Detailed Analysis of New York State Rifle & Pistol Assn. Supreme Court Arguments

Courtesy LKB

By LKB

As previously reported, I had a ringside seat for yesterday’s SCOTUS arguments, and Dan posted some of my quick observations from the argument. Now that I have had a bit more time to digest things (as well as some food and sleep), I want to go into a bit more detail on how I perceived how the argument went down.

Mootness

As has been widely reported, most of the time spent during oral argument involved addressing whether New York City’s last-minute maneuver (i.e., after the Supreme Court granted cert, the City and the State changed the law in a transparent and brazen attempt to evade appellate review) rendered the case at bar moot.

Mootness is a legal doctrine that provides that when there is no longer any actual dispute between the parties for the court to decide, an appellate court should dismiss the case rather than enter advisory or hypothetical opinions. However, it is a complicated area of law that has many exceptions, many of which were discussed yesterday.

Courtesy LKB

Contrary to how the media (and unfortunately some Chicken Littles in the firearms commentariat) have tried to spin the amount of time at argument that was spent discussing mootness, that fact doesn’t really mean anything. In appellate advocacy, you go into oral argument with an outline of points you would like to make…usually a very small subset of the arguments made in your briefs.

However, you are not in control of things, and your argument goes where the most active questioners on the Court want to take it. This is especially true at the Supreme Court, where the van Moltke maxim that “no battle plan survives first contact” is typically the case.

In NYSR&PA, the anti-2A wing of the Court (Ginsburg, Breyer, Kagen and Sotomayor) are all known as active questioners at oral argument, as opposed to Thomas, who almost never asks anything at all, and Roberts and Kavanaugh, who tend to ask very few.

As a result, the liberal wing of the Court dominated the time at oral argument with their questioning. However, just because they asked the most questions (and thus made the attorneys spend most of their argument answering them), that simply does not signify anything.

Supreme Court NYSRPA v City of New York

LKB for TTAG

So, how will the Court decide the mootness issue? As I expected, Ginsburg and Sotomayor were more than willing to swallow NYC’s brazen tactical maneuver. While I thought that Kagen and Breyer might have some shred of integrity on this procedural issue (blessing this kind of post-cert gamesmanship would set a horrid precedent for all sorts of cases – especially many that those two justices typically care about), that possibility evaporated at oral argument. Both of those justices were clearly on board with letting the City get away with it in order to avoid a potential expansion of Heller.

On the other hand, both Alito and Gorsuch did not mince words about how they felt about NYC’s chicanery. Gorsuch acidly remarked on NYC’s “Herculean efforts” to evade Supreme Court review after cert was granted. Thomas and Kavanaugh asked no questions, but their positions in past cases leave me with little doubt that they are not going to vote to hold the case moot.

That leaves the deciding vote on the mootness issue with Roberts. Early media reports were crowing that Roberts’ questions indicated that he was leaning toward finding the case moot. From what I saw (and confirmed in the transcript), I simply did not see that.

The Chief Justice asked only two questions, one of which was a bit of a trap that adduced a concession from NYC’s counsel that dismissing the case as moot would prejudice the plaintiffs’ ability to seek damages for violations of their rights.  If anything, I think Roberts’ questions cut the other way on which way he may be leaning.

supreme court scotus second amendment protest demonstration

Courtesy Kevin Hulbert

Additionally, if Roberts was going to wimp out on the mootness issue, I suspect he would have already done so. The Court had several earlier opportunities to dismiss the case as moot, and if he was so inclined, Roberts could have voted with the liberals and done so. He did not.

Of course, as the Obamacare decision illustrated, Roberts can certainly be a squish, and thus he could well sell us out on this issue. However, nothing I saw at oral argument supported the spin the media put on it.

Indeed, I suspect the media is pushing the “it’s going to be dismissed as moot” narrative for its own purposes (e.g., to be able to decry a Roberts “change of position” on mootness as evidence that the court is broken and needs to be packed, etc.)

LKB prediction: 5-4 denial of the motion to dismiss the case as moot. However, if we see a cert grant in the next few weeks on another 2A case — there are several being held due to the grant of cert in NYSR&PA — then all bets are off.

The Merits of the Case

Because of the near-monopolization of the oral argument by the liberal wing of the Court on the mootness issue, very little time was spent on the merits (absolutely none on the Commerce Clause or Right to Travel issues). However, there were a few interesting moments.

The highlight of the arguments on the merits was a spectacular trap that Justice Alito sprang on the attorney for the City. Questioning him on NYC’s change of its laws, he asked, “Are people in New York less safe now as a result of the new city and state laws than they were before?”

Clearly surprised at this seemingly out-of-the-blue question, counsel responded that they were not less safe. Alito then pressed him to concede that there was thus no actual basis for the City to claim that the transportation ban was essential to public safety.

Counsel attempted to tap dance away from that, claiming the restriction accorded with the history of acceptable regulations under the Second Amendment.

Alito then pressed counsel on whether a total ban on transportation by premises license holders could possibly be constitutional. The City’s position – and Second Circuit law – “cabin” Heller to possession of a weapon in the home.

I expected him to respond “yes” and then just take the heat. Instead, he admitted that such a complete ban would violate the Second Amendment.

Justice Alito then pounced: “If that’s what it means, you’re conceding that the Second Amendment protects the possession of a firearm outside the home under at least some circumstances?” Counsel again tried to tap dance away, but again conceded that was a “fair way to look at it.“

So much for the City’s argument that Heller applies only to possession inside the home.

Counsel for both NYSR&PA and the Solicitor General pushed application of the “Text, History, and Tradition” test as the applicable standard, rather than strict scrutiny. In what I took as a transparent shot at Justice Kavanaugh, Justice Sotomayor remarked that she viewed the “Text, History, and Tradition” test as a “made-up standard.”

Supreme Court New York Second Amendment Protest

Courtesy Matt Laur

Needless to say, the fact that standards for decision – or even new constitutional rights – might have been “made up” by judges has hardly concerned Sotomayor in the past.

At another point, she remarked that questions about whether certain types of weapons were covered by the Second Amendment was not before the Court yet. I might be reading too much into it, but I took her comment and the way she asked it as a recognition that regardless of what happens in this case, she knows that the votes are there to take other 2A cases.

Near the end of the argument, Justice Ginsburg (who looked very frail, but nevertheless was engaged and asked a number of probative questions in both of Monday’s arguments) asked the City’s counsel whether, because the transportation ban forbade taking a licensed gun to a second house (whether in or out of the city), that would require a license holder who wished to be armed at home to acquire two guns — one for each house — and leave one gun at an unoccupied location at all times, which she seemed to intimate would be less safe than transporting one gun between them.

To me, she plainly was teasing an argument that perhaps the NYC transportation ban could be struck based on intermediate scrutiny, perhaps to try and tempt Roberts into reversing on narrower grounds. (Query why she would do this if she thinks Roberts might squish on mootness.)

At one point in the argument, Justice Breyer made a comment that indicated that he still does not accept that Heller was correctly decided…which caused his neighbor, Justice Thomas, to lean over and engage him in a whispered conversation.

My read on the merits: nothing has changed, and things are as they have been. There is a wing of the Court (Ginsburg, Breyer, Kagen, Sotomayor) that is adamantly anti-2A and would gladly reverse Heller if they had the chance. There are four votes (Thomas, Alito, Gorsuch, and Kavanaugh) who go the other way, and would likely expand Heller significantly.

Roberts is also at least nominally in this camp, but the question remains whether he will succumb to the Beltway social, media, and political pressure as he did in the Obamacare decision.

My prediction: if they reach the merits, 5-4 to reverse.  Smart money would be that Roberts will write the opinion, but I’ll go out on a limb and predict that he’ll assign it to Kavanaugh, and will adopt the “Text, History, and Tradition” test for 2A cases. Concurrence by Thomas, Alito, and Gorsuch, pushing for strict scrutiny and an end to lower court gamesmanship on 2A cases.

We’ll see . . . .

comments

  1. avatar Stateisevil says:

    Pointless case in a useless government court. I suggest we move on to organizing sanctuary states and counties, with Teeth. Going through the legal system is like trying to the mow the back 40 with scissors, assuming they weren’t anti gun to begin with.

    1. avatar GunnyGene says:

      We’ve tried the Soap Box. We’ve tried the Ballot Box. We’ve tried the Jury Box. There’s only one Box left.

      1. avatar Green Mtn. Boy says:

        That is what the 2 nd. was written for.

    2. avatar Dude says:

      Virginia counties have been busy lately adopting sanctuary resolutions. Oddly enough, republicans in VA passed a law outlawing sanctuary counties when they were in control (with illegal aliens in mind) and the governor vetoed it! So now the counties are free to offer 2A sanctuary.

      1. avatar Raconteur says:

        42 2nd Amendment sanctuary counties (and a few towns) in Virginia as of 4 Dec. More on the way!

    3. avatar DesertDave says:

      Trump has now appointed 158 judges, that makes approximately 1 out of every 4 active judges on United States Courts of Appeals has been appointed by President Trump. Pretty soon it will be one out of 2. that is basic progress. And if Ruthie keels over (oh God please make is soon) then we will have a solid majority in the Supreme Court.

      That is long term progress against the advocacy in the courts system.

  2. avatar PATRON49IFT says:

    In the view of this non-lawyer, I have zero faith in Roberts to do the right thing. After the Obamacare fiasco he showed his true colors in my view. I would be happily shocked and surprised if Roberts came down on the side of protecting and expanding the codified 2A law as we know it. Many particularly on the left want to restrict and diminish the 2A as we all know. Most of us realize there are at least four Supremes who would like nothing better than to do away with or scale back any 2A rights we already have. We really need the four who support to stand fast and hope Roberts does not cave to pressure we all know is already in place to get him to vote with Kagan, Breyer, et al. In the end, if we can get a modest victory on this one; I will be happy and hope for more in future. One bite at a time. Can’t get the whole loaf, then half a loaf is better than none.

  3. avatar strych9 says:

    It’s always interesting to see how the individual Justices seem to ask questions that don’t seem to be probing for information so much as they are meant to give other Justices something to chew on or rabbits to follow down holes in some cases.

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

      Yeah, that was interesting to see. Like this one :

      “In what I took as a transparent shot at Justice Kavanaugh, Justice Sotomayor remarked that she viewed the “Text, History, and Tradition” test as a “made-up standard.””

      Kav may retaliate in his opinion that “Text, History, and Tradition” was used to justify many rulings the Leftists hold as Gospel, like ‘Roe v. Wade’. Throw it right back in her face…

      Sotomayor was friends with Scalia, and even spent time doing some hunting-shooting with him. It would be interesting to know if he attempted to persuade her on any of those trips to be more receptive on gun rights.

      She she may have been, and may be now, but if there’s one thing about Leftists, they ‘Goose-Step’ to the Progressive party platform with excellent discipline…

      1. avatar LKB says:

        Actually, it was Kagen who famously went hunting with Nino Scalia (much to the chagrin of her Beltway socialite friends). And Ginsburg regularly went to the opera with him. I’m willing to be educated, but I rather doubt the self-declared “wise Latina” had that kind of class.

        I met Scalia while I was in law school (he was on the DC Circuit at the time), and later at a couple of Fifth Circuit judicial conferences. Quite a character.

        1. avatar Stuart K says:

          A privilege I’m entirely jealous of. I sorely miss listening to him. What a legend!

  4. avatar Matthew says:

    Thank you LKB for your time spent at the court and your time spent laying out the facts for us. Been watching for your summary to drop since yesterday.

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

      Seconded on the thanks for attending and reporting.

      The second pic from the top, was this LKB dressed as he said he would be as if he would be perched in a Texas wintertime tree stand?

      (The quality of his shoes indicated he likely wasn’t a DC homeless guy… 😉 )

      1. avatar LKB says:

        Yup, that’s me. Kinda scary looking, but dammit it was cold and I wasn’t gonna freeze!

        And right before we went in, I folded up my collapsible camp stool and put it in my trial bag, peeled off my rain pants and down overcoat, stashed the Primary Arms beanie, and brushed out my beard and hair, and viola! Lawyer-Man (in a bespoke pinstripe suit) to the rescue!

        1. avatar strych9 says:

          Pinstripes FTW. All day, every day. Twice on Saturdays and Sundays, just to tick off the 7th Dayers.

  5. avatar million says:

    this one hinges on Roberts and he’ll vote that it’s moot in his quest to “save the court” (from Leftists hellbent on packing it) and to appear respectable. he’ll fail in the latter endeavor b/c you can’t be both respectable and cowardly.

    best-case scenario is cert is granted in another of the 2A cases at SCOTUS and they hear the arguments in April.

    I’d like to see them fisk Massachusett’s AWB and “high-cap” mag ban in Worman v. Healey.
    https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-404.html

    1. avatar LKB says:

      I read a post today by a legal commentator suggesting that Roberts may to try and finesse the mootness question and all the political hoopla surrounding it by granting cert quickly in another 2A case to placate Thomas / Alito / Goresuch / Kavanaugh, but hold the NYSR&PA opinion up until that one is decided (at which time they’d dismiss the NYSR&PA case as moot but vacate the lower court rulings in that case under what is known as the Munsingwear doctrine).

      That’s certainly possible (though I saw no indications that Roberts was leaning toward finding the case moot), and might be in keeping with the misguided “consensus at any cost” approach to judging that Roberts often employs. Indeed, some of the attorneys representing gun control organizations and anti-gun governments that I was in the bar line with seemed very concerned that cert petitions in other 2A cases that are being “held” (such as AWB and shall-issue cases) will be granted quickly if NYSR&PA is ruled moot, and a decision in such cases could have a more decided and immediate impact.

    2. avatar Mark N. says:

      I think the court will more likely grant a case raising a “bear arms” question before answering questions of bans on specific firearms. The ability to bear is a precursor to what it is that you can bear, which is why the court granted cert in this otherwise “small” case.

  6. avatar Cruzo1981 says:

    We can only wait and see… and pray

  7. avatar uncommon_sense says:

    Hold on a second. Am I understanding this correctly? This case could very well result in a “Text, History, and Tradition” standard of review for 2A cases? If so, whatever happened to the strict scrutiny standard? Or is that another way of declaring that the courts should apply strict scrutiny on 2A cases?

    1. avatar TFred says:

      A number of very good articles come up with this search. Heller was based on Text, History, and Tradition, not Strict Scrutiny, at least according to some of the articles returned here:

      https://www.google.com/search?q=text+history+tradition+vs+strict+scrutiny

  8. avatar Richard Gozinya says:

    Buy ammo. Lock and load.

  9. avatar OBOB says:

    what if RBG kicks it next week?

    do we get the chance a replacement voting on this?

    1. avatar LKB says:

      Not on this case (unless they ordered it reargued after a replacement is confirmed and sworn in).

      Recall that when Scalia passed away, there were a number of cases pending and argued that would have gone 5-4 with Scalia in the majority that would up being 4-4 deadlocks (in which case the decision below is affirmed, but the decision is not precedent).

      1. avatar UpInArms says:

        But, if RBG kicks off and the vote, which would have been 5-4, now becomes 5-3. Does this now become precedent, or is it the rule that all 8-justice decisions, no matter how they go, cannot stand as precedent?

        1. avatar LKB says:

          If the final vote is a majority (e.g., 5-3, 6-2), it is binding precedent.

  10. avatar Diksum says:

    It is interesting to note that three of the anti-second amendment justices are Jewish. Is there any significance in that?

    1. avatar Middle Aged Tactical Mall Ninja says:

      Only that shockingly as Jews they should know better. Next to blacks and other people of color Jews historically have been one of the first to suffer in times of strife. Anti 2nd Jews are both traitors to their people and completely ignorant of history or even modern society.

      1. avatar SAFEupstateFML says:

        Complacency kills everyone given a chance.

        1. avatar strych9 says:

          Complacency and panic. One tends to lead to the other too.

      2. avatar Gordon in MO says:

        It is not a matter of Jews not knowing better, it is a matter of dedicated socialists (or worse) toeing the party line. Heritage is lost under the socialist umbrella.

        They are old enough to have been educated about the holocaust, unlike modern “university graduates”. I put that in quotes because few of them are actually educated, but they are indoctrinated.

    2. avatar Anymouse says:

      Generally, US Jews have a long history of aligning with the liberal Democrat party and hold anti-gun views. Of course, there are those with opposing views, like Jews for the Preservation of Firearms Ownership (JPFO). Foreign and immigrant Jews, and more religiously conservative US sects, tend to not think guns are icky, and they know that they’re often the last line of defense from both criminals and hostile governments.

  11. avatar TFred says:

    LKB, Thank you for your analysis. It is especially intriguing since I did the craziness of arriving on line at about 5:45 to get in myself! Always knew the media spins, but wow, even I was surprised at how much, having seen it in person. You read some of the articles and wonder which case they are reporting on!?

    I was also very encouraged by how hard Clements hit it straight out of the blocks for “Text, History, and Tradition.” No compromise with Strict Scrutiny for him! It is really easy to see now why the gun-haters have been absolutely terrified since they took the case.

    I had missed the Heller remark that sparked the whispering between Breyer and Thomas, I’ll have to go back and look at that again.

    1. avatar LKB says:

      Sorry I missed a fellow TTAG regular in the Bar line!

      I was definitely outnumbered by the lawyers from Brady, Everytown, State of MD, etc. right behind me. (To be fair, they were all very nice, very professional people . . . but a couple of them did seem a bit put off by the Primary Arms beanie I was wearing to ward off the chill. Imagine the reaction I would have gotten had I worn my Silencer Shop cap!)

      How far back in the line were you? I owed it to DZ to do everything possible to make sure I got in (hence my 3:00 AM alarm and trek to the Court from the George Hotel, based on intel on when the antis were due to show up), but I definitely could have used another couple of hours in the rack.

      1. avatar TFred says:

        Ah, sorry, I wasn’t clear enough, I was in the “public” line! 🙂

        I arrived at about 5:45, and was #52, which got me in, but not before having to wait outside the additional 90 minutes after the first 50 were taken in, so they could make sure there was still enough room!

        About a dozen got in behind me, so it was right around 65 from the public.

        1. avatar LKB says:

          Gotcha. Looks like you got lucky — I would have thought that for this one, only the 50 “golden ticket” holders would have gotten in via the public line.

          I heard that there was a brouhaha in the public line, where someone who had a line sitter holding a place near the front of the line tried to claim that single line sitter was actually holding places for him, his wife, and his kids. You got any details on that and how it got resolved?

        2. avatar TFred says:

          I do.

          We had been taking rough counts all morning, to see what chance we might have. So after daylight broke one of the front guys walked back to tell us that about 5 or 6 had recently showed up and joined the line near the front. He didn’t have too many details. So the guy in front of me (#51, so he had to do the extra wait as well) went up to see what was going on. We knew we were close to the bubble, so it was a very big deal for us. (At that time we thought we were about #44 and #45.)

          It was exactly as you heard, apparently the father showed up way early to get in line, with the full intent of allowing the rest of his family to join him at a more comfortable hour.

          I wasn’t in earshot of the discussion with them, but my co-line-stander who went up said that basically everyone around the man was confirming to him that it simply was not acceptable to hold a place in line for your entire family. I do have to say it was somewhat sad, after the first 50 went inside, we all moved up to the front, and walked right by the family who was still there. I didn’t stare, but the kids looked to be about 10-12, and at least one of them was totally bawling, as they realized they weren’t going to get in.

          Hopefully next time the dad will do a little more research.

        3. avatar LKB says:

          Thanks. Because the SCOTUS police / personnel will not get involved in any “line disputes” (unless they turn violent), it’s a problem of what to do if somebody cuts in or purports to be saving places for multiple absent people. Peer pressure (or maybe online shaming) is really the only enforcement mechanism.

          As Prof. Blackman pointed out in recent Volokh Conspiracy articles (linked in my pre-argument post), this kind of line cutting / “saving seats” in the members line is apparently a pretty common occurrence for high profile cases. At the DACA argument earlier this year, apparently some lawyers arrived around dawn and simply joined their colleagues at the front of the line — which was a big deal because only about 23 people got in via the members line, and thus the cheaters took the places of some people who had been standing in the cold and rain since before 4 AM.

          Fortunately, I did not see any of that on Monday — everybody in the members line behaved themselves.

        4. avatar TFred says:

          Exactly. I would have been very unhappy if I had been bumped (especially by only one or two) because of that.

          Interestingly, a young lady working for SCOTUSBLOG was chatting with folks waiting in line asking about their arrival times and details of their travel and lodging. She said they were going to write something up about the process. She even took contact info so that she could follow up to see who got in and who did not. Seems like an interesting thing to write about.

  12. avatar Chris T in KY says:

    I look forward to a Jewish woman, a wise Latino, a gay woman, and a vanilla man all agree that NYC residents are not citizens of the USA and are slaves. And that they have no right to travel anywhere they please while carrying a gun in 2019.

    The justices can refer to the Scott v Sanford (1857) as a reference.

    The next step will be the second American Civil War.

    1. avatar uncommon_sense says:

      Come on now Chris T in KY, don’t you know that the courts are only bound to precedent when it advances the Progressive agenda? /end_sarcasm

    2. avatar Ralph says:

      “a Jewish woman, a wise Latino, a gay woman, and a vanilla man”

      So, four women then.

      1. avatar JustSayin says:

        “A Jewish woman, a wise Latino, a gay woman, and a vanilla man walk into a bar…”

        Sometimes I can’t help myself.

  13. avatar uncommon_sense says:

    I despise the “history and tradition” aspect of a review standard for Second Amendment cases.

    Case in point: citizen ownership of full-auto firearms would fail the “history and tradition” criteria simply because of an exorbitant tax and delay (waiting for government tax stamp) as well as outrageous prices (due to 1986 Hughes Amendment which artificially limited the supply of full-auto firearms available to mere citizens). I am quite confident that full-auto firearms would have a very rich “history and tradition” if they had never been exorbitantly taxed and outrageously priced.

    Relatively few people exercising a right is NOT a righteous basis for government to infringe upon it, nor the courts to uphold such infringements.

    1. avatar TFred says:

      What precludes the 1986 Hughes Amendment from being re-evaluated under the “Text, History, and Tradition” standard? Surely it would fail.

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

        Yeah, that’s a big advantage to the “Text, History, and Tradition” argument, it opens a *lot* of doors, like re-opening the MG registry, mail order guns to your door, etc. Buh-bye the 68 GCA and others.

        Hell, dynamite for *years* was an in-stock item in many rural hardware stores.

        “What a wonderful world, that would be…” 🙂

    2. avatar Red in CO says:

      Agreed. “History and tradition” just means that if something has been a certain way for a sufficient period of time, then it should therefore stay that way. Jim Crow laws were in place for generations; based on that “logic” they were therefore constitutionally legitimate. Kavanaugh may be a better justice that RBG or Sotomayor but he’s no Constitutionalist, which is a damn shame. We need justices who have the balls to look at things purely from a constitutional point of view and ignore the last 100 years of judicial activism where bad precedent is set by morons, and then used to justify bad laws

  14. avatar Richard Coon says:

    LKB,

    Thank you for the insightful and succinct summary. It’s nice to actually hear from someone who clearly understands legal minds at this level.

  15. avatar Nanashi says:

    “Justice Sotomayor remarked that she viewed the “Text, History, and Tradition” test as a “made-up standard.””

    So much for the richness of the wise latina’s experiences.

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

      Put it to you this way, those that loudly proclaim themselves to be ‘wise’ or smart, are nearly always not…

    2. avatar Miner49er says:

      As Red says above:

      “History and tradition” just means that if something has been a certain way for a sufficient period of time, then it should therefore stay that way. Jim Crow laws were in place for generations; based on that “logic” they were therefore constitutionally legitimate. Kavanaugh may be a better justice that RBG or Sotomayor but he’s no Constitutionalist, which is a damn shame.“

  16. avatar aircooled says:

    If Ginsburg, Breyer, Kagen and Sotomayor didn’t have double standards, they wouldn’t have any at all
    Supposed this mootness question was over a voting rights case in a major southern city? These 4 yahoos would be all over this case in an effort to punish the offending city. However their “2A is 2nd class right” bs shines through here. Whatever happened to consistency with the SCOTUS?

  17. avatar Ralph says:

    “That leaves the deciding vote on the mootness issue with Roberts.”

    Which is exactly why we are so uncomfortable with this case in particular, and the Court in general. We don’t trust Roberts. We shouldn’t trust Roberts. We can’t trust Roberts.

    One day, Roberts will overrule himself. If you live long enough, you’ll see it.

    1. avatar Matt in Sc says:

      “One day, Roberts will overrule himself. If you live long enough, you’ll see it.”

      Does that involve a .38 special?

  18. avatar JoinGOA,FPC,SAF says:

    There are 4 members on the court who are illegal & should be impeached..for real.

    The others are mostly fudds….

    I am sure if any of them were true pro2a we would see pics of them out @ the range with some full auto suppressed action or @ least some AR-15/AK-47 action.

    Thomas has said some great things lately.

    1. avatar SAFEupstateFML says:

      I was about to say Thomas is probably less fudd than me and I am perfectly ok with privately owned artillery.

    2. avatar Miner49er says:

      “There are 4 members on the court who are illegal“

      Interesting, do you have actual evidence or a source to support your claim that they are illegalInteresting, do you have actual evidence or a source to support your claim that they are ’illegal?’?

      Are you aware of some impropriety in their nomination or confirmation?

  19. avatar Mark N. says:

    Assuming the mootness argument fails, I don’t see Kavanaugh being the author of the opinion, because I think that the Court will adopt a more traditional method of analysis. My money is on Thomas, who has been chomping at the bit to make his mark in this area of the law.

    1. avatar LKB says:

      While I would dearly love to see Saint Thomas write a majority 2A opinion, remember that when the CJ is in the majority, he assigns the opinion. Ergo, my prediction that if they reach the merits, Roberts will assign the opinion to Kavanaugh rather than Thomas.

      This is why if RGB retires (sorry, but I won’t wish for anyone’s demise), things get interesting. If PDT appoints ACB or the equivalent, CJ Roberts becomes superfluous when he squishes, and Thomas (as the senior judge in the majority) gets to assign opinions in lots of cases.

      1. avatar Henry McCartier says:

        What a wonderful world that would be!

    2. avatar TFred says:

      There’s a whole discipline of study on the timing of the release of an opinion and the process of elimination based on which justices are “behind” in the opinion count.

      Since they usually leave the “big” cases for last, it ramps up the speculation based on which justice is “left” to author the remaining opinions – based on the general convention to evenly divide up the authorship among the justices.

      If NYSRPA is not thrown out (would likely be much sooner than later), a long wait would seem to indicate a decision on the merits, and, being a significant case, there may be some very good clues as we near the end of the term based on which justice is behind in the count.

      BEST case scenario for us: As the term winds down, Thomas, Kavanaugh, and Alito are all well behind in the count! 😀

      Amy Howe at SCOTUSBLOG has touched on this from time to time.

  20. avatar IN Dave says:

    Strong write up that makes this easy to follow, even for someone who works the medical field and knows nothing about the legal field. Thank you LKB

  21. avatar Sam Hill says:

    Yes, thank you LKB, you dun gud. I still can’t reconcile how 9 supposedly highly educated people can fail to be able to read and comprehend what 2cnd amendment says. How can simple words and so few of them be twisted around to allow any of the bs lawa exist. Traditional, history and text. Now there is a conflict in just three words. Using that criteria killing Jews, slavery, discrimination, and hate speech should all pass that test, along with pointing with index finger, and, use of a certain six letter word with n as the first. This whole court thing smacks of bs in it’s historical sense, traditional sense, and in a textual sense.

  22. avatar Red in CO says:

    Excellent write up. One small quibble I have: can we please stop referring to leftists as “liberals”? The modern day left, authoritarian socialists that they are, is about as fundamentally illiberal as you can get. Most of us refuse to use worthless phrases made up by the left like “assault weapons” or “assault style rifles” because we recognize that allowing them to define terms puts us at a disadvantage. Can we expand it a bit? Leftists don’t deserve to be called liberal, since they very much aren’t

    1. avatar UpInArms says:

      I’ve been putting out the thought lately that “left vs right” and “liberal vs conservative” don’t have any meaning as political labels any more.

      The real tug-of-war is, IMHO, “irrational vs rational”.

    2. avatar LKB says:

      Point taken. Modern “liberalism” (a/k/a modern “progressivism”) is neither classically liberal or progressive. It is simply authoritarian.

    3. avatar TFred says:

      I tried posting a link to a video, but it did not get approved. Dennis Prager has an excellent 6 minute video on this. Google these search terms and you should get it:

      prageru left or liberal

      Well worth the time.

  23. avatar kap says:

    stash you weapons and prepare for war when bloomburg becomes president! More Ruby Ridges, more Waco’s, more fast and furious, more Treasury Denying Account for Political reasons, CIA spying on Americans, More Muslim Democrats down grading our country more aliens in our Government,

  24. avatar 2aguy says:

    This is why people must vote for Trump in 2020. Ginsburg is sick, and Breyer is 81. Trump could replace both of them if he has a 2nd term. Also, if he gets a second term, Thomas might retire, allowing Trump to replace him. No matter how you feel about Trump, anyone who believes in the Bill of Rights needs to vote for him…..any vote for a democrat is a vote to end the 2nd Amendment, and any decision to not vote for the republicans this election cycle is a decision to help the democrats. That is the truth.

    1. avatar Dave G. says:

      @2aguy:
      Plus one. As sad as that is, you are exactly correct.

    2. avatar Henry McCartier says:

      +1 to that.
      Conservatives > RINOs > anybody else > demonrats. Always vote. Even for the lesser of two evils if necessary.

  25. avatar Mark H says:

    Roberts will decide it is NOT Moot. He will then craft a 7:2 decision on narrow grounds (law fails even the lowest level of scrutiny) and will thus write the opinion himself, writing it so narrowly as to have zero precidential impact.

    Because Roberts loves consensus more than he does the actual Constitution.

  26. avatar TFred says:

    News flash! The audio of the oral arguments for the NYSRPA case at the Supreme Court has been posted!

    This site does not seem to like comments with links, so go to www dot supremecourt dot gov, then search for the case number: 18-280

    The first hit should go to the page with the audio file.

    1. avatar Henry McCartier says:

      Thanks TFred!!

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