The panic has officially set in regarding New York State Rifle & Pistol Association v. City of New York. A number of observers on the anti-gun side have written articles warning of the effects of a ruling that not only strikes down the city’s prohibition on transporting a handgun anywhere other than a shooting range inside city limits, but also imposes strict scrutiny on gun control laws.
The city asked the Court to delay the case because they might change the law. That, however, didn’t cut any ice with the Justices who ruled that the case will go forward.
Now the New York Times says the city’s in the process of actually changing the law in order to render the case before the Court moot. But as our own LKB has noted, the Justices probably will see through such a transparent attempt to sidestep an adverse ruling. Exceptions to the mootness clause would let them hear the case anyway, should they so choose.
The city, however, isn’t leaving all of its gun control eggs in one legal basket. They like the way their law works to restrict gun owners and they’ve asked the state of New York to enact a new law that would allow it to maintain the same level of restriction on transporting a handgun even if they’re forced to ease or repeal the city law.
Gun Politics New York notes:
Legislators know they are likely to lose the NYC transport lawsuit so they have prepared a response in the form of A-7752/S-6151.
As the Senate version states:
Premise licenses for firearms in New York State allow a license holder to possess a firearm in a specific location, either their home or place of work, the address of which is specified on the license. Recognizing that premise license holders may have a legitimate reason to transport their firearms to another location, either another premise where they have a license to possess a firearm, a shooting range, or a shooting competition, this bill seeks to clarify the ability of premise license holders to transport their firearms to and from locations where they may legally possess such firearm. In order to ensure that any transportation of firearms that occurs is done safely and responsibly, this bill requires that, during transport, such firearms must be kept in a locked container separate from the ammunition.
The bill (read the specific language in the assembly version) would maintain premise-specific gun licensing. So if you’re a NYC resident and have a permit (against all odds) to own a handgun at your Upper West Side address, you’d also have to have a separate permit for your home on Long Island to legally transport the gun from one address to the other.
And if you live outside the city, you’d need written permission from the New York City police commissioner to bring your handgun into the city legally (good luck wit dat).
Look for these bill to sail through the New York legislature and be eagerly signed by Governor Soprano.
What will it mean if/when it becomes law? This will allow the city to eat their gun-controlling cake and have it too. They’ll be able to change or even repeal the current city law in an effort to render the SCOTUS case moot. The new state law then would, for all intents and purposes, maintain the current state of affairs in Gotham.
Even if the Supreme Court lets the current case go forward and rules against the city, the state law would let the city keep the current status quo. Gun rights advocates would have to (and no doubt would) file a new lawsuit against the state over the new law. And that would take years.
Of course, if the Court rules against the city and applies strict scrutiny, that would provide the basis to challenge gun control laws around the nation. But the minority justices would, of course, dissent, claiming that the case never should have been heard because the city’s repeal of the law rendered it moot.
How much of this will actually come to pass is anyone’s guess. But the Civilian Disarmament Industrial Complex isn’t taking any chances and they’re not going down without a fight.
Jesus, this is like a boring, bureaucratic legal version of that fistfight in They Live…
Put on the glasses, NYC!
Have you ever seen the side-by-side on Youtube comparing the South Park Cripple Fight to his fight? Genius.
“This will allow the city to eat their gun-controlling cake and have it too.”
Need that strict scrutiny decision on something. This is like gassing roaches in a row of town houses. If you don’t tent and gas the whole row, the roaches will keep moving from one house to another and back.
You know it, I know it, NYC knows it, Bloomberg knows it, the DNC knows it, SCOTUS knows it…why do you think it keeps not happening?
At this point I mostly expect the ruling to be ignored & unenforced almost entirely, even if by some miracle it does work out to be favorable to us. Ignoring Heller & twisting it into a tortured endorsement of AWBS has had no consequences for the gun banners, after all; why not keep doing that?
Heller already clearly stated strict scrutiny was warranted in RKBA cases; the response from banners was to simply say that whatever they wanted to ban wasn’t covered by RKBA, mooting the entire premise in a dishonest fashion.
Actually, Heller didn’t say that, and that is a part of the problem. It declined to specify a standard of review, merely concluding that the challenged ordinance failed any standard of review. The only thing it specifically rejected was a sliding scale analysis–which is exactly what the liberal courts are applying without saying so.
Much talk about the NYSR&PA case has prompted much speculation about SCOTUS declaring a strict scrutiny standard. Initially, I felt that such a goal was premature; now, I’m shifting in my opinion.
District and Circuit Courts have thumbed their noses at Heller & McDonald using a watered-down intermediate scrutiny standard. I think SCOTUS expects the lower courts to use their intellectual power to contribute to the development of 2A jurisprudence. But the lower courts are dragging their feet. Judges seem to be relying on SCOTUS refusing to grant cert to 2A cases; thereby, leaving them free to do whatever they like in any case not involving the precise facts prevailing in Heller and McDonald. While the Justices are away the Judges will play.
NYC’s premises license transport law is the most egregious instance of lower courts refusing to find an appropriate level of scrutiny; passing the buck up to SCOTUS. Consequently, NYSR&PA is the perfect vehicle to discipline the lower courts.
SCOTUS could simply declare strict scrutiny for 2A cases. Or, they could do almost as well by scolding the lower courts for using a watered-down intermediate scrutiny standard. I wonder if SCOTUS might REFRAIN from declaring any level of heightened scrutiny. However, their discussion would make it clear that “rational basis test” is clearly out because in Heller they said that the DC law wouldn’t pass “any” level of scrutiny. So, one level of scrutiny down; two to go.
Then, SCOTUS could criticise the practice of watered-down intermediate scrutiny for 2A cases. Any lower court that tries this tactic again will likely see a fast-track to cert whereupon SCOTUS could promptly reverse unanimously as they did in the Caetano 2A case. If any Circuit court fails to keep its respective District courts in line, SCOTUS could threaten to use the rebellion to impose strict scrutiny in that case.
No Circuit court would wish to be the game-player which triggered the declaration of strict scrutiny for the 2A. In such a scenario, the Circuit courts would take great care to show that their analysis carefully and rigorously applied intermediate scrutiny. If such were to happen, it would be a serious step forward (albeit still short of strict scrutiny). We might then linger for a number of years with laws being struck down at the Circuit level for failing to meet intermediate scrutiny.
Eventually, a case would arise where a Circuit court upholds a gun-control (or some other arms-control) law on a standard of intermediate scrutiny. And, SCOTUS could conclude that it jumped through all the hoops appropriate to an intermediate scrutiny standard. Nevertheless, SCOTUS could still conclude that intermediate scrutiny is NOT appropriate to the facts and the 2A status as a fundamental right.
Such a process could allow SCOTUS to enforce strictER scrutiny in 2A cases merely deferring to some future case a formal declaration of STRICT scrutiny. What we should hope and plan for is slow and steady progress in 2A cases with ABSOLUTELY NO set-back along the way.
The process of reaching a SCOTUS decision is one of negotiations among the 9 justices. Just how far can the authoring justice go without losing the 5:4 majority? If the author pushes too far he risks turning a 5:4 win into a 4:5 loss. Heller and McDonald were miraculous 5:4 wins that hung by the thread of Kennedy’s swing vote. Caetano was a 9:0 home-run. We need more Caetanos but we can settle for 8:1 or 7:2 or 6:3 wins. We dare not push for a bridge-too-far where the best case scenario is that we don’t get cert. The worst-case scenario is that we get a 4:5 loss and set-back the course of progress by a decade or more.
Really like your analysis, but….
Where is the discipline mechanism that is required to enforce SC judgments? It was severely lacking in preventing lower courts from ruling as they wish after Heller-Mac.
On the one hand, I’m grateful for the 2nd amendment advocates who are fighting in the “justice” system.
On the other hand, I’m baffled by it. Even if the courts were friendly to the right to keep and bear arms, legislatures can pass laws with great rapidity. Courts take years per decision, and that decision is always very narrow.
However, the court system is extremely hostile to gun rights. Therefore, I don’t see the court system helping us, much less being our saviors, regardless of how many “conservative” judges are appointed by Republicans or whatever. History so far proves me correct.
This is a cultural battle. The truth is no defense. And we are slowly losing, as the cancer from California and New York and Illinois spreads to the whole body.
The oath of office clearly doesn’t mean anything to today’s politicians. Politicians who could care less about their oath of office can pass unconstitutional laws in a matter of days, but they take years and millions of private dollars to overturn through the legal system. This is a losing scenario for the constitution.
A real penalty for politicians who clearly violate their oath of office is needed. Perhaps voting for a law that violates the constitution and gets struck down by the courts ends your career as a politician. Permanently. Writing/sponsoring/signing a law that violates the constitution results in either jail time or personal liability for court expenses. Maybe both.
There already are: 18 USC 241 and 18 USC 242
18 USC 242 appears to be more an object of humor than a useful prohibition on citizen abuse.
From 1986 to 2003, federal prosecutors have declined to prosecute 42,641 of 43,331 referrals. Of the 690 tried, 423 were convicted, 267 freed. Better chance of getting convicted of pirating on the high seas.
Some of us think it *just might* be a ruse by certain rights organizations to simultaneously distract gun-voter scrutiny from certain politicians & parties who have betrayed us for decades, and drastically curtail their expectations as far as results at the federal level. The game almost never ends in litigation, so we can be strung along indefinitely, even as we steadily lose ground decade over decade, in the gambling-addict-like hope that we’ll hit a hot streak just in the nick of time and win everything back. Meanwhile we continue funding the organization’s efforts and the handful of people involved in the actual case (along with many, many others that aren’t). Whereas an objective examination would show that the decades-long losing streak indicates a poor strategy that must be changed.
Maybe I’m just impatient.
Yup, it’s a trap. Place all faith in the slowest-to-change, least directly accountable branch of gov’t, that’s been uniformly hostile to us since 1877. Trumps 4D chess. Got to keep voting R for payoff. Even if this NYC thing goes as pro-gun as it can it’ll take 10 years to see if strict scrutiny means anything w/r/t gun rights, which it may not having been invented by the courts and crummily worded. Meanwile the other two branches get to be as repulsive as they like on issues they really care about. Oh yeah, and a bunch of money will have to be thrown at lawyers and the courts. The bait isn’t even that good but most gun people are losers who’ll take anything and don’t care.
There will be no repercussions ever, since gun people don’t have long enough attention spans to know they’ve been tools, or the character to admit it instead of blaming libruls. What are we going to do, vote some other way? Of course not. Rather we are all too happy to be partisan groupies for whatever reasons other than expanded recognition of gun rights, such as fear of being forced to bake a gay cake, or of having to flip throught too many Spanish language channels between NASCAR and Honey Boo Boo.
NYC, proving who needs the Constitution one bill at a time.
Let’s hope the SCOTUS gets that strict scrutiny ruling out there soon (regardless of which case they do it with).
If a Republican holds the White House after a strict scrutiny ruling, we may be able to get the Justice Department to go after states that try what New York is trying right now.
Strict scrutiny will eventually (likely after 10 years of further litigation) result in Constitutional carry (or, at minimum, shall issue) everywhere.
Mad Max,
This is my thought as well. The Justice Department must prosecute anyone involved with the New York State legislature who advances such a law — and the Justice Department would be prosecuting them for Deprivation of rights under color of law as well as the conspiracy counterpart to that law.
For one, legislators are state actors, who are immune under the 11th Amendment from federal civil rights laws. Second, legislators are specifically immunized under state laws with respect to their legislative activities. So you can be certain that the DOJ is not going to be going after any state legislators.
And that is exactly why they should not have immunity. If they write, sponsor, or vote for a law that is unconstitutional or attempt to circumvent any such then they must immediately be called to account. if the courts wont do it then those who love liberty must and if the courts wont do it then the people must also make an example of those in the courts who wont do justice for the people in the name of true justice and liberty.
“And that is exactly why they should not have immunity.”
If all politics were of the highest integrity and honor….but….
Imagine the thousands of law suits that would issue, over the smallest of matters, were politicians vulnerable for litigation over doing their designated function. Constitutionality of legislation is established in court…after the legislation is turned into law. The determination standards for making such rulings is quite imprecise, and can take decades to arrive at a decree. The “fix” for bad legislators is to turn them out of office. If the nation is bent on ruling itself with bad legislators/representatives, so it shall be.
@Mad Max: “(or, at minimum, shall issue)” That is the realistic objective for my lifetime.
All we really need is for SCOTUS to strike-down “May-Issue” based on any ground that is not objective. “Need” is clearly not objective. Having been convicted of a felony or certain misdemeanors is objective.
Shall-Issue except for objective prohibiting criteria would give the states a lot of rope. Plenty enough to hang themselves. In every hoplophobic jurisdiction plenty of gun owners will leap the barriers no matter how high. Thereupon, the voters in such jurisdiction will eventually face-up to the fact that there really ARE plenty of ordinary citizens carrying guns yet there is no more blood in the streets.
That realization will cause a shift in focus to baring the poor from access to a civil right. And, SCOTUS will start to crack-down on the least rational barriers. Long wait times, high fees, onerous tests and qualifications. The barriers will begin to weaken – but not crumble.
Eventually, pressure will mount for a new run at National Reciprocity. Congress has already granted N-R to cops and armored-car drivers. It could easily extend the N-R exemption to commercial interstate truck drivers. Then, interstate traveling salesmen. At some point, SCOTUS could impose N-R.
Suppose there are 3 large classes: cops; armored-car drivers; interstate truck drivers who enjoy N-R by Congressional act. Now, where is the equal-protection-under-the-law? Can Congress really create special exemptions from state laws applicable only to a few classes of “minor nobility”? Or, to withstand Constitutional scrutiny, would the “rights, privileges and immunities” of citizenship have to be extended to all members of the general class “the People”?
It might be that NY/NJ/MD/CA/HI would still require their residents to dance while singing in order to qualify for a Resident CWP; however, visitors from sister states would carry on their home-state permits. At such a point there would be some “race to a median” standard of qualifications for home-state CWPs.
Realistically, once SCOTUS dictates the first version of “Shall-Issue” the fight will shift to Gun-Free Zones. How will NY/NJ/MD/CA/HI make it impractical for CWP holders to actually carry their guns? Will they force shop-keepers to post GFZ signs? How will Congress or SCOTUS crack-down on such abuses?
Caetano case was not 9 -0 the court only had 8 justices with the passing of Scalia. It was signed by 4 justices as an instruction to the lower court to rehear the case with the prohibition against carriage and possession of tasers removed. RKBA covers wearable and bearable even if the founders could not have invisioned the armament……
This reminds of Soviet BS, a way of screwing people It is also one of the dumbest laws I’ve ever heard of. We don’t like the idea of you having guns BUT we insist that you keep them in New York? And do not become proficient with them so if you have to shoot somebody trying to rape your wife in your house you might miss and kill your neighbor. That’s before we get into “infringement”.
But wouldn’t a state law then also apply to ALL New York State residents, not just those in NYC? Otherwise, it would violate the equal-protection clause in the Constitution. But then, who in New York government cares about the Constitution?
“But wouldn’t a state law then also apply to ALL New York State residents, not just those in NYC?”
Under Article IX of the New York State Constitution, New York City has “home rule,” so many State powers have been decentralized with the City becoming a sovereign. City laws do not apply to the State, but a State law may or may not apply to the City, depending on whether the law involves a power reserved to the State or the City.
Got it? No? Well, you’re not alone. Whether an area of law has been reserved to the State or delegated to the City has been the subject of constant argument between the City and the State. It’s a mess.
As to the “equal protection clause,” it has no bearing whatsoever. Different sovereigns can have different laws. Which is why some states have daytime speed limits and others don’t.
Let me ask a different question: does NYS law issue “premises” permits like those in NYC? Or are they only “ownership” licenses? The proposed statute seems to presuppose that the state issues the former, not the latter. Which raises a related question as to whether a state law can restrict the safe harbor guaranteed by FOPA.
I live in upstate, and I’ve never heard of anyone being given a permit with a “premises only” restriction. The only thing comparable is some people are given permits with a “hunting/target” restriction applied, meaning they can have the gun at home, and can freely transport it to the range or use it to hunt, but cannot carry it concealed for self defense. Oftentimes, people who are issued these permits are urged to reapply a few years after the issuance and often the restrictions are lifted and the person will be allowed to carry concealed. Unfortunately, this can be arbitrary, as NY is “may issue”. That said, permits in upstate are actually extremely common. Things are bad here, but not nearly as bad as NYC.
Our only hope is that Thomas & Co. see this for the naked disrespect to our constitution that it is and hits them where it hurts, by ruling for strict scrutiny.
Stateisevil (above) hit the nail on the head : “Even if the courts were friendly to the right to keep and bear arms, legislatures can pass laws with great rapidity. Courts take years per decision, and that decision is always very narrow.” Word.
They are *never* going to give up. They are gonna legally nickle & dime the 2A for all it’s worth. (And to a Leftist, it’s worth a *lot*.) Leftist courts will be sympathetic to them by providing convenient ‘excuses’ like – “Due to the unusual danger guns present,…”
So, what the hell do we do? What legal relief could SCOTUS provide us?
This ploy guarantees that the Court will decide the case since the City has shown they aren’t acting in good faith.
The Court doesn’t even need to find bad faith. As long as an actor (state, private party, etc.) retains the ability to do the challenged deed, the case need not be considered moot even if the conduct has been voluntarily terminated. There are several SCOTUS cases to that effect.
+1
The SCOTUS knows all too well they can turn a law back on. They created standing when they signed this law up and it impacted people. The court will rule to prevent other from doing the same.
You make it sound as if the court is a neutral and objective arbitrator who will decide based on such things. They aren’t. The justices will make their decision and then find support for their arguments.
“What legal relief could SCOTUS provide us?”
Declare 2A absolute.
Every gun law, in every instance must now be litigated and sent to the SC. The anti-gunners cannot “win” the political battle directly, so the effective alternative is to exhaust the opposition, leading to capitulation. Regardless of “strict scrutiny”, lower courts proved they can ignore the SC with impunity. Heller-Mac is the instructive case. Did anyone notice wholesale changes to gun laws to comply with the SC ruling? Expect the same level of compliance when the NYC case is decided against NYC.
Sam I Am,
Just this morning I thought about how 5.56 x 45mm NATO ammunition is much less able to kill an enemy solder than “big boy” calibers such as .30-06 Springfield. And then an interesting thought occurred to me. A firearm/caliber combination doesn’t have to be incredibly effective at killing at all. Rather, all it has to do is be unpleasant enough to convince the enemy to stop fighting. And in that regard, 5.56 x 45mm NATO is probably as good as any other caliber.
In other words I came to the same conclusion with different words: all you have to do to win is exhaust the other side into capitulation.
Yeah, what I’ve been preaching for decades… The long game favors tyranny.
“all you have to do to win is exhaust the other side into capitulation.”
A generation will most often exhaust before a government because governments tend to last many generations. Acceptance of the tyranny (normalization) affects subsequent generations. The tyranny increases incrementally. Normalization happens. Rinse and repeat. That’s how we find ourselves in this position today.
If tyranny increases too rapidly, there is push-back. (The boiling frog jumps.) If it doesn’t, normalization occurs. (The boiling frog continues to boil). The only way to combat it is in a generation. (The frog jumps.)
@Sam: “Every gun law, in every instance must now be litigated and sent to the SC. ” That ain’t the way it works; and, it can’t be made to work that way.
SCOTUS takes only 2% or so of the cases appealed to it. We can’t imagine that 2A cases will consume half of the SCOTUS docket.
We have to understand how the system works; and, then, make it work for us. The court system in the US is very hierarchical. There is a hierarchy in each state; and, then, a hierarchy in the Federal system. Ambitious judges don’t want their decisions over-ruled by a higher court; so, they have to be respectful of precedent in the higher appellate courts above them. A judge at a low-level court with no ambition to be considered for a higher appointment can buck his superior courts. A judge on an appellate court probably has some sense of ambition unless he is too old or has already screwed his chances for a higher appointment.
Trump is appointing judges to fill vacancies in the Circuit courts. If given another 4 years he will have enough judges at the Circuit level to make it difficult for 2A cases to systematically go against us. SCOTUS will likely make it increasingly difficult for Circuit judges to thumb their noses at controlling precedent.
We need cases that are win-able because they are clear-cut, narrow, and have favorable optics. Why did a homeless mother in Massachusetts – one Jamie Caetano – get cert in her 2A appeal? Why did she get a UNANIMOUS FAVORABLE ruling out of SCOTUS? Why did SCOTUS not request briefs or oral arguments? Why did they dispose of her case in an opinion that didn’t use all of 2 sheets of paper? Why was the opinion of her case so scorching of the Massachusetts’ Supreme Court’s reasoning? Once we PotG figure out the answers to these questions we will have found the greased-road to the Supreme Court in DC.
Similarly, why did SCOTUS grant cert in NYSR&PC? Why is the decision in this case a foregone conclusion from both sides of the debate?
For whatever reason, SC has refused a massive, blanket statement that 2A is valid and enforceable on its face. Such a statement is the only way to short-circuit all the Lilliputian jurisdictions that tie down 2A. The gun grabbers will continue to pass legislation that defies any SC ruling, requiring an inexhaustible capability to challenge each and every regulation. And even that will not be enough….even if it works. Regardless of the case, venue, locality, anti-gun interference will just ignore the law and normalize, “we can’t let the law get in the way of doing the right thing.
We are amidst the era of lawlessness, as in ignore what you don’t like and force “the system” to block you at every turn.
Hopefully the court will get as tired NY playing Whack-a-mole with the law as much as we are.
I think you have that backward. N”YC is the mole, and the freedom fighters have to keep wacking it.
This is why I no longer hunt in new York despite having several private tracts of land stuffed with deer. I gave it up after Sandy hook and the unSAFE act went into law.
Saves me hundreds of dollars and I hunt close to home now. At some point I’ll get my family the hell out of new york and that will be done.
I have never been one to think it’s a good idea to put them up against a wall but I’m starting to think it’s a good idea to put them up against a wall.
But trees and ropes are soooooo much better. Ghastly misdeeds call for ghastly punishments.
I think the French had it right. Guillotines are cheap, intimidating, and leave a nice souvenir to impale on the capitol gates as a warning to other wannabe tyrants.
You bring to mind a remark attributed to one Uncle Joe Stalin who, when queried about why certain folks were on an execution list instead of going to jail, said, “For some people, four walls are three too many.” Just so.
Violation of constitutional rights, whether via local ordinance, spelled city law, or action of the state legislature is and remains what it is, violation of constitutional rights. As such, it deserves a place in the garbage can, the place where legal trash belongs. It should be so directed, ASAP.
Where is Commissioner Reagan when you need him?
What are Patriots supposed to do to Tyrants?
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