Over the next week or so I hope to try to summarize what this case is about, where it stands and how it got to where it is.
Then, if we all behave, and the Moderators don't mind, we can all have fun speculating as to what the Supreme Court is going to do.
In February of 1775, the British Government declared the colony of Massachusetts to be in a state of rebellion.
On April 19, 1775, ordinary people, organized into Militia, engaged British Regulars in the Battles of Concord and Lexington. I suspect that the vast majority of the muskets employed by the Militia were personal weapons owned by individuals.
On July 4, 1776, the thirteen former Colonies declared their Independence from the British Crown.
From May 25 to September 17, 1787, Delegates from the thirteen former colonies, now independent States, met in Philadelphia, PA, and proposed a Constitution for ratification by the States. Many Delegates and leaders and ordinary people in the States were suspicious of granting the to be established Federal Government broad Powers over the States and the People. Although not written in the original Constitution, it was understood that the power of the Federal Government over the States and the People would be subject to certain important restrictions. The ratification of the Constitution by the States was not a foregone conclusion. In the Massachusetts compromise of February 1788 it was agreed that provisions listing certain important rights, such as speech, press and religion, would be immediately proposed upon ratification of the Constitution by the States.
On September 29, 1789 the new Congress approved 12 Articles of Amendment and sent them to the States for ratification.
On December 15, 1791, Articles 3-12 were ratified and became Amendments 1-10 of the Constitution. These first 10 Amendments became known as the Bill of Rights. Prominent in the Bill of Rights is the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Like the other Amendments in the Bill of Rights, when it was Ratified the Second Amendment restricted the Power of the Federal Government, it did not restrict the Power of the States over the People.
On July 28, 1868, the 14th Amendment to the United States Constitution was ratified. Section 1 reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In 1876, despite the 14th Amendment, the U.S. Supreme Court said that the Bill of Rights, including the First and Second Amendments, did not apply to restrict the Power of the States. United States v. Cruikshank (1876). For decades thereafter the Bill of Rights did not apply to the States.
Beginning in the early 1930's the Supreme Court turned its back on its decision in Cruikshank, and began to issue a series of decisions holding that that specific provisions of the Bill of Rights were in fact applicable against the States under the 14th Amendment. For example, Freedom of Speech was officially incorporated against the States in 1931.
From 1876 to 2008, the Supreme Court said almost nothing about the Second Amendment.
In 2003, the District of Columbia's laws regulating firearms were Draconian at best.
From the Supreme Court's 2008 decision in Heller v. District of Columbia:
The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22–4504(a), 22–4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and disassembled or bound by a trigger lock or similar device" unless they are located in a place of business or are being used for lawful recreational activities. See §7–2507.02.
Enter: The Cato Institute, Robert Levy and Alan Gura. Spearheaded by Robert Levy of the Cato Institute, Cato backed a challenge to the District of Columbia's firearm laws. I believe that Alan Gura was lead counsel and Robert Levy was co-counsel. IIRC, Robert Levy is not a gun owner, but he is fierce advocate for Liberty. Together, Levy and Gura found sympathetic D.C. residents and they filed a challenge to the D.C. laws on their behalf. By "sympathetic" I mean superb. For example, IIRC, Dick Heller was a Capitol Police Officer, whose duty was to carry a handgun in the Capital Building to protect Congressmen and Senators -- But he, like all D.C. residents, was prohibited from obtaining a handgun and from keeping any functional firearm in his home.
The District Court for the District of Columbia was the first court to hear the case. The District Court dismissed the case in favor of the D.C. laws. The District Court did not even use the word "keep" in its decision.
The case was appealed as a matter of right to the U.S. Court of Appeals for the District of Columbia.
On March 9, 2007, the U.S. Court of Appeals issued its decision
Parker v. District of Columbia
One holding was that the Second Amendment was an Individual Right:
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
Another holding was that the District of Columbia's ban on registering a handgun for possession in the home violated the Second Amendment.
D.C.Code § 7-2502.0218 prohibits the registration of a pistol not registered in the District by the applicant prior to 1976. The District contends that since it only bans one type of firearm, "residents still have access to hundreds more," and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined—as we have done—that handguns are "Arms" referred to in the Second Amendment, it is not open to the District to ban them.
A third holding was that it violated the Second Amendment to prohibit an individual from having a functional firearm in the home:
Finally, there is the District's requirement under D.C.Code § 7-2507.02 that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia." This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of "metal and springs." Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a "functional" firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.
This was a tremendous win for the Second Amendment. The District of Columbia was now, in its mind, on the wrong end of the Second Amendment stick, and the District appealed the case to the Supreme Court.
IMHO, the Supreme Court now had the correct test case to decide the basic contours of the Second Amendment:
__Is the Second Amendment an Individual Right.
__Does it protect the right to obtain a handgun
__Does it protect the right to keep a functional firearm/handgun in the home.
IMHO, the case was a perfect storm for the Supreme Court deciding these issues
1) Because D.C. is a Federal jurisdiction, there was no need to consider whether the Second Amendment Applied to the States.
2) The parties challenging the laws were not convicted felons trying to beat a "Felon-In-Possession" rap.
3) The parties, for example Dick Heller, had done everything the Law could possibly ask of them.
4) The law being challenge was not a regulatory scheme that made keeping a functional firearm more difficult, it was a total ban.
On November 20, 2007 the Supreme Court agreed to hear the case to decide the following question:
Petition GRANTED limited to the following question: Whether the following provisions - D.C. Code Sections 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
In addition to the Parties, many persons and organizations filed Amicus Briefs. These Amicus Briefs, some filed by States, cities, the NRA, Congressman and Senators, shows where these people stood on the Second Amendment. Of course, the NRA was on the right side.
[On a personal note, once the Supreme Court took the case I was worried about two things. First worry, the Supreme Court would hold that the Right to Keep and Bear Arms was not an individual right. Second worry, the Supreme Court would rule that as long as some time of long gun was allowed, it would not infringe the Second Amendment to ban handguns. Fortunately, this did not happen.]
The Heller case was argued at the Supreme Court on March 18, 2008.
C-Span audio of oral argument in Heller
On June 26, 2008, the Supreme Court rendered its decision
Justice Scalia's opinion is a must read:
Heller v. District of Columbia (2008)
What the Supreme Court decided:
1. The Right to Keep and Bear Arms is an Individual Right
2. It violates the Second Amendment to ban handguns
3. It violates the Second Amendment to require guns to be non-functional in the home
What the Supreme Court did not decide:
1. Whether the Second Amendment applied to the States
2. Whether the Second Amendment protected the right to carry arms outside the home
3. Ginger or Mary Anne
4. Anything about so-called "Assault Weapons"
5. Anything about magazine capacity
[When the decision came down, on the way home from work I went to the liquor store, bought a bottle of Kentucky Straight Bourbon Whisky, took it to the Local Gun Shop, and in a well-regulated manner we toasted the Constitution of the United States of America]
On June 28, 2010, the Supreme Court held that the Second Amendment did apply to the States and held that Chicago's effective ban on handguns violated the Second Amendment.
Supreme Court Opinion in McDonald v. Chicago
Since the 2008 decision in Heller, the Supreme Court has declined every opportunity to consider whether the Second Amendment protects the right to bear arms outside the home. But on January 22, 2019 the Supreme Court agreed to hear the case which is the subject of this thread, i.e.
New York State Rifle & Pistol Association, Inc., v. City of New York, New York, et al. ("New York Rifle")
New York Rifle is a very odd case. For years, it has been expensive and difficult for ordinary law-abiding residents of New York City to obtain a permit to buy and keep a handgun in their home. And the ordinary resident was, for all intents and purposes, only able to transport their lawfully possessed handgun from their home, to one of the seven practice ranges located in New York City, and back to their home. The Ordinance controlling the transport of lawful handguns was so strict that a New York resident was not permitted to transport a lawfully owned unloaded handgun in a locked trunk from the resident's home in New York City to a practice range on Long Island or a second home in upstate New York.
Against this backdrop, in 2013 the New York State Rifle Association sued to have the Ordinance declared in violation of the Second Amendment.
On February 5, 2015, Judge Sweet of the U.S. District Court for the Southern District of New York held that the New York City Ordinance did not violate the Constitution. The New York State Rifle Association appealed as a matter of right to the United States Court of Appeals for the Second Circuit. The Appeal was argued on August 17, 2016
On February 23, 2018, the Second Circuit affirmed the District Court's Judgment that the New York City Ordinance did not violate the Second Amendment. This was a very GOOD decision for the Anti-Second Amendment folks. Unless reversed by the Supreme Court, all future decisions in the Second Circuit would have to follow this case as precedent, in matters such as the "Standard of Review," to be discussed later.
On September 4, 2018, The New York State Rifle Association filed a Petition to have the case heard by the United States Supreme Court.
A copy of the Petition to have the Supreme Court hear the case is here
On November 8, 2018 New York City filed its Opposition asking the Supreme Court to not hear the case.
A copy of New York City's opposition is here
On November 28, 2018, the New York State Rifle Association filed their Reply
A copy of the Reply is here
Lo and Behold, on January 22, 2019, the Supreme Court agreed to hear the Appeal. This was very BIG NEWS, and the first time the Supreme Court had agreed to hear a Second Amendment case since the 2010 decision in McDonald. This was also very BAD NEWS for the Anti-Second Amendment crowd. Because the New York City Ordinance was too stupid to live it was bound to be struck down by the Supreme Court, and this would give the Supreme Court the opportunity to set Pro-Second Amendment precedent for the entire United States.
Accordingly, on April 12, 2019, New York City filed a Letter asking the Supreme Court to delay further Briefing on the Appeal until after New York City could fix the problems with the Ordinance.
Copy of NYC's Letter is here
On April 29, 2019, the Supreme Court denied New York City's request to delay further Briefing.
On May 7, 2019, The New York State Rifle Association filed its Main Brief
NYS Rifle Association Main Brief here
Many Amicus Briefs were filed in support of the New York State Rifle Association.
On July 3, 2019 NYC tried to file a letter asking the Supreme Court to pretty please dismiss the case as moot because the City Ordinance was being changed and the State was passing a law that would also fix the issue being appealed.
NYC's July 3, 2019 Letter is here
July 8, 2019 Letter from the NYS Rifle Association is here
The Supreme Court refused to accept NYC's letter and NYC's Brief was due August 5
On July 22, 2019 NYC filed a Suggestion of Mootness, copy here
On August 5, 2019 NYC filed its Main Brief, copy here
On August 12, 2019, the United States asked for permission to participate in the Oral Argument, copy here
On September 4, 2019, the NYS Rifle Association filed its Brief in Response
On September 13, 2019 the Supreme Court set Oral Argument for December 2, 2019. The was a VERY BIG DEAL because it means that, at least for now, the case is still alive.
More to come, including my summary of the issues the Supreme Court might decide....
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I am now (September 26, 2019) starting to summarize the issues and arguments before the Supreme Court.
A Link to the Supreme Court Docket Here--Follow this link and click on "Main Document" to read the actual filings at the Supreme Court
I. Jurisdiction and Mootness
The establishment of a fair and just Court system is one of the pillars of Civilization. Without Courts to decide disputes, people would eat each other alive. In the American judicial system, Courts are only empowered to decide cases over which they have "jurisdiction." one of the requirements of jurisdiction is that the case before the Court is an actual controversy. Without an actual controversy any decision or action by the Court would only be an advisory opinion. Many cases before the U.S. Supreme Court are terminated because the Court decides that it lacks jurisdiction.
What makes a case Moot?? On occasion, circumstances arise after a case starts which makes determination of the dispute irrelevant to the all of the parties. When this happens, a court will often dismiss the case for lack of jurisdiction on the ground that the case has become moot. For example, let's say the Defendant is sued for negligence because the Plaintiff says that the Defendant owes $100 for causing an accident. If the Defendant can show that he has paid the entire $100 to the Plaintiff, the Defendant can properly ask the Court to dismiss the case as moot.
Here, in the New York Rifle case, the City of New York has repeatedly asked the Supreme Court to dismiss the case as moot. New York City maintains that it and New York State have changed their laws since the case was first filed, and under the new laws the New York Rifle Association is getting everything that they asked for in their original Complaint way back in 2013. New York City has a valid point.
On the other hand, the New York Rifle Association has at least three arguments for why the case is not moot:
1. There is nothing to keep New York City from turning around and passing the same law, or one that is even worse, and the New York Rifle Association needs the Supreme Court to decide that the original law violated the Second Amendment.
2. The change in law did not go far enough, and the case is not moot because even the new law violates the Second Amendment.
3. The Supreme Court should not dismiss the case because the decision of the Second Circuit Court of Appeals would remain on the books, and that decision contains erroneous rulings of law that will hurt the New York Rifle Association in future cases.
So, mootness is a very real issue. One thing that the Supreme Court could do would be to dismiss the Appeal as moot--but vacate the decisions in the case by the Second Circuit Court of Appeals and the Southern District of New York. Doing this would remove those cases as precedent and it would be as if the case had never happened. I think this unlikely, but it could happen. Because it would seem that the Supreme Court has a reason for hearing this case I do not think it will be dismissed as moot.
II. Questions Presented for Review by the Supreme Court
Here are the questions presented by the New York Rifle Association for Review by the Supreme Court.
Most of what I say comes from the Opening Brief of the New York Rifle Association
Opening Brief of the New York Rifle Association is Here
In its Opening Brief the New York Rifle Association presents a single question with three subparts:
The question presented is:
Whether the City's ban on transporting a licensed,
locked, and unloaded handgun to a home or shooting
range outside city limits is consistent with the Second
Amendment, the Commerce Clause, and the
constitutional right to travel.
The "Question Presented" has the following three subparts
1. Does the transport ban violate the Second Amendment?
2. Does the transport ban violate the Commerce Clause
3. Does the transport ban violate the Constitutional Right to Travel
NOTE: I have decided I will only try to summarize and analyze the Second Amendment issues before the Supreme Court. I do not have a good handle on either the Commerce Clause question or the Restriction on Travel question.
III Does the NYC Transport Ban Violate the Second Amendment
In this section of my Synopsis I will try to summarize each of the issues impacting the Second Amendment Analysis
A.Does the Second Amendment Apply to the NYC Transport Ban
The threshold 2A issue in this case is whether the NYC Transport Ban implicates the 2A. If the Transport Ban does not even implicate the 2A then, by definition, the Transport Ban cannot violate the 2A. You might think it absurd to even question whether a ban on transporting a lawfully owned, unloaded and locked handgun from one home to another could not implicate the 2A, and I agree. However, in its opinion upholding the District Court, the Second Circuit was very careful to
not answer the question of whether the 2A applied to the Transport Ban. Rather, to avoid answering this question, the Second Circuit assumed for the sake of argument that the NYC TRansport Ban did implicate the 2A:
At the first step, the Plaintiffs argue that [the NYC Transport ban] impinges on conduct protected by the Second Amendment. We need not decide whether that is so, because, as explained below, the Rule "pass[es] constitutional muster" under intermediate scrutiny. Id. at 257. Thus, as in New York State Rifle, we "proceed on the assumption that [the Rule restricts activity] protected by the Second Amendment." Id.
In essence, the Second Circuit decided that even if the 2A applied to the Transport Ban, the Transport Ban would not violate the 2A. Accordingly, the Second Circuit Circuit chose to not decide whether the Transport Ban applied. This is an example of what attorneys call "Judicial Repose." Judicial Repose means that if the ultimate issue in a case can decided without deciding a particular lead-up issue, it is proper for the Court to not decide the lead-up issue. On the other hand, in order for the Supreme Court to find that the Transport Ban does violate the 2A the Supreme Court will need to decide that the 2A does in fact apply to the Transport ban.
[IMHO I believe that the Supreme Court will find that the Transport Ban does implicate the 2A. Preventing a person from taking their lawfully owned handgun from one home in New York City to a second home outside New York City, or to a place like Vermont where I believe it is legal to carry without a permit, clearly impacts the 2A's Right to Keep and Bear Arms. Thus, IMHO the Supreme Court will easily move on to the next question: What level of "Scrutiny" must be used when analyzing whether the Transport Ban violates the 2A?]
B.What Level of "Scrutiny" to Analyze the NYC Transport Ban
In cases involving civil rights, including rights protected by the Bill of Rights, one of the most important questions is the level of "scrutiny" to apply to the facts at hand. Unfortunately, here is where I have to talk bit like a lawyer. Fortunately, I am neither a constitutional scholar nor a constitutional lawyer. This will force me to keep my analysis brief, to the point, and hopefully correct.
Three levels of Scrutiny
In cases involving a law that is alleged to violate the Constitution the Supreme Court will typically choose between three levels of scrutiny:
a) Rational Basis, b) Intermediate Scrutiny and c) Strict Scrutiny.
Rational Basis
Rational Basis is the default level of scrutiny. In short, under the Rational Basis test the Court decides whether the law in question is "rationally related" to a "legitimate" government interest. For example, a law which mandates 15 MPH near a school when school is in session is clearly related to a legitimate government interest. When a law is examined under the rational basis test it will almost always be found to not violate the Constitution.
Heightened Scrutiny
In the cases that seem to matter, the Supreme Court applies a higher level of scrutiny than the Rational Basis test. In their infinite wisdom, the Courts call this higher level of scrutiny: "Heightened Scrutiny." Duh. Heightened Scrutiny is applied when there is a "suspect classification" or or the law impacts a "fundamental right." There are two types of Heightened Scrutiny, Intermediate Scrutiny and Strict Scrutiny. Not surprisingly, Strict Scrutiny is the highest level of scrutiny and Intermediate Scrutiny falls between Strict Scrutiny and the Rational Basis test. Gee wiz, aren't lawyers smart for being able to come up with names like this. When Heightened Scrutiny is applied, it often comes down to whether the court applies Intermediate Scrutiny or Strict Scrutiny. To be cynical, it seems that a court will decide to apply Intermediate Scrutiny when it wants to uphold the law and Strict Scrutiny when it wants to strike down the law.
Intermediate Scrutiny
Intermediate Scrutiny is often applied in the context of commercial speech.
To use more legalese, a law will pass Intermediate Scrutiny if it furthers an "important" government interest by means that are "substantially related" to that interest. When gun laws are upheld, the court almost always find that the law furthers the important government interest of public safety. Then the court will find that the law is substantially related to furthering public safety. Predictably, when the the court applies Intermediate Scrutiny to a gun control law the law will almost certainly be upheld. This is exactly what happened here. In the case which is the subject of this thread, New York Rifle, the Second Circuit found that the New York City Transport Ban did not violate the Constitution because the Transport Ban did not require Strict Scrutiny and the Transport Ban survived Intermediate Scrutiny. According to the Second Circuit:
As explained below, we find that the [NYC Transport Ban] does not trigger strict scrutiny and that it survives intermediate scrutiny.
The Second Circuit decision in New York Rifle is very important because the Second Circuit found that a law which banned the transport of an unlocked handgun from one home in NYC to another home outside of NYC did not require Strict Scrutiny. Thus, as long as the Second Circuit decision is not overturned or vacated, all courts in the Second Circuit must analyze all gun law cases in the Second Circuit from the perspective that a law which bans the transport of an unloaded handgun does not require Strict Scrutiny. Of course, under this decision, a law banning the carry of a loaded handgun on the streets of New York City also does not trigger Strict Scrutiny. And this, of course, is the elephant in the room. As long as Strict Scrutiny does not apply to transport of an unloaded gun, courts will never find that New York City's effective ban on concealed carry violates the Constitution. Therefore, all pro-2A folks want the Supreme Court to find that the New York City Transport Ban indeed triggers Strict Scrutiny.
Strict Scrutiny
Strict Scrutiny applies in either of two circumstances: a) the law or government action infringes a "Fundamental Right," especially a right in the Bill of Rights; or B) the law or government action includes a "suspect classification," for example, discriminating on the basis of race or religion.
If Strict Scrutiny applies, to be valid under the Constitution the law must satisfy three conditions:
1. The law must be "necessary" to further a "compelling" government interest;
2. The law must be "narrowly tailored" to achieve this interest; and
3. The law must use the "least restrictive" means to achieve this interest.
On November 15, 2019 the United States asked for permission to file a brief on mootness and the Supreme court agreed to let the United States and the other parties file briefs.
United States Letter asking for brifing on mootness here
United States Letter Brief on mootness here
Other parties have till November 20, 2019 to file their responses to the United States' mootness brief.
New York Rifle Asso. Letter Brief on mootness here
New York City's letter brief on mootness here
This is not a good development as it appears the Supreme Court is very much willing to entertain throwing the case out for mootness.
Personally I think the big issue on mootness is that the bad law from the Second circuit affirming the now modified NYC transport ban could stay in place unless the Supreme court vacates that decision as part of finding mootness.
Oral Argument is December 2, 2019
Transcript of oral argument will be available here
Audio of the oral argument will be available here
Stay tuned boys and girls
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