After Three Years Of Litigation, Fulton Draws To A Close

"The Parties waive a hearing and findings of fact and conclusion of law on all issues unaddressed by the United States Supreme Court’s decision."

On Friday, the City of Philadelphia reached a settlement with Sharonell Fulton and the other Plaintiffs. The parties agreed there would be no further litigation on the constitutional questions left unresolved by the Supreme Court:

The Parties waive a hearing and findings of fact and conclusion of law on all issues unaddressed by the United States Supreme Court's decision.

The City also agreed to enforce its non-discrimination policy against CSS consistent with Fulton:

1. The City of Philadelphia, the Department of Human Services, the Commission on Human Relations, their agents and employees, and all those acting in concert with any of them are PROHIBTED from refusing "to contract with CSS for the provision of foster care services unless [CSS] agrees to certify same-sex [or unmarried] couples as foster parents." See Fulton, 141 S. Ct. at 1882.

2. The City of Philadelphia, the Department of Human Services, the Commission on Human Relations, their agents and employees, and all those acting in concert with any of them are PROHIBITED from declining to refer children to CSS on the basis that CSS exercises its religious objection to certifying same-sex or unmarried couples as foster parents.

3. Pursuant to the decision of the Supreme Court in Fulton v. Philadelphia— which set forth an interpretation of the current version of Phila. Code §§9–1106-1107—the City of Philadelphia, the Department of Human Services, the Commission on Human Relations, its agents, employees, and those acting in concert with any of them are ORDERED NOT TO penalize, attempt to enforce, or otherwise take adverse action under Phila. Code §§9–1106- 1107 against CSS, its agents, employees, or those acting in concert with it for CSS's actions related to the performance of certifications of prospective foster parents.

After three years of litigation, Fulton draws to a close. But Smith remains.

Comments

[ReaderY]

Fulton was in many ways very similar to Masterpiece Cakeshop. In both cases, the government did something stupid, which enabled an easy win against it, based on a mistake that is easily avoidable, and that no government entity that listens to legal advice is likely ever to do again.

And in both cases, becausethe government’s stupidity enabled an easy win against it, the Supreme Court didn’t decide any of the underlying issues, didn’t make or change any important precedent.

[DaivdBehar]

I enjoy how lawyers who believe in stupid supernatural doctrines defer to religion, and call it rational. This is the stupidest set of people in the country.

[Krayt]

It is irrational. Also, gigadeaths over the millenia may be lain at its doorstep. A detente, where people cannot use it as justification, a memetic gathering mechanism, to gain power and lord over the lesser groups who do not subscribe, isn’t such a bad idea.

Rather I focus on the underlying pattern of religion and its history as the Great Miserator of Mankind. The modern form is the secular victory, where, for the reasonable detente, pure politics cut off a competitor from control. Now you just have to swap in “for The People” wherever “for God” was, and move the point of heavenly return to just before death instead of just after, but always a moving target of a minimum 5 year plan away. Or, going to hell in 10 years.

[Brett Bellmore]

In both cases you can read the decision as a roadmap of how to get away with it next time.

[Charles Nichols - CRTC]

Fun fact, in Fulton Justice Alito said that Section III of the Heller opinion was a holding of the Court. If I only had a $1 for every time someone said it was dicta. Section III began by saying prohibitions on concealed carry do not violate the Second Amendment.

[Brett Bellmore]

It’s somewhat ironic that the assertion that Section III wasn’t dicta was… dicta!

[Gandydancer]

Of course rando observations in Sec. III that were irrelevant to the case under consideration and its resolution were dicta. That applies as much to concealed carry as to the possession of firearms by felons and the mentally ill, also mentioned and also irrelevant. One doesn’t expect SCOTUS to rule contrary to the mentioned precedents, but their mention in Sec. III is dicta just the same.

[Brett Bellmore]

Like I said, the only reason they mentioned any of that stuff was to reassure everybody that they weren’t about to go nuts and strike down every gun law in the country at one go. Weren’t even going to strike down the ones that should be struck down, even.

In a normal case they wouldn’t have bothered, but people were being hysterical about that case.

[Charles Nichols - CRTC]

Gandydancer/Brett Bellmore/Michael P, Section III said that 19th-century prohibitions on concealed carry do not violate the Second Amendment.

There were 19th-century prohibitions on not only concealed carry in the home but the concealment of weapons in the home that weren’t being carried on one’s person. DC law prohibited Heller not only from possessing handguns in his home (and on his private property), DC law prohibited him from carrying any loaded firearm in his home.

The holding of the Heller opinion, as it applied to Dick Heller, was conditional on Dick Heller not being prohibited from possessing a firearm, which he would have been prohibited from possessing if he were a convicted felon or mentally ill.

Like most folks, “dicta” is the part of the holding of the Court that you do not like.

The only justice to refer to any part of Section III of the Heller opinion was Justice Thomas. Notably, it was not prohibitions on concealed carry or the carrying of firearms in sensitive places he said was dicta.

Justice Thomas said they “neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms.”

What he did say was dicta was, “Heller approved, in dicta, laws that prohibit dangerous persons, including felons and the mentally ill, from having arms. 554 U. S., at 626. These laws are not narrow restrictions on the right because they prohibit certain individuals from exercising their Second Amendment rights at all times and in all places. To be constitutional, therefore, a law that broadly frustrates an individual’s right to keep and bear arms must target individuals who are beyond the scope of the “People” protected by the Second Amendment.” Voisine v. US (2016)

Justice Thomas’ citation to State v. Kerner is of interesting. Although the Kerner opinion speaks approvingly of the right to openly carry handguns, the opinion also had this to say at 578:

“It is also but a reasonable regulation, and one which has been adopted in some of the states, to require that a pistol shall not be under a certain length, which, if reasonable, will prevent the use of pistols of small size, which are not borne as arms, but which are easily and ordinarily carried concealed.”

Fun fact: Absent a license to carry a concealed weapon, it is still illegal today to carry a concealed weapon in one’s home in California. including a handgun (loaded or unloaded) unless one lives in a place where California Penal Code section 25850 does not apply.

PC 25850 applies to all incorporated cities, and to unincorporated county territory where the discharge of a firearm is prohibited.

In my California Open Carry lawsuit, the State of California could not say where those places are or how one is to determine under what circumstances the discharge of a firearm is prohibited.

The example I gave is it is always lawful to discharge a firearm to prevent a murder, and always unlawful to discharge a firearm to commit a murder. Either interpretation renders the “regulation” nugatory. The only thing the State of California could think of was to contrive a non-existent application of the law. Namely, that a local government had put up signs.

[Michael P]

Let me help you with an actual quote from Section III, since you have been so consistently wrong in describing it:

“For example, the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues.”

Note that this only describes a majority of cases and does not explicitly concur with that position. As another example of error, my earlier question about this dicta was explicit in referring to the standard legal definition of dicta in a judicial opinion.

If you want to convince anyone, you should try harder to be accurate in your basic factual claims.

[Michael P]

In what way was that assertion about 19th century courts necessary to reach the decision of the court? Was a concealed carry permit policy being challenged? The sentence you are talking about begins “For example”, implying it is not a pronouncement directly relating to the case at hand, or even a strong endorsement of the idea. (It begins that way because section III of that decision does not actually start with the statement that you reference.)

[Brett Bellmore]

The only point of it was to deny that they were striking down every conceivable form of gun law.

[David Nieporent]

That’s not what Section III says, though I can understand how a monomaniac on a point would read it in that fashion.

[Commenter_XY]

Perhaps it is more accurate to say: Smith remains…for now.

[Krayt]

I note the case also included “The Dictator’s Clause”, where the executive can grant exemptions, but you know, never for connected cronies, companies that may donate, your friends, tit for tat with another politician, or any other reason not transparently up and up.

[Gandydancer]

Section III began by saying prohibitions on concealed carry do not violate the Second Amendment.

No, it didn’t. The first substantive sentence in Sec. III is:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose

…that is, it does NOT single out concealed carry as a particularly non-reviewable part of whatever scheme of gun regulation is imposed. which scheme must be consistent in total with the right to bear arms.

[Charles Nichols - CRTC]

Gandydancer, another fun fact is nowhere in the NYSRPA brief on the merits do the NRA lawyers argue that concealed carry is a right protected by the Second Amendment. Not as it applies to the two petitioners (i.e., the question presented) or to anyone.

You could, of course, have written your own Amicus brief telling the Justices, including Justice Breyer whose dissent in Heller agreed with the majority that prohibitions on concealed carry do not violate the Second Amendment, and Justice Alito who said that was the holding of the Heller opinion, that they did not say what they said.