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SCOTUS accepts first major 2nd Amendment Gun case in over a decade - NY State Rifle & PA v. Corlett

Discussion in 'General Gun Discussions' started by Aim1, Apr 26, 2021.

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  1. Spats McGee

    Spats McGee Moderator Staff Member

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    It has the option to proceed, even if NY does that. In certain situations, the alleged legal violation is "capable of repetition, yet evading review." The classic example of a "capable of repetition, yet evading review" situation is in the abortion context. It's almost impossible to get a case from alleged violation, through trial, and on up to SCOTUS in the ~9 months from conception to birth. Thus, by the time an abortion case gets to SCOTUS, the pregnancy is over. Technically, at that point, the case is moot. But the next pregnant woman could have her rights violated in the same manner as the first woman. Thus, the violation is capable of repetition, yet evading review. Moderator Note: This is absolutely, 100% NOT an invitation to discuss abortion law. It is merely an easy example of this doctrine.
    Standing, mootness and ripeness are foundational principles of jurisprudence. For any case to be justiciable:
    1. The challenger must have standing;
    2. The case must be ripe for decision; and
    3. The case cannot be moot.

    I could go into more detail, and I will if you or others reading this would like.
     
  2. Dudedog
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    Dudedog Contributing Member

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    If you don't mind it would be appreciated. (at least by me)
    Even though I am an old fart I always like to try to learn something new or clarify/correct what I might have learned in the past.

    I for one really appreciate your time and effort to help educate us about how things really work.
     
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  3. herrwalther

    herrwalther Member

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    I genuinely hope a SCOTUS ruling against NY will burn their whole permitting system (or lack of it) to the ground to start over for better. Strict holdouts like NY, CA, HI, and MA keep the 2A being a truly nationwide right. I grew up in upstate NY, so I know my hope has little chance of coming true.
     
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  4. Aim1

    Aim1 Member

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  5. CapnMac

    CapnMac Member

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    SC takes a case "as is." That is, one side is contending that an assertion of fact is false, or a previous finding in law was in error, or that a procedure was not followed in the recognized way.
    The Court can give direction as to what evidence, and what nature the arguments will be accepted.
    From what we have heard so far, the direction here is whether requiring "proof of need"/just cause for permit issue unconstitutionally burdens citizens and prevents them for exercising their rights.

    What that suggests is that the Court is not going to consider arguments over whether the present law is required for public safety or crime reduction or a similar sort of obfuscation. That the question is: If a person has the right to keep and bear arms, is it legal to bar them from bearing those arms? (This is over-simplified, and "we" would all scream "No!"--but "we" tend to be absolutists on this topic, too.)

    That is an interesting question. Given the SAFE act, it seems unlikely, as it would take rather a lot of finagling.
    Trying for 'something easy' like, say, you can get a Permit with a CLEO signature, really just reinvites the case.

    That's a bit cart before the horse. They have to stay focused on just this one case, and decide it upon its merits. It has some consequence, though, as, if the Court says "Maybe not" Issue is unconstitutional, then there are a number of other States which will immediately see class action suits brought. I want to remember that such things generally go to Federal District Courts, where they would follow the 'guidance' of SC in ruling. Which would clean Court dockets in MD & NJ where there are pending Federal cases on "Only For Good Reason" Permits are being contested.
     
  6. AlexanderA
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    AlexanderA Member

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    What's implied from your statement is that some kind of permit (for carrying) can be required. That takes permitless carrying, as a constitutional right, off the table, and narrows the issue to what kind of standards can be applied for the issuance of the permit.

    I can see the Court rejecting vague and subjective standards, such as "need," but leaving open plans involving objective standards. Then New York could come back and enact training requirements, age requirements, residency requirements, fees, insurance mandates, medical exams, etc., etc. They could make it very difficult, in practice, to obtain a permit.
     
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  7. readyeddy

    readyeddy Member

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    I'm not a law professor so this probably won't sound legit to learned counsel, but the merits of the case make up the heart of a court case. For example, in car accident case, the merits of the case involve whether the defendant was negligent in causing the accident and whether the plaintiff suffered injuries. But if the case was filed after the statute of limitation ran, the the case can be dismissed for a "technicality". There are a several procedural issues that can throw out a case without ever getting to whether the light was green or red, or whether anyone was at fault for the car accident.

    So in the Sup Ct case, the merits of the case would be the 2A issues, not whether the case should be dismissed for a technical issue.
     
    Last edited: Apr 27, 2021
  8. ev780

    ev780 Member

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    Isn't that a bit naive? In its purest form I know that is the theory, but the justices don't live in a bubble. They are as tuned in to this as we are and they know what's coming. Its their job to be.
     
  9. CapnMac

    CapnMac Member

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    I'm taking that viewpoint based on the case being brought.
    That the NYS law bars bearing arms except by Permit. Therefore denying a Permit denies Bearing.
    Yes, ideally, Constitutional Carry is better, and to be preferred--but, that's not what is being debated.

    Well, lawyers operate by process and procedure. So, the focus is upon what the contention is, not what it might be.

    When judges start adding outside considerations into present deliberations is where we get "judicial activism." Which is not something we want to encourage or celebrate, even if in 'our' favor.

    There are cases in a number of the Probably Not Issue States. If the SC rules against NYS in this, those states Federal Courts--where the cases presently reside--would then follow SC guidance for adjudicating the cases.
     
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  10. Spats McGee

    Spats McGee Moderator Staff Member

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    Very well. I'm a little short on time today, but I'll give you a quick overview. We have to start with Article III:
    U.S. Const. art. III (edited by Spats for brevity)

    Standing: The legally protectible stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.

    Note that I've underlined a couple of things in my constitutional quote, and I want to boil this down to some shorthand. Let's say "The judicial power of federal courts shall extend to cases and controversies, as follows: . . . . " That leads us to a couple of conclusions:
    (1) that federal courts decide cases and controversies, period. Someone has to have a legally cognizable interest at stake, and someone else has to be trying to take that away, or at least threatening to. Money, freedom, property, those kinds of things. Someone has to have actual skin in the game.
    (2) That, because of #1 above, our courts do not offer advisory opinions. (This is one of the reasons our legislatures do not and cannot just ship their bills over to their respective supreme courts to determine constitutionality prior to enactment.)

    Personally, I love a good standing argument. If you win, it cuts the other side off at the knees. Game over. To put it in legalese:
    Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)(edited by Spats for brevity)
    So, to summarize: (a) the plaintiff has to have a concrete injury, either actual or imminent; (b) caused by the defendant; and (c) which can be cured by a successful court challenge. If one of those elements is missing, BOOT -- out of court, case dismissed.

    Mootness: A case can't be "moot." In other words, if conditions have changed such that the controversy can't be resolved through litigation, or perhaps conditions have changed such that the case has effectively resolved itself, the case has resolved itself, then the case is "moot." All of the questions involved essentially become theoretical or academic questions. As an example, let's say that the State of AR refused to issue me a CHCL. I meet all of the requirements and have paid all of the fees. I file suit and the State then issues me a CHCL. The case is moot and can be dismissed. Other examples that should be familiar to all of us in the gun community are those in which the various State defendants change their law a little, then argue that the case is moot and should be dismissed. (I'm looking at you, Chicago and New York!)

    Ripeness: A case has to be "ripe" for judicial decision before it can go forward. To put it as best I can, the case or controversy has to have "solidified" so that the issues can be decided. For example, let's say that someone seeking their Arkansas CHCL doesn't get theirs in the first 20 days after application. Well, there's a good chance that their background check hasn't been run, and that no decision has been made by the Arkansas State Police. Even if they are denied, they can appeal to the Arkansas Circuit Courts, on up to the Arkansas appellate courts. So filing suit on that 21st day .... the case isn't ripe at that juncture. It's been a long time since I argued ripeness in a court, so I'm a little rusty on this one.

    Hope this is of some help.
     
  11. SwampWolf

    SwampWolf Member

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    USA Today observed that Second Amendment advocates hope that "...a more conservative court will begin to chip away at the restrictions". Hopefully, for sure, but no one in favor of the peoples right to keep and bear arms should be counting their chickens just yet. I've been around for a long time now and I have yet to see a liberal appointed jurist turn to the political/cultural right but I've seen plenty of "conservative" appointed jurists make career-long turns to the left.
    A crossing of the fingers and making the sign of a cross seems apropos at the moment.
     
  12. Aim1

    Aim1 Member

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    Can anyone answer these questions:


    1.) What is the best outcome we can get?


    2.) What is the worst outcome we can get?


    3.) What do you think the outcome will be?
     
  13. JTHunter

    JTHunter Member

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    Considering how the SC has "narrowed" the focus of this case (all about "semantics") and that chief justice Roberts has shown that he may be a spineless worm, it won't take much for this case to go nowhere. More than Roberts, it may come down to what Kavanaugh and Barrett decide to do.
     
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  14. wiscoaster

    wiscoaster Member

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    They're the "new kids on the block". New kids on the block generally learn to not make waves in order to become "one of the gang" so I wouldn't pin all your hopes on them exerting themselves. They have long careers ahead of them and many more opportunities to make their reputations in history will present themselves. I think that the driving force behind this case may turn out to be ... Justice Thomas.
     
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  15. Slappy White

    Slappy White Member

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    Then we change it by constitutional amendment. That’s how the founders designed it. Can you imagine trying to do a constitutional amendment in today’s environment? Sadly in the age of social media and the Internet I don’t see any constitutional amendment ever happening again.
     
  16. Slappy White

    Slappy White Member

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    Isn’t that actually the way it should be? I mean I don’t want the court to worry about which political party they may upset by ruling a certain way.
     
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  17. CapnMac

    CapnMac Member

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    I'll take a stab at that.
    1. Best case. SC rules that Heller gives a clear and obvious precedent that non-Prohibited Persons are free to keep & Bear arms in common use for their defense and others'. That only within one's dwelling is not "bearing." That McDonald extends that protection to every State and polity in the Nation.
    So, any State that requires Permit for any carry must do so on a Shall Issue basis. That there can be no onerous requirements to show 'just cause' requiring subjective judgement for issue.
    This would then knock over similar laws in at least 7 other States.
    Further, each of the States would, in fact, comply (unlike DC after Heller)

    2A. SC finds that NYS has made adequate provision for obtaining a Permit, and that those who were not issued a Permit had good cause to be denied. And the Law stands. Which might lead purplish States to lean to "May" issue over Shall Issue.

    2B. SC finds as per 1, above, but none of the States bother to comply; or put some twisted requirement in place of the "show good cause" requirement.

    3. There are a number of cases where lower courts have held that "might not" Issue laws were capricious and felicitous in nature, and therefore beyond the ability of Reasonable Man to comprehend or Surmise.
    Thomas is "due" a landmark ruling. His mentor, Scalia gave us Heller, Thomas could cement a similar place in history by leading the opinion (and, if he writes it, it's going to be scathing). McDonald cemented the notion that 2nd Amendment cases warranted Strict Scrutiny. One could not have vague or subjective definitions of "public harm." But, must needs show case of definitive need for public safety reasons.

    This latter is serious stuff. One could flippantly argue that one ought not have a firearm at a riot; except, objectively, where would an innocent person most need a firearm. Crowded porting event? In the seats maybe not, but what about out in the dark parking lot afterwards?

    Under Strict Scrutiny, such things require consideration, and reasonable, rational thought.
     
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  18. stillquietvoice
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    stillquietvoice Contributing Member

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    Ny allows counties to further restrict ccw by placing terms, conditions, IE hunting or target practice, and takes our right to keep and bear arms from right to privilege. First through a permit system, then by a statement that they have right and authority to take "your permit" at any time or for any reason, and have a place for the applicants signature. So if the person seeking a ccw doesn't sign away their right they get denied.

    I didn't have to provide a need to get mine, but many areas, mostly downstate refuse to issue regardless of whether a need is present.
     
  19. Aim1

    Aim1 Member

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    Very interesting.


    I didn't realize Mcdonald cemented strict scrutiny....apparently many judges ignore this.
     
  20. herrwalther

    herrwalther Member

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    I lived in upstate NY for the first few decades of my life. Our county judge bragged about how few carry permits he "allowed" to be sent out. I had submitted my own permit to the same judge several months before I made the decision to move out of state. My parents forwarded my rejection letter stating I did not have a plausible "need" to be armed. That letter came 9 months after I left.
     
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  21. AlexanderA
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    AlexanderA Member

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    I think that that, indeed, is the most likely result. However, that won't stop states from moving from subjective requirements to objective ones. (For example, training requirements, age, liability insurance, etc. -- things that don't preclude a carry permit, but make getting one very difficult.) To prevent this sort of sidestepping, the Court would have to get ahead of itself -- to go beyond the facts of the case before it -- something that it doesn't usually do. Then we're left with re-litigating the issue every time a state amends its laws.
     
  22. JN01

    JN01 Member

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    When the NFA was being debated, some of the legislators wanted to ban machine guns but felt it would be unconstitutional. Therefore, they came up with the $200 (a large amount of money at the time) tax stamp to achieve the same end, for the most part. If they are forced into a shall issue system, I could see NY taking the same tack by raising the CCW fee to 5 or 10 grand.
     
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  23. Zahn
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    Zahn Contributing Member

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    I am not a lawyer, so take this for what it's worth. I read somewhere (can't find it yet) that the Supreme Court rephrased the case to indicate that the harm had been done, and they were going to judge the merits of the case on that basis. That is, they were preemptively taking away New York State's ability to moot the case. Since the harm has taken place, NYS can't moot it by changing the law.
     
  24. AlexanderA
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    AlexanderA Member

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    That would be too obvious, and the courts would knock it down fairly easily. But I can see NY putting in a host of requirements that seem "reasonable" on their face.
     
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  25. AlexanderA
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    AlexanderA Member

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    Maybe NY can't moot this case, but it can certainly set the playing field for the next case.
     
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