Heller's Sad Bar Mitzvah

The Supreme Court denies cert on three Second Amendment cases, and refuses to grant the New York carry case.

Last month, I expressed some optimism that the Supreme Court would soon grant a Second Amendment case. We know there were four votes to grant a gun case last term. And now, Chief Justice Roberts is no longer the fifth vote. We have Justice Barrett, I thought. Certainly an ostensible 6-3 conservative majority would be enough to grant a gun case. Hope springs eternal.

Today, the Supreme Court denied review in three Second Amendment cases. Each case  involved a non-violent felon who sought the restoration of Second Amendment rights. And thes cases were brought by leading Second Amendment attorneys. Holloway v. Garland was filed by the Firearms Policy Coalition. Folajtar v. Garland was filed by David Thompson at Cooper & Kirk. And Flick v. Garland was filed by Alan Gura. None of these cases was even relisted. They were denied outright.

What is going on here? We know Justice Barrett ruled in favor of the non-violent felon in Kanter v. Barr. Alas, my tentative suspicion is that Justice Alito is not willing to rule for a felon, even where doing so would advance the Second Amendment. I still think his strange vote in Gundy was designed to avoid ruling for a sex offender. I do not think there are five votes for a felon case now.

But what about NYS Rifle & Pistol Association v. Corlett. This petition, which was gift-wrapped with a bow by Paul Clement, squarely presents the carry issue. The case was distributed for conferences on 3/26, 4/1, and 4/16. At this point it looks like we will get another dissent from denial of certiorari. Justice Thomas will have to refresh his dissental from Rogers v. Grewal, which was joined in part by Justice Kavanaugh. There should be four votes here. Thomas, Kavanaugh, plus Gorsuch and Alito. The latter two are already on record about the right to bear arms outside the home. Are we to believe that Justice Barrett is unwilling to grant cert? Is that really where we are in April 2021? An unwillingness to resolve a decade-long circuit split about the right to carry?

At this point, the only way for the Court to take a case will be for the government to lose in the lower court. Force the Solicitor General to file a cert petition, and let's ride it out. To be perfectly frank, I would prefer the Court to put Heller out of its misery, and hold the right is limited to the home. That end game would be preferable to this never-ending shell game. So much effort is wasted litigating cases that do not matter. I don't even know if I will bother teaching the Second Amendment in future classes. What's the point? I have to throw my hands up in class and say, "I don't know, and the Court will not tell us."

Heller is thirteen years old this year. In the Jewish tradition, it would be celebrating its Bar Mitzvah. And what a sad Bar Mitzvah it would be.

Comments

[ThePublius]

I'm disappointed. The wheels of justice grind too slowly, more than a lifetime.

[DaivdBehar]

The lack of certs and the lower court decisions violate due process. The infractions are not relevant to gun use. What is more relevant but not included is an accidental discharge of a gun into a tree. Anyone who has not maintained proper gun safety is a greater threat than someone who lied on a form years ago. Why can't the lawyers on the Supreme Court understand that? Why? Because among the lawyer dumbasses they are the stupidest of all.

[DaivdBehar]

That being said, as an opponent of judicial review, these non-certs are OK. The NRA should get legislative relief, the proper source of lawmaking.

[Brett Bellmore]

The 2nd amendment itself is a legislative product. Why should IT not be enforceable? If constitutions can't be enforced, why would you expect legislation to be enforced?

[Krychek_2]

Let me offer a possible explanation: The Supreme Court conservatives may support gun rights but they're not batshit crazy. They know that if they go where the gun lobby wants them to go, the result will be batshit crazy. They understand that real world consequences are sometimes more important than ideological purity. And ultimately, this is less about legal theory than it is about the fact that we've had 42 mass shootings in the past month.

So, they may do with gun rights what they've done with abortion rights: A flat ban is unconstitutional but most restrictions are just fine.

[Ed Grinberg]

Can't wait for them to apply this "sensible approach" to First Amendment rights (freedom of speech, freedom of assembly, freedom of religion).

[Krychek_2]

Oh, they already have. Free speech doesn't allow you to shout under people's bedroom windows at midnight. Free assembly doesn't include a riotous insurrection at the Capitol. Freedom of religion doesn't include the right to hijack an airplane and fly it into the World Trade Center. It's only with gun rights that some people seem to think the sky's the limit.

[Aktenberg78]

No, the proper analogy would be that free speech can only be exercised if the government decides you have "good reason" to be doing it.

Your examples are more equivalent to prohibitions on discharging a firearm within city limits (outside of self-defense) or doing so late at night.

[arch1]

Well put.

[Armchair Lawyer]

"It’s only with gun rights that some people seem to think the sky’s the limit."

Really? "The sky's the limit?"

What people want with second amendment rights is really pretty simple.

1. The right for law abiding citizens to own a firearm.
2. The right for law abiding citizens to be able to carry that firearm outside their own home.

No one seriously argues against reasonable restrictions. No one says a bar, or any other private business doesn't have the right to restrict firearms within their business. No one seriously argues courtrooms or other sensitive areas can't restrict firearms within their doors.

Imagine if free speech was limited like the second amendment was. "You can only have free speech within your home. And in 5 other, distinct locations within NYC. No where else". Or if the right to assembly was limited like the second amendment is. Or any of the other rights.

In many ways, the second amendment is more strictly limited than any other right found in the Constitution.

[Krychek_2]

No that is not all you want. You want to be able to pack enough heat to wipe out a school in seconds. Or a mall. You want militia groups to have enough firepower to give the Army a run for its money. Maybe not you personally but that’s certainly the agenda of some Second Amendment fanatics.

And the rest of us have rights too.

[Jason Cavanaugh]

"You want militia groups to have enough firepower to give the Army a run for its money."

Clearly you didn't pay attention in Civics.

[Krychek_2]

Jason, if I thought for one second that the militias were the good guys I might concede your point. But they’re not. They are far more likely to give us fascism than any elected official ever will. Their whole point is to oppose democratically elected governments that they disagree with, and who, unlike the militias, can be defeated for re-election if the people don’t like where they’ve taken the country.

And militias aside, what about criminal organizations? If militias can outflank the army, so can organized crime. You really think it’s a good idea for Al Capone to have the firepower to take on the feds?

[Armchair Lawyer]

Again, you're just crazy fearmongering here.

But if you want an modern example of what happens when you take all the citizens guns away, look at Venezuela.

[Krychek_2]

But I’m not advocating taking all guns away, and the examples of Japan and Canada demonstrate that gun control does not lead to totalitarianism.

[Armchair Lawyer]

Uh huh... Again, a little history here is important about what happens when you take away all the arms from the dissidents.

https://en.wikipedia.org/wiki/Sword_hunt/

Again, if you have the US acting as an essential protector of freedoms (as it essentially does for Japan and Canada now) then, sure.

But who is going to protect the US.

[Krychek_2]

You might want to check that link again.

[Brett Bellmore]

"But I’m not advocating taking all guns away, and the examples of Japan"

If Japan is what you're talking about, you ARE advocating taking away all but the tiniest remnant of all guns. Civilian gun ownership in Japan is estimated at 0.3 firearms of all sorts per 100 people. In the US it's 120.

So you'd be open to taking away 99.975% of guns?

[Krychek_2]

No, I would not take away 99% of guns. I cited Japan as a counter-example to the claim that taking away guns leads to tyranny; Japan is every bit as democratic without guns as the US is with them. In fact, Japan is even more democratic since it doesn't have an electoral college.

[Brett Bellmore]

"Japan is every bit as democratic without guns as the US is with them."

Japan is civilized, I'll grant you that. But Japan has some serious issues. For example, the conviction rate in Japanese courts is an incredible 99.9%. How do they do it?

Endless pretrial confinement and mild torture until you confess. That's how they do it.

But, Japan aside, let's remind you of something: The 2nd amendment is still a part of the Constitution.

Does your conception of 'democracy' omit the rule of law?

[Krychek_2]

There are problems with the Japanese legal system but it's still a far cry from the totalitarianism that we're threatened with every time someone suggests reasonable gun control. And I don't think the Second Amendment stretches quite as far as you do. Yours is not the only reasonable interpretation of the text.

[Aktenberg78]

Your idea of "reasonable" gun control is a full ban. Cut the crap.

[Absaroka]

Sigh.

If the vast majority of the population are in Al Capone's band, then, yes, they could revolt and defeat the Army. Or, for that matter, vote themselves into power.

The constitution, and the second amendment is intended to enforce, very literally, majority rule. The idea is that when the bad idea fairy visits some future president/congress and whispers 'Hey, why not just pass some emergency decrees, suspend elections, and put yourself in charge, after all, you can just have the Army make everyone do what you want' the good fairy on their other shoulder can whisper 'no you really can't'.

That notion - that ultimately power should reside with the people - depends on the notion that most people are good people. Which is also the fundamental assumption behind democracy itself.

[Krychek_2]

You’re talking about resolving disputes by force, which comes down to who has the best firepower, not who has majority approval. Capone doesn’t need to win an election, or enjoy majority support. He just needs to be able to put gun J. Edgar Hoover.

If the Second Amendment is to enforce majority rule, how would you have felt about a left wing militia installing Hillary Clinton as president in 2016? She got the most votes.

[Armchair Lawyer]

"You’re talking about resolving disputes by force, which comes down to who has the best firepower, not who has majority approval. "

To a large extent, when firearms are commonly available in a nation, the "best firepower" IS majority approval. Firearms are the great equalizer, and have been throughout history. A gun means any man or woman can defeat any other. You don't need years of training or expensive suits of armor or big huge muscles. Firearms are why conscription was invented, and why it worked. And it was basically about numbers.

When the government seeks to take away the people's firearms, it's ensuring a situation where it can effectively rule as a minority in an area, because then it has all the "firepower" and can use it to dominate a much larger majority. This type of situation has been used through history, from sword hunts in feudal Japan to the British trying to take the Americans muskets. And we see it today in Venezuela. The "guys with the guns" effectively eliminate any political opposition.

This, BTW, is different from international warfare.

[Krychek_2]

AL, you're making a number of assumptions and presuppositions that I don't think are true, or at bare minimum there's not much evidence for. In this country, at this time and place, a militia is far more likely to be trying to defeat democracy than support it. Those guys who stormed the Capitol; whom were they there to support? The guy who won the popular vote by 7 million, or the guy who lost the election (in both the popular vote and the electoral vote) and then whipped his base up into a lather with lies about the election being stolen?

Historically, in this country, we haven't had a private militia on the side of democracy and human rights since the Revolution. Think Ku Klux Klan. Think white citizens councils. Think lynch mobs. Think vigilance committees. That's the history of people arming themselves in this country to take the law into their own hands. Maybe other countries have different experiences. But the specific history of this specific country is that you're far more likely to get really bad results from armed mobs than you are from anything the government is likely to do.

Maybe if just once I could see evidence that the militias are the good guys I might reconsider. But that's not the evidence that I see.

[Jason Cavanaugh]

"If the Second Amendment is to enforce majority rule, how would you have felt about a left wing militia installing Hillary Clinton as president in 2016? She got the most votes."

The 'majority rule' being written about is the agreement as citizens to follow the Constitution and to be governed by it.

Sigh.

[Krychek_2]

Jason, but that's not what he said. He said the Second Amendment was to support majority rules. Under that theory, armed leftists would have been within their right to say "majority rules" and install Hillary Clinton as president.

[Armchair Lawyer]

Krychek,

You have a basic misunderstanding of what the "militia" is. This is what the militia really is.

The current United States Code, Title 10 (Armed forces), section 246 (Militia: Composition and Classes), paragraph (a) states: "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

Those people who had a protest at the Capitol? Didn't kill a single person.

[Aktenberg78]

First, Biden only won by 7 million if you include the votes of people that most Americans two generations ago didn't want and had foisted upon them. Second, the right to keep and bear arms is not about enforcing majority rule. It's about resisting tyranny, whether by the majority or the minority.

The only tyranny I see comes from the left these days.

[Absaroka]

"Historically, in this country, we haven’t had a private militia on the side of democracy and human rights since the Revolution."

1)The stability this country has enjoyed both remarkable and wonderful.

2)As an aside, you seem to be forgetting the Deacons of Defense.

3)More centrally, deterrence that works is usually hard to see. Why did the Russians back down over the Cuban Missile Crisis, after all? Did the nukes we never used during the Cold War matter, or would life have been just as good if only the Russians had them?

I remember a lot of speculation about whether Nixon would go quietly - who knows what went through his head. More recently, in the overwrought 'when will Trump start sending liberals to the camps' phase, I could assure my liberal friends 'He won't. I don't think he'll even try, but I assure you he won't succeed'.

4)On the more general case, you are misstating my argument. Guns aren't a panacea. You can't just airdrop them to cure whatever ails a society. Societies with widespread gun ownership can work well (Switzerland, Finland) or not so well (Somalia). A dearth of guns doesn't guarantee bliss either (Rwanda). Having the actual political power democratically distributed can make some kinds of abuse harder, e.g. the Holodomor.

[Brett Bellmore]

"2)As an aside, you seem to be forgetting the Deacons of Defense."

Don't forget the Battle of Athens.

[Krychek_2]

Aktenberg, take your overt racism and stick it up your ass. Seriously.

[Aktenberg78]

No one demands that Japan and China import tens of millions of foreigners. Anti-racist is code for anti-white.

[Absaroka]

Battle of Athens: not a huge fan of that because, inter alia, this from the linked article: "The Non-Partisan GI Political League replied to enquiries by veterans elsewhere in the United States with the advice that shooting it out was not the most desirable solution to political problems.", for the reasons stated in the article above that sentence.

It was a bad situation, and the state and fed governments should be ashamed of failing to clean things up before they came to a head, but I don't consider it a great example of the unorganized militia in action.

[Brett Bellmore]

If you're reduced to shooting people, it's never a good situation, but I think it belongs on every list of positive actions by private militia groups. Positive quasi-military, I mean; Private militias have a long record of use in search and rescue.

[Armchair Lawyer]

This is just fearmongering. "You want militia groups to have enough firepower to give the Army a run for its money."

Seriously, you're just nuts now.

In regards to the "rest of us have rights too", we're trying to defend your rights. Even if you would throw them away instead, we're preserving your right to them in the future.

[Krychek_2]

Well, Jason up above seems to agree with me that enabling militias to take on the army is the agenda. Where he and I disagree is whether that’s a bad thing.

[Armchair Lawyer]

Sigh... No, he doesn't. He's referencing the American Revolution of 1776. It's called history.

He's not saying the "militias" should get nuclear weapons and B2 stealth bombers in order to take on the US army.

[Krychek_2]

And of course conditions today are exactly like 1776. Nothing has changed since then.

[Armchair Lawyer]

You appear to be incapable of understanding a historical reference.

[Krychek_2]

And you appear to be incapable of citing a relevant one.

[Armchair Lawyer]

1776 actually is relevant to how governments tend to operate.

Ever wonder why there's no rebellion in China against the harsh central government?

Guess why. The Chinese government took all the guns.

[Jason Cavanaugh]

The purpose of the 2A is to ensure that citizens are capable of being armed well enough to defend themselves and their State, and indeed the country as a whole.

That specifically means weapons that a soldier would commonly use and carry to accomplish such objectives.

The 2A is not understood to permit aircraft carriers, planes, ICBMs, and the other multitude of things people like you conjure up as strawmen fallacies to pretend the 2A is absurd on its face.

[Martinned]

The 2A is not understood to permit aircraft carriers, planes, ICBMs, and the other multitude of things people like you conjure up as strawmen fallacies to pretend the 2A is absurd on its face.

So much for textualism/originalism...

[circleglider]

“So much for textualism/originalism…”

And so much for literacy—or honesty—within the legal academy.

Most of the comments by the long-time Progressive VC cabal are just pure trolling. I stopped wasting my time years ago trying to break up their circle jerk.

[Krychek_2]

But why not? If the purpose of the Second Amendment is so that people can defend themselves from their own government if need be, then why not do a complete job of it and allow private ownership of missiles?

[Brett Bellmore]

It's not that complicated: If you let the general citizenry own firearms, the government only has to worry if they have pissed of a huge number of people. Essentially the power to overthrow the government is subject to numerical thresholds.

If you legalize missiles and car bombs, a tiny disaffected minority can cause huge damage.

Of course, at the time the 2nd amendment was written, you didn't have anything more destructive than cannon, really, so it wasn't an issue. And civilian ownership of cannon was permitted, ships were often fitted with them for defense against pirates.

[DonP]

I guess the rest of us (and SCOTUS) somehow missed that enumerated right for you to feel safe, whether you are or aren't really safe. Perhaps, when your paranoia lifts a little, you can point it out for the class.

[Krychek_2]

It's right next to the enumerated right to not have someone shout through my bedroom window at midnight, which is clearly free speech. Or the enumerated right to not have the plane I'm on hijacked and flown into the World Trade Center, even though that was pretty clearly the free exercise of religion.

I don't dispute that gun owners have rights. What I dispute is that only gun owners have rights.

[Brett Bellmore]

But you're always comparing simple peaceful ownership and bearing of arms, with aggressive, tortuous speech. You must notice you're doing this. It's deliberate.

You're comparing acts that have victims, to acts that don't.

We don't ban megaphones because somebody might hypothetically stand outside your window at 3AM shouting through one. We ban the actual standing outside your window shouting. We don't ban printing presses, we ban using them to print counterfeit bills. We don't ban notepads and pencils, we ban passing extortionate notes to bank tellers.

We don't try to prevent speech crimes by denying people things they could use for speech crimes, but mostly use for perfectly legitimate activities.

But that's exactly what you want to do in the case of guns: Ban things that are almost exclusively used peacefully, ban peaceful activities, just because you think it will inconvenience the occasional criminal.

That's not how you treat rights. Heck, it isn't really how you treat privileges most of the time.

[Krychek_2]

But a printing press isn't inherently dangerous the way guns are. To my knowledge, no one has ever been killed by a printing press. (I suppose a printer could have a work related accident that involved the printing press, but how often does that happen? If tens of thousands of people were being killed every year by printing presses, you probably would see calls to regulate them.

Guns are unique. And candidly, your side knows they are unique or you wouldn't be fighting this battle quite so hard.

[Brett Bellmore]

I question whether guns are "inherently dangerous". They just sit there inert until somebody picks them up and uses them. That makes them as "inherently dangerous" as knives, cars, crowbars, baseball bats, basically anything you could pick up and use for a weapon.

In the case of knives, cars, crowbars, baseball bats, pretty much anything, you recognize that all the agency is in the human, and the object is just an innocent tool.

Then you get to guns, and you start treating the inert object like it was haunted by some demon bent on murder. And feel entitled to try to restrict their ownership by people who've shown no indication of meaning to do anything wrong with them.

Guns aren't unique, they share special status with printing presses: They're the instrumentality of a constitutional right. You can no more justify regulating guns on the assumption somebody will do something wrong with them, than you can printing presses.

[Sarcastr0]

What are the reasonable restrictions on the 2A that you would allow?

[Brett Bellmore]

All the restrictions that directly address harms, rather than proposing to avert harms by incapacitating everybody.

Take all the laws that prohibit you from using guns to do what you couldn't do with anything else, as a given: They're already illegal to use for murder, assault, rape, robbery, and so forth.

Product safety, as conventionally understood. Just because gun ownership is a constitutional right, doesn't mean the government has to permit the sale of guns that blow up in somebody's hand, or fire if dropped.

Normal health regulations. You do realize that, if guns were industrial tools, suppressors wouldn't be heavily regulated, they'd be mandatory, right? They don't make guns quiet, as in movies, they just reduce the noise level enough to prevent acute hearing damage. The US is unusual in heavily restricting silencers, in most countries silencers are less regulated than guns, and even required under some circumstances.

It's perfectly reasonable to regulate the use of lead ammo, given the toxicity of heavy metals. To require that ranges have proper ventilation and backstops. You could reasonably require that people only load frangible ammo if they live in apartments, to prevent over-penetration.

The sort of regulations you'd be considering if you didn't have a general hostility to gun ownership.

[Absaroka]

Gun laws should be put to the same test as other laws:

-do they have a differential effect, i.e. do they maximally affect crooks and minimally affect the law abiding
-will they actually result in a positive effect sufficient to outweigh their inevitable externalities

and so on. For a couple of examples, why don't we put those blow-in-the-tube interlocks in all cars? I'd bet good money that would save more lives than an assault weapons ban. We don't do that because of the cost, because it would be a PITA, and because people who haven't broken the law generally rankle at being treated like people who have.

Or even more simply, why not put a B-for-booze endorsement on licenses, that gets removed if you do anything bad while drunk (DWI, assault, whatever), and just card everyone for every alcohol purchase? Compare that with e.g. the current California process for buying ammunition and make the argument that one provides a better public safety tradeoff than the other.

...

[Absaroka]

...

You asked about specific policies. If you have a particular favorite, I'm happy to discuss it against the framework above.

In the general case, when I read the all too common article that goes like "Last night Fred Smith was arrested after a high speed chase and gunfight. Officers noticed a stolen vehicle and initiated a traffic stop, but he sped away, eventually wrecking after a seven mile chase, whereupon he opened fire on officers. The gun was stolen in a burglary. Mr Smith, age 27, had 14 prior felony convictions for assault, weapons charges, and robbery, and was wanted on a failure to appear warrant for a robbery 11 months ago because he failed to appear after getting bail".

I see those all the time. My reaction isn't 'we need to crack down on guns', it is 'we need to crack down on Fred'. Fred isn't just a gun problem - he is perfectly capable of e.g. beating up his girlfriends (convictions #4 and 7) bare handed. As an aside, the fewer Freds that are out loose, the less likely people are to be buying guns for self defense, so that's a win-win.

So propose your specifics and we can talk. In general, most of what I hear proposed as gun control doesn't seem likely to do much to disarm Fred, but I'm all ears if you have any ideas that do.

[phoqueue]

I'm a crazy man. I wrote this comment without getting my First Amendment permit. Caution to the wind, baby.

[Aktenberg78]

First, most of those "mass shootings" were not what you think of when you think of mass shootings, but about gangbangers shooting up a park, funeral, or so forth.

Second, none of those result from legal concealed carry. None.

Third, no one who monitors federal jurisprudence thinks the court would EVER go where the gun lobby wanted them to. But some of the more egregious rulings that aren't even in good faith, like prohibiting carry for nearly everyone and prohibiting rifles based on cosmetic features, don't even pass rational basis, much less strict scrutiny.

[John Cuyle]

This would be very problematic for the carry cases. In the ninth circuit there is essentially no right to carry outside the home, but the trend in most states, including many covered by the ninth circuit, has been liberalizing carry laws, either moving from may issue to shall issue or dispensing with the need for permits entirely.

The result is a disaster. Imagine you go on a motorcycle trip down the pacific coast you need a WA permit to carry in WA, an OR permit to carry in OR, and you can't carry in CA. CA's restrictions are so severe that someone who can legally carry in WA and OR will find it difficult to legally have their pistol with them through the CA portion of the trip. Meanwhile, if you have WA, OR and FL permits you can drive from WA to FL (provided you avoid CO) with no problems. Want to do a loop of the country, though, and you're pretty much going to need to avoid the entire Northeastern US. Want to ride the TAT and have a pistol in case you run into hostile wildlife? You're fine, except for the part that runs through Colorado.

The status quo just isn't a workable situation in a practical sense. The degree with which the ninth circuit holding is out of step with a majority of states in the ninth circuit is another problem (that could potentially be helped by splitting the ninth, but that's a whole problem in and of itself.)

[Aktenberg78]

Just one correction, my Florida permit is honored in Colorado. Washington stopped honoring Florida's years ago, and Oregon never honored other state's permits.

[John Cuyle]

CO treats FL resident and nonresident permits differently. OR doesn't recognize any other permit so you'd need that one. For a WA resident with a WA resident permit and FL and OR nonresident, CO doesn't recognize any of them. They don't recognize UT nonresident either, and they don't offer nonresident permits. I don't think it is possible for a WA resident to obtain a CCW permit that is recognized in CO.

[Aktenberg78]

This is true. South Carolina is the same situation. They don't honor any non-resident permits, and they don't issue their own, so if they don't honor your state's permit, you're out of luck. And they prohibit open carry. Screw them.

[Brett Bellmore]

We're working on it. Thanks to open primaries, our government, despite being dominated by Republicans, isn't nearly as responsive to conservatives as you might expect.

[Aktenberg78]

That makes sense. Here in North Florida, we've been waiting for open carry for years. Same situation.

[John Cuyle]

Worse, Washington has had legal open carry and shall issue concealed carry since before those were popular things to do, and the WA legislature has been trying to advance bills to eliminate open carry. Concealed carry is already difficult as a practical matter (so many mandatory gun free zones that inadvertent violations are nearly unavoidable) and the ninth circuit just cleared the way for us to go backwards on both simultaneously. They were even considering repealing the state gun law pre emotion clause, which would make compliance with random local laws completely impossible.

[Aktenberg78]

I'm not as convinced as you are they are going to deny NYSPA. It's also likely, given that it won't be heard till next term anyway, that they're waiting until the last day of this term to announce, no?

[Vandalia]

Is there a chance that Barrett refused to join NYS Rifle since Alito refused to join Holloway, etc., or vice-versa?

[Armchair Lawyer]

Are you sure they're going to deny cert in NYS Rifle & Pistol Association v. Corlett.?

Or is Roberts just worried about Court Packing?

[Aktenberg78]

Roberts is irrelevant at this point. He's been a squishy liberal on this issue since Heller, and likely, even before then.

I have no doubt that Roberts will be on the side of the other 3 liberals. It's whether the 5 conservatives stay together that I don't know.

[DaivdBehar]

Anybody with a job is committing three federal felonies a day. If a lawyer is looking for a gotcha to infringe on constitutional rights, it is easy. Bring the gotchas to the Justices. What's his face assaulted a high school chick decades ago. No gun for him. I don't know how many Justices smoked any dope in their youths, a federal crime. No guns for them.

Because punishment is the sole tool of the law, and it is always a procedure on the body, all legal decisions should be proven to be safe and effective for their intended purposes. None of these Supreme Court decisions have the slightest external validation.

[dwb68]

Taking away someones 2nd amendment rights for tax evasion or DUI may not be a 2nd Amendment case so much as (maybe) an 8th amendment (excessive fines and punishment) case.

Bad cases make bad law. Do I really want the Supreme Court to try to defend felons in an era of attempted court packing and 24/7/365 progressive outrage? I would rather see them deny cases than make bad law that we are stuck with for 40 years.

[phoqueue]

What other rights can we take away from felonious hackers? Due process? Assembly? Petitioning the government?

[Brett Bellmore]

I want them to do everything in an era of attempted court packing and 24/7/365 progressive outrage, that they would do in normal times. Because otherwise, threats of Court packing, and perpetual outrage, work.

[Charles Nichols - CRTC]

NYSRPA v. Corlett is not a Second Amendment "carry" case. It is not even a handgun carry case. It is a concealed carry case. The plaintiffs never challenged the New York State prohibition on openly carrying handguns in public for the purpose of self-defense. They never challenged the New York City prohibition on openly carrying rifles and shotguns in public for the purpose of self-defense.

They did not even challenge the permit requirement to carry a handgun in public for the purpose of self-defense.

One thing all nine justices in District of Columbia v. Heller agreed on is that prohibitions on concealed carry do not infringe on the Second Amendment right. Two years later, McDonald v. City of Chicago reaffirmed Section III of the Heller decision that began with that admonition.

Hopefully, you will stop teaching the Second Amendment. You obviosuly don't know what the Second Amendment is.

[dwb68]

https://en.m.wikipedia.org/wiki/Richardson_v._Ramirez

If felons can have voting rights permanently restricted, they can also have 2nd amendment rights restricted.

Of course, historically they could hang you for a felony, so anything less is also ok too.

Seems to me, what people are *really* arguing here is that permanently prohibiting a felon from owning a gun is excessive. That may be so, or not. I am not convinced either way.

[Brett Bellmore]

In general, the restrictions placed on convicted felons are not constitutionally problematic, though they're often remarkably stupid, since any felon who actually does mean to use guns for illegal purposes isn't going to be dissuaded by owning the gun in the first place being illegal.

My real objection to permanently prohibiting felons from owning guns, is that it requires a system to implement it, and that system ends up impacting the rights of non-felons. Pointlessly, since the system demonstrably doesn't actually keep felons disarmed.

I'd restore felons all their rights once they're out of prison, not for their sake, but instead for the sake of everybody else who currently has to prove they're not a felon every time they want to exercise a basic civil right.

The real problem here is "felony inflation". As you point out, historically felonies were crimes you could be executed for, so basically any lesser penalty was considered unproblematic. Today all sorts of things you'd never dream of executing somebody for are "felonies", which really should just be misdemeanors.

[Aktenberg78]

Except that the voting rights being restricted for convictions being permissible is explicitly in the Constitution.

[Brett Bellmore]

Point, though that mention was necessary to make clear that a voting rights clause wasn't prohibiting existing policies in that regard. It's not like felon disenfranchisement was unknown until the 14th amendment. Ditto for felon disarmament, at the state level.

I think, however, there's a very strong case against the constitutionality of federal felon disarmament laws, firearms ownership regulation not exactly being an enumerated power. Rather, it looks like the sort of "general police power" the federal government was quite deliberately NOT given. The law in question is only 50 years old, after all. Prior to that felon disarmament was entirely a state matter.

I don't see any enumerated powers basis for the federal ban.

[Aktenberg78]

Agreed, but if the federal government doesn't have the power to disarm felons under the Commerce Clause, it doesn't have power to regulate the possession or ownership of guns at all.

[Brett Bellmore]

Well, it just doesn't, outside of D.C. and federal properties purchased with state permission, (That last bit is something the courts tend to ignore.) where the federal government is entitled to govern as though a state.

[Aktenberg78]

I agree with you, I'm just nothing that we can't limit it to felon disenfranchisement if we want to be consistent.

I think the Commerce Clause arguably does give Congress the power to restrict trafficking of guns across state lines (not mere possession by one person), but that's about it.

However, the 2nd Amendment prohibits a lot of the other rules they have in place, like the idiotic interstate handgun purchase rule. There's zero reason that if I drive to Georgia, I can't buy a pistol at a store there.

[Brett Bellmore]

I don't think so; The 2nd amendment has to operate as a limitation on the commerce clause, and calling commerce in a constitutionally protected item "trafficking" doesn't make restricting it legit.

You can't use the commerce clause to restrict book trafficking, after all.

[Aktenberg78]

Right, I'm assuming that what's being done is not protected by the 2nd Amendment. For example, if Gangbanger 1 sells a stolen gun to Gangbanger 2 on a Baltimore street corner, it's an issue for Maryland and Maryland alone. If Gun Runner 1 steals a shipment of guns from Palmetto State Armory (real story) from the back of a UPS truck and traffics them into Maryland, and then sells them on a street corner to Gangbanger 1, 2, and 3, I think Congress could reasonably exercise jurisdiction there.

[Skinnan]

"I don't know, and the Court will not tell us." I can read the plain English in the Constitution and I don't need a damn judge to tell me what "shall not be infringed" means.

[dwb68]

“I think, however, there’s a very strong case against the constitutionality of federal felon disarmament laws, firearms ownership regulation not exactly being an enumerated power. Rather, it looks like the sort of “general police power” the federal government was quite deliberately NOT given.”

I am doubtful. I would put this in two categories, roughly: State disqualifiers, and Federal disqualifiers.

Federal disqualifiers are easy. In 1790, counterfeiting was a federal crime punishable by death: https://en.wikipedia.org/wiki/Crimes_Act_of_1790, along with lots of other crimes. Federal tax evasion seems to me on par with counterfeiting.

In the early 1800s were hundreds of federal criminal prosecutions.

Seems to me, Congress certainly has the power to disarm felons (and put them to death even) under federal jurisdiction. Now, we can certainly debate the expansion of federal jurisdiction to traditionally state crimes, but we are not asking “whether” Congress has the power to disarm felons, that issue was settled with the First Congress. The debate is whether certain crimes are appropriately under federal jurisdiction, and whether the punishment is excessive. Neither are 2nd amendment issues. . Nor should they be resolved as 2nd Amendment cases.

As for state qualifiers, that is trickier. It was hard to move from one state to another in 1790. Now its easy. If I am convicted at the state level of a disqualifying crime, I am disqualified everywhere. But- I cannot escape judgement (monetary or otherwise) from a state court simply by fleeing to another state (Full Faith and Credit). Making it hard to flee from state judgements, or facilitating extradition to another state, seems to me to be a perfectly valid exercise of Federal Power. If Maryland thinks I should be disarmed because of DUI, maybe I should be (or maybe not). The Feds prevent me from buying a gun in Virginia because of Maryland judgement. Its not all that different than if they made a national registry of deadbeat parents who owe child support, to prevent me from fleeing that too.

I consider my self very pro-2nd amendment… but I am unconvinced that the cases that the Supreme Court denied were worthy for a lot of reasons, starting with the fact that these “prohibited person” cases might not even be 2nd amendment issues in the first place.

[Brett Bellmore]

"Federal disqualifiers are easy. In 1790, counterfeiting was a federal crime punishable by death: "

It was a federal currency. Where the federal government has the enumerated power to do something, they have the power to enact laws "necessary and proper" to doing it.

I'm not questioning that the federal government is constitutionally entitled to, as part of the penalty for committing a federal felony, impose a disability like losing your 2nd amendment rights.

Rather, the question is whether they can impose that disability on a violation of STATE law, where the state has not chosen to.

Then, of course, there's the matter of the Lautenberg amendment, which extended that disability to a state misdemeanor. I consider it an outrage that the Supreme court hasn't been willing to revisit that one since admitting gun ownership is a right.

But the Supreme court outrages me quite often.

[Brett Bellmore]

Anyway, as I wrote above, regardless of constitutionality, I think it a bad idea. This prohibition only disarms law abiding felons, since the ones intent on violating the law aren't going to let a law against their obtaining a gun stop them.

At most you might get a little benefit out of disarming felons who fully intend to be law abiding, but suffer from serious impulse control problems, and would misuse a gun even if they hadn't obtained it for criminal purposes.

And the prohibition requires an extensive regulatory system to exist, which infringes the rights of those who have NOT been convicted of any crime.

I don't think the hypothetical gains from the prohibition on felons legally owning guns is worth the cost to the rest of us.

[dwb68]

"This prohibition only disarms law abiding felons, since the ones intent on violating the law aren’t going to let a law against their obtaining a gun stop them."

I am in complete agreement. But not every bad idea is unconstitutional. Politics is 90% virtue signalling. "We dont want felons to possess guns" is pure virtue signalling. If someone is too dangerous to possess a {gun, knife, car, etc.} they should be in jail or at the end of a rope. In Maryland felons get out of prison and can get a pistol faster than a law abiding person, who has to wait 7 days.

The relevant question seems to me is not whether federal laws are wise or good, its whether they are constitutional:
"Rather, the question is whether they can impose that disability on a violation of STATE law, where the state has not chosen to."

This is a very interesting question, but I am not even sure its a 2nd amendment question. What penalties can the federal government impose on people convicted of state crimes? Is the National Sex offender registry unconstitutional? Seems to me this question is a lot broader than the 2nd amendment.

[dwb68]

Which is why I come back to my opinion that these federal prohibited person test cases are a premature waste of time until a few other issues are squared away.

I have a different opinion of the outside the home "bear" cases. Seems to me these are ripe. Time will tell whether they take NY or NJ case, wait for HI (Young), or simply decide to punt.

[MaverickNH]

Buck up Josh - there’s always tomorrow ????