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Don’t Expect Miracles

I’m seeing a lot of gun owners out there having unrealistic expectations about what this case will accomplish. I don’t think you’re seeing the beginning of the end for Second Amendment litigation. But maybe the end of the beginning, if we’re lucky. As I wrote on Zuck’s Facebook of Horrors:

Kennedy retires and now you have Kavanaugh, who penned that very strong Heller II dissent as a circuit judge. Now instead of having two Weeble Wobbles on the Court, you have one. You also know that your remaining wobbler is a judicial minimalist who doesn’t agree with upsetting legislative apple carts needlessly. This is, I’d note, not even considering what the other justices might know about RBG’s actual condition.

So why not use this case if you’re the four strong pro-2A judges? If you need to, you can narrow it up quite a bit to keep Roberts on board. You can please his inner minimalist. It only affects a few hundred legal gun owners in NYC, after all. But if Roberts is feeling frisky, you can use it to say a lot about the right to bear arms outside the home. You can use it to smack down the 2nd Circuit, which has pretended Heller and McDonald never happened. You can go a lot of places. And if RBG leaves the court for health reasons? It’s a different ball game. I think this case makes a lot of sense, and I’m optimistic.

The fact that it’s an outlier law that exists in literally no other jurisdiction can help Kavanaugh build on this “history and tradition” model because this law is so far removed from that. It’s about as far removed from that as you can get. I think Roberts would also like moving away from standards of review. I think I’ve read some writings of his critical of “levels of scrutiny” that’s been adopted in the First Amendment context and abused by the lower courts in the 2nd Amendment context.

At best, you’ll get a ruling with a lot of helpful dicta that will make the lower courts start taking the Second Amendment more seriously than they have been. This case won’t fix everything having to do with carry. That will take more time and probably more cases. There’s also the possibility that Roberts will insist on keeping the case narrow, and we won’t get much in the way of helpful dicta.

I view this case as testing the waters: the pro-gun justices, believing or perhaps knowing they have a majority, now want to see how a Second Amendment case shakes out, and do it with a case that isn’t high stakes and has a lot of flexibility.

I serve on a decision making body roughly the size of SCOTUS, and I can tell you where my fellow directors stand on things, and can even usually predict where they’ll fall on new issues. And I talk to them all the time. But you never know once you get a discussion going in a meeting where things will actually go. When the stakes are high, you proceed cautiously, even if you’re pretty sure you have the votes on an issue going in.

18 Responses to “Don’t Expect Miracles”

  1. Archer says:

    “This case won’t fix everything having to do with carry.”

    No, it won’t. I’ve seen it described as touching “the right to carry a firearm in New York City”, but it doesn’t. Not in any practical (or practicable) sense.

    “Carry” has a very specific meaning and context in the gun-owning community: the act of keeping a ready-to-use firearm on or near one’s person.

    The plaintiffs in this case don’t have a license to carry a firearm; they have “premises” licenses, which “allow” them to keep a firearm in their homes and transport it — unloaded, locked, and stored separate from ammunition — to six or seven (reports vary) licensed shooting ranges within the city, and back home. The home and those licensed ranges are the ONLY allowed destinations under the city law.

    The legal question is (paraphrased): Is it Constitutionally-valid to allow transport of unloaded and locked firearms ONLY between the home and those six/seven licensed ranges, thereby effectively outlawing transport to/from locations (shooting ranges, second homes, gunsmiths, etc.) OUTSIDE the city?

    (My follow-up would be: Is there an exception in the law that “allows” someone to transport an unloaded, locked firearm from the place of purchase to their home? If not, we have a similar issue any time someone purchases a firearm; it’s illegal to take possession in the store and transport it home.)

    This is not a “carry” case; it’s a “transport/travel” case.

    A “carry” case is much shakier (given Roberts’ wobbling) and risks much more of the core 2A right. This is a very narrow, safe case. Although the purist in me wishes for something bigger, I approve of the baby step for gun rights. More importantly, I approve of the HUGE step in getting SCOTUS to hear a 2A case in the first place.

  2. Ian Argent says:

    I happened to have read the Slate handwaving freakoutery about this case. It’s ostensibly about transport, but the train that the NYPD has given to keep this so locked down is that “people who are carrying claim they’re transporting, And We Can’t Have That.”

    And this may not *exactly* be analogous to NJ’s transportation laws, but the difference between them is about a dime and a half.

    This will be a very narrow decision, and I’m betting on the decision saying “this fails any level of scrutiny.”

    (But I won’t rule out being pleasantly surprised)

  3. Brad says:

    I think it is highly likely we see SCOTUS decide something important about either the ‘standard of review’ or the ‘outside the home’ issues. That’s big. Really big.

    And we will know the outcome no later than June 2020. What an election year, eh? With this SCOTUS decision adding fuel to the fire!

  4. Ian Argent says:

    Tea leaf reading time:

    Roberts has lost control of the cert granting on the 2A work the appointment of Kavanaugh. He has been made to fish or cut bait.

  5. Patrick Henry, the 2nd says:

    I thought the same as you when I read this was adopting. It can be made a narrow case, but one that can have potentially far reaching interactions.

    I’m hopeful that they can reinforce the level of standard. I think that’s a best case scenario for this. Next best case is they be very specific and strike down this law because its so far outside the boundary’s, but leave no tea leaves for overarching rulings. Worst case is they allow it, because reasons. s

  6. Yes, during Heller oral arguments Roberts pointed out that the standards of scrutiny are judge made and have no basis in law.

  7. dwb says:

    I think Caetano was testing the waters.

    I think that the sleeper in this case is the impact on licensing. Lots of states have very high requirements for permits to purchase and/or possess. In my mind this puts the whole idea of a premises/purchase/possession permit under scrutiny.

    I think its untrue that this will affect a few hundred people only in NYC. I think it will also implicate restrictions in NJ. If it impacts licensing, also MD, CA, and a number of other states.

    • Sebastian says:

      The question before the court in this case is narrow. They might offer a lot of dicta that will eventually be useful in new cases. But they might not either. Either way, this case is only going to fix things for a few hundred people in New York. If they prevail, it will take further lawsuits to bring challenges to other laws in other jurisdictions. But if we get a lot of strong guidance from SCOTUS, that could end up being a lot more straight forward and predictable than it is now.

      • dwb says:

        Strictly speaking, the Caetano case was only about one person in MA – and Caetano did not even say stun guns were protected, Caetano per curiam simply rejected the arguments of the lower court and said “try again.” Most perceive Caetano to say stun guns are protected, yet in point of fact the per curiam said no such thing. Alito said a lot of things in the concurrence, all dicta.

        After, some states, counties, and cities simply said that they would no longer enforce the ban. A few made noises about licensing them but never followed up. And a few municipalities fought and lost (and paid fees, which are like taxpayer funded contributions to gun rights lawyers). NY might still be in litigation.

        In short, even a minimalist opinion that directly affects one person or a few hundred people goes a very very long way.

        I should add that I am expecting the supreme unbridled arrogance of the NYC AG to completely screw this up for gun grabbers everywhere.

  8. Richard says:

    I think this is right. Probably a narrow but positive decision given Roberts. But who knows, we could get lucky and get something on travel or standards of review. Given the specifics, I think it is unlikely we get really unlucky. You have to wonder about the impact of Ginsberg disappearing before it actually gets to the Supremes.

  9. beatbox says:

    Could it help on scrutiny? I understand the levels of scrutiny but not how it is determined. Why doesn’t Scotus just say, “Thou shalt use Strict Scrutiny.”

    • Ian Argent says:

      Because judges are politicians too; and not everything is a stark black-and-white issue, there are always shades of grey. If there weren’t, we wouldn’t need judges and juries.

    • Ian Argent says:

      That having been said, it’s a possibility that this case will clean up the scrutiny level, but recall that Heller was decided on the grounds that the DC law failed any level of scrutiny. This decision could punt as well, but Thomas, at least, seems to be pretty spun up about letting the lower courts Do Their Own Thing

    • Standards of scrutiny are judge made law to allow them to strike down laws they do not like and allow laws they do like. It is all BS and I hope Roberts reminder about that in oral arguments will lead to reining in this BS.

      • Patrick Henry, the 2nd says:

        You hit the nail on the head. They have their desired outcome and they pick a scrutiny that fits it. It’s transparent.

  10. Ian Argent says:

    https://www.nraila.org/articles/20190128/nra-applauds-attorneys-general-amicus-brief-on-nj-permit-case

    I apparently missed where the 3rd circuit kicked this upstairs. This is up for cert?

    Aaaaaaaaaaa.

  11. Joe R. says:

    If we can just stick to the single most important 2nd Amendment Argument, the SCOTUS, and all lower Courts will not be able to avoid the simple logic (with a straight face).

    It is thus:

    1)The Constitution (and we are on our 3rd one if you’re paying attention [Articles of Confederation, The Constitution, The Bill of Rights Amendments {up to #3}]) is only there to attempt to briefly describe how we will all get what we want of/by/for/ and from/ each other under the U.S. DECLARATION OF INDEPENDENCE (you know, the thing where we all say we have “Rights”, like to life, liberty, and the pursuit of happiness [THE ONLY TIME THE CONSTITUTION MENTIONS A “RIGHT” IS IN ARTICLE 8 with respect to intellectual property, the “Bill of Rights” cites “Rights” but it is the Declaration of Independence that says that RIGHTS ARE unalienable and that they come from our GOD]). If the Constitution doesn’t get the job done [getting what we demand under the Declaration] we can amend or chuck The Constitution.
    2) The Declaration cannot be repealed, amended, nor re-written. We can write a new one, but that will cost a good many people their pelts.
    The Declaration hints 1x in the 1st Paragraph, and states no less than 2 x in the flesh language of the 2nd Paragraph, that should a bona fide citizen see fit, they should chuck the government and install new guards for their security [The ENTIRETY of the Declaration of Independence is about chucking the government].
    3) Therefore, the 2nd Amendment requires PARITY of arms with our government, as our Founders / Framers couldn’t have meant for a citizen who decided it was necessary to chuck their government to have to ask for permission from that government for the means, NOR THE PERMISSION TO OBTAIN THE MEANS, to do so.

    4) AT LEAST! PARITY of arms, with our government, and it’s not our fault what that parity entails. ESPECIALLY in the manner in which we possess them, which should have notably less limitations than that imposed on our government’s possession of them. And it is immediately evident to anyone that the government is not limited to “type”, nor to its possession of such weapons only in its “home”.

    #NaCL – all who are in contention to that.

  12. Carl from Chicago says:

    Thanks for everyone’s thoughts on this. I find it highly unlikely that the court will base any decision on “Joe R’s” concept of parity of arms. But I also think it unlikely that a ruling will focus narrowly and only on the right to transport unloaded/inaccessible arms.

    It seems to me one of the outstanding constitutional questions is simply this … the right to arms entails keeping (see Heller) and the right to arms entails bearing (see some future decision). I am reasonably optimistic that the court will finally rule that the right to bear arms means the right to carry arms at the ready, for the core purpose of defense. There is voluminous evidence that this right is rooted in the nation’s history and tradition. The fact that arms carriage is more or less mainstream now with the widespread acceptance of concealed carry laws bodes well to a contemporary interpretation of the right to bear arms. This “right to bear” as may be articulated by the court almost certainly will remain open to states to regulate (permitting, mandated training, background checks, sensitive places prohibitions, and the like), but I think the days of states being allowed to flatly prohibit otherwise law abiding citizens from generally carrying arms … those days are numbered.

    About damned time. Unless NYC simply repeals that transport prohibition to moot the case, and we will have to wait for another vehicle.

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