The First Roberts Page?

In NYS Rifle & Pistol Chief Justice Roberts asked a 32-line question.


In NYS Rifle & Pistol, Chief Justice Roberts asked Deputy SG Fletcher a 32-line question that spanned across three pages.

Has Roberts ever asked such a lengthy question? I can't recall one. Please email me if you can think of one. And really, this question was very long and meandering. Roberts is usually pithy and to-the-point. The Chief seemed to be grappling with the issue here. Roberts then asked Fletcher several follow-up questions about the standard of review. This colloquy is one of the reasons I am not so optimistic about the case.

NEXT: Guns, Terms, and Deals

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  1. John "weak link" Roberts. Any excuse to not rule the way the USC explicitly states.

  2. It seems like a reasonable question. "Why should this be different from any other listed right, which you don't have to justify to government?"

    What am I missing? That he's ready to leap onto anything the lawyer barfs out?

    1. Well, I agree that he ended up with the right question, but it IS somewhat disturbing how long he took to reach it. It does not have the look of somebody who really likes where they're going.

      1. Sometimes a long question is just a long question.

        1. Right, which is why I wouldn't go beyond being a bit disturbed by it. It doesn't necessarily mean anything, and if Roberts didn't have a history of being a squish who engages in tortured reasoning sometimes, I'd not have thought anything of it except, "Man, that was long-winded."

          1. "I wouldn't go beyond being a bit disturbed by it "

            Don't sell yourself short, Mr. Bellmore.

            1. Your act is really tired, asshole. Why don't you just stop posting when you have nothing to say?

              1. Mute is your friend.

                1. The progress of modern America is my friend.

                  And the clingers' demise.

                  Open wider, guys.

                  1. No one as annoying as you could possibly have any "friends". other than other sphincters unable to acquire better fellows.

      2. meh. Often when ppl are trying to "soften up" a hardball question, they get long winded to make it seem less aggressive. Fundamentally, its a very aggressive question "Why is licensing ok for a constitutional right?"

        1. Well, it should be an aggressive question, because the obvious answer is that it's not, because "licensing" is permission from the government to do something, and the very essence of a constitutional right is not needing the government's permission.

          ALL these licensing requirements are hangovers from the 2nd amendment being discounted as a constitutional right, and at the federal level, most of them would fail even without the 2nd amendment for a simple failure to represent exercise of any enumerated power.

          1. exactly. As I note below, I think Roberts Barrett is writing the opinion. This is him trying to rationalize permits in the first place.

  3. I guess if you’re looking for a reason to distrust Roberts you can find it anywhere but I can’t find it in that question, even if he did phrase it longwindedly.

    Asking why you should need to give a good reason to exercise a constitutional right, like needing to tell the judge you have an especially good question to ask to justify why you would need to cross examine a witness is a pretty devastating question. Clement thought it was a good point, and Roberts helped Clements argument by making opposing counsel answer it.

    1. ^ This.

      Blackman's tea leaf reader is filled with mud. Not that it was ever good.

    2. Also, Roberts asked "how many muggings take place in the forest?”

      I think he really stuck it to NY.

  4. Chief Justice Roberts' standard MO is to narrow the constitutional question to it's barest essentials, and try to gain more consensus. That is why he has a far higher proportion of 9-0, 8-1, 7-2 decisions than his predecessors for the last 50 years (at least).

    My question is what do you think CJ Roberts will eventually narrow the constitutional question to.

    1. I don’t think they are being asked to make a broad ruling Clement emphasized a narrow ruling would be fine for his clients, get rid of the discretionary good cause requirement, and the restrictions on where they could carry, such as just to and from work, and can’t go into town.

      Kagan tried to pull a Peruta and muddy the waters by saying there is no right to concealed carry, but I think Clement effectively shut her down by saying NY current statute says concealed only, if they want to change it to open carry it’s up to them, he just wants it to say carry.

      1. That's the dishonesty we've seen since 2008. The decision spoke of concealed carry prohibitions at times when open carry was allowed. The left leaves that part out.

    2. I mean, they already narrowed it; the QP that the petitioners asked the court to decide was "whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self- defense."

      But the Court instead granted cert on a narrower question: "whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment."

      1. You're right David. But I am wondering how much further CJ Roberts will try to narrow that (already narrow) question.

  5. As Kopel pointed out on the video, the case will be 6-3. Roberts wont let Thomas write the 5-4 opinion, so he will join it so he can assign it to Barrett. We will get some dicta about sensitive places, that seems to be the thing Barrett and Roberts were the most concerned with. Kavanaugh said we don't need to decide sensitive places now. We will see how Barrett does with her first landmark decision. You might not be able to carry on the Subway or Times Square during New Years Eve. meh, the next frontier should be licensing. 16 hours training for a carry permit is absurd.

    1. If Barrett writes the decision, I also see a concurrence by Thomas joined by some others, and a few like Thomas, Alito, Gorsuch, and Kavanaugh wont join the dicta about sensitive places. I think Roberts has real work keeping it 6-3 without Thomas's concurrence becoming the majority opinion.

      1. I don’t think they will balk at “sensitive places” because it was in Heller. But they might want to define sensitive places, so NY can’t just say well Manhattan is pretty sensitive.

        Just a holding that the 2nd amendment allows common ordinary citizens to bear common arms in unrestricted public places is all Clement wants, in this case.

        Probably the next big thing should be interstate carry. If someone who lives in Albany can drive down to the Bronx carrying, why can’t someone from New Haven? Both have a constitutional right to carry, it shouldn’t stop at the state line.

        1. "it shouldn’t stop at the state line."

          This! Indeed, it's the US Constitution, and the US Bill of Rights, and should apply across the land. And Hawaii and Alaska.

          1. ThePublius, what if the 2A was only intended to extend federal protection to a militia right, reserving self-defense with guns for the states respectively?

            If that were the law (it is the historical fact, insofar as anything can be proved from the historical record), why would pro-gun advocates object? On what principle could they object?

            1. "If the moon were made of green cheese..."

              You wouldn't acknowledge a historical fact if it bit you on the butt.

    2. I've already heard leftists argue that any movie theater, store, restaurant or mall is a sensitive place. If they keep the sensitive place crap without describing it, then every place is sensitive, and you won't be able to carry outside of the sidewalk, and even then, not when within 1,000 feet of any restaurant, bar, church, school, park, government building, or anything else.

      1. True, but the Court has been developing a bad habit of remanding to courts hostile to a right determination of the extent of that right, sometimes even after giving them detailed instructions on how to circumvent it.

        1. The longstanding felon prohibition line is a good example of that. I didn't read that to mean that any blanket ban on felons owning guns, no matter how long ago the felony was or the nature of the felony, is permissible, but the lower courts interpreted it that way.

          1. I was thinking of Masterpiece cake, where they basically said to the state, "Next time don't publicly announce your animus, dummies!"

      2. In MD and NY you really cant carry there now. Some states (even in murica) you cannot carry in a place that serves alcohol. I have no doubt that big chain movie theatres will virtue signal to entice the boomers back to movies.

        Sensitive places will become a frontier for endless litigation, like the buffer zones around abortion clinics.

        Mostly I think "meh so what." progress is progress. Being able to carry is progress, plus if ppl know you are concealed carrying you are doing it wrong lmao. I think that a lot of those sensitive place prosecutions will amount to a whole lot of nolle prosse.

      3. It will probably be unnecessary to designate movie theaters, malls, etc. as sensitive places. Most states that allow carry also allow a private property owner to bar anyone carrying a firearm from the premises through posting a sign at entry ways. In my state, violation of the owner's prohibition becomes a trespass.

        More problematic are public conveyances such as subways and commuter buses and trains.

        1. In my state too, but it's only trespass if they ask me to leave, which requires that they know I'm carrying, and I don't.

    3. "not be able to carry on the Subway"

      Ah, a right you can only exercise when walking in NYC. Just what the founders intended.

      Treatment of mass transit as a place where you cannot carry means anyone without a car [poor people in most places] can only exercise self defense when walking.

      1. In NYC, even rich people don't drive themselves. So if they take Ubers or Lyfts, then those companies policies prohibit passengers or drivers carrying guns. And you know New York will make private policies have the force of law. So effectively, you only can carry in NYC if you walk

    4. If you can't carry on the subway, you might as well not have any rights in NYC.

      1. Another good reason for half-educated hayseeds, superstitious bigots, and other Republicans to concentrate in West Virginia, Mississippi, South Carolina, Oklahoma, Wyoming, Idaho, Alabama, and the other can't-keep-up backwaters! There is no subway to worry about in Outer Jesusland, Ohio!

  6. A collection of stupid courtroom exchanges has been circulating around the net for decades, in various forms. I also have a book copy but not easily accessible. The answer to one of the lengthy, complicated questions was, "that question should be taken out and shot."

  7. “There are naive questions, tedious questions, ill-phrased questions, questions put after inadequate self-criticism. But every question is a cry to understand the world. There is no such thing as a dumb question.”

    ― Carl Sagan

    Carl might find chiefy's question slightly tedious, or perhaps to have been slightly beating around the mulberry bush.

    But still a cry to understand. I know that I wanted to cry during it.

  8. Why doesn't "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" apply to the second amendment?

    1. Those only extend to abortions and sodomy.

  9. I don't know that 32 lines is a particularly long question, especially when when the question includes an explanation of its basis, and each line contains a maximum of 48 fixed-width characters. The average line contains significantly less text than that, with a lot of those characters being punctuation, double-dashes indicating pauses, the same word repeated occasional (as is normal in human speech) etc.

    1. Really? Did he just roll out of bed and show up on the bench without any prior thought about the matter at hand? My already low opinion of Roberts is disimproved by this long, embarassing, ramble.

      1. I'm sure that learning of your disapproval will keep Roberts awake at night.

        Hint, though: unlike the verbal diarrhea of your hero DJT, there was nothing rambling or embarrassing about the question.

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