Guns

S. Ct. Will Consider Whether Second Amendment Protects Right to Carry Guns Outside the Home

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The case is N.Y. State Rifle & Pistol Ass'n v. Corlett; you can read the petition and the other briefs here. The question presented is:

Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

The brief is from Paul Clement, a former U.S. Solicitor General, who will presumably also argue the case.

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  1. Good. They also need to lay out the standard of review for all other laws, because the “two step” intermediate scrutiny being used by the lower courts is rational basis by another name.

  2. One other thing I hope they address is the tactic of changing a law at the last minute to avoid SCOTUS review. If you defend a law all the way to the Court of Appeals (or the highest court of a state), then you should not be able to change it at the last minute to avoid SCOTUS weighing in on it. That just promotes gamesmanship.

    1. I don’t think that’s a concern here. The ridiculous rule NYC did an about face on was stupid and even the city/state didn’t really care about it. But NY/NJ/CA/MD are not going to allow ordinary people to carry guns voluntarily, they’d rather fight it to the death.

      1. They didn’t do a complete about face, though: Although they now permit you to transport the gun to someplace outside the city, you break the law if you stop anywhere along the way for any reason other than a traffic light. No stopping to use a bathroom, eat, refuel your vehicle. You must travel straight to, and straight back from, the destination in question.

      2. In CA it is by county. In my county the sheriff is pretty easy about handing out permits. In SF however, it is nearly impossible.

        1. Unless you give the SF Sheriff a little “something” on the side.

          1. Actually that is why government exists. That it does anything useful is purely coincendental to being able to get in the way of stuff, then mysteriously have a change of mind about it.

        2. ‘County by County’ is a 14th amendment violation.

          And some Sheriffs in California (SF, LA, counties in particular, San Jose City CoP, etc) issue permits only to significant donors.

          When I lived in California, I was a reserve sheriff’s deputy (for search and rescue)…graduated the academy and did patrols, the whole deal. The Sheriff at the time, however, would not allow reserve deputies to carry off duty, and would not issue CCW’s. Even to sworn law enforcement officers..

        3. NY does it county by county too, and there too some Sheriffs are basically shall-issue

          NYC has different rules though, they are allowed to charge more and don’t have to honor permits from other counties

    2. They should be able to change it, even at the last minute, because you should always be permitted to cease violating rights.

      But it should be regarded as conceding the case against the law.

      1. The tactic should not be allowed. They can always change the law, but it shouldn’t change the decision

        1. Correct. Even if the issue is moot, there’s no reason why the Supreme Court shouldn’t grant essentially what are declaratory judgments on constitutional issues, as the issue still exists in other states.

          1. “We have never found something constitutional simply because the government promised to use it wisely.”

            Needs to be more of this.

        2. It was the city that decided to get rid of the law, it was the Court that decided to let that moot the case. They didn’t have to do that, they wanted to do it.

          1. You say that like the court and the city are separated and independent.

            The city decides to change the law, the court moots the case, and then a new city administration decides that they liked it the old way – and the cycle, the lawfare, starts anew…The city doesn’t care – they don’t have to pay for it. The taxpayers do. The plaintiffs also pay for the effort and have to pay for their attorneys as well.

            1. Meanwhile, “justice delayed is justice denied.” But that adage only applies to killing babies and anal sex.

            2. The NYSRPA decision was released a year ago. Is there any indication that NYC is attempting to reinstate the rescinded rule?

              1. No, they instituted a different oppressive rule.

                1. IOW it has not proven capable of repetition.

                  1. Sarcastro, “hasn’t yet been repeated” in no way means, “isn’t capable of repetition”. You’d have to establish there was something besides intent standing in the way of repetition.

                    1. Except yes it is.
                      The argument is that political pressure will prevent them from such a craven move, and thus far that argument has carried the day.

                      Legislative acts in general don’t really fit the mootness exception, as it’s a voluntary second action by a single body, but were they to you would need an example of repetition to show that repetition is likely.

                      IOW more than your angry supposition. A supposition, I would, add, that has been disproven, and you are just going ‘yes, well, nevertheless…’

                    2. “Legislative acts in general don’t really fit the mootness exception, as it’s a voluntary second action by a single body,”

                      Otherwise known as voluntary cessation…

                  2. It has proven capable of repetition.

                    Look at the California Covid Religious cases where the State restricts religious services, relaxes the restrictions, then reimplements restrictions.

                  3. “IOW it has not proven capable of repetition.”

                    I don’t know if Jane Roe ever had an unwanted pregnancy in Texas again either. It wouldn’t have made a difference. Capable of repetition means just that, capable. Not certain.

                    But expanding the voluntary cessation doctrine to include changes in the law is a better approach anyway.

      2. That’s an interesting suggestion, but I don’t think it quite works. It would be very challenging for a court to say what the law was by referring to the changed law. Better to simply say that the law can’t be changed strategically in an attempt to render a case moot and avoid an adverse judgment. It’s not a very different theory than a declaratory judgment: you’re under the threat that the state might infringe your rights at some point in the future because they’ve done it in the past.

        1. ** I meant this as a response to the comment: “But it should be regarded as conceding the case against the law.”

      3. Roberts let them maneuver him into DIG’ing the case by their change

        That shoudl not have happened, and should never happen again.

        The result of a City / State / the Feds changing the law after SCOTUS grants cert should be:
        1: You must defend the original law
        or
        2: You must completely concede the opposite Party’s case, and have that become the new SC precedent, unless some other Party is willing to jump in to defend the case

        No gaming allowed

    3. All a plaintiff needs to do to keep the case from being mooted is included a request for nominal damages. The plaintiff in the previous NY case failed to do so. I hope the plaintiff here has. (Though like others have said, I don’t think NY is going to voluntarily allow most of its residents to carry concealed (or open) to moot the case. They’d rather fight it all out here. It’s their last stand. Both sides should be nervous, but id be more nervous if I were on the gun control side.)

      1. That doesn’t work unless the law in question was actually applied to you. You can’t file a lawsuit seeking a declaration that a law that hasn’t been applied to you yet is unconstitutional AND seek even nominal damages (except in the case of 1A laws that you allege have chilled the exercise of your speech).

        1. Sorry, I haven’t read the briefs in this case. I assumed the pro-2A crowd would select a plaintiff who applied for a permit for ordinary self defense and was turned down. If that’s not the facts of this case, then the nominal damages issue may not be relevant (as you note).

      2. Boy, that would totally be a power move.

        Making NY grant shall issue concealed carry just to keep the supreme court from ruling they have to. That would be taking one for the team (NJ, HI, CA, RI, MD, DE, MA, did I miss any? It’s not a big team).

  3. With this development, the issue of guns may become the favorite in the context of ‘which issue will most directly precipitate enlargement of the Supreme Court?’

    I continue to expect vote suppression to be the winner, though. That is seen as an existential issue by Republicans, making their severe missteps there nearly unavoidable.

    1. You are Exhibit A as to why we need another Fort Sumter.

    2. Oh, you silly, stupid, man

      This case guarantees that Joe Manchin won’t be voting to enlarge teh Court, and neither will any other Democrat from a State where gun rights matter

      Because it’s now dead certain that any vote to end the filibuster or pack the Court will lead to the death of the 2nd Amendment

      So, no Court packing before 2023

      1. How long will it take to admit the Douglass Commonwealth to the Union? Puerto Rico? The Pacific Islands?

        Do conservatives genuinely expect the liberal-libertarian mainstream, victors in the American culture war, to refrain from addressing an activist group of stale-thinking, intolerant clingers on the Court?

        1. Rev, there are a lot of issues you can crow about, but you should finally concede guns are one issue that have totally and completely dominated by “clinger” wins in the last 35 years. Before then not even Arizona and Texas were Shall Issue states, now there are fewer than 10 states that are civil rights holdouts.

        2. The people pushing the culture war from teh Left are neither liberal, nor libertarian.

          Both of those require people to respect individual liberty

          Which would mean no cancel culture, no attempting to force businesses to operate the way you want, rather than the way they want (see Masterpiece Cakeshop), no suppressing the speech of those you disagree with.

          You are the fascist side, not the “liberal / libertarian” side.

          We are a nation with 500 million firearms in private hands. Hint: the majority of the weapons, and the majority of the skill in using them, reside with my side, not yours.

          Are you really so stupid that you think that you can ignore the rule of law and the written US Constitution at will, without us decided we’re free to do the same?

    3. And given that well over 60% of Americans favor preventing vote fraud over making it “easier to vote”, if you think you’re going to get Court Packing over SCOTUS allowing States to protect the ballot, you really need to get out of your bubble

      1. The bigots never win in America, Greg J, not over time. Check the record with respect to Italians, Jews, Blacks, Asians, Catholics, gays, the Irish, Muslims, eastern Europeans, agnostics, women, other Asians, atheists, Hispanics, other Hispanics . . . the successive waves of intolerance and ignorance associated with immigration, religion, skin color, and nationality fail in America. Race-targeting voter suppression by clingers will fare no better, largely because our latest batch of bigots is nothing special.

        1. “The bigots never win in America”
          Oh that must be why the gun control people keep getting their asses kicked in state legislatures and court.

        2. A distressingly obtuse comment made by the most intolerant bigot who comments in these threads. (And since the advent of DavidBehar and some of the other maybe-parody accounts, that’s saying a lot.)

        3. What’s bigoted about gun rights?

          Blacks, Asians, women, Lesbians are all welcome.

          This is America, there are plenty of guns for all, and we can always make more.

        4. “The bigots never win in America”, says the guy who claims to believe that blacks are so stupid they can’t figure out how to get a free State issued photo ID.

          Rev, there are morally wretched people in this country who are happy to see vote fraud, so long as it’s their side stealing the election. This is obviously true, since you’re one of them.

          But, while the majority of the Left appears to be as wretched as you, it’s not a huge majority.

          Which is why over 60% of Americans favor secure elections: they want their vote to matter. Their votes don’t matter if fraud is allowed.

          Even when the fraud is “on their side”.

          But I guess only someone who isn’t a wretched pile of garbage would understand that

          Which is why you never will

        5. “The bigots never win in America”
          “Check the record with respect to Italians, Jews, the Irish, eastern Europeans”

          Those are all “white people”, and the woke bigots hate them all. They have “white privilege”, and are targets for discrimination and hatred.

          “Asians”? you mean the people who Harvard has determined have “bad personalities” and must be discriminated against? A judgement that was endorsed by a leftist judge in District Court, and then further endorsed by the leftist scum on the appeals court?

          There was just a vote in the US Senate about banning discrimination against Asians. Every Republican who voted, voted to ban the discrimination. Every Democrat who voted, voted to keep the discrimination.

          Seems those bigots haven’t lost, yet

          “Catholics”? You mean the people the Democrat Party are at war with? See Philadelphia vs Catholic Charities

          News flash: when they win at SCOTUS, it’s going to be from conservatives voting for them, and the Leftists voting against them.

          Bigots and haters? That’s the Left

  4. About time they finally granted cert to one of these cases.

    1. I am very, very cautiously optimistic.

      1. My concern is that without a standard of review, New York will institute a rule prohibiting carry on subways, or buses, basically meaning the right has no teeth in NYC.

        It’s not enough to rule that there is some general right to carry a gun in public. There needs to be a standard of review set out upon which all gun restrictions should be judged. Otherwise, they’ll restrict carry to guns that hold 5 rounds of rimfire only and will justify it on the basis of the two step intermediate scrutiny.

      2. I am, by nature, pessimistic. They’ve turned away many good 2nd amendment test cases since Heller, which should have been slam dunks if they meant the ruling to stand.

        True, Barrett only took office late last year, and maybe restoration of 2nd amendment rights to non-violent ‘felons’ was a bridge too far. So I suppose there’s a little bit of hope for a win here.

        If we do win, I predict Roberts will only join the majority in order to be able to assign the decision. Probably to himself, so he can minimize the holding.

        1. It’s also possible that they intend to institute a standard of review that will lead to the ability of some non-violent felons to challenge the restrictions after. I don’t think we’ll get strict scrutiny, but the blanket ban on felons doesn’t even survive a real intermediate scrutiny.

          1. If they were that concerned about upholding the 2nd amendment, they had plenty of opportunities in the last few years, and they passed them all up. And it only takes 4 votes to grant cert.

            My expectation is that nobody on either side trusted Roberts. This case was only taken because the pro-2nd group no longer need his vote to form a majority, and so felt it was safe to grant cert on something.

            But if they were open to restoration of rights to non-violent felons, they had several cases where they could do it directly, and no law bars them from taking more than one case implicating a particular right. So one of the pro-2nd group didn’t want to do that.

            I suppose it’s possible that they might declare a strict scrutiny standard of review that’s actually strict scrutiny, not just a gussied up rational review. Roberts would join the majority to prevent that.

            Hm: What happens if the Chief justice pens a ‘majority’ decision with 5 members of the majority joining a dissenting opinion? Does that make the dissent controlling?

            1. I agree Roberts was the problem, but I’m jut saying I wouldn’t count out the felon ban just yet.

              It wouldn’t so much be a dissenting opinion, but a concurring opinion. If a concurring opinion has 5 votes, does it effectively become the majority opinion?

            2. “Hm: What happens if the Chief justice pens a ‘majority’ decision with 5 members of the majority joining a dissenting opinion? Does that make the dissent controlling?”

              Yeah, I’ve been wondering that, too.

              My guess: if he doesn’t go far enough, they tell him he has 1 vote, not 5, and Thomas will be assigning the writer of the majority opinion.

              Which, BTW, they have right here, because they expected him to screw them. 🙂

              1. I’d really like to see Thomas write it.

            3. “What happens if the Chief justice pens a ‘majority’ decision with 5 members of the majority joining a dissenting opinion? Does that make the dissent controlling?”

              If it gets 5 votes it’s not a dissent, it’s a majority decision. I mean it is possible a couple of justices could vote for a majority decision, and join a 5 vote ‘concurring decision’ that is contradictory. But they would have to either senile or deliberately screwing with the process. I can’t see members of a 5 vote majority wanting to sabotage
              their own decision.

              Now of course it has happened in the past that a chief or senior justice has voted with the majority in conference, then tried to write a narrower opinion than the majority wanted.

              Usually they end up losing the opinion to a competing draft that takes the majority where they want to go.

        2. My optimistic side means that they will come out in favor of “may issue” and just take a single slice of the loaf, that is, rule that self-defense is a valid reason for a may issue permit to be given…but that’s it, leaving the rest of the regulatory structure in place. This is essentially what they did with Heller.

          When are they going to take a case that rules on “arms in common use” another of Heller’s stupid dicta phases that has taken on a life of its own?

          1. I hate “in common use”, because it essentially licenses banning any advance in firearms technology, since advances can’t start out in common use.

          2. That’s a distinction without a difference though. The fight from that point on would be about what levels of burden they can impose. For example, an 8 hour class? A 16 hour class? A 40 hour class? $1,000 in fees?

            1. I disagree. It would be a big shift that if “may issue” states would have to give out permits for someone who wanted it for no other reason than self-defense. Right now, they just say “nah” and that is perfectly valid and legal for them to do so.

              Also, there are lots of lower court cases that rule that minimal taxes can be applied, etc. but not large taxes that essentially nullify the right. Guam tried a huge tax on firearms a few years ago, and the courts shot it down.

              You’re never going to get a court to get you to constitutional carry.

              1. Sorry, I was unclear. I’m saying that “shall issue” and “may issue where self-defense is enough of a reason” are not functionally different from each other.

                1. Ah, understood.

          3. Don’t diss the arms in common use dicta, 99.99 percent of the arms in common use are not smart guns.

            You know they’d love to outlaw the guns we have and design new “improved” guns for us.

        3. So, how does the holding get minimized?

          People have the right to carry a gun, unloaded and in a lock box, in their own car on public roads?

          Or can that be extended to being able to carry such an unloaded gun, in a lock box, on public sidewalks?

          1. “GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE’S DENIAL OF PETITIONERS’ APPLICATIONS FOR CONCEALED-CARRY LICENSES FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.”

            Probably by declaring that self-defense is a valid basis for issuing such a license, but setting an intermediate standard of review, not strict scrutiny.

            1. Ouch. So, in essence saying concealed carry is a “may issue” in law, but in practice it can still be a “No issue”?

            2. The question really has very little to do with what the holding will be, and what the instructions to the lower courts will be.

        4. Why did you put felon in scare quotes?

          1. Because felons are scary! (badam chang)

          2. Because a huge range of things are “felonies” today, that once would have been misdemeanors. (Or simply legal!) I think the legitimate distinction between the two has largely been abolished, such that we should reconsider the consequences attending being convicted of a ‘felony’; I think the term no longer ought to carry the same implications.

            1. Big deal. The gun rights movement is always telling us about law abiding citizens. So just obey the laws.

              (Also not true- most felonies are still very serious offenses.)

              If there’s a specific case of someone who isn’t a danger and who was disarmed, I’m fine with as applied challenges. But in general, if you want to be in the militia and come to the defense of the free state, obey the laws.

              1. Do you also apply that theory to voting? If not, why not?

                1. Because there isn’t a correlation between committing crimes and using voting to directly physically injure or kill people.

                  1. Sorry, but guns were protected by the Constitution in spite of their dangerousness. So merely pointing out that they are dangerous doesn’t mean that any restriction you can conjure up is permissible. The fact that they’re dangerous is the whole point.

                  2. People convicted of fraud (for example) don’t lose their rights to free speech, I think, is the better argument.

                    I personally think, if you did the time, so be it, you get your rights back. Even voting and guns. Course, you should need a valid photo ID for both!

                  3. There also isn’t a correlation between committing only non violent crimes and physically injuring and killing people.

        5. “If we do win, I predict Roberts will only join the majority in order to be able to assign the decision. Probably to himself, so he can minimize the holding.”

          So, what happens if there’s a 6 vote majority for a small holding, and a 5 vote majority for strong concurring opinion?

          Does the 5 vote concurring opinion still hold?

          1. If it wouldn’t, I assume 5 of the votes for the small holding would go away.

          2. They would not write it like that. In that case, yes, the 6 vote majority probably holds, but the 5 justices probably wouldn’t join a opinion that narrows their own.

            1. Not talking about the 5 narrowing the decision. I’m talking about when the 5 want a much broader decision than the CJ, who claims to be on their side in order to assign the decision to himself

              1. I don’t know why math is confusing to some. Five votes is the majority opinion by definition. The CJ (or whoever is assigned to write the opinion) can write a narrow opinion if he wants, but if the five don’t sign onto it and instead issue their own, the narrow opinion is automatically just a concurrence.

        6. “If we do win, I predict Roberts will only join the majority in order to be able to assign the decision. Probably to himself, so he can minimize the holding.”

          That worked in Bostock because he assigned the case to Gorsuch, and the other 4 either had to suck it up, or lose their majority.

          I this case I believe there’s 5 for a ruling that actually follows the 2nd Amendment. So I expect the 5 to tell Roberts that if he wants to write the majority opinion, it’s going to have to satisfy all 5 of them

          And that if it doesn’t, they’ll go with an opinion by one of the 5, and he can have his opinion by himself.

          I expect that after DIGing the NYC case last year, and forcing them to not take any of the other 10 cases, Roberts has no sway with the rest on this one

          1. The right-wingers on the Court will have no sway with the majority if they rule for the gun nuts on this one.

            Thirteen is such a wonderful number . . .

            1. Honest question, do you really think the filibuster will be removed in order to pack the court?

              Times ticking, it better happen before the mid terms, and the predicable slaughter that happens to the party in power and Dems losing the majority. It’s razor thin as it is.

            2. Regardless of which team one roots for on these comment boards, it’s hard for me to fathom how increasing the size of the SCOTUS bench makes sense to anyone.. Seems like MAD to me, since retaliation from a following session is all but certain. Maybe the waste of time is the point though? In that sense it starts to make more sense as a viable shorter-term political pursuit, but I wonder if the long-term cost (to all) would be higher than the near-term benefit (to one).

              1. As I’ve remarked before, packing the Court makes no sense in isolation.

                It only makes sense if you have a whole program you mean to enact, which you expect an unpacked Court would strike down, and which would prevent the opposition from having an opportunity to retaliate.

                Packing the Court is the first step in entrenching your party beyond the capacity of elections to dislodge. It makes no sense at all to do it, and then leave the country with competitive elections.

                If they abolish the filibuster, expect Court packing, and if they pack the Court, expect entrenchment to follow. Admitting more states, mandating gerrymandering in the guise of combating it, campaign censorship, naturalizing 10-20 million illegal aliens.

                If they haven’t the nerve or votes for entrenchment, the Court stays at 9 members.

            3. I know you feel strongly about taking all our guns away. But what possible planet do you think Joe Manchin, and Kirsten Sinema is going to feel so strongly about forcing NY to follow the constitution same as West Virginia and Arizona do, that they are going to vote to pack the court over it.

              Keep in mind that they will probably lose their own jobs if they are seen as complicit in denying there is a 2nd amendment right to bear arms even if it doesn’t immediately affect their own state.

              Here is Sinema’s view on the 2nd amendment:

              “I believe strongly in the Second Amendment and that it guarantees individuals the right to own and bear arms. I also believe that it’s time for Congress to have a serious discussion on how we keep our kids, schools, and neighborhoods safe. This means discussing how we care for the mentally ill and how expanding universal background checks can be most effective.

              I recognize that only a small minority of those afflicted with mental illness may ever become violent and believe that we can strengthen mental health services to help minimize that possibility. At the same time, we can and should prevent access to guns for the small minority of the mentally ill who are dangerous.”

    2. They granted cert very recently & then found it moot.

      Good on them for elevating another case. I just wish Young was there too.

  5. Looks like Josh will be happy.

  6. Cue screams of anger from that CRTCNichols guy. From what I can tell by his posts, he may fashion himself a Wyatt Earp type guy (not saying LARPer), who finds it highly dishonorable to carry concealed. Not sure if he would insist on a duel at 10 paces to handle a perceived slight to his honor. In any event, I suspect we’ll see a “real men only open carry” amicus brief somewhere in the mix. Should be a fun case to watch.

    1. Some areas ban concealed. Others open. Up until now that was kind of suggesting you could do one or the other, but not both, because then bearing arms was logically infringed.

    2. Nick Gillespie’s Jacket – if you sucked less cock then you might be able to tell the difference between laughter and anger.

      I am laughing my ass off at SCOTUS changing the question from “carry” to concealed carry.

      And yes, I am considering writing an Amicus brief.

      1. Go get em Wyatt.

        1. Nick Gillespie’s Jacket – It’s a pity HIV hasn’t taken you out yet.

  7. I thought the SC decided this case was moot in April 2020.

    What changed that the Court now says, yeah we’ll decide this?

    1. This is a different case. The one mooted had to do with transporting firearms out of NYC.

      1. Got it.

        Where is the trail of the courts leading up to the SC (trial, appellate)?

        It seems like this just somehow jumped to the SC.

        1. I think it’s because the 2nd Circuit had already basically heard the issue with Kachalsky. In other words, the outcome was predetermined until and unless SCOTUS granted cert, so there wasn’t really much to report on.

  8. Am I crazy or does the headline not fit the story? Given the possibility of open carry, the issue of concealed carry licences strikess me as being something completely different than “whether the 2nd amendment protects the right to carry guns outside the home”.

    1. That title is the issue presented SCOTUS used. Yeah it doesn’t quite fit … why this is the vehicle SCOTUS choose when there have been clearer ones over the past decade is beyond me.

      I think the issue here is NY still denies a permit even if you need one for self-defense. You have to present a higher standard to show you are in danger.

      1. Barrett was not on the court then. It’s clear Roberts is a liberal on this issue.

    2. One of the arguments for the plaintiff is that NY refuses to issue most concealed carry permits, while also denying all right to open carry, so there is no right to carry (unlocked and/or loaded) guns outside the home at all, openly or otherwise

      1. Yes. The left likes to point to the line from Heller about restricting concealed carry, but in the jurisdictions where that was done in the 1800s (that’s the context of that line), open carry was allowed with basically no restrictions. It’s a bad faith argument.

        1. We have to have some right to open carry because we have to be able to sell guns and at the very least take guns to the range. That said, the right to open carry has been restricted by Governor Reagan and President HW Bush so obviously the right to open carry can be heavily regulated.

          Now Giuliani wiping his ass with the Bill of Rights proves nothing because the people that voted for him wanted him to wipe his ass with the Bill of Rights because violent crime was out of control in NYC. The people that voted for Reagan and HW Bush held themselves out as pro-2A but believed laws to prevent scary Black dudes open carrying and school zone legislation were consistent with the 2A.

          1. First, the fact that Republicans have proposed and implemented unconstitutional restrictions on the right to keep and bear arms no more makes them constitutional than the Heritage Foundation proposing a form of mandatory health insurance justifies the Affordable Care Act.

            Second, all of that was done prior to Heller, so it’s entirely irrelevant.

            1. Romney supported the individual mandate and he was the 2012 Republican nominee. Furthermore, Trump strengthened Obamacare because the Kushner family is heavily invested in the ACA Exchange subsidies. You aren’t very good at this “politics” thing, are you?? 😉

              1. And Romney was destroyed, as conservatives stayed home. What’s your point?

                1. The individual mandate is gone, but it was innocuous. But I find it hilarious that Republicans believe Obamacare is so dangerous that Republicans voted for the architect of Obamacare in 2012 and then in 2016 voted for a guy that was obviously going to strengthen it because it benefited the Kushner family. The reality is moderates were Trump’s initial base in the Republican Party…and among Trump’s initial base Obamacare is very popular.

                2. Romney got a higher percentage of the vote than Trump did. Either time Trump ran.

          2. The story of gun control in America in inexplicably tied to how race has been dealt with in America. It’s no so different than how, in England, the story of gun control from Queen Elizabeth until the late 20th Century was inexplicably tied to how they dealt with Catholics.

            1. I would love to see Justice Thomas write an opinion focusing how Ronald Reagan peed his panties when he saw scary Black dudes open carrying in California. So California’s gun laws were RACIST but Texas’ strict handgun regulations applied to white people…that might be hard for liberals to process. 😉

              1. You know, the Black Panthers invaded the Cali capital in an “insurrection” (heh) but months and months went by and nothing happened except Reagan saying they were (I paraphrase) being stupid.

                Then the Detroit riots happened, and the next day Cali restricts open carry.

                That’s why Reagan ended open carry, blacks burning shit down like they are wont to do.

                1. Correct, Reagan was a racist that did racist things.

                  1. So, just to be clear, the Cali gun control wasn’t due to the Black Panthers. Ya get that? It was due to urban riots.

                    Reagan didn’t “wet his pants”, ya silly goose.

                    1. Go on YouTube and you can find the clip of Reagan peeing his panties in fear of armed Black dudes and infringing the 2A.

      2. Yes, I assumed. But that doesn’t change the fact that they’re two different questions. (As prof. Blackman has now explained with his characteristic enthusiasm.)

        1. And what I expect is that SCOTUS will say

          You can restrict concealed carry, if open carry is “shall issue”.
          You can restrict open carry, if concealed carry is “shall issue”.

          But at least one of those must be shall issue or “constitutional carry”

          I think Roberts will try to screw this up, but the other 5 won’t let him

          1. America has a long tradition of banning concealed carry which is why a movement was necessary in the 1990s to make it legal. Open carry of long guns has traditionally been seen as the expression of the 2A. The problem with open carry in this day and age is that we have a huge mental illness problem and we saw with the Rittenhouse case in which a suicidal mentally deranged man attacked him because he wanted to be shot. So I believe limiting the right to open carry might be irresponsible in this day and age.

            1. Bzzt, thank you for playing.

              America had a long history of regulating concealed carry in places where open carry was freely allowed. Which is why I said what I did:
              You can regulate open, if shall issue concealed, or you can regulate concealed, so long as you shall issue open.

              Regulating both is a destruction of the right to “bear arms”, which the 2nd protects.

              You are free to advocate for a Constitutional Amendment to override the 2nd. What you can not legitimately claim is that the 2nd allows the States, or the Feds, to “may issue” or “no issue” both concealed carry and open carry.

              1. I would agree with that—Americans have some right to carry a gun outside the home…but NYC could make it nearly impossible by having school zones so big that it effectively outlaws guns outside the home within city limits. School zone legislation was signed by a Republican president that held himself out as being pro-2A and Republicans even supported his Jesus loving imbecile son.

                1. Gun Free Zones need to die. All they do is create a large victim pool for mass shooters.

                  1. Mass shooters are generally suicidal or so mentally deranged they don’t care about living or dying…that’s why mass shooters have targeted armed cops, armed warriors, and armed gun store owners. Btw, the gun store owner targeted by a mass shooter a few weeks ago prohibited loaded guns in his store so it was effectively a gun free zone.

                    1. “Mass shooters are generally suicidal or so mentally deranged they don’t care about living or dying”

                      But they do care abotu success

                      Getting shot early on means they don’t have a lot of victims. Thus they go places where their victims can’t shoot back.

                      “Gun free zones” are evil

                2. Well, if Americans actually do have their right to keep and bear arms, then any law that makes that right a nullity, itself gets tossed.

                  That’s easy enough to deal with, if you have a SCOTUS majority that’s actually willing to enforce the 2nd (District Court enjoins the law, Appeals Court blocks, SC blocks Appeals Court until case is heard. 5 years later, the SC finally rules against the law that has never been enforced).

          2. I think if they do as you are suggesting one of the two needs to be at very low or no cost. My state of WI allows open carry without training or permit but is slightly more restrictive of where you may carry openly. MN allows open or concealed carry with a permit which because of the 6 hour class and license fees prices carry out of some peoples reach.

  9. Let me save everyone some trouble—we have a right to open carry guns outside the home…but it can be regulated so liberally that it’s not much of a right. So that will be the right eventually the Supreme Court elicits if one goes by Kavanaugh’s “text and tradition” standard because Texas has a very long history of heavily regulating handguns outside the home and Texas just happens to be the state that Republicans favorite Jesus loving presidents hail from—the Bush dynasty. So a state that holds itself out as pro-2A believed the 2A allowed their government to heavily regulate handguns outside the home even as open carry of long guns was celebrated…that’s “tradition”.

    1. You’re an idiot.

      1. To be fair, he’s not entirely wrong. Mexican gun control was one of the biggest reasons that Anglo Texas fought for independence (not slavery, which was legal in Mexico at the time). West Texas (cowboy country) and East Texas (plantation country) had a hard time coming to agreement on slaves being able to bear arms. It was necessary in West Texas due to all the Apache raids that every man be armed, even the slaves, but this didn’t go over well in East Texas. Regardless, open carry was common for white men. pre-Civil War.

        After the Civil War, laws were put in place by radical Republicans to keep Democrats from the open carry of guns (blacks AND whites). But when the Democrats took power again at the end of Reconstruction, they repealed those laws, but a cultural compromise was eventually reached with the ending of open carry and concealed carry was put in place, mostly to keep blacks from shooting each other as they are wont to do.

        However, he’s quite wrong in that it WAS George W. Bush that signed into law concealed carry in Texas.

        1. Maybe not, but the idiotic point he’s trying to make is that since Republicans had their hands in some gun control measures in the past, that means that Republicans today can’t oppose them without being hypocritical. It’s stupid. Republicans today are no more responsible for the beliefs of Republicans 100 years ago than Democrats are.

          1. Wrong, Republicans have proved that concealed carry if anything leads to less crime…but the fact Texans outlawed concealed carry in the past WHILE claiming to be pro-2A means that gun regulations outside the home don’t necessarily infringe the 2A. So one issue is a policy issue in which data and facts can change minds…while data and facts should have no impact on constitutional analysis unless you are a Justice Breyer acolyte. 😉

            1. No, it doesn’t mean that. People claim all sorts of things. That has nothing to do with whether policies promulgated pre-Heller are constitutional.

              1. Heller has no bearing on states that celebrated the 2A prior to Heller…it applies to states like NY that allowed Giuliani to wipe his ass with the Bill of Rights. Texans in the past that held themselves out as pro-2A understood the 2A much better than ACB or Kavanaugh…which is why Kavanaugh looks to TRADITION!!

                1. You are being entirely unclear. Concealed, and open carry, were restricted at times and places, and practiced quite a bit, in some places and at other times.

                  Frankly, using “tradition and history” is a Rorschach test. That said, what you DON’T get, though, is a total prohibition on concealed or open carry when you look at the tradition and history of the country, and individual states, until the early 20th Century, and even then only in a few select states.

                  1. D’oh! Too bad you supported Kavanaugh because he was very clear that “text and tradition” would guide his constitutional analysis.

                    I’m not being unclear I’m just not tribal and so sometimes it’s difficult for tribalists to process my comments.

                    1. I supported Kavenaugh because he’d be better than someone nominated by Hillary. It’s not like we can clone Thomas or Scalia.

                      And you are tribal (though admitted not as much as some clowns on here) as shown by your ignorance up thread about Reagan and GW. Bush and Texas history.

                    2. George HW Bush was the Texan that signed school zone legislation and George Wu Bush was his imbecile son that you voted for because he loved Jesus. ..and then you voted for him in 2004 because he was slaughtering Iraqis in order to liberate them from a dictator that had chlorine tipped scuds aimed at Dallas. 😉

    2. Texas is a “shall-issue” state, meaning the government is compelled to grant the license unless there’s a disqualifying characteristic about the applicant. NY is a “may-issue” state for both open and concealed carry.

      The question of whether a state can regulate carry outside the home isn’t the issue of this case. A state certainly can, but there are conceivably limits to the restrictions assuming 2A does protect the right of self-defense via arms (guns or otherwise).

      NY is saying you cannot bear arms (guns in this case) outside the home (concealed or open) unless you can articulate an abnormally high personal threat level that gains a degree of sympathy from the application reviewer.

      The question before the court is whether NY’s requirement of extraordinary threat with default deny is a “reasonable restriction” on bearing arms.

      Some questions that might come up:
      * is the requirement a plainly objective test?
      * is it lawful to deny bearing arms by default rather than as an exception?
      * how is this enumerated and incorporated right treated relative to others (protest permits, etc)?
      * is the state/city requirement “proper”? Is it the most narrowly construed method of achieving the ends? Is this the right test by which to evaluate such restrictions?

  10. The title of this article is wrong. SCOTUS will not decide whether or not there is a right to carry a gun in public. The question is about whether or not there is a right to carry a handgun concealed in public.

    The real question is whether or not Justices Breyer, Kagan, and Sotomayor can find two justices to affirm the Heller and McDonald decisions that said prohibitions on concealed carry do not infringe on the Second Amendment right.

    Chief Justice Roberts is an obvious fourth vote. Justice Alito is probably a fifth vote and given that Justice Kavanaugh wrote in his dissent to Heller II and said in his confirmation hearings that concealed carry is not a right, I think there are five votes and more to uphold the New York “good cause” requirement for a concealed carry permit.

    1. I just wish Young v Hawaii was in the mix. Maybe next?

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