TTAG Weekly Gun Law Roundup: Slippery NYC, The Ninth Again and a Colorado Sale

Friday weekly gun law roundup

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New York City Tries to Dirty Delete in Supreme Court Case

We’ve been watching New York State Rifle & Pistol Association v. NYC for a while now, the first Second Amendment case to be accepted by the Supreme Court in a long time. It was finally time, it seemed, for the Court to rein in the wild and unpredictable treatment Second Amendment cases were receiving in the various federal courts, and set the record straight.

Some things, though, thrive in landscapes of uncertainty. New York City, it seems, is one of those.

This week the NYPD announced that it would be changing a rule, and allow New York City permit holders to travel more freely with their firearms. This rule is what the entire case was predicated on. Why does this matter? Well, a thing called “mootness.”

For the Supreme Court to hear a case, there has to be a live controversy between the parties. That means if the government dirty deletes the law they’re being sued over, the case might be “moot.” Here, though, the trick isn’t guaranteed to hold for NYC.

For one thing, there’s the concept that the Court won’t moot a case when it involves a constitutional abuse that is likely to be repeated in the future. There’s also kind of a “clean hands” doctrine where the Court won’t award a party for intentionally voiding an unconstitutional law because they know they’ll lose.

From my experience, I feel the Court will let the case go forward, and have the mootness be one of the points argued. This means that, if Justice Roberts doesn’t want to rule on the merits of the law itself, he has a way to force the Court to weasel out of it. I’d likely counter New York’s attempt to moot the case in an amicus brief. All we can do now is hope we aren’t let down.

California gun free school zone

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Ninth Circuit Upholds Gun Free School Zone Bill

Gun free school zone laws might not be massively controversial today, but their dubious forms have been at the heart of a lot of constitutional litigation. These are the types of laws that show the cracks in the armor of the current system.

Sure, there’s a pretty cognizable public interest and problem to be solved, but a legitimate source of power to do it? Legal nerd arguments aside, this week the Ninth Circuit upheld the dismissal of a challenge to a gun-free school zone bill. So no big traction on arguments here.

(Jefferson County Sheriff’s Office via AP)

Florida Woman Buys Shotgun in Colorado

There was a significant kerfuffle after an 18-year-old Florida woman purchased a shotgun in Colorado. The woman was reportedly obsessed with the Columbine shooters, made “credible threats” to Denver area schools, traveled to Colorado, and then committed suicide. People are enraged that she was able to purchase the gun in Colorado, something she wouldn’t have been able to do in Florida.

This isn’t a ridiculous failure of the law, but an ordinary difference in state policy. In most states, 18-year-old adults can purchase long guns and shotguns. Florida recently raised that age to 21.

If Florida raised the age to buy tobacco products to 21, and a Floridian purchased cigarettes in Georgia at 18, would we think it a massive flaw in the legal system? I think not. Some point to a component of Federal law that allows interstate sales only when it “complies with both states,” but that isn’t as simple as it seems.

Florida law applies differently to possession and purchase, and conditions placed squarely on Florida dealers cannot carry the same force in Colorado. We have a system of dueling state-and-federal sovereignty. It’s called Federalism. The suicidal woman’s ability to acquire a shotgun is endemic of nothing.

comments

  1. avatar Green Mtn. Boy says:

    My fervent hope is NYC,NYS,and the Anti Leftist’s Marxist’s get the 2 nd. amendment as written by the founders,shoved up their Azzez so far their eyes pop out. “Shall Not Be Infringed”

    1. avatar enuf says:

      They are not Marxists. If they were they would be pro-Second Amendment and on our side on that point. On other things though, they’d also be in favor of various anti-capitalist things that make America the most successful economy the world has ever known, or imagined.

      1. avatar Omer says:

        I can’t think of anything inherently pro-gun about Marxism, then again I can’t think of anything anti-gun about it either. I would say that a pro-freedom Marxist is a shallow thinking “useful idiot”, because Marxism pretty much doesn’t allow for personal freedoms of anyone but the “better angels” watching over the plebes.

        1. avatar Geoff "I'm getting too old for this shit" PR says:

          Yes, they are pro-gun, up until the time the ‘revolution’ is complete.

          And then it’s “Comrades! Turn in your weapons!”…

        2. avatar enuf says:

          Marx wrote that the people should be armed to the teeth. Every manner of weaponry, cannon included.

          Problem is every attempt at a Marxist revolution instantly corrupts itself. This is why they fail, they are fatally flawed with corruption a built-in feature. A strong man leader, a tyrant, always emerges and steps are always taken to combat anti-revolutionaries.

          Which can be anybody at all for any reason at all. From the tyrant’s point of view anyone simply trying to pursue a life without showing fealty to the tyrant is actively anti-revolution. Thus, must be disarmed and subjugated.

          I doubt any truly Marxist state has ever lasted more than a few minutes before the fallacies of Marx’s philosophy brought in the rot of secret police, extra judicial killings, etc.

  2. avatar Roger J says:

    SCOTUS is in no hurry to vote for enforcement of the 2nd Amendment. They have to work and live in the DC area. Standing up for the Bill of Rights in that cesspool would destroy A list membership on the dining an party circuit.

    1. avatar Mark N. says:

      Except that DC has shall issue CCWs.

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        The ‘Shall-issue’ part is still kinda subjective, from what I hear…

  3. avatar HUGH STAPLES says:

    You should have said, “allegedly committed suicide”. While we can’t prove it in court I think most of us “free thinkers” know she was ENDED by authorities

    1. avatar Hannibal says:

      I love when people have such open minds that they let their brains fall out

      Particularly in cases like this where the idea is some master puppeteer is pulling strings to do… something… and yet must have done so in such a inept manner that it will amount to absolutely nothing.

    2. avatar Anymouse says:

      Authorities would have had no problem claiming her scalp. Schools in a 50 mile radius were shut down, and the sheep were scared. People who plan mass shootings tend to be suicidal, and it is their last hurrah and a chance to become famous posthumously. It is unusual for a woman to plan one. Without the ability to rack up a body count, she skipped to the end and offed herself. Luckily, she did it at the entrance to a well traveled wilderness area. If she went a good distance off trail, the search could have lasted weeks. Schools would have remained closed or been surrounded by police and impromptu posses.

    3. avatar Big Bill says:

      Putting the whole conspiracy theory aside, that really makes little sense from the standpoint of the state.
      Far better to manufacture a confrontation, where the state can demonstrate its power in ending such events. If bystanders are hurt, blame it on the perp (which is exactly what they do). In a case such as this, where the manhunt is very public, with well-advertised “threats” as the reason (has anyone seen these threats? I haven’t, but I may have missed them).
      The perp dies, the state gets to demonstrate its ability to “protect and serve,” as well as demonstrate their overwhelming ability to end any such event with aplomb.
      Far better outcome than any clandestine assassination, especially given the buildup.

  4. avatar strych9 says:

    People might complain about the difference in law between Colorado and Florida.

    My dad reminds me that New Jersey made life uncomfortable for New York due to a disparity in drinking age laws until NY finally relented and raised it’s drinking age to 21.

  5. avatar FedUp says:

    What are these ‘credible threats’ that the Columbine obsessed dingbat supposedly made, and why don’t those speaking of such threats ever quote them?

    I thought it was just a matter of surmising that she was up to no good.

    1. avatar Rusty Shackleford says:

      Unfortunately, most people won’t question it nor be bothered to think critically about it. The story gives off the same sense of obfuscation as the classic go-to line “an anonymous source/official has told us”.

  6. avatar Jon in CO says:

    If that shop hadn’t sold her one, one of the others would have. Maybe they should’ve used their powers to toss her on a delay in NICS beforehand?

    Back in reality, is any shop, small or large, going to be really doing a deep dive on a shotgun purchase? “Where, why, what are you doing, etc”? Seriously, they did their job, followed the law, and made a sale. Why aren’t we mad at the feds for allowing the sale to go forward? Why didn’t the Great Federal Government save us? They’re the ones who told the shop to sell the gun to her.

    1. avatar TomC says:

      No need for any deep dive and no need for the FFL to wonder if she was “a danger to herself or others” — the simple fact is that the sale was prohibited by federal law, which the FFL is responsible to know. The instant she put her Florida address on the 4473 and presented her Florida Drivers License as ID, the FFL should have referred to their list of requirements and immediately found that a Florida resident needs to be 21 years old to purchase a long gun.

      This was NOT a NICS failure and not a CBI failure — both those systems check criminal history files, neither system was ever designed to check age and residency. Checking age and residency is a requirement for the FFL, that’s the way firearms transfers have been handled ever since the GCA of 1968 created the system. Any FFL is legally responsible to know the requirements and to verify that each purchase is legal. What happened with this sale is that someone didn’t do their job.

      Normally BATFE is not particularly interested in an occasional violation of this sort, so long as it doesn’t become a pattern, but given the publicity of this case, I have to think they may be more inclined to take notice of the illegal transfer by Colorado Gun Broker.

      1. avatar Jon in CO says:

        And the resident of Florida was not in Florida, therefore not subject to the laws of Florida. The person of subject was IN CO, therefore a CO FFL is to follow the laws of CO and the Federal statutes. Which is why the sale went forward.

        My point with the rest of it was satirical on its face, to point out how dumb people are being with this. Should a store not sell me, a CO resident a 30rd Pmag because it’s illegal in CO, if I’m buying the magazine in Texas? I think not.

        1. avatar Mark N. says:

          Incorrect. The FFL is bound to follow the laws of the state of the purchaser’s residence. Which is why a lot of FFLs refuse to sell to California residents; the laws are so complicated that they are fearful of getting them wrong. A an easy example, a Nevada FFL cannot sell a California non-compliant AR to a California resident. And an out of state FFL cannot do the California DOJ background check. So they just ship to a California FFL to complete the sale, even though the law is intended to allow out of state residents to take possession of a firearm from the FFL e.g. for a hunting trip.

        2. avatar SAFEupstateFML says:

          Unfortunately Mark is correct and other states can only sell me SAFE firearms despite their being perfectly legal there and the restrictions preclude almost every AR I have ever seen…… but stripped lowers and 80% + kits are good to go (hint to nearby FFL’s in lower sales tax states). If you were right we would prop up New Hampshire’s gunstores with noncompliance freedom purchases.

    2. avatar Anymouse says:

      She claimed she was going to use it for turkey season, which is a reasonable statement. I don’t know if she claimed to have had her luggage lost or broken the one a shotgun she brought, which would have been not uncommon reasons a hunter would need a new gun away from home.

      1. avatar Big Bill says:

        As has been pointed out, that’s a non-argument, because the CO FFL must also respect FL’s laws when selling to a FL resident.

  7. avatar Mark N. says:

    What was the Ninth Circuit case?

    1. avatar Geoff "I'm getting too old for this shit" PR says:

      “What was the Ninth Circuit case?”

      The question is moot. The 9th has zero intentions of ever recognizing the 2A as long as they have any say about it.

      Oh, I’m very sorry, I was channeling late 70s or early 80s ‘Saturday Night Live’ when Jesse Jackson was guest-hosting… 😉

      1. avatar Mark N. says:

        I live in the Ninth Circuit–California to be exact–and this case is not on my radar. And although you are undoubtedly correct, the current case pending before SCOTUS which many believe will establish the proper standard of review for alleged infringements of 2A rights may have some putting the Ninth in its place. At least I have my fingers crossed that that will happen.

        Nonetheless, attempting to rein in the GFSZA will be a difficult proposition. The best anyone can hope for is that the 1000′ exclusionary zone outside of school grounds can be reduced or eliminated. Sure, it was designed to keep gang bangers several blocks away from campus, but the fact is that it absolutely precludes any unlicensed/open carry in every urban area in the state. Without a CCW, there is no way to cross town unless one’s firearms are unloaded and in a locked container. Which means, since the Ninth concluded tht there is no right to a ccw, there is no way to exercise one’s 2A rights outside the home or a gated enclosure around the home. (There is a rather bizarre and indefensible court case concluding that your private driveway or unfenced front yard is a “quasi-public” area where the CCW and open carry laws preclude the possession of a firearm without a CCW.)

        1. avatar Geoff "I'm getting too old for this shit" PR says:

          “Sure, it was designed to keep gang bangers several blocks away from campus, but the fact is that it absolutely precludes any unlicensed/open carry in every urban area in the state.”

          I’m sure Cali considers that a feature, and not a bug.

          So we sit and wait until next year and see if the high Court emasculates laws like that one…

  8. avatar Geoff "I'm getting too old for this shit" PR says:

    “This rule is what the entire case was predicated on. Why does this matter? Well, a thing called “mootness.””

    Offered without comment :

    https://www.dailymotion.com/video/x54vjte

  9. avatar TomC says:

    Apparently our TTAG Legal “Expert” Matthew Larosiere has never read 18 USC 922(b)(3) which is the federal law that makes the sale of that shotgun on Pais illegal in Colorado or anywhere else in the US.

    Of course there are obviously a lot of other people who have never read 18 USC 922(b)(3), including the operator of Colorado Gun Broker, the FFL that illegally sold the shotgun to Pais then issued a press release saying everything they did was legal, and the local clown politicians who accepted that statement as if it were true.

    1. avatar Hannibal says:

      Yeah it’s really not that complicated. If you sell to an out of state resident, you are on the hook if you don’t know the regulations of that state. Right there in black and white. Not to mention the ATF has it even more clear on their materials that should probably be perused by those who are in the business of selling firearms: “a licensee may sell a rifle or shotgun to a person who is not a resident of the State where the licensee’s business premises is located in an over–the–counter transaction, provided the transaction complies with State law in the State where the licensee is located and in the State where the purchaser resides.”

      1. avatar TomC says:

        Not too complicated for most FFL’s but apparently too complicated for Colorado Gun Broker and obviously too complicated for TTAG legal expert Matthew Larosiere.

  10. avatar Nanashi says:

    The NRA supported gun free school zones.
    https://www.youtube.com/watch?v=MXl4p02EaTk
    Glad they’re dying from their own stupidity.

  11. avatar Chuck says:

    Florda’s recent law change in all likelihood violates the Privileges and Immunities Clause of the 14th Amendment. Specifically, “… no State shall make or enforce any law which abridges the privileges and immunities of citizens of the United States;”

    1. avatar Alan says:

      Does that apply to New York, and California to mention just two jurisdictions?

      1. avatar Big Bill says:

        Very obviously, no.
        The question might have better been phrased as, “Should that apply to New York, and California to mention just two jurisdictions?”

  12. avatar Alan says:

    The NYPD’s “changing a rule”, how was it empowered to make “rules” simply does not cut it. The anti civil rights, anti constitutional rights attitude, long the routine in New York City and State must be squashed, and it should be squashed now.

  13. avatar HuntingtonGuy says:

    New Yorkistan is ripe for a spanking on 2A, I hope this is it. NYC is far from the only locality in NYS who abuses its power and authority over 2A, Long Island and many othe counties across the state have their own schemes too.
    Heller not withstanding I’d feel better about this case, the base case and the argument of mootness if RBG were replaced by another Trump pick. I simply don’t trust Roberts.
    If this case goes sour it’ll have wide ranging and long-standing implications in and far from NYC.

    FUAC
    FUBD

    1. avatar Mark N. says:

      Calm yourself and keep your chin up. The NYC ordinance is so obviously and totally invalid that it should be a slam dunk on the merits*–which NYC impliedly admits. But since the Second Circuit gave it a pass by (allegedly) applying “intermediate scrutiny,” the case presents a perfect opportunity to give the recalcitrant circuits a good beat down, a beat down they richly deserve, by establishing much stricter rules of review in such cases to stop these ridiculous shenanigans that do nothing but pay lip service to while violating the spirit of Heller. That is why they took this case in the first place (so say the pundits. Me too.)

      *As a refresher, the NYC ordinance provides that if you have a premises license you cannot transport your firearm out of city limits. Apart from the fact that this conflicts with federal law, there is no logical basis to conclude that forcing NYC residents to keep their guns in city limits somehow protects NYC residents.

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