKBA is. And you know damn well that the founders and the drafters of the 14th Amendment would never have agreed that there was a right to "marry" someone of the same sex. Hell, they would have supported imprisoning such a person.

[Sarcastr0]

The Supreme Court disagrees about marriage.

I'm not an originalist, so I don't much care what the Founders thought about marriage.

[Aktenberg]

Given that at least three of the judges on the Supreme Court shouldn't even have the full rights of citizens, much less be judges, I don't much care what the Supreme Court thinks.

[SKofNJ]

I hope so. It's impossible to get a carrying permit in N.J. Essentially,.you have to ml prove that you have a more sterling character than Mother Theresa and there have been specific threats against your life.

[Dilan Esper]

OK, let's go through these:

Mance v. Barr (5th Circuit)—challenge to federal prohibition on out-of-state handgun purchases

Why would that be unconstitutional? First of all, there's a legitimate interest in curbing the arms trade and preventing straw purchases. Second, it protects federalism. I mean, you can argue that states with strict gun control regimes are violating the 2nd Amendment, I get that, but if any particular state's scheme does not violate the 2nd Amendment, why is it constitutionally required that its residents get to circumvent it?

Pena v. Horan (9th Circuit)—challenge to California's prohibition on "unsafe" handguns (including "microstamping" requirement)

This seems fact dependent. A lot of Second Amendment advocates say it's impossible to modify guns to allow tracing without making the guns less reliable. If they can prove that, fine, microstamping is unconstitutional. Implicit in a right to keep and bear arms is a right to access to arms that actually work.

On the other hand, if the technology can work without impairing gun function, it's fully constitutional. There's no right to shoot people and not get caught by the police. (Indeed, even in self defense or where the shooting is lawful, there's still no right to privacy regarding such a shooting.)

Gould v. Lipson (1st Circuit)—challenge to Massachusetts's "may issue" conceal carry licensing regime

Depends on the details. Some level of carry, whether open or concealed, is required by the text of the Constitution. That same text also permits a well regulated militia. Requirements that ensure that someone who carries a gun in public is well trained, a good marksman, of sound mind and unlikely to use his or her gun offensively or due to rage, etc., are constitutional consistent with the notion of a regulated fighting force. Requirements that make it impossible for someone to carry a gun are not.

Rogers v. Grewal (3rd Circuit)—challenge to New Jersey's "may issue" conceal carry licensing regime
Cheeseman v. Polillo (N.J. Supreme Court)— challenge to New Jersey's "may issue" conceal carry licensing regime
Ciolek v. New Jersey (N.J. Supreme Court )—challenge to New Jersey's "may issue" conceal carry licensing regime

[Aktenberg]

"Why would that be unconstitutional? First of all, there’s a legitimate interest in curbing the arms trade and preventing straw purchases. Second, it protects federalism. I mean, you can argue that states with strict gun control regimes are violating the 2nd Amendment, I get that, but if any particular state’s scheme does not violate the 2nd Amendment, why is it constitutionally required that its residents get to circumvent it?"

It's unconstitutional because it's not narrowly tailored, and violates federalism. The federal government doesn't have the authority to tel a state that its merchants can't sell to out of state residents. Leftists would scream if Congress passed a law prohibiting a woman in Georgia from traveling to Maryland to kill her baby. Second, there is already a Constitutional law on the books, for long guns. That law allows out of state purchases provided that it doesn't violate the law of either state. If a resident of Texas wants to buy a handgun in Louisiana, it's ridiculous that he can't.

"On the other hand, if the technology can work without impairing gun function, it’s fully constitutional. There’s no right to shoot people and not get caught by the police. (Indeed, even in self defense or where the shooting is lawful, there’s still no right to privacy regarding such a shooting.)"

It's not just microstamping, but certain things like chamber indicators. Glock Gen4s and Gen5s can't be sold in California, and their constitutional basis for it is laughable.

"Depends on the details. Some level of carry, whether open or concealed, is required by the text of the Constitution. That same text also permits a well regulated militia. Requirements that ensure that someone who carries a gun in public is well trained, a good marksman, of sound mind and unlikely to use his or her gun offensively or due to rage, etc., are constitutional consistent with the notion of a regulated fighting force. Requirements that make it impossible for someone to carry a gun are not."

I agree with this, provided that the training is not unduly burdensome.

[Dilan Esper]

It’s unconstitutional because it’s not narrowly tailored, and violates federalism. The federal government doesn’t have the authority to tel a state that its merchants can’t sell to out of state residents.

That's not true under existing law. Indeed, I don't see how it can be true- even under the narrowest interpretation of the Commerce Clause, the federal government has the power to prohibit commerce from crossing state lines.

[Aktenberg]

No, it doesn't. It arguably has the power to prohibit contraband (or people, in the case of the Mann Act) from crossing state lines, or non-contraband in one state from being brought across state lines in violation of the laws of the second state, but not to prohibit a legal product from crossing state lines into another state where it's also legal.

In any event, even if you accept your argument, that law could only be constitutional to the extent that it prohibits a resident of Texas from buying a handgun in Louisiana and bringing it back into Texas. Merely buying it in Louisiana does not implicate interstate commerce.

[Dilan Esper]

The TEXT OF THE CONSTITUTION says that Congress has the power to regulate commerce among the several states. "You may not purchase product X across state lines" is a down the line exercise of that power.

You have no argument. The Constitution says nothing about it being limited to "contraband". This is a no brainer.

[Aktenberg]

No, a person buying a product out of state is not engaging in interstate commerce, unless he brings it back. Period.

[Dilan Esper]

There's a legal presumption that a legal resident of a state intends to return.

[Aktenberg]

What's to say he's not planning on selling it back to the store (in essence, renting it while he's there)? You are making up the presumption to support your argument. In any case, even if he was, Congress only has an interest in regulating this if doing so would be illegal.

[Dilan Esper]

I am not making up the presumption. It's literally the legal definition of a domicilary.

[Aktenberg]

Okay, so allow it to be "rented" then. Is that better?

[Dilan Esper]

E.g., "Domicile is the homestead where a person has a fixed and permanent home that is their principal residence and establishment. This is the homestead to which—when they are absent—they intend to return."

https://www.thebalance.com/proving-your-domicile-4026669

[Noscitur a sociis]

Okay, so allow it to be “rented” then. Is that better?

The law in question (18 U.S.C. §  922(b)(3)(B)) exempts rentals.

[Aktenberg]

Only for the purpose of using in a range.

[Alpheus W Drinkwater]

I admire your patience Dilan but this person's comment about the Supreme Court above shows he or she is not worth engaging with.

[Brett Bellmore]

The TEXT OF THE CONSTITUTION, adopted after the interstate commerce clause, says that the right of the people to keep and bear arms shall not be infringed. That means that the interstate commerce clause, too, can't be used to infringe it.

You couldn't ban interstate commerce in menorah's, either, for the same reason.

[Sarcastr0]

Not Aktenberg's objection that Esper was addressing. As to your objection, look at Esper's OP.

[Brett Bellmore]

So, what you're saying is, you don't understand that amendments amend, and the Bill of Rights actually restricts what can be done even with genuinely enumerated powers?

Just because Congress has the power to regulate interstate commerce, doesn't mean it can regulate it in a fashion which violates explicitly enumerated rights. You might be able to, by current interstate commerce jurisprudence, ban interstate commerce in blueberries, but not printing presses.

And for constitutional purposes, printing presses = firearms.

[Sarcastr0]

I'm reading Esper's comments, and noting that you are not reading them correctly.

I agree that the Bill of Rights supersedes the commerce clause. But , Dilan Esper's 1:48 pm addresses specifically 2nd Amendment concerns in that case. Did you miss that?

Moreover, the thread you are replying to is Aktenberg making a commerce clause argument that completely misapprehends the law. You coming in and trying to reset to the 2A is not relevant to that exchange.

[Brett Bellmore]

"I mean, you can argue that states with strict gun control regimes are violating the 2nd Amendment, I get that, but if any particular state’s scheme does not violate the 2nd Amendment, why is it constitutionally required that its residents get to circumvent it?"

This is literal "begging the question", assuming the given state's scheme doesn't violate the 2nd amendment.

But even assuming it doesn't, a state's laws don't reach beyond its borders. You can, perfectly legally, drive out of your state, to another state with different laws, and do there what would be illegal in your own state.

Except for buying guns. Why the exception? Can you think of any other product, any product AT ALL, you can't buy out of state?

Anyway, I'm making a general point here: Amendments amend. Once you have a constitutional guarantee amended into the Constitution, the fact that Congress is delegated a power does NOT mean that power can be used to infringe the right.

So pointing out that the interstate commerce power is IN THE TEXT OF THE CONSTITUTION doesn't mean diddly squat.

Again, could Congress ban interstate commerce in crucifixes? Require that, if you want to buy one, you have to buy it in your own state? And it's just peachy if your home state permits you to buy them, no harm no foul? No, of course not, it would be a rather gross violation of the 1st amendment.

So, why isn't banning interstate commerce in guns a violation of the 2nd? "Because guns"? Pretty much.

[Aktenberg]

I posted that yesterday, and Dilan made some asinine comment implying that buying something out of state creates a legal presumption that you are going to bring it home with you.

[ThePublius]

I argue that an individual's purchase of anything and then transporting it across state lines is NOT what was intended by the commerce clause.

Article 1, section 8, phrase 3:
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"

NOT people buying stuff in one state and bringing it home to another state. Where does it say "people" in that clause?

[Milhouse]

Um, who engages in commerce but people? If it doesn't mean people buying stuff in one state and bringing it home to another state, what else could it possibly mean? Are you asserting that it's limited to transactions conducted by mail, where the buyer and seller remain physically in their respective states throughout the process?

[Aktenberg]

The founders intended for the channels of commerce to be regulated, not individual purchases by people in other states.

[DaveSs]

" the federal government has the power to prohibit commerce from crossing state lines."

Congress passed the local foods act prohibiting retail sellers in one state from selling food to residents of other states.

You really think that such a law would be upheld because commerce clause?

[Dilan Esper]

It would certainly be upheld under the commerce clause.

Might violate substantive due process if it didn't have a rational basis or if it made it impossible to eat.

[DaveSs]

Why do I get the sense that even the most ardent proponents of strong centralized government at the constitutional convention would scoff at the notion that some day in the future, lawyers and judges would go about claiming, and absolutely believing it true, that [The Congress shall have Power] To regulate Commerce...among the several States... somehow gives Congress the power to prohibit residents of one state from selling explicitly lawful goods to residents of another state.

[Milhouse]

What else could it possibly mean?

[Milhouse]

Or are you saying that "regulate" does not include "prohibit"?

[Brett Bellmore]

I'm not so sure it would be upheld; People have a right to travel, they don't lose their other rights, (Such as to eat!) while traveling.

The only reason it would be upheld for guns is that the 2nd amendment really IS treated as a second class right, subject to restrictions that would never be tolerated for any other right.

As was said in State vs. Pelleteri, "When dealing with guns, the citizen acts at his peril." That's how too much of the judiciary still approaches the 2nd amendment. As a barely tolerated privilege subject to any restriction a unit of government wishes to impose.

[Aktenberg]

Those judges deserve to be thrown into a Zyklon B shower

[Noscitur a sociis]

As someone who as stridently pro-gun as they come, may I say: you're not helping.

[Aktenberg]

If you don't see liberals as mortal enemies to America and the West, YOU are the one who is not helping. Don't see them as your good friends and neighbors who are severely misguided. Learn to see them as evil vermin who need to be exterminated.

[Noscitur a sociis]

Because that's the great triumph of western civilization and the American experiment: murdering your political opponents.

[Aktenberg]

Just look at Venezuela today and look at Chile. The problem is that if you momentarily win over your ideological enemies, the ideas are still there to be propagated and will resurface later. Chile is now successful because Pinochet courageously realized this, and killed proponents of communism. Since they're dead, they couldn't work behind the scenes after the fact to bring it back.

[Rev. Arthur L. Kirkland]

Open wider, Aktenberg.

You will swallow more progress shaped by your betters, and you will continue to comply obsequiously.

Enjoy a small victory, though: Prof. Volokh will continue to enable you to express your ugliness and backwardness here, because you are a conservative. Zyklon B references generate no reason for your to fear Artie Ray-style banishment by the Volokh Conspiracy Board of Censors.

Carry on, clinger.

[Noscitur a sociis]

Nothing shows pride in American greatness like saying we should be more like Chile—a country which, incidentally, had a socialist president until 2018.

[Brett Bellmore]

"Chile is now successful because Pinochet courageously realized this, and killed proponents of communism. "

Compare Communism and Nazism in America. Proponents of neither philosophy were killed. One went on to take over large parts of academia, the other is a reviled fringe. Why the difference?

We purged the Nazis. We didn't have to kill them, we just had to treat them as compromised beyond trusting, and remove them from any position of responsibility.

Purging communists after WWII would have been sufficient. We didn't have to kill them.

[Noscitur a sociis]

Yes, communism certainly enjoyed a warm welcome in the United States in the aftermath of World War II.

[Aktenberg]

Brett, the problem with that is that unless your "purge" includes suppressing the ideas in perpetuity, they'll continue to speak in favor of the ideas and help propagate them. The only way to ensure that bad ideas die is to make sure that the people who believe in those ideas are dead.

[Brett Bellmore]

"Yes, communism certainly enjoyed a warm welcome in the United States in the aftermath of World War II."

It received a hell of a lot warmer reception than it ever should have.

[Rev. Arthur L. Kirkland]

Are you enjoying this exchange, Conspirators?

Praying that your deans never read it?

[Brett Bellmore]

"The only way to ensure that bad ideas die is to make sure that the people who believe in those ideas are dead."

And then burn all the records of the ideas, so nobody will hear of them? Or hear of why they're bad?

Look, our stupid mistake after WWII, was that we didn't purge academia of communists. The way we DID fascists. We let them keep their toe hold, and the one thing they're really good at is subversion.

We even let the partial purge of communists be attacked in a book that became required reading in K-12!

[Aktenberg]

If necessary, yes! Eliminate the records of such ideas, and if new people start propagating them later, you have to suppress them as well. Otherwise, the bad ideas return like a dormant cancer.

[Brett Bellmore]

How the heck do you suppose you're going to continue suppressing an idea you don't allow people to know about? How do they know what they're supposed to be suppressing? By having a secret priesthood allowed to know all the ideas that are being suppressed?

Like that's going to end well.

[Aktenberg]

If someone reads it somewhere, they might start propagating it. It could happen.

[Sarcastr0]

There it is.

[Noscitur a sociis]

I'm not sure that a 25 year old case from an intermediate appellate court sheds much light on anything—particularly since the case didn't raise a constitutional challenge.

[Rev. Arthur L. Kirkland]

"I’m not so sure it would be upheld; People have a right to travel, they don’t lose their other rights, (Such as to eat!) while traveling."

Is the "right to travel" found anywhere near the "right to abortion" in your copy of the Constitution, clinger?

[Brett Bellmore]

No, it's found in Congressional discussions as to the meaning of Privileges and Immunities, when the 14th amendment was being adopted.

[Squirrelloid]

On microstamping:
At least one strong argument here is microstamping is not 'in common use', and the lack of microstamping is, and SC precedent says you can't prohibit weapons in common use.

[ThePublius]

Agreed. And microstamping is a fourth amendment violation.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You can buy lots and lots of things out of state. Why not guns? It doesn't circumvent any federal laws. The only thing that makes guns so special is being an emumerated right.

You don't know much about California's "not unsafe" roster. Even aside from "shall not be infringed", Heller said something about common use; the roster forbids almost all modern handguns and a lot of older handguns. Even guns that were once declared "not unsafe" have fallen off the list merely for not paying an annual registration fee. As for the safety you seem to think it guarantees, police are allowed to buy handguns not on the list, and even sell them second hand to the general public. Kinda shows the lie for what it is.

You skip over "may issue" as if it is just a detail. It is not. The Second Amendment says "and bear", and Heller said it makes no sense to only "bear" inside a home. At least some "may issue" states ban open carry, leaving no way to exercise an enumerated right.

[Aktenberg]

Yup, that's why off-roster Gen5 Glocks sell for double their value in California.

That's the real lie about the whole set of jurisprudence post-Heller. Most of the rules that liberal judges have upheld under so called "intermediate scrutiny" aren't even rational.

[Dilan Esper]

At least some “may issue” states ban open carry, leaving no way to exercise an enumerated right.

Just because a right is enumerated doesn't mean it is absolute. The First and Fourth Amendments are enumerated; they are not absolute.

I agree with you if a state bans open carry, AND effectively bans concealed carry because the "may issue" law is overly restrictive, that would be unconstitutional.

[Aktenberg]

I'm really getting tired of this canard. For the last time, NO ONE HAS EVER ARGUED THAT THE 2ND AMENDMENT IS ABSOLUTE. That said, these "may issue" laws are basically no-issue. For example, in New Jersey, there are around 1,000 total people, out of a population of 8 million, that have carry permits, and almost all are retired cops.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Some people do argue from an absolutist point of view. They pretend that prisoners, infants, mentally challenged adults, and so on are somehow both covered and not covered. The same with freedom of speech and libel, slander, and falsely shouting FIRE in a crowded theater.

But there is a difference with freedom of speech. Those distinctions are enforced after the fact with damages. Preventing certain people from buying guns is pre-emptive. People in general, and the media specifically, would raise holy hell if everything to be printed or said had to be approved ahead of time.

[Aktenberg]

Very few use that absolutist point of view. In any case, there's a huge gap between "I think the 2nd Amendment confers absolute rights" and "I think the 2nd Amendment prohibits obviously irrational laws."

[Sarcastr0]

You want to kill people who disagree with you. You've endorsed Pinochet.
That's pretty absolutist.

[Rev. Arthur L. Kirkland]

" For the last time, NO ONE HAS EVER ARGUED THAT THE 2ND AMENDMENT IS ABSOLUTE. "

Did you major in dumbass assertions at Oral Roberts, Wheaton, Hillsdale, Liberty, or Ouachita Baptist?

[Aktenberg]

Did you major in deviant sex at UC Berkeley?

[Brett Bellmore]

"First of all, there’s a legitimate interest in curbing the arms trade"

I question this. There is, maybe, a legitimate interest in curbing the illegal arms trade, but this law doesn't materially further that. There's no legitimate interest AT ALL in curbing the legal arms trade.

[Aktenberg]

This. My carry permit is good in 35 states. The federal government has no constitutional authority nor interest in banning me from buying a handgun in any of the 34 states that my permit is honored in that I don't live in.

[Dilan Esper]

Then make an as applied challenge. It still ought to be enforceable as to someone who would be violating a law in their home state.

[Aktenberg]

Except that's NOT what the current statute says. A law that is so overly broad in this way is facially unconstitutional.

[Brett Bellmore]

Yes. Again, you have to ask: What other legal product can a citizen of one state not purchase in another state where it's legal under that state's law? Even if it ISN'T legal under their home state's law? At most, if you buy something that's not legal in your home state, you can't bring it home.

Before the federal government coerced the states into all adopting 21 as the legal drinking age, (I became old enough to drink TWICE!) it was perfectly legal for an 18 year old in a state where the age was 21 to cross into a state where the age was 18, and buy booze. They'd better not have brought it home, but the laws of their home state didn't follow them around wherever they went.

[Aktenberg]

Of course. And the left would have thrown a tantrum in the pre-Obergefell days if Congress prohibited a person from getting a marriage license in a state where his marriage wasn't legal.

[Rev. Arthur L. Kirkland]

And now the clingers sputter because somehow, somewhere, sometime, some gay person just might be treated decently.

The right-wingers' God is a bigoted jackass, it appears.

[Miles Fortis]

Are you an asshole all the time or just when you're getting paid to troll here?

[Rev. Arthur L. Kirkland]

You seem hostile to anyone who challenges bigots. Why?

[wnoise]

Insurance?

[Dr. Ed]

"Gould v. Lipson (1st Circuit)—challenge to Massachusetts’s “may issue” conceal carry licensing regime
Depends on the details. Some level of carry, whether open or concealed, is required by the text of the Constitution."

And as the police chiefs have agreed amongst themselves to NOT issue, you must be in agreement that this is unconstitutional as applied. And it would be quite easy for SCOTUS to rule that the current practice is unconstitutional without getting into the underlying issue of "may" -- that each denial must be based on something more than "I won't."

[DaveSs]

that each denial must be based on something more than “I won’t.”
They've got that covered
Applicant has not demonstrated sufficient "need"

If we want to pretend that a permit requirement is allowed by 2A, then it should be the State having to prove why such a permit should be denied so if you want 'may issue' where the issuing authority has digression over approval, a denial must provide specific, provable reasons as to why that specific applicant would be a danger to public order.
The idea that 99.9999% of applicants are a danger to public order is abusrd.

[Brett Bellmore]

The defining feature of a "right", of course, is that you don't have to convince the government you 'need' to do it, the simple fact that you want to do it suffices, because whether you do it is YOUR call, not the government's.

[DaveSs]

I completely agree, which is of course why I said if we pretend that a permit is allowed by 2A.

[Junkie]

Out of state handgun purchases: the feds could simply require that they must be done in accordance with both state's laws, and allow the states to regulate it as they please: California wouldn't allow them, some red states would, and you'd be required to comply with both states laws. Instead, they ban it entirely (unless sent to a gun dealer in the buyer's state).

Nobody has managed to make microstamping work period. It isn't possible to prove that it's impossible to make work, but I'm sure a manufacturer would do it if they thought they could. California's roster has required it since 2013, so manufacturers have had time.

[Aktenberg]

"Out of state handgun purchases: the feds could simply require that they must be done in accordance with both state’s laws, and allow the states to regulate it as they please: California wouldn’t allow them, some red states would, and you’d be required to comply with both states laws. Instead, they ban it entirely (unless sent to a gun dealer in the buyer’s state)."

Which is exactly the legal framework for long guns.

[markm23]

No. You can go to a gun store in another state, pick out a long gun, pass the federal NICS check with your ID from your home state, and take the long gun home. Or if you are a CA resident with a vacation home in NV, you can keep the gun in NV, whether or not it complies with CA law. You do not need a gun dealer in your home state. Your home state might have laws (of questionable constitutionality, but not yet overturned) restricting what kind of long gun you can buy or requiring registration or a license, but there is no requirement that an out of state gun dealer enforce these laws.

For a handgun, you cannot buy it out of state and walk out of the gun shop with it. You must have it shipped to a licensed gun dealer in your own state, and pay that dealer fees for the NICS check and handling. This raises the cost, delays receipt of the gun, and makes the in-state gun dealer responsible for enforcing peculiar state and local laws. And if CA laws ban all handguns that are actually manufactured, it means that a CA resident with a vacation home in NV cannot buy a handgun from any licensed dealer for use in NV.

[Aktenberg]

That's my point. The framework he is suggesting for handguns is what already exists for long guns. And dealers in other states DO have to enforce the rules. They do, which is why many out of state gun dealers won't sell semi-auto rifles to anyone in "ban states."

[Brett Bellmore]

" A lot of Second Amendment advocates say it’s impossible to modify guns to allow tracing without making the guns less reliable. If they can prove that, fine, microstamping is unconstitutional."

Heller held that people were constitutionally entitled to possess commonly owned weapons. Weapons with microstamping are the exact opposite of commonly owned, they're basically nonexistent outside of lousy prototypes.

[Rossami]

re: Mance v Barr
Because the federal government is limited to enumerated powers and they have not (and arguably, cannot) point to an allowable source for that authority as a federal rule. Under your logic, a state might be able to prohibit out-of-state sales even though the feds may not. This is a challenge only to the federal rule.

re: Pena v Horan
By your logic, the government could compel microcoding on all printers and refuse permission for encryption on all computers. I don't think those would be allowable in the context of the First Amendment. I don't see why they become more allowable in the context of the Second.

re: the multiple "may issue" cases
I think you are misunderstanding the rules. Under these "may issue" regimes, they are effectively allowing a government veto over any carry because the states involved have already outlawed open carry.
More to the point, the veto is entirely discretionary. That makes it open to abuse. "Shall issue" regimes still allow a government veto for unsafe users - they just put the burden on the government to pre-define who will be deemed unsafe.

[Brett Bellmore]

"By your logic, the government could compel microcoding on all printers"

It did. Secretly.

Of course, a critical difference here is that adding the MIC to color printers required only an essentially free change to firmware, and didn't in perceptible way degrade the printers' functionality. And it's relatively difficult to bypass.

The proposals for microcoding firearms require expensive and unreliable modifications which are almost trivially easy to circumvent. (A few minutes with a file or sandpaper.)

[Absaroka]

Do you have a reference that the government required it (as opposed to many/most manufacturers doing it)? I haven't really been keeping up, but my recollection was that not all of the manufacturers did it, which would argue against it being compulsory.

[Brett Bellmore]

From that Wikipedia article, "The EFF stated in 2015 that the documents that they previously received through the FOIA suggested that all major manufacturers of color laser printers entered a secret agreement with governments to ensure that the output of those printers is forensically traceable."

It's generally difficult to document things that are "secret". But you don't typically get that sort of unanimity without some degree of coercion.

[Absaroka]

"...on *all* printers" (emphasis added)

"all major manufacturers of color laser printers"

The reason I asked was I haven't heard of MIC for inkjets, which I think are more common than laser in the home market. I found some stuff suggesting e.g. microtaggants in the ink, but that seemed a little out there - that would be tracking ink cartridges, not printers, which seems a bit harder to connect with a person.

[Jerry B.]

"First of all, there’s a legitimate interest in curbing the arms trade and preventing straw purchases."

Unfortunately, the DOJ rarely prosecutes straw purchases, because the prosecutors say it's too hard.

[Aktenberg]

And because 90% of the prosecutions will be against blacks.

[Milhouse]

Is that the reason? I've heard it speculated that the real reason is that the vast majority of cases turn out to be false positives, so there's nothing to prosecute.

[Jack Nunn]

"This seems fact dependent. A lot of Second Amendment advocates say it’s impossible to modify guns to allow tracing without making the guns less reliable. If they can prove that, fine, microstamping is unconstitutional. Implicit in a right to keep and bear arms is a right to access to arms that actually work."
The fact is microstamping is technology unfeasible to the point that no production firearm has been able to meet this requirement. I don't think it's a matter of making guns less reliable as much as it is either impossible to meet the requirements or doing so requires such a large investment and would cause a huge increase in the cost of any gun with this 'feature'.

"Depends on the details. Some level of carry, whether open or concealed, is required by the text of the Constitution. That same text also permits a well regulated militia. Requirements that ensure that someone who carries a gun in public is well trained, a good marksman, of sound mind and unlikely to use his or her gun offensively or due to rage, etc., are constitutional consistent with the notion of a regulated fighting force. Requirements that make it impossible for someone to carry a gun are not."
At the vary least I would also include that the requirements are not arbitrary and all 'may issue' laws violate this requirement. In New Jersey you can meet all requirements and be denied a permit at he whim of the person in charge and in 99.99% of cases it will be denied. Your chance of getting a carry permit in NJ depends more on who you know and how much you donated than any concern about safety or even need. In theory a normal person can get a carry permit but in fact only the well connected have even a chance.

[Aubrey LaVentana]

"Mance v. Barr (5th Circuit)—challenge to federal prohibition on out-of-state handgun purchases"

If I'm not mistaken, this is a case where the plaintiff can pass the Federal background check in both of two States where plaintiff has residences. The 'curbing arms trade' and 'circumventing controls' aspects are not relevant.

Pena v Horan: "if the technology can work without impairing gun function, it’s fully constitutional" It's not about reliability. If the technology adds perhaps 25% to the cost to manufacture the gun, it prices that gun out of the reach of the people who probably live in higher-crime areas who are more likely to need a gun. I call that disparate impact. Add to that the fact that microstamps wear out---very quickly---and the owner will be forced to replace or refit the gun when the microstamp becomes illegible. Not a good tradeoff. What 'regime' will States employ to ensure that the microstamp remains legible?
Considering the value that microstamping is thought to confer, police departments should be insisting on it for their own weapons. They aren't.

Short of microstamps, existing gun tracing regimes---fired-case analysis, for example---aren't consistent enough to clear the homicides their promoters expect, and firing as few as 5 more rounds from the gun changes those characteristics such that forensic examiners cannot make a match. Microstamps won't fare any better.

"Some level of carry, whether open or concealed, is required by the text of the Constitution." Agreed.

[Brett Bellmore]

1) Loser. The Court isn't that likely to apply strict scrutiny to exercises of the interstate commerce power, AND the plaintiffs lost at the circuit court level, so none of the anti-gunners are going to want to grant certiori.

2) Possible winner, IF they decide to hear it. But, again, the plaintiffs lost at the circuit court level, so no support for cert. from the anti-gunners.

3) Possible winner, IF they decide to hear it. Ditto on cert.

4) Ditto.

5) Ditto.

6) Ditto.

Basically the best case for 2nd amendment activists is always going to be one where they WON at the circuit court level, (See Heller, for instance.) and the anti-gunners are the ones appealing, because that way the anti-gunners on the Court might agree to take the case in hope of reversing.

Where 2nd amendment activists have lost at the circuit court level, the anti-gunners on the Court will pretty much always refuse to agree to certiori, and there are obviously more than one Justice on the expected pro-gun side of the Court who'd simply rather avoid the whole topic if that's possible.

Mance is just hopeless, the Court isn't going to restrict the interstate commerce clause, or subject use of it to strict scrutiny. And the law in question has been around for a long while. The Court is comfortable with long standing constitutional violations.

I'd say Penna is the best shot here, just because the California laws in this case are particularly egregious and getting worse with time.

The rest ought to go well if granted certiori, but likely won't be, because they can be avoided, and the Court is actively avoiding 2nd amendment cases. At most they'll take one.

I'm guessing that Penna will be the case they take.

[Aktenberg]

Except that Pena is the easiest to pull a NYSPRA with. California doesn't REALLY care about its law. It's about the naked exercise of power. It could drop the whole handgun roster right after cert is granted.

[Brett Bellmore]

Yeah, I don't think the Court is going to roll over and play dead if another state does that again almost immediately. It would be too blatant.

[Aktenberg]

With Roberts at the helm, I wouldn't be so sure.

[BadLib]

Sadly, this is why I'm tempted to vote for Trump in November although I didn't in 2016. If Ginsburg or Breyer were to, somehow, relinquish their seats in the next few months and were replaced with the likes of a Gorsuch or even Kavanaugh, Trump would likely not receive my vote in 2020 either.

Justice "a fine is a tax" Roberts has been a disappointment. He seems to think the court's job is to be liked and to avoid making hard decisions lest they upset the political class. He's mistaken.

[Aktenberg]

Right. And the "elites" from both parties are liberals, which means that nothing that gets in the way of liberalism will happen on his watch.

[Dr. Ed]

I think Roberts is being blackmailed.

[ThePublius]

I agree. Flaming closeted gay.

[Sarcastr0]

Just living in a world of fiction.

[Brett Bellmore]

I'd agree; There's no evidence of that, anyway.

More likely he's just trying to preserve the perception of the Court's legitimacy at the cost of its actual legitimacy, in a kind of preemptive "switch in time".

[Alpheus W Drinkwater]

Don't interrupt them! There's nothing better here than when two of them are egging each other on.

[Brett Bellmore]

Even Roberts doesn't want to be treated like an idiot.

Besides, I don't think California would try that gambit, they're too arrogant about their right to do things like this.

[Dr. Ed]

As the Chief's Compact is so well known, I can't imagine it isn't included in the suit (against the Brookline Police Chief).
Brookline is where Michael Dukakas lives (or did), the only reason why it didn't become part of Boston is that it is in a different county, it where professors live.

The argument would be that MA Law isn't being followed, kinda like a state refusing to license abortion clinics, and that might make it an easier case to take.

[Aubrey LaVentana]

"the law in question has been around for a long while"

Since 1968? For Constitutional purposes, I don't think that's a long while, nor do I think continued reliance on an unjust law makes it Constitutional.

[Sean Caranna]

At least two more for this list...

19-423 Malpasso v. Pallozzi, 767 F. App'x 525 (4th Cir. 2019) Maryland "May Issue"

19-487 Culp v. Raoul, 921 F.3d 646 (7th Cir. 2019) Illinois prohibits non-residents from of other 45 states from applying for an Illinois concealed carry license

[Dilan Esper]

The Illinois law in Culp is clearly constitutional.

[Aktenberg]

I'd love to hear this one! Please tell me, would it be constitutional for New Jersey to prohibit residents of all other states except for Pennsylvania, Delaware and New York from gambling at casinos in Atlantic City? If not, why not?

[KevinP]

It has the effect of prevent non-residents from carrying a gun for self-protection in Illinois, with no legal avenue for them to do so.

How is this constitutional again? If I cross the border into Illinois, do I lose my right to free speech and free exercise of religion?

[TheAmazingEmu]

Speaking from my own personal biases regarding fundamental fairness and arbitrary discrimination, I hope they focus on the may issue permits - particularly if there's one that gives extremely broad discretion. It seems that's a less controversial area than what gunpowder-based weapons constitute "arms" under Heller vs. those that may be banned for a couple reasons: One, it deals specifically with those who are already lawfully allowed to possess the specific firearm we're talking about and are trying to do the right thing to lawfully conceal that firearm. Second, it cuts down on possible discriminatory actions, such as systematically prejudicing minorities who want firearm permits (for example). That would help get it broad appeal even among some liberal circles.

[Brett Bellmore]

The problem here is that California is acting directly in violation of Heller's command that firearms "in common use" can't be banned. California's criteria for acceptable firearms are restrictive enough that basically no firearm that meets them would be "in common use", some of the criteria require features that no firearm for sale in America meets.

It's a very straightforward violation of Supreme court precedent.

[ThePublius]

The same is true of Massachusetts. We have the double-whammy of the Secretary of Public Safety's “Approved Firearms Roster” and the manufacturing requirements of Massachusetts Attorney General Regulations 940 CMR 16.00. Note that " The [Attorney Gneral's] Office also does not recognize the “Approved Firearms Roster”.

So, while 1.9 million Colt model 1991 handguns were purchased by the US Govt. in WWII, and it is still carried by certain special operations forces and law enforcement agencies, and widely available throughout the USA, you can't buy one in MA - unsafe.

[Aktenberg]

And you can't buy a >10 round magazine unless it was made prior to 1994. Also, completely moronic.

[Michael Ejercito]

Second, it cuts down on possible discriminatory actions, such as systematically prejudicing minorities who want firearm permits (for example). That would help get it broad appeal even among some liberal circles.
Systemic prejudice against minorities in law enforcement?

You must be kidding!

How is that even possible?

[Sean Caranna]

also :

19-404 Worman v. Healey, 922 F.3d 26, 30 (1st Cir. 2019) Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic firearms and large-capacity magazines

19-704 Wilson v. Cook Cty., 937 F.3d 1028, 1029 (7th Cir. 2019) Cook County, Illinois ban of certain semiautomatic firearms and large-capacity magazines

[Jimmy the Dane]

New York might have been too clever by half here. Saved a Supreme Court ruling that would have been "pro-second amendment" while at the same time almost guaranteeing a few cases more on point to the core of the right to own a firearm are heard next term. I'll take the trade. Thank you very much New York.

[Aktenberg]

I hope so. And I hope the court finally lays out a standard of review that is more substantive than the rational scrutiny disguised as intermediate scrutiny the left has been using.

[Brett Bellmore]

You know, not taking that case wasn't a prerequisite of taking one of the other cases. There's no official "No more than one 2nd amendment case every 2 years" rule in place.

On the contrary: Ducking your responsibility just makes ducking it again the next time that much easier. By now dodging 2nd amendment cases is becoming a well worn habit for Roberts. And the best part is, you don't have to explain denying certiori!

Whereas if he agrees to take the cases, he has to at least sign onto a decision that's inevitably going to piss off a serious number of people.

Just not taking the cases is the coward's way out.

[Aktenberg]

Which is why I like the suggestion I read somewhere that SCOTUS be required to hear a case if more than half of the states' attorneys general sign on to a brief requesting it.

[Brett Bellmore]

It's not a bad idea, except for the part where they briefly hear it, and then return it to the lower court without making any substantive ruling.

You really can't force people to do their job if you can't discipline them for failing to do it. And they're actually more likely to end up censured by Congress for upholding the 2nd amendment, than for ducking the cases.

[Aktenberg]

Yeah,k that's true. In an ideal world, half of these judges would have been impeached and removed long ago, but the problem is, half of the Congress at any given point supports their subversion!

[Jimmy the Dane]

I've heard a theory of speculative reasons why SCOTUS has been ducking 2nd Amendment cases. Probably the theory that is right is that there is a rough five justice vote for the application of strict scrutiny, but the right case either hasn't presented itself or the five justice majority is to fragile neither side wants to test the waters. Instead if you are SCOTUS you see what the lower courts do with it for a decade and it is clear that they are treating it as a lesser constitutional right despite the "shot over the bow" in Mass. case. I think that has bulked up at least five votes for strict scrutiny and the watershed case is coming next term.

[Rev. Arthur L. Kirkland]

Maybe it's the six-judge majority (6-5) that the right-wingers are worried about.

[Aktenberg]

You guys pack the court, you'll start a civil war. Good luck to that.

[Brett Bellmore]

If they pack it, they're not adding 2 members to the Court. You don't pack the Court to modestly swing the majority, you pack the Court to turn it into a rubber stamp even on topics where "your" justices wouldn't be reliable.

They won't stop at 11, they'll go straight to 13 or more likely 15.

Court packing isn't a business as usual thing. It's a "clear the deck before rigging things in your favor from top to bottom" sort of thing. It's the first move before doing stuff to make sure you never, ever lose power again, and that would involve steps even some of the 'liberal' wing of the Court would blanch at.

[Jimmy the Dane]

When that happens and the mob comes for Kirkland he is probably legitimately wonder why...

[Rev. Arthur L. Kirkland]

All-talk clingers are among my favorite culture war stompees. Crushing your shabby preferences throughout my lifetime has been not just important public service but also a genuine pleasure.

Keep yapping, loser. Maybe pray on it a spell, too.

[Brett Bellmore]

My theory is that neither side is confident what the majority is. Nobody really trusts Roberts on either side, and neither side wants to set a precedent in favor of the other side.

So the Court is going to keep ducking 2nd amendment cases until either Roberts decides to stop being the new Kennedy, or another nomination makes him irrelevant.

[Aktenberg]

That was the theory two years ago, but people thought Kennedy was the problem. I always suspected it was Roberts.

[Patrick Henry, the 2nd]

I think they both were.

We mostly fixed Kennedy.

But Roberts hasn't been. We need a replacement for Ginsberg.

[Rev. Arthur L. Kirkland]

Enlargement of the Court is going to drive some of you clingers over the edge.

[Aubrey LaVentana]

what's the likelihood that all of the CCW cases will be rolled into one?

[Brett Bellmore]

They really ought to be, the basic issue in all of them is the same.

[Charles Nichols - CRTC]

Only one of the "carry" cert petitions is from a state that requires a handgun be carried concealed. The Culp cert petition out of Illinois is the only state that bans Open Carry. The Gould cert petition certainly read like it was a concealed carry case but Massachusetts handgun permits allow for both Open and concealed carry. The Malpasso cert petition is at the other end of the spectrum. It argues for carrying a handgun in some manner.

Massachusetts and Maryland do not ban the Open Carry of long guns. The Drake v. Filko brief-in-opposition argued that New Jersey does not ban the Open Carry of long guns. New Jersey law says unloaded long guns and loaded long guns "where permitted" but does not seem to say how one goes about determining where the carrying of a loaded long gun is legal.

[Brett Bellmore]

A number of states nominally don't ban open carry, but you'll still end up arrested if you try doing it outside of a hunting area or range. That was the case when I lived in Michigan, and a major impetus for the CCW legislation there: Open carry was technically legal, but in much of the state would get you charged with "brandishing", or the cop would claim you were illegally concealing by holding your arm in front of the holster.

The theory was that legal concealed carry would protect you, because they couldn't hassle you if they couldn't see that you were packing.

[Charles Nichols - CRTC]

Brett Bellmore - I hear that a lot but there have been only two cases I am aware of where one was prosecuted for lawful Open Carry. One was in Connecticut and the other was in Redondo Beach, California where I was the one prosecuted.

Feel free to post links where some who was legally openly carrying a firearm was prosecuted with brandishing or illegally carrying a concealed weapon as you described.

[Burkhard]

Reading the headline, I wondered what "10 second" Amendments are, and if that was a unique American procedural term. 10 seconds seemed awfully short for amending anything legal. I need more sleep