SCOTUS narrows question in the NY State Gun Rights Case

Discussion in 'Legal' started by 1942bull, Nov 2, 2021.

  1. 1942bull
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    1942bull Contributing Member

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    SCOTUS altered the petitioners’ question to be heard in this important gun right case. By doing so it has likely precluded any wide sweeping decision that dramatically alter gun laws in the U.S. The LA Times has an article explaining the matter in a thorough manner. Since the case will be heard tomorrow, 11/3, I thought those who have followed the progress on the case over the past years might want to read about their “narrowing,” which could give the anti gun folks some hope.

    This is a brief quote from the article.
    This is the link to the article.
    https://www.latimes.com/opinion/story/2021-11-01/supreme-court-gun-rights-gun-control-concealed-carry-2nd-amendment
     
  2. Johnm1

    Johnm1 Member

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  3. Johnm1

    Johnm1 Member

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    I reread the question and can’t read between the lines for what the justices were trying to accomplish. The article I read yesterday from Yahoo made it sound as if the question had changed dramatically and I don’t see that yet. It also implied that the question was rewritten to appease some justices on the court.

    I’m sure there are reasons I am not aware of that led to the rewrite. The cert has both the original question and the rewritten question.
     
  4. Telekinesis

    Telekinesis Member

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    Im not a lawyer, but my reading is that it limits the possible pro 2A outcomes.

    Original Question (sourced from the news article)
    This question seems to allow for review of not only the denial of a permit, but also the entire permitting process/law itself. Remember that many laws are written in such a way that it is illegal to carry a firearm UNLESS one has a permit. The way this is phrased leaves open the possibility for a ruling (however unlikely) that the second amendment does not allow the states to prohibit carry.

    We all know that the Supreme Court likes to very narrowly tailor their rulings so I don’t think that invalidating the overall prohibition on carry was a likely outcome, but it could have been argued.

    New Question (sourced from the news article)
    This new question narrowly questions the act of the state denying the permit, rather than the existence of the permit requirement itself.

    In very basic and oversimplified terms, it seems that this changed question limits the absolute best case (and unlikely) scenario from “Nationwide Constitutional Carry” to “(Potential) Nationwide Shall Issue”.

    In my opinion this change means that the justices are not really interested in making waves with this ruling (whatever it becomes). I may be pessimistic, but I expect if the ruling is favorable to us, it will be more along the lines of: states are allowed to remain “may issue”, but “self defense” would be a valid reason to be issued a permit.

    There are probably some more nuanced issues as well, this was just my take on the change.
     
    Last edited: Nov 2, 2021
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  5. 1942bull
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    1942bull Contributing Member

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    Here is my take on the difference (I am not a lawyer.)

    Original: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

    Reworded: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

    My thoughts are that the scope of the decision’s effectiveness was changed. The original applied to the “government.” The reworded applies to the “State.” That precludes any decision from applying to all governments including the Federal government. It makes the decision apply only at the state level. In the worst case scenario it could apply only to NY State directly and maybe to all other states indirectly. So the decision would not affect any Federal gun laws regulating 2A, but it would apply to NY and probably all states.
     
    Last edited: Nov 2, 2021
  6. Carl N. Brown

    Carl N. Brown Member

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    The question has been narrowed to whether New York State's severe restrictions on handgun permits violate the right of their people to keep and bear arms for self-defense.

    Given the number of states going "Constitutional Carry" as well as a larger number with shall-issue carry permits the answer very well may surprise New York State whose idea of "reasonable control" is far more draconian than my home state's idea of reasonable.

    I grew tired fifty years ago of New York politicians and opinion-editorialists talking about making Tim Sullivan's Act a federal law overriding all other states' constitutional guarantees of the citizens' right to keep and bear arms.
     
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  7. Shanvanvocht

    Shanvanvocht Member

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    If you think New York gun laws are draconian, you should take a look at New Jersey. The fact is that a ruling in favor of plaintiff in this case is likely to have an effect on a number of other states with similar statutes (NJ, MA,DE,et al)
     
  8. old lady new shooter

    old lady new shooter Member

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    ? Under "shall issue", NO reason is required, only that the applicant be of age and not be disqualified by reason of criminal history etc.
     
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  9. Telekinesis

    Telekinesis Member

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    Yep, you’re right. I was thinking “may issue” and typed “shall issue”. Thanks for the catch
     
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  10. wiscoaster

    wiscoaster Member

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    I think there's been so much hype and expectations from both sides that I think the Court narrowed the question specifically so that whatever the result might be it's not going to be seen as a sweeping decision that either side can take to declare a definitive victory and preempting all state laws.
     
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  11. 1942bull
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    1942bull Contributing Member

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    Exactly. Good observation. SCOTUS is being criticized by left and right so it is looking for middle ground.
     
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  12. old lady new shooter

    old lady new shooter Member

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    I hope the revised language doesn't mean they're only going to consider whether the specific plaintiffs' 2A right was denied.
     
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  13. GEM

    GEM Moderator Emeritus

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    I think (so what!) that the outcome will be to take the 'reason' out of the NYS permit process and that's it. It may be a precedent for other states that are may issue on similar grounds. One point against NYS argument is that 65% of permits are unrestricted (meaning concealed carry) and that argues that counties that typically deny such permits will be seen as discriminatory.

    I don't expect open carry or constitutional carry being mandated across the land given the tightening of the case.

    NYS becoming concealed shall issue and other states also (CA) is a very good thing and we shouldn't complain if that's it.
     
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  14. old lady new shooter

    old lady new shooter Member

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    Agree.
     
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  15. D.B. Cooper

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    deleted
     
  16. geekWithA.45

    geekWithA.45 Moderator Emeritus

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    The reframing of the question is of some concern, but my parsing of the thing indicates it can go either way.

    The issue is muddy, because Heller imports "longstanding" infringements, and when the history of infringements is recited, you see that the vast majority of them have been done by States, which are also purported to carry some "police power" to keep the people in line. In the original, pre 14th amendment framing, the states could pretty much do whatever the heck they wanted...including enslaving humans...and the states did pretty much whatever the heck they wanted regarding "regulation" of firearms.

    Now that we have a finding that the 2nd is "incorporated" to the States, the conflict between historical state infringements and the restraint that was originally held against federal power is brought to bear.
     
  17. Aim1

    Aim1 Member

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    So, basically they will rule that it must be "shall issue" and this will affect 6 or so states?
     
  18. GEM

    GEM Moderator Emeritus

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    That's the question. That would be a good result but not an absolutist victory. The next big case, as pointed out in many places, would be the elimination of weapons type and magazine bans.

    Looking at some of the questioning, the anti judges come up with blood in the streets but countered by the examples of the 43 shall issue states. Another point is 'sensitive spots'.
     
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  19. Aim1

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    Sadly they passed over so-called assault weapons and high capacity magazines cases so who knows if anything else will pop up in the near future.
     
  20. wiscoaster

    wiscoaster Member

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    I think that this case at least will give some sense, however narrowly applied, of the current Court's thoughts about and approaches toward Second Amendment rights, and so some direction for the best approach future applicants should take. I'm hoping that Justice Thomas will be the one to write the Court's deciding opinion. Though a man of few words, when he does write, he does so with conviction and clarity, leaving little room for court-watchers to spin in one direction or the other.
     
  21. danez71

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    The evolutionary step would be to eliminate the CC permit fee for those states, such as CA, that are now cross referencing lists and seizing guns from those that are disqualified from owning.
     
  22. GEM

    GEM Moderator Emeritus

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    So the lists are used to take guns from those prohibited by current law? I don't arguing that not enforcing prohibitions is going to be seen as a positive step in general. Given the rampages conducted by folks who should have been prohibited by NICS but got guns from screw ups will negate that argument.
     
  23. 1942bull
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    1942bull Contributing Member

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    I listened to the oral arguments today. Sine then I have been reading the few online opinion articles about the eventual outcome. Most of the online opinion is that the NY Law will be struck down in whole or in part by at a 5 or 6 justice majority. There will be more opinions by tomorrow, and I will reading them. NY argued that it law was necessary to protect people in densely populated areas of the state. One if the Justices asked about the logic of that because the most densely populated areas were where the areas of greatest dander to people out in public. Thomas, Alito, Kavanaugh, and Coney Barrett were hard on NY. The three liberal were in support of NY. Roberts did not show his hand. The decision will come by the end of June.
     
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  24. unclenunzie
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    unclenunzie Contributing Member

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    I agree - but what is intellectually dishonest about the 65% argument is never stating how many applications are submitted. So far as I know, the number must be vanishingly small because anyone considering a license in NYS knows they are likely to be denied, at least in the highest population centers. So few actually do submit. Same story in NJ. Why go through the process, expense, and time, knowing it's pointless...
     
  25. daverich4

    daverich4 Member

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    The author of the article appears to think the change that was made might limit the ruling to the two litigants and not to everyone. If that turns out to be true, the “right of their people” doesn’t have any bearing on the case. I have no idea, I’m just quoting the author of the article.

    “Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York.”
     
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