New York has frozen over-New York's May Issue for Good Cause violates 2A

[bushmaster1313]

Update June 23, 2022
2A Freedom Day

New York, and other not nice places like New Jersey, and California have officially frozen over:

Decision here
https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

From the syllabus

(c) The constitutional right to bear arms in public for self-defense is
not “a second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780
(plurality opinion). The exercise of other constitutional rights does not
require individuals to demonstrate to government officers some special
need. The Second Amendment right to carry arms in public for selfdefense is no different. New York’s proper-cause requirement violates
the Fourteenth Amendment by preventing law-abiding citizens with
ordinary self-defense needs from exercising their right to keep and
bear arms in public. Pp. 62–63

From Justice Thomas' dissent in 2017 in a Petition the Supreme Court refused to hear then

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.

With all due humility, I had this pegged last August

http://smith-wessonforum.com/141233927-post9.html

From my post last August

To get the three liberal Justices to vote against the Right to Bear Arms it is enough for NYS to simply argue as follows: "Guns are Bad. NYS can do whatever it wants to keep guns off the street and out of New York City subways." That gives the Anti's three votes. Therefore, the NYS Brief will be aimed at getting two of the Conservative Justices to vote against the Right to Bear Arms.

Chief Justice Roberts is the most likely of the Conservative Justices to be the fourth vote against the Right to Bear Arms. Based on my amateur reading of Justice Roberts' most controversial opinions, it seems to me that his philosophy is to keep the Court out of a political fight and not invalidate a law if it is at all reasonable to conclude that the government has the authority under the Constitution to regulate the conduct at issue. This is not a terrible philosophy because in the first instance it puts the People ahead of the Courts, and if the People are behaving civilly, this is the way it should be. If Justice Roberts believes that it is at all reasonable to conclude that keeping concealed carry guns off the streets and out of the subways is a political and not a Constitutional question he will vote to uphold the NYS law.

On the other hand, it seems to me that the other five Conservative Justices will be inclined to look at the "true" Constitutional issue, namely: The Constitution protects the Right to Bear Arms and the government cannot make this right contingent on a person showing that they have a special need to exercise this right. An analogy would be to ask an accused criminal: "What is so special about YOU and YOUR case that YOU need a lawyer or that YOU need to exercise YOUR right to keep silent."

So I expect a 5-1-3 decision, with 5 justices holding the NYS law is unconstitutional because you cannot make a person prove why he or she needs to exercise a right guaranteed by the Constitution, especially a right that is in the Bill of Rights. Roberts will join part but not all of the majority opinion, and three liberal Justices will join a small part of the Roberts opinion, but otherwise they will complain that guns are so dangerous that states should be able to do whatever is reasonably necessary to keep the number of guns in circulation at a minimum.

++++++++++++++++++++++++++++++++++++++


Starting this new thread to provide links to Court filings, information, and a bit of commentary to the New York State carry permit case to be argued before the Supreme Court of the United States.

Link to the Official Docket at the U.S. Supreme Court

The Petition for Certiorari by the New York State Rifle & Pistol Association, Inc. ("NYSRPA"), was filed December 17, 2020. This is the Court filing by NYSRP (the good guys) asking the Supreme Court to please hear the case. In short, NYSRPA is arguing that it violates the Second Amendment for New York State to require applicants for a carry permit to prove that they have an adequate and individual need to carry a gun that is different from the general need to carry a gun for self defense.
Link to the Petition for Certiorari

On February 22, 2021 New York State (the bad guys) filed the Brief of Respondents telling the Supreme Court that it should not hear the case. In short, New York State argues that a citizen's desire to carry a gun for self defense is not enough reason to issue a carry permit.
Link to New York State's Respondents Brief

On March 10, 2021 the NYSRPA filed their Reply saying that despite the things said by New York State in their Brief, the Supreme Court really should choose to hear this case.
Reply Brief of NYSRPA

On April 26, 2021 New York State froze over and the Supreme Court decided to hear the case. The exact question to be argued by the parties was limited by the Supreme Court to the following question:

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

On May 11, 2021 the Supreme Court granted an extension of the briefing schedule as follows:

July 2, 2021: Petitioner's Brief on the Merits
August 23, 2021: New York State's Brief on the Merits

The Oral Argument will likely be set for sometime in the period October-December 2021.

The Decision will likely be issued no later than June 2022.

Assuming the case will actually be heard and decided, this will be the first significant Second Amendment case decided by the Supreme Court in the more than 10 years since the Supreme Court decided that the Second Amendment protected an individual Right to Keep and Bear Arms.

 

[robertrwalsh]

There may be hope for the republic yet.

 

[bushmaster1313]

OP's First Comment

In June of 2008 the Supreme Court decided, in the case of District of Columbia v. Heller, that the Second Amendment protected the right of ordinary people not connected with a Militia to Keep and Bear Arms. Many have bemoaned the Supreme Court's failure over the ensuing 13 years to address the scope of this right in the context of a Right to Bear Arms outside the home for the purpose of self defense.

Yes, it's been a long time since Heller. But the delay has worked in favor of the current Supreme Court holding that the Second Amendment indeed protects the Right to Bear Arms outside the home. The delay works in favor of this Right in at least three ways.

First, even though many on the Anti-2A side called for the repeal of the 2A in the wake of Heller, this did not happen. In fact, the idea generated no traction whatsoever. Therefore, today's Supreme Court can address the present case from the perspective that if the People wanted to do away with the Right to Keep and Bear Arms the People had their chance and the People let it pass.

Second, the overwhelming majority of States now issue carry permits on a shall issue basis or require no permit at all. I do not believe this was true when Heller was decided 13 years ago. Therefore, the Supreme Court can rely on this recognition of the Right to Bear Arms outside the home by the "Laboratories of Democracy" to support a decision that the Right to Bear Arms applies to all People in all the States.

Third, despite the enormous proliferation of carry permits since Heller there has not been a significant increase, if any, in crimes committed by carry permit holders. The issue of carry permits did not lead to the "Wild West." This is meaningful empirical evidence that extending the Right to Bear Arms to include all States will not lead to the parade of horribles alleged by the Anti-2A States to prohibit carry permits to ordinary citizens.

For at least the foregoing reasons, the delay since Heller has helped to push Carry Permits for all a bit closer to the goal line. Also, the change in the composition of the Supreme Court is a major factor in our favor. Who sits on the Supreme Court should not matter in cases of Rights enshrined in the Bill of Rights. But it does, and in this instance it works to our advantage.

 

[bushmaster1313]

The NRA-ILA says that it filed the Opening Brief for Petitioners.

NRA-ILA | NRA-ILA Files Opening Brief in Second Amendment Case Before the Supreme Court

This makes sense given that the attorney of record is Paul Clement, the NRA’s go to attorney for Second Amendment cases. Therefore, I do not expect to see an Amicus Brief from the NRA.

Note well. Backing litigation like this with the best legal talent available is at the heart of the NRA’s mission and a sufficient reason to support the NRA (and why we should never bash the NRA in public).

 

[bushmaster1313]

Today is July 20. Yesterday and today the Amicus Briefs in favor of the Right to Bear Arms came pouring in. Have not read them yet but here are links to a few of the Amicus Briefs that I expect to be excellent:

D.C. Project; Operation Blazing Sword—Pink Pistols; Jews for the Preservation of Firearms Ownership(“JPFO”);

Claudia Tenney and 175 Additional Members of the House of Representatives (Men and women of the House who are proud to support the Second Amendment)

Second Amendment Foundation (One of the great pro Second Amendment legal advocacy organizations)

The Cato Institute (These are the folks that brought us Heller)

Ted Cruz, Mitch McConnell, John Barrasso, Marsha Blackburn, John Boozman, Mike Braun, John Cornyn, Tom Cotton, Kevin Cramer, Mike Crapo, Steve Daines, Josh Hawley, John Hoeven, Cindy Hyde-Smith, Jim Inhofe, Ron Johnson, James Lankford, Mike Lee, Cynthia Lummis, Roger Marshall, Jerry Moran, Jim Risch, Marco Rubio, Rick Scott, Thom Tillis (Men and women of the Senate who are proud to support the Second Amendment)

Here is a quote from the Senators’ Brief:

By making the bearing of arms a “right,” the Framers made the policy choice to relieve “the people” of any obligation to justify their exercise of that right. By definition, a person exercising a right does not need permission from the state.

 

[coltle6920]

I may be thinking of another State.

Isn't there a restriction on the permit saying "Hunting and target shooting"?

 

[Rob613]

I may be thinking of another State.

Isn't there a restriction on the permit saying "Hunting and target shooting"?

Some counties, yes.

 

[GaryS]

The NRA posted that it's scheduled to be heard on Nov. 3. Expect a decision in the spring.

 

[bushmaster1313]

The NRA posted that it's scheduled to be heard on Nov. 3. Expect a decision in the spring.

Thank you for the update!

The November 3 argument date is on the Official Docket.

The Respondent Brief from New York State ("NYS") against the Right to Bear Arms is presently due September 14, 2021

Comment from OP:
The Respondent Brief from New York State against the right to Bear Arms will be curious to say the least. To get the three liberal Justices to vote against the Right to Bear Arms it is enough for NYS to simply argue as follows: "Guns are Bad. NYS can do whatever it wants to keep guns off the street and out of New York City subways." That gives the Anti's three votes. Therefore, the NYS Brief will be aimed at getting two of the Conservative Justices to vote against the Right to Bear Arms.

Chief Justice Roberts is the most likely of the Conservative Justices to be the fourth vote against the Right to Bear Arms. Based on my amateur reading of Justice Roberts' most controversial opinions, it seems to me that his philosophy is to keep the Court out of a political fight and not invalidate a law if it is at all reasonable to conclude that the government has the authority under the Constitution to regulate the conduct at issue. This is not a terrible philosophy because in the first instance it puts the People ahead of the Courts, and if the People are behaving civilly, this is the way it should be. If Justice Roberts believes that it is at all reasonable to conclude that keeping concealed carry guns off the streets and out of the subways is a political and not a Constitutional question he will vote to uphold the NYS law.

On the other hand, it seems to me that the other five Conservative Justices will be inclined to look at the "true" Constitutional issue, namely: The Constitution protects the Right to Bear Arms and the government cannot make this right contingent on a person showing that they have a special need to exercise this right. An analogy would be to ask an accused criminal: "What is so special about YOU and YOUR case that YOU need a lawyer or that YOU need to exercise YOUR right to keep silent."

So I expect a 5-1-3 decision, with 5 justices holding the NYS law is unconstitutional because you cannot make a person prove why he or she needs to exercise a right guaranteed by the Constitution, especially a right that is in the Bill of Rights. Roberts will join part but not all of the majority opinion, and three liberal Justices will join a small part of the Roberts opinion, but otherwise they will complain that guns are so dangerous that states should be able to do whatever is reasonably necessary to keep the number of guns in circulation at a minimum.

 

[GaryS]

I expect that the DOJ will weigh in fully supporting the State of New York's position.

I expect that the State of New York, joined by Amicus briefs by the AGs of MA, NJ, CA, IL, MD, as well as other parties, will maintain that there is no individual right to bear arms outside the home for self defense.

TX, FL, and some other states may well submit briefs supporting the plaintiffs in this case.

Briefs against shall issue carry permits will start pouring in on September 14. Here are two things to look out for:

1) Will the Department of Justice ("DOJ) chime in with a Brief. It would be entirely appropriate for the DOJ to submit a Brief arguing that whatever the Supreme Court decides on the Constitutional issue the Court should be careful not to upset existing Federal firearm statutes. I doubt the DOJ will argue on the merits of shall issue.

2) Will New York concede in its brief that individuals have a Constitutional Right to Bear Arms outside the home for self defense.

 

[bushmaster1313]

New York State (New York) brief is filed. A day late due to some procedural glitch.
https://www.supremecourt.gov/DocketPDF/20/20-843/192555/20210915203840523_20-843%20Brief%20for%20Resps.pdf

Three initial observations.

1) New York [Brief at p. 1] concedes that the Second Amendment protects a right to keep and bear arms for self defense.

the Second Amendment “codified a pre- existing right” to keep and bear arms, District of Columbia v. Heller, 554 U.S. 570, 592 (2008),

This was a wise concession as there would have been at least six votes saying the Second Amendment protects the right to bear arms for self defense. From New York’s perspective, why fight a battle you know you will lose?

2) New York [Brief at p. 17] is fishing for “Intermediate Scrutiny,” the level of scrutiny which requires a law to further an important government interest by means that are substantially related to the interest being furthered.

Intermediate scrutiny would be the appropriate tier of review if means-ends scrutiny were to apply.

As a practical matter, when Intermediate scrutiny applies the law is almost always upheld. I do not think any of the 5 strong conservative Justices will vote for intermediate Scrutiny.

3) IMHO what New York is really hoping for [Brief at p. 17] is to convince one of the strongly conservative Justices to join the three Liberal Justices and Chief Justice Robert’s in throwing the case back to the District Court for further fact finding.

Because this case reaches the Court at the pleading stage, the Court should remand for further factual development if there is any doubt about whether New York’s law satisfies intermediate scrutiny.

This would be a bad result for the Right to Bear Arms as the developed facts would likely support the current may issue law and by the time it got back up to the Supreme Court the makeup of the Court would be less Conservative.

 

[Racer X]

#3 is an interesting take on the issue. Not a good interesting either.

 

[fordson]

#3 is the Long Term Strategy game. Punt until the field (read the Court) is in your favor.

 

[bushmaster1313]

OP back again

New York State ("New York") [Brief at 17] makes the curious argument that in the late 1800's New York and other jurisdictions revived the idea of requiring special permission from the King to bear arms:

b. During the late nineteenth century, New York
and other jurisdictions began regulating public carry
through licensure, reviving the model of allowing
individuals to go armed only with “the king’s special
licence.”

But then New York goes on to imply that requiring the King's Special License was not strict enough. See Brief at p. 18.

Please correct me if I'm wrong, but didn't we fight a revolution against requiring permission from the King to exercise Rights endowed by The Creator?

 

[stansdds]

OP back again

New York State ("New York") [Brief at 17] makes the curious argument that in the late 1800's New York and other jurisdictions revived the idea of requiring special permission from the King to bear arms:


But then New York goes on to imply that requiring the King's Special License was not strict enough. See Brief at p. 18.

Please correct me if I'm wrong, but didn't we fight a revolution against requiring permission from the King to exercise Rights endowed by The Creator?

Well, yes, but that was then and this is now (that's a current argument for laws, regulations, and restrictions today). We should remember that there were a whole lot of colonists who did not want to be liberated from the crown and even sought to set up systems based on rule by the crown after liberty was won. That mindset has persisted through the ages. History is such a wonderful and absolutely fascinating thing; hope I have not said something that will get my knuckles whacked.

 

[Johnnu2]

I couldn't bring myself to read all the words in the above posts.
That being said, all 'words' aside, I think that we all know what the official outcome of this frivolity will be. As my father used to say: 'Don't waste your breath son'........

IMHO and Sadly,

J.

 

[ladder13]

Alito and Thomas have a solid 2A history. We’ll need 3 out of 4 between Barrett, Gorsuch, Kavanaugh, and Roberts.

We know where the other three are going.

 

[bushmaster1313]

OP's take

This should be a simple case and opinion in favor of shall issue:

1) 2A guarantees the right to bear arms outside the home for self defense (conceded by State of New York)

2) A person who can show a specialized need to carry a gun for self defense outside the home can get a permit to carry outside the home for self defense (conceded by State of New York)

3) A person who cannot show a specialized need to carry a gun for self defense cannot get a permit to carry outside the home for self defense (conceded by State of New York)

4) [And here's the rub] Nothing in the Constitution allows a State to condition a person's exercise of a right guaranteed by the Constitution on the person first demonstrating a specialized need to exercise that right compared to the general need possessed by the general public, and this is especially true for a right written explicitly into the Bill of Rights. New York's Brief fails to address this issue whatsoever, because the Constitution NEVER requires the showing of a specialized need in order to be granted a permit to exercise a Right guaranteed by the Constitution.

5) Thus, this should be 6-3 decision in favor of shall issue, with only the three Liberal Justices voting that guns are so bad that the Second Amendment is different from everything else in the Constitution. Nevertheless, IMHO Justice Roberts will likely say that the case should be sent down for the factual record to be developed -- Therefore: 5-4 in favor of shall issue.

If I were a Justice, here are three questions I would ask New York during Oral Argument:

a) How many times does a women need to be raped while doing ordinary things outside the home before she can show a specialized need sufficient to satisfy the New York may issue statute

b) How many times does a person's house of worship, local store or place of work need to be shot up (with the person inside) before the person can show a specialized need sufficient to satisfy the New York may issue statute

c) How many times must a person need to be dragged behind a truck for no other reason than appearing to be a member of a particular group before the person can show a specialized need sufficient to satisfy the New York may issue statute.

 

[smoothshooter]

Given that you live in New York your pessimism is well founded. But the courts did bring shall issue concealed carry to DC and Chicago and Illinois. We can only hope.

I’ll bet there will be VERY FEW CC permits issued in NYC in the future even if the NRA wins.

 

[CH4]

I’ll bet there are VERY FEW CC permits issued in DC and Chicago.
NYC will be no different.

Yeah, it would definitely be interesting to know how DC, Chicago and NYC define shall issue, the process, cost and how many they've issued.