Livni: Punting the NYSRPA Case Would be the ‘Conservative’ Thing to Do

new york state rifle & pistol association supreme court

The quote of the day is presented by Guns.com.

Ephrat Livni’s take on the Supreme Court’s consideration of New York State Rifle & Pistol Association v. City of New York is a clear demonstration of how much the case concerns the anti-gun advocacy orgs and their journalist allies.

It takes a special kind of self-delusion (disingenuousness?) to argue that punting the case — giving in to the City’s transparent attempt to dodge a ruling and declaring the case moot — would somehow “defuse the controversy.” In fact, while there are other ripe 2A cases waiting in the wings, deciding to pass on NYSRPA would only fan the flames.

In ruling on this case, the court can — once and for all — raise the Second Amendment from of its second class status, applying strict scrutiny to any regulation of this most-maligned enumerated civil right. We’ll see if the Court takes advantage of that opportunity.

[George Washington University law professor Robert] Cottrol noted that Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all seem to “favor a strong view of the Second Amendment.” Yet he stopped short of making bets and notably omitted the chief justice from this list of strong gun rights supporters.

That’s perhaps because the court hasn’t been quite as predictable as pundits have expected of late and because John Roberts might play a moderating force between progressives and conservatives in this case, especially in view of the inflammatory rhetoric it has generated thus far. Roberts may or may not be the bench’s new swing voter, but he certainly dislikes it when anyone—Republican or Democrat—implies the court is a political institution and that the justices are anything but neutral arbiters of the law.

Deciding not to decide on the gun rights questions here, citing mootness, offers the court a legitimate out of this political and cultural pickle. It would be a conservative response in the true, constitutional sense of conservatism. While this sure feels like a live controversy because Americans are riled up about guns—owning and controlling them—the court could simply defuse this controversy by refusing to rule on outdated legislation, declining to issue what would essentially be an advisory opinion, an editorial about the Second Amendment.

– Ephrat Livni in SCOTUS has the 2nd Amendment in its sights—and gun groups are thrilled

[ED: The Supreme Court will hear oral arguments in New York State Rifle & Pistol Assn. v. City of New York tomorrow. TTAG contributors LKB (a member of the Supreme Court bar) and Jeff Hulbert of Patriot Picket will be there reporting on the arguments and the surrounding protests outside the Court throughout the day.]

comments

  1. avatar Andrew Lias says:

    Actually the law is pretty explicit in that you can’t evade a decision by cancelling the law and quite frankly the Supreme Court should take offense to that idea.

    The only reason they should wait is if Ginsburg looks like she’s going to knock off and they can get one more person on the bench who’s pro 2A. As much as I regret the “death watch” aspect of it I would like to see the court secured for a few years; We’re going to need the buffer with the way the left is right now. Then again at this rate there’s the very real risk of packing too.

    1. avatar I Haz A Question says:

      If a ship’s captain can be deemed unfit for duty by a medical officer, and POTUS can be deemed/voted unfit for office, isn’t there a mechanism in place for declaring a Justice unfit and no longer in the capacity to sufficiently handle decisions that affect all Americans?

      1. avatar Green Mtn. Boy says:

        Weekend at Bernie’s.

        1. avatar Red says:

          Ephrat Livni is the kind of guy that would supply the lube to a “riled up” gang that broke into his home; because it “would be a conservative response in the true, constitutional sense of conservatism”.

          Pity the partner that is this guys husband.

      2. avatar strych9 says:

        Yes. She can be impeached by the House and removed by the Senate in exactly the same process that the Left has argued should be used against Kavanaugh but, obviously, for different reasons.

        Samuel Chase was impeached by the House in 1804 but the Senate trial in 1805 didn’t result in a conviction.

        Impeachment effectively being a political tool (as we’re seeing today) there is no reason that she would have to engage in “bad behavior” to be impeached and removed. She could simply be found incompetent if that’s what the Congress wanted to do.

        That’s not going to happen with Democrats controlling the House though.

        1. avatar Green Mtn. Boy says:

          “That’s not going to happen with Democrats controlling the House though.”‘

          Correct,she will expire before her impeachment would ever come to pass in the Commiecrat controlled house.

        2. avatar Rusty - Die Ruthie Die - Chains says:

          She will be lucky not to become the proverbial dead parrot (lovely plumage, the Norwegian Blue) before next years election.

        3. avatar DJ says:

          At this point I doubt Republicans would removed her either.

          I disagree with most all of her opinions but I wouldn’t vote to removed her. Don’t be like the Stalinist.

        4. avatar strych9 says:

          “At this point I doubt Republicans would removed her either.”

          I wouldn’t suggest that they do. I’m simply saying that theoretically it’s possible if the House were to impeach her. It’s also something they can do if, for instance, she were to become incapacitated at some point in the future. At that point there may not be another rational choice.

          However, at this point I wouldn’t recommend it. Her opinions are not ones I agree with but that’s not a valid reason to remove her from the bench. Were she obviously senile or she had a stroke and was in a coma then that would be a different topic entirely. However, she’s not senile or incapable, she’s perfectly capable of doing the job she just happens to do it in a way that some people disagree with and removing her for that is not a precedent we should seriously consider setting.

        5. avatar Dude says:

          “she’s perfectly capable of doing the job”
          Except she’s been absent quite a bit and falling asleep on the job when she’s there. It’s clear she needs to go.

          It isn’t as much about service with these people as it is about ego. A fine example is McCain. He should have stepped aside when it was clear that he could no longer do the job. But instead, he held on until his dying breath, not for the country, but for himself. Obviously, it could be different with Ruthie. She probably thinks it would be best for the county if Trump didn’t nominate her successor. Plus she knows the loving left would despise her for that.

        6. avatar strych9 says:

          “She probably thinks it would be best for the county if Trump didn’t nominate her successor.”

          That’s kinda my point. It’s a difference of opinion about what’s best and she’s within her legal rights to keep working until she cannot. We do not want to go down the road of removing sitting SCOTUS justices because we don’t like their opinion because then the Left is going to do the same thing. That’s Pandora’s Box (or jar if you prefer the original) and it’s best left unopened.

          RBG is not legally incapacitated and doesn’t show obvious signs of dementia or senility. She’s also got a lifetime appointment. As such, arguably, she’s capable of discharging her duties even without perfect attendance and is not at the end of her tenure. We may not like what she does but other than wait for her to retire or die there is nothing we can do that won’t make the situation infinitely worse down the road.

        7. avatar Huntmaster says:

          “Because the the left will do the same thing.” There’re going to do it anyway!

        8. avatar Dude says:

          I agree we shouldn’t be forcing these people out. I’m saying the right thing to do would be to step down when your health begins to interfere with your job. Of course they’ll never do it because it’s all about partisanship and ego with these people.

      3. avatar borg says:

        Since I am aware that judges have been impeached before it would make sense that a Justice could also be impeached. It may be difficult to impeach a Chief Justice given the Chief justice’s role in an impeachment trial.

    2. avatar jwm says:

      I’m of the opinion that Trump should take the advice of the dems and pack the court now. 100 hard right justices. And thank the dems in his speech to the nation for the solution.

      1. avatar Justsomeguy says:

        Congress is needed to do that and the house will not vote to add the seats.

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

          “Congress is needed to do that and the house will not vote to add the seats.”

          That’s only half the battle.

          Congress can set the number, but it takes the Senate to confirm and seat. As long as we have control of the Senate, we can do a sort of ‘pocket veto’ and simply neglect to vote on the confirmation. (Or just vote ‘no’ and be done with it.)

          Of course, that will motivate the Leftists to turn out and vote in the national election that elects Senators, and for us to show up and thwart them.

          What a way to *massively* inspire American voter turnout, eh? 😉

    3. avatar OBOB says:

      IMO we don’t need a “death watch” right now

      We need to know if she is “really!!!” alive first, THEN test her to see if she has coherent thoughts of her own?

      For all we know, someone is has been voting and signing SCOTUS decisions in her name?

  2. avatar Green Mtn. Boy says:

    “Noted that Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all seem to “favor a strong view of the Second Amendment.” Yet he stopped short of making bets and notably omitted the chief justice from this list of strong gun rights supporters.”

    CJ Roberts is the weak link to a originalist court,then again he was a appointee of the Bush dynasty.

  3. avatar strych9 says:

    This sure is one heck of a strange hill that the Left has picked to die on.

    Were I of a gun control mind set I’d walk away from this one claiming that NYC screwed the pooch by making irrational jurisdiction claims but that, overall, the law is a solid idea within the city. Essentially “Great idea, piss poor execution”, kinda like claiming that “REAL Socialism/Communism has never been tried”.

    1. avatar jwm says:

      I’m of the opinion the left has truly lost its nut. hillary was supposed to be the annointed one and when that failed and we got the orange haired wonder they have spun completely over to insanity.

      When Trump gets his second term and walks away clean from this impeachment nonsense there is the very real possibility of mindless violence.

      1. avatar Mark Martin says:

        Stocking up on ammo as we speak….

        1. avatar Southof16 says:

          Hey I’ve been wondering what you’ve been doing since ya quit the NASCAR scene

      2. avatar SouthAl says:

        I go back and forth between the dems having experienced a traumatic event resulting in a psychotic break, and throwing a tantrum at the cash register over being told they can’t have the piece of candy they put in the cart earlier. Probably some of both, at the level of individuals.

        I think you are right about the second term.

      3. avatar Green Mtn. Boy says:

        Build build and build,stock the ammo pile high and deep,it’s coming.

        1. avatar Anymouse says:

          That is the problem if they choose to punt on this political and social controversy. Lefties will continue to push onerous gun bans until they push it too far and the PoGs push back.

      4. avatar Jonathan-Houston says:

        I don’t want to hurt anyone and I certainly don’t want to get hurt. That said, widespread mindless violence would be met by decisive resistance and I would defend my family and property.

      5. avatar strych9 says:

        “…they have spun completely over to insanity.”

        It may be that simple for a large number of them on the actual Left. The real problem, IMHO, the the profiteers selling division between the rest of us with a shockingly large number of people willing to buy into that bullshit.

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

          …and Russia sure is profiting from the chaos, along with China. Putin has some real estate he’s had his eye on for quite some time, and a hot civil war would be the ideal time to exploit that…

        2. avatar strych9 says:

          A cold civil war works fine for him too.

          We’re not exactly doing a stellar job in Syria at this point and it appears, to me at least, that not one “talking head” or “policy analyst” in this country has a clue what Putin’s up to when the answers are fucking-A-obvious to anyone with a double digit IQ, a general knowledge of Russian history and a map. Fuck, you could prolly get Serge blind drunk and hopped up on crank and get a more lucid explanation of what’s going on over there than you’d get from anyone on ANY news channel/website.

          Trump could probably head that whole thing off if he wasn’t dealing with a domestic cold-war with the Democrats who will instantly use anything he does as evidence of “collusion” or “war mongering”.

  4. avatar dwb says:

    I think that the shennannigans pulled by the city and state are going to backfire. The entire court (*all 9 justices*) have an interest in protecting the courts discretionary review. This time it’s a gun case, but next time it could be environment, immigration, who knows. The *entire court* will be interested in dis-incentiving this behavior. Mooting the case only creates an incentive for municipalities to play games after cert.

    In any event, there are a half dozen cases on hold. Mooting the case accomplishes very little. And if they do moot the case, it will encourage the defendants to change the law to avoid review before argument can be heard. Again, all members of the court will be interested in protecting the court as an institution, so I wont be surprised to see a near unanimous, maybe even strongly worded, decision on mootness, against the City.

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

      “This time it’s a gun case, but next time it could be environment, immigration, who knows. The *entire court* will be interested in dis-incentiving this behavior.”

      You would think that’s the case, but the silence from them has been *deafening*. I was really hoping all 9 justices would have signed a letter making clear that further attempts to influence the court like that would be met with criminal penalties.

      Nope, now the high Court has trained the Leftists that crap like that will be tolerated…

      1. avatar Mark N. says:

        The Court does not, ever, comment publicly on any matter pending before it until oral arguments and, finally, when it issues its decision. The court could have decided the mootness issue without oral argument–it has the power to do so–but it wants to uphold every semblance of due process by allowing argument.

        1. avatar LarryinTX says:

          While that is generally correct, RBG did exactly that on a gun subject, essentially not just accepting but *advocating* for gun confiscation. She should have been removed from the bench, but conservatives have no balls.

  5. avatar Wally1 says:

    The court needs to hear the case, based on the fact that peoples rights have been violated. Damage to civil rights have occurred due to an intentional and obvious intent to violate the constitution by government officials. Just my opinion, your mileage may vary.

  6. avatar M1Lou says:

    The anti rights people are pissing themselves in this. They have to know the law is unconstitutional as hell. They dont care if laws they pass are unconstitutional, just that they dont get struck down by SCOTUS. We need a strong ruling out of this that gives us something to bludgeon lower courts when they violate our rights. Their ability to use weasel words and torture meanings to continue to deny us our rights needs to stop.

  7. avatar Jay in Florida says:

    No one will remove her from the court. She will stay on the bench till her last dying breath just to screw up Trump.
    Who in turn will get to replace her eventually. When he gets his 2nd term.
    Until then she is just a thorn in the peoples side.
    But no worse then Roberts the real turncoat. He cant be depended on to vote on anything according to written law. He is the real danger on the court today.

  8. avatar Timothy Toroian says:

    They should decide the case and slam NYC in the teeth! Then they should do as they did in the 1890s after getting EIGHT cases caused by Judge Issac Parker when the referred to him as “learned”.

  9. avatar enuf says:

    While I do not want anyone to drop dead, odds are fair that Justice Ginsburg and President Trump will both die in office from natural causes. More likely for Ginsberg, being older and frailer.

    1. avatar Green Mtn. Boy says:

      She was begged by the Commiecrat elite to retire under Obowelmovement so he could replace her,she wouldn’t hear of it. She had better out live president Trumps next term,or her and her Commiecrats are royally Effed .

      1. avatar enuf says:

        … commie … blah blah blah … commie blah blah blah …

        She’s no damned commie. She’s a political liberal leaning judge.

        It’s no more correct to call her a commie that it is for liberals to call a conservative leaning judge a fascist. Both are wrong.

        1. avatar Dude says:

          Most modern democrats ARE commies or sympathetic to communism.

          Communism: “A system of government in which the state plans and controls the economy and a single, often authoritarian party holds power, claiming to make progress toward a higher social order in which all goods are equally shared by the people”
          Why do you think they’re pushing the Green New Deal? (Hint: it isn’t really about the environment, as the author even admitted).

          Most modern republicans are NOT fascists.

          “a political system based on a very powerful leader, state control of social and economic life, and extreme pride in country and race, with no expression of political disagreement allowed”

          Remove “extreme pride in country” because we all know most modern democrats hate this country and their own race if they’re white (it’s okay to have pride in your race as long as you aren’t white), and you once again have a good definition of a modern democrat. Fascism is all about nationalizing industry. What republican wants to do that? You know who does want to do it? Bernie Sanders.

        2. avatar LarryinTX says:

          Dude, Warren’s “two cents” bullshit would tax a man with 100 billion bucks 60 billion bucks in 10 years. Where do you think, in that environment, he is going to get that much cash, other than by selling his assets? And who, in that environment, will be interested/able to pay that much cash for his assets? The end result will be the government confiscating his assets to pay his tax bill, whereupon the government now owns the means of production. Without any knowledge of how to make the company work, the government will run it straight into bankruptcy, and the goal of equality will have been accomplished, everyone is flat broke and unemployed, and the tyrants (Warren) are completely in control.

      2. avatar LarryinTX says:

        Trump’s next term is important, but don’t forget the GOP has to retain the Senate to really seal the deal. A compromise Justice will ruin my life, I want another Gorsuch/Kavanaugh.

  10. avatar Hannibal says:

    Well, yes, I suppose it would be the ‘conservative’ thing to do, in a sense. It would be the minimalist intrusion into state lawmaking. But then, allowing states to segregate schools by race would also have been the ‘conservative’ thing for the courts to do. Is that what we’re looking for? The courts to essentially forget about the rights of individuals in deference to any state or local law? Somehow I doubt the same commenters that want all these gun control laws would like that.

  11. avatar Sam Hill says:

    Shit stinks to most people
    Rose smell good to most people .
    Swap the names the smell stays the same.
    So what’s in a name? Nothing.
    Action rules the day.
    Inaction is surrender.

  12. avatar Mister Fleas says:

    “Deciding not to decide on the gun rights questions here, citing mootness, offers the court a legitimate out of this political and cultural pickle. It would be a conservative response in the true, constitutional sense of conservatism. While this sure feels like a live controversy because Americans are riled up about guns—owning and controlling them—the court could simply defuse this controversy by refusing to rule on outdated legislation, declining to issue what would essentially be an advisory opinion, an editorial about the Second Amendment.”

    Notice how most “conservative” leaders and pundits like to give in and accept defeat? This guy is one of them.

    1. avatar Mark N. says:

      The error of his thinking is demonstrated in ythe very first sentence quoted. There is no way out of this “pickle”, as the issue has been breweing ever since Heller was decided, for two reasons: 1) Heller did not directly address “and bear”, although it suggested that the right extended to bearing arms, without defining the scope of that right; and 2) by stating that the law in Heller failed review “under any standard”, the court failed to set out a concise constitutional analysis to be applied to such cases, leaving it to the lower courts to develop the law. What happened was that the four liberal circuits immediately applied a sliding scale analysis, supposedly based on the “severity” of the intrusion on the rights secured, despite the fact that Justice Scalia specifically excluded such an analysis. The end result is that the liberal circuits apply what amounts to little more than a “rational basis” analysis, meaning that if the restriction has any semblance of rationality, even without any supporting evidence (even when the test requires it), which Justice Thomas argued resulted in the Second being treated as a right that was not important enough to be insisted upon.

      There is no way the court can avoid adjudicating the substantive law in 2A cases, yet that is specifically what NYC and NYS are attempting to do. They do not want any clarity in tghe rules to be applied in this arena, because the loosey-goosey rules now in place allow courts such as the Second Circuit, as it did in this case, uphold an outrageous, unsubstantiated, and pretty much illogical limitation on the right to bear lawfully owned firearms.

  13. avatar Cory says:

    “Deciding not to decide on the gun rights questions here, citing mootness, offers the court a legitimate out of this political and cultural pickle. It would be a conservative response in the true, constitutional sense of conservatism.”

    LMAO. She’s right in the sense that it would be the “conservative” thing to do, since Conservatism Inc. over the last 50 years has conserved next to nothing and only seceded to the ever increasing demands of the left. I guess that’s one way to pilpul it.

    1. avatar LarryinTX says:

      “acceded”

  14. avatar tylersdad says:

    I think this quote from one of my favorite bands is quite apt:

    If you chose not to decide, you still have made a choice.

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