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This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights. 

New York City’s Desperate Attempt to Kill the NYSRPA Case

Last January, the Supreme Court agreed to hear N.Y. State Rifle & Pistol Assn’ v. The City of New York (NYSRPA), a Second Amendment challenge to a city law that prohibited virtually anyone from taking a handgun outside the city. The case was set for the 2019 term, and would be the first Second Amendment case to be decided in a decade.

Since then, the city has been doing everything in its power to “moot” the case and escape the Court, but this week it threw down the gauntlet.

Almost as soon as the Supreme Court agreed to hear the case, the city pulled a 180 on a law it has defended tooth and nail for decades, and asked the Court to delay the case to give the city time to remove the rule. The city originally planned to have the police make a rule change–not even overturning the law–to try to moot the case.

The Court denied this request and, seeing clearly what the city was up to, several lawyers, including myself, made sure to address the city’s bad faith attempt to escape the threat to its gun control law.

A case is “moot” if it does not involve a “live” controversy. Imagine, for example, if your state banned speaking the word “caribou” in public. You sue the state on First Amendment grounds. Then, as your case is set to be heard by a federal court, the state repeals the law. The federal court no longer has constitutional authority to decide the case, as it is no longer “justiciable” as laid out in Article III of the Constitution.

There are, of course, some doctrines that prevent abuses of this system. But New York City has done its homework. The Court looks down on governments that voluntarily cease unconstitutional activity ahead of judicial review. The Supreme Court has said that, in these situations, it should be clear the defendant is not “free to return to his old ways” because there is “a public interest in having the legality of the practices settled.” 

The city knew their half-hearted attempts to squirm out of the case wouldn’t free them form the “voluntary cessation” doctrine, so they had to do something more extreme. Enter New York Senator Brian P. Kavanagh. Kavanagh sponsored Assembly Bill A7752 in the state senate, preempting city laws on the transportation of firearms. The bill flew through the state legislature, and by July 3, was headed to the desk of Governor Cuomo.

If something seems odd about a Democrat state senator sponsoring a bill loosening restrictions on firearms, that law speeding through a Democrat-controlled legislature, and then being signed by a feverishly anti-gun governor, it might be because you have more than two brain cells to rub together.

A change in state law to preempt the city gun law, something the anti-gun crowd has consistently fought against, was the only way strengthen the city’s mootness argument. This sudden turn on a law the city supported ab initio, plus the sudden about-face of the state legislature, suggests nothing more or less than collusion to keep the Court from settling the matter.

With that, the attorney for New York City submitted a strongly worded letter to the Supreme Court, asserting they city’s opinion that, no matter what the Court or opposing counsel thought, the case was moot. The City dared the Court to proceed with the case, and and promised that if it does, the City will make the case as messy as possible for the conservative wing of its justices.

The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.

california gun control law
Bullseye Sport gun shop in Riverside, Calif. (AP Photo/Jae C. Hong, File)

Lawsuit Over California’s Under-21 Ban 

Continuing their notably litigious and aggressive gun rights advocacy, Firearms Policy Coalition, Firearms Policy Foundation, the Calguns Foundation, and Second Amendment Foundation sued the state of California this week for violating the rights of law abiding adults aged between 18-20. The suit targets multiple age discriminatory California laws.

You’ve heard it a million times. “If you can fight and die for your country….” Even without that emotional argument, stratifying the age of adulthood doesn’t make sense.

If we’re going to set an arbitrary age at which Americans are “adults,” we need to set it and have that be that. How can it be that you’re considered functional enough to sign a mortgage, join the military, or whatever else, but not to do other things? This isn’t to say anything about the average intelligence or responsibility of an 18-20 year old, but rather the lack of legal or philosophical basis for discriminating against them in such a way.

governor northam virginia beach gun control
Virginia Gov. Ralph Northam (AP Photo/Steve Helber)

Virginia Governor Rolls Out Gun Control Wish List

On Wednesday, Governor Ralph “Coonman” Northam unveiled the final list of gun control measures he wants implemented in his state. In a move that should surprise precisely no one, he basically listed every gun control proposal you’ve ever heard of from across the country over the past year. Assault weapons, bump stocks, suppressors, “high capacity” magazines should all be verboten, according to him.

He didn’t stop there, adding red flag orders, an elimination on state preemption on local firearm laws, “universal” background check, and a “one handgun per month” policy.

The only novel thing was a safe storage provision, which Northam wants to come with felony punishment for anyone who leaves a firearm “accessible” to a 17-year old. Fascinating. What’s left to see is whether Northern Virginia (read: West DC) has enough sway in the state to pass any of these bills that the governor will sign.


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  1. “New York City’s Desperate Attempt to Kill the NYSRPA Case”

    Eff New York state and city,they violated the Constitution,now they will have to live with the results,will they learn Hell No,

    • I grew up, and lived in N.Y.C. for a number of years, departing permanently in 1967, you have one guess as to why, read legislative history. So, in answer to the question asked, Will the city learn, I would add the state too, the answer is not likely, unless they are slapped down by The Court. I would add that the “slapping” must be done with enough force that N.Y.C.’s and Albany’s ears will not stop ringing for several years, if ever.

      • They are indifferent to anyone else’s opinion, and attemtps to impose consequences take great, ongoing effort. They never “learn” that they might be wrong, but rather that you are having a problem accepting their rightness.

        What will take them down, eventually, is the collapse of the patronage system. It’s internally impervious, but with the unbounded erosion of the host, the parasites eventually die. Out-migration. Decline of industry and employment. Competing “centers” of commerce, finance, culture, and so on (the claimed uniiuqe capabilities of NYC.) Money is interesting because it is fungible. If it’s fungible, it can go anywhere, taking the wrangling of it with it. In the NYC financial insitutions cannot be replaced, replicated, or substituted, why does Hong Kong exist?)

        El Heffe decided beign in NYC was more bother than it was worth, and look …

    • No, not just “eff that”. This crap is like a disease. It migrates to other states because the residents inured to it migrate to other states and think that policy is ‘okay’. Sometimes you can’t just leave it. Sometimes you have to take the fight to them.

  2. So violate all kinds of constitutional rights in practice, get called out and violate the spirit of the law in general to try to evade any chance of criticism………. yep sounds about right.

    • This is why we are going to win, we know how to fight to win. While you people sit around waiting for the supreme court to save your ass, we with satan as our leader, make you look like fools. The supreme court, because they believe in the rule of law, like you fools do, will drop the case and you white folk will have to turn your guns in soon. We care not about rules or laws that we do not like. They are only there for us, because you fools will follow them right into the rehabilitation camps that are soon coming. But, but, the law says we have to go there. And yes you will, welcome to your new home. Soon we will have enough new brown voters that will overwhelm you at the pols, and you will quietly obey, because we will be the law.

        • sounds like he would be more of a pig man a goats to clean he needs a nice fat hog with a nice set of cutters

        • Vlad, buddy… seek some professional help, dude. I’m not being sarcastic either – your posts concern me, and I worry about you.

      • Get back to practicing shooting those kneeling victims in the back of the head, Vlad. Your aim needs work if you’re still hitting your own foot.

        So comical, to think that but a few weeks ago you were pretending to be a ‘reasonable gun owner.’ You’ve failed utterly, and only convinced people that ‘reasonable gun owner’ types are not to be trusted. You’re trying to undo that damage by over-exaggerating the very real disgusting aspects of you socialists, and making it appear like you don’t seriously support the ideas o tyranny & mass-murder…but that isn’t working, either. Time to shed your skin & transition to another name, snek.

        • We will step on your snek.

          And soon you will yearn for the good ol’ days of President Barack Obama and vice president Joe Biden.

      • That’s OK Vlad, I guarantee that vermin like you won’t live to see the end of your “glorious revolution”. The Marines are going to enjoy putting down your little insurrection.

        • to pwrserge
          “”””””””””””””””””””””””The Marines are going to enjoy putting down your little insurrection.“”””””””””””””””””””””””

          We Socialists grow more numerous and more powerful with each passing year and we of course are well aware of the fact that “History is on our side not yours”. We gain THOUSANDS OF NEW VOTERS EVERYDAY and will soon overwhelm the country. With their new votes, because they can vote immediately as soon as they get here, we will take the government. Your Marines were taught to follow orders, they will now follow our orders.

          Your Failure to do anything will eventually result in our control of just about everything.

        • How much meth did you have to smoke to believe that United States Marines would obey orders from a genocidal socialist?

      • Vlad! I thought you went to shit and the hogs ate you. Guess I was half right. Guys, ignore him. Even though I just briefly responded to him by not responding he becomes irrelevant. Oh, one last jab, Vlad, (poet and don’t know it.) I ain’t turning in a single thing. And I’m not scared of government agents. After all, I was one for over 20 years.

        • to Gadsden Flag

          You understand as a government agent for 20 years what I wrote is either here or will be, and what is coming soon in the dark of the night.You admitted it when you said you were not turning in your guns when we take control because we will soon outnumber and out vote you. You understand how many other agents will then do as they are told, so they do not lose their government pensions, because we will be the government. America has been a tougher nut to crack versus other countries, and Trump has only slowed our progress, but white America we are coming.

        • I know I said no one should reply to you, but you invite it. I don’t know if that’s the stupidest shit I ever heard, or the funniest. Nearly everyone I served and worked with said they would never turn on United States citizens. I mean the military and federal, state and local L.E.O. I swore to defend the Constitution against all enemies. Foreign and domestic. Twice. Meant it both times. Have you ever taken that oath? I suppose not. You’re only a troll.

        • to gladsdenflag
          “”””””””””””””””””””””””I know I said no one should reply to you, but you invite it. “”””””””””””””””””””””””

          You reply because you think (maybe) those government agents might not ever turn on United States citizens.

          But YOU KNOW WE SOCIALIST ARE COMING TO POWER, and those very citizens democratically elected us. This you know is true.

      • I’m just going to leave this here…

        And the smoke of their torment goes up forever and ever, and they have no rest, day or night, these worshipers of the beast and its image, and whoever receives the mark of its name.” (Revelations 14:11)

        • to mikemeplat

          “””””””””””””””””””””””””””Wait. You’re Saul Alinsky, right?”””””””””””””””” You missed the most important point as Saul Alinsky once said “Make the enemy live up to its own book of rules.” because no one can possibly obey all of their own rules and has historically become quite accurate. That is what we do to you ignorant Red Neck Hillbillies. We make you live up to your own rules, when we take the government for ourselves. We pull the rug out from under you and you obey with nary a wimper, BECAUSE IT’S THE LAW.

          He was a great man to socialists, like our leader satan, who is the center of any socialist revolution against you ignorant hillbillies. You will not admit like the rest of the civilized industrial world that health care is a human right and not reserved only for the upper 1 per cent. These social programs the entire rest of the Industrialized world has been enjoying for decades.

          Only by educating the younger generations in satan can we ever hope to overthrow the present Representative and thoroughly corrupt Government that was founded for the filthy rich and by the filthy rich and was designed to make the people think they have a democratic system which they do not and never have had.

          Vote Bernie in 2020. He is a modern day Saul Alinsky.

      • Your leader, Satan, is doomed as are his followers like you, Vlad bag. Blow it out your arse. LOSER!

      • I find myself in an odd position. vlad tetanus is a world class moron. No doubt.

        But I don’t think this guy is vlad. Wrong style.

        • I agree. The posts aren’t long enough. It usually takes me 3 or 4 swipes to ignore his dumb ass. I got through most of these in a single swipe.

        • I bet he writes Comic book scripts for The CW TV Shows, some great entertainment read in this thread. New Comic book caricature out a Stan Lee Invention, Vlad the bloodsucker speaks for DNC and Tom Perez Lucifer worshippers.and his lord is Obama.

      • Is this the real Vlad or has he mixed his psychotropic pharmaceuticals with crystal meth?

        I thought his gods were Marx, Engels, Lenin, Stalin, Mao, Che Guevara, and the Castros.

        • Go back and read all of Vlad’s comments. I don’t think he is “what” he claims to be, I think he is one of “us”, but making “true” statements to antagonize. No leftist in their right mind would acknowledge the things that he is acknowledging, and most leftists don’t even know what is true. I think Vlad is playing everyone, and you’re taking it hook, line, and sinker!

      • Hey Guys,

        I have posted enough comments on this forum to establish that I am most certainly NOT pro-Socialism and most certainly NOT pro-Satanism. I have also posted enough comments to concretely establish that I AM pro-truth.

        Unfortunately, there appears to be a lot of truth in what Vlad is saying. Please do not dismiss someone’s statements as hogwash simply because you do not like what they are saying. If someone’s statements are demonstrably untrue, by all means excoriate him or her.

        The truth of the matter is this:
        (1) People who embrace socialism are immigrating/reproducing much faster than people who embrace conservative values (liberty, responsibility, limited government, etc.)
        (2) The overwhelming majority of people who work for government blindly do whatever government tells them to do, no matter how obviously unjust. (I have seen this first hand on multiple occasions.)
        (3) The overwhelming majority of people blindly support government laws, even when they do not like those laws. Sure, many people will quietly violate laws that they do not support when no one will ever know. If violating those laws requires losing a LOT of money or freedom, the overwhelming majority will comply.

        Those are simple facts. Plan accordingly.

        • I saw the same thing. I think that Vlad is one of “us”, and just laying a part it antagonize and to be sarcastic. Many of the things he is saying would never be admitted by a leftist, even if they knew it was true.

        • And what the poster said has always been the leftist endgame for the USA. The fact that they are more and more open about what they are shows one of two things: Either they think they are close to that endgame, or they see it slipping and they are getting desperate. I still have some hope that leftism in the USA saw it’s high water mark with Obama, but we’ll see.

          The satanism stuff, though, most leftists don’t think like that. That’s what religious/social conservatives think about them, not how they think about themselves. That’s the mark of the troll to me.

      • Did you think this fantasy up yourself our have help from another idiot as stupid as you. You better pray there is never a civil war over this or you may find your, the coward you are, running up a tree to save your sick ass.

      • Bernie will die as an irrelevant stupid old man – but it is not conservatives or libertarians that will ensure this.

        It will be his own party that drives him to irrelevance.

        Democrats will once again make promises to the Bernie Socialists and then hang them out to dry.

        Socialists are stupid – they will fall for this trick again, and again. But that is to be expected since it is very easy to fool the adult children that make up today’s socialists.

        Too much soy, too much internet pornography, and far too little tolerance for stress and pain – I don’t fear today’s socialists in America – I pity them.

      • I am a sad panda. I wanted to wear my big girl panties today and my mommy told me no.

      • Actually liberalism is going lose. Europe is a perfect example. You liberals love to use Europe as your perfect liberal example, so, let’s do so. European liberalism is slowly being crushed under a wave of “right wing nationalism.” In every European country, eurosceptic and right wing parties are on the rise. This is the natural progression of leftism. Eventually people reach a breaking point with their oppressive leftist overlords and rebel. Russia is another example. Communism for nearly a century, all erased in a matter of *days*. Now Russia is a “right wing nationalist” whatever. You’re going to lose. Beware the long branch, it snaps back.

        • I thought all the old communist party bosses just became owners of the resources they previously pretended to manage on behalf of the people, that it was always basically a kleptocracy, but that they are more open about it now.

      • Humm… Vlady, not every “brown” voter believes in your tripe. And turn in my guns? Not bloody likely. Twenty years of living in a totalitarian government taught me that wannabe tyrants like yourself only fear one thing, and that is a gun in the hands of someone who is willing to give up everything to keep you from procreating. You could always try though, this is the land of opportunity of course.

      • With 600 million guns and trillions of rounds of ammunition, we could kill everyone on the other side 10 times over.

        As one of your dear leaders once said: “Political power grows out of the barrel of a gun.”

        We have ’em and your side generally doesn’t. Swalwell’s nukes will kill Swalwell too. Mutually assured destruction.

        • To Miner49er, I never understood why some people always accuse gun owners of being cowards. Are they suppose to settle their differences with fisticuffs? Perhaps is some hollywood movie, the steely-eyed hero may prevail over his assailants with bare hands, but in the real world I’ll stick to modern force multipliers.

        • It’s about organization. If there’s an uprising against leftism (not saying there will be, and not saying leftism won’t be defeated at the ballot box; that’s still possible), it will need to have some organization to build around. Like a block of states.

      • You guys are getting WAAYY too worked up over Vlad here. I genuinely thought for a while he was one of those actual “reasonable gun owners”. The last couple posts make it clear he isn’t actually serious. He knows what will get a rise out of you guys and is just fucking with you. Probably just an anti with some spare time on his hands.

        Time for a new screenname Vlad, you’ve worn this one out. Happy trolling. Try throwing in some abortion and anti-vaxxing stuff too. It gets a pretty good response around here. You can ask Pg2 about the vaxxing, he’s pretty on point about that stuff. Manages to take a scope review and make some anti-vaxxing connection to it. It’s kind of impressive really.

        • “You guys are getting WAAYY too worked up over Vlad here.”

          You’re my favorite type of gun owner, the “it will never happen here” type. You sit on your arrogance, cocksure that we are just a joke. Ignoring us all around you, because we aren’t actually serious. That no matter what we say or do we are actually only like you “reasonable gun owners”. That we are, carry on, nothing to see here.

          Your type existed during the holocaust as well, snookering his buddies, telling them it’s only a shower.

          Keep up the good work Nickel Plated, and thank Y’all for the help.

        • The reasonable gun owners part wasn’t meant to be a compliment. Thus the quotes. I guess fudds would have been more appropriate.

      • Oh. I think I get it.
        Ol’ Drac here is acting as an opposing voice on here, so as to challenge our points.
        I think he’s finally cracking under the lunacy of the opposite sides insanity, and is finally at the point of actually raving.
        Vlad, you can stop for a weekend, that can’t be healthy.

  3. It is really a shame there are no Esso gas stations in fascist US states such as NY.

    • Isn’t that what largely became Exxon? Only ever saw one in Central America (forget if it was Panama or Costa Rica)

      • They’re all over in Cuba, although the government stole them in 1959, there is no one to change the signs.

    • Esso petrol stations used to be common downunder but I don’t think I’ve seen one in almost 30 years.

  4. I fear that this time NYS may have actually rendered the case moot.

    The left-wing Justices will not want to hear the case because even they would have to twist themselves into knots to defend it.

    The right-wing Justices might not want to hear the case because they actually honor precedent.

    • I mean, that’s technically still a win; an old & oppressive gun law is off the books –that’s what we wanted, right? It’s nice to dream of a sweeping win that undoes all the bad stuff we’ve endured, but we should know by now that SCOTUS simply isn’t interested. Still hard to believe DOJ basically supports the state’s position; unbelievable.

      • Yes, it is a win in that sense, but no, it is a loss because the Court may not have an opportunity to set the standard of review in 2A cases, and to, in a strongly worded decision, tell the 2A to stop giving nothing but lip service to Heller and McDonald. The Second Circuit decision was so convoluted and ridiculous that a real beat down is in order, as the court (and a few others) has yet to see a gun control law that does not pass what they call “intermediate scrutiny.” A win will be a decision setting rules that the Supreme Court expects the lower courts to follow to the letter.

    • A few things Ralph, the Supreme Court allowed delay after delay on this case. The court system is so slow, ponderous, and outdated that it can no longer keep up with the rapidly changing society. The Courts behave as if the average life span is 500 years… justice delayed is justice denied…anyone?

      This however, isn’t the real problem, which is the “right” is weak and feckless in defending rights.

      Any ruling that is “conservative” is either so narrowly written, or filled with so many caveats that it takes lifetimes to finally arrive at the proper decision.

      Any ruling that is “leftist” is all encompassing and immediate, gay marriage, Roe v. Wade, and nation wide injunctions on the border wall.

      The right steps into the ring wearing 28oz gloves, the bare-knuckle left steps into the cage and says “gloves, we don’t use no stink’in gloves”.

      Secondly, you do NOT place all your eggs in one “ten year” basket.

  5. Perhaps it’s time for some actual changes to firearms laws (and mental health services) to address the plague of mass shootings this country faces?

    • “Plague”? Please…cite the source of your statement. You know…those pesky things known as “facts”? Oh yeah, that’s right…what you claim isn’t actually a thing. Although I do agree with one part of your statement. “Perhaps” it’s a good time to roll back the myriad of unconstitutional gun laws infinging on a basic human right…

      • While I definitely agree with your words, your handle is a bit too close for comfort, my friend… 🙂

    • Simple, lock up commies and put actual teachers in school rather than marxist indoctrinators. Watch school shootings disappear.

      But in all reality, “mass shootings” are irrelevant. As a cause of death, they literally don’t matter. The benefits of the 2nd amendment far outweigh any marginal increase in death rates.

      • It’s pretty clear the death rate would skyrocket without the 2nd amendment, anyway.

        • It’s pretty clear because it is the outcome in nearly all of the countries that have instituted total gun control, and the same outcome in many US cities with excessive gun control, like Shitcago!

    • If you mean getting rid of 90% of existing restrictions on firearms and repurposing the budget of the defunct ATF toward better mental health care, then yes, it’s FAR past time those actual changes occurred.

    • I am with you on changing the firearm laws, thank you, it’s about time! Pick either 18 or 21, anyone past that age should be required to carry a loaded gun every moment of every day, and should be liable for treble damages if he fails to stop a criminal act. How’s that for a start?

    • While paying due respect to those very infrequent tragedies, we don’t have a school shooting problem in this country. Most gun deaths are suicides, and most of the remaining that aren’t suicide are gang violence.

      We a mental health and drug problem.

      There is a group I belong to called Walk the Talk America that is working on the mental health issue from our end; a group of gun owners, competitors, and others in the industry. I’d urge all of you to look in to it.

      As for the drug laws…

  6. If NYS really cared maybe they should pass a full preemption statute that placed NYC under all the same gun laws as the rest of the state… which, of course, would mean that some random Joe from Buffalo with a carry permit could stroll down Time Square with a (concealed) firearm and be fully legal. Wouldn’t that be a gas.

    • That very question intrigues me, as NYC has held on so long to its state guaranteed freedom from state law pre-emption. Apart from demonstrating the desperation of the anti-gunners to avoid meaningful review and a new standard of review in such cases, it kind of opens the door to further erosion of NYC’s “rights” to write its own laws on guns…which would NEVER do!

      • Under the NT State Constitution, NYC has “home rule.” Which means, on many issues NYC and not the State has sovereignty over its own affairs.

        • That raises an interesting question: if the state passes a preemption law for this particular gun law, why would NYC home rule not negate it like it does many other gun laws? Is it just because NYC decides not to? And if that is the case we find ourselves in the very situation of “voluntary cessation” where NYC could assert it’s home rule privilege after the case is dismissed for mootness. Alternatively, the third party state legislature could simply repeal its own law.

          I hope the court pushes ahead.

        • “if the state passes a preemption law for this particular gun law, why would NYC home rule not negate it like it does many other gun laws?”

          Good question. I don’t have an answer. And maybe SCOTUS won’t have an answer either, in which case N.Y. State Rifle & Pistol Assn’ v. The City of New York is not moot.

    • “which, of course, would mean that some random Joe from Buffalo with a carry permit could stroll down Time Square with a (concealed) firearm and be fully legal.”

      “Permit”, “concealed”, “fully legal”… Still begging permission from their betters. Subjects, not a free people.

      • Yes, I’m sure Joe will be saying the same thing from his prison cell at Rikers Island as he tries to figure out how his family is going to get by after a gumshoe with a good eye spotted him printing and busted him.

        Go out and lead the revolution. Until then, big words on the internet aren’t worth much.

      • Hey john your totally free to move to a country that meets all your standards. Do send us a post card when you get there.

    • Oh, it’s better than that.

      The state legislature just pased a package of laws having the state impoce NYC’s housing and rent regulatinon laws across the rest of the state.

      The exact wording is deep withing a cloud of chaff.

      The talking poitns, from legislators, the administration Governor Soprano, various down-state progressive, and their captive propagandists, all include *extending NYC rent and housing controls to the rest of the state.* So, not only taking that away from the localities, but explicitly stating that the pont of these laws is to enable NYC to impose policies on the rest of the state.

      • Didn’t down state threaten to split the state n secede at one point? We did say “Say when.” did we not?

  7. “If something seems odd about a Democrat state senator sponsoring a bill loosening restrictions on firearms, that law speeding through a Democrat-controlled legislature, and then being signed by a feverishly anti-gun governor, it might be because you have more than two brain cells to rub together.”

    And of course, if you think that New York City and the New York State legislature would not immediately repeal everything they have done to moot the case, then you probably don’t have those two brain cells to rub together.

    It really is amazing how stupid they think we are.

    • Is that more or less stupid than telling people that Reciprocity would budge the needle one iota in these places, even if it had miraculously passed into law? It’s pretty obvious that NY intends to do as they wish regardless of what some external authority requires. Gun rights really does seem to mirror the closing days of the Civil Rights era more & more every day; a show of federal force will ultimately be required to crack these people, just like was needed in Little Rock. But we’ll require a president that is willing to go to bat for us in order for that to happen.

  8. Does SCOTUS have any recourse that could dissuade these sorts of shenanigans? Seems like a great exploit that can be leveraged by local or state governments to target (or simply troll) specific political or economic interests.

    • If NYC turned around & re-instituted the laws right after repealing them in order to moot the case, you could probably file a contempt of court suit & win pretty easily (and probably with a violation of civil rights under color of law rider along with it). In the end, it’s really a stalling tactic, to drag things on long enough that SCOTUS swings liberal(er) again and drops the paltry amount of pressure they’re putting on NY today.

      • Yes, the purpose is to prevent a conservative majority from setting a bar on review of these cases much higher than that set by the liberal circuits. That is why the court of appeal decision that now allows shall issue carry was not appealed, because they fear a decision by the Supremes that would be binding on the whole country. In the 2d, 3d, 4th and 9th circuits, “intermediate review” is merely “rational basis” (the lowest level of court review) dressed up in pretty words. And they for sure do not want that to change, as it would open the flood gates to overturning a multiplicity of laws on the books.

      • It’s not contempt of court (even if it is contemptous of the court!) and there’s no violation of civil rights without a ruling. That’s why the court should push ahead.

    • The recourse has been and always will be the people. Expecting votes or court decisions to carry the water will never cut it for long. Thomas Jefferson and others were quite vocal about that fact. If the people lose the spirit of rebellion then liberty is lost.

      Have the American people lost the stomach for liberty? That remains to be seen but the clock is running down rapidly.

      • I have not lost my will to fight for liberty. It seems that most of us on this blog are ready to prevail. There is something insidious going on. Look at those nations that have embraced the ‘nanny state’ (Germany and Great Britain, for example). They no longer have freedom of speach. You can be fined, arrested, and jailed for expressing opinions the state does not like. The big push for socialism, here in the USA, is an attempt to make us all so dependent upon the state that we cannot resist. They know they will not be able to take our guns anytime soon. Instead, they will use socialism to get control of our health (mandated healthcare), our incomes (through the taxation needed to fund social programs), and our ability to communicate freely (censorship, social credit scores). Once socialism is firmly established, they will have the control needed to take our guns or, kill us as we resist.

        The solution is to not yield an inch on the Bill of Rights. That is the line we must never allow them to cross, no matter how much ‘free’ stuff they promise.

        • I don’t disagree with your comment.

          “The solution is to not yield an inch on the Bill of Rights. That is the line we must never allow them to cross,”

          That line was crossed a long time ago.

  9. Can someone explain to me the overall win point of the NYC case and why it’s absolutely important nationwide?

    (I’m not being sarcastic or negative, I just remember reading about why it was so important and how it could repeal a lot of other things if it’s sided with the plaintiff, and can’t remember what/why)

    • Currently, there are three standards of review employed by the Supreme Court for various issues, rational basis, intermediate scrutiny, and strict scrutiny. Under rational basis, if there is any rational basis supporting the governmental action, the law is upheld. Under intermediate scrutiny (as it is supposed to be applied) in circumstances where individual constitutional rights are implicated, there must be a “close fit” between the governmental restriction and the conduct sought to be curtailed, so that the law does not unnecessarily impede other rights. Under strict scrutiny…well, under strict scrutiny, governmental restrictions on guaranteed rights are presumed invalid for most purposes. What has been happening is that the liberal circuits have been applying what they call “intermediate scrutiny” to all of these gun control laws, but their “sliding scale” analysis (rejected by the “Heller majority) amounts in almost all cases in upholding the restriction, even in cases where the government has made no factual showing at all as to the rational for the law or the closeness of the fit to the harm sought to be avoided. In other words, these courts have been applying rational basis review. The ban states are trying to assure that these decisions are not reviewed by a pro-gun conservative majority, as the Supreme Court decision would li8kely set a much stricter standard of review that these lower courts have been applying. If that happens, many gun laws will fail constitutional review. What looms largest is a review of laws limiting the right “to bear” arms, of particular import to states, such as NY, Mass, California and others, that make it difficult if not impossible to obtain a carry permit. California for example bans open carry, and in the large urban areas it is next toi impossible to get a CCW. All that could change, with the court ultimately concluding that “shall issue” is the law of the land in some form, either concealed or open carry.

      • Thank you for the in-depth explanation. I really do appreciate that. If you see my comment response to the one below, the same question goes if you’re willing.

      • “…a pro-gun conservative majority,…”

        A literalist, constructionist or originalist perspective would reject these shenanigans just as well: perhaps better. A limited-government perspective would as well.

        Concretely “intermediate scrutiny” & the rest trace back to different philosophies of government and law. If the US constitution is a limiteg charter of govt authorities and responsibilities, you end up with one kind of scrutiny. Requiring a good reason and som evidence of impact for laws makes it that much harder to throw patronage around. Or indulge the govt-admin people to play real-life sims with, well, with us.

        Gorshch confuses many of the chattering class as a “swing” between “conservative n liberal.” BUT, they’re looking at the bundle of policies politically associated with the fake “two wings” of left and right. He’s generally pretty consistent in asking: “Whoa, where’s your authoritah, bro?” Contra the “liberal” wing, who are consistent in their portfolio of preferred policies, and their “more government, better” POV.

        I, myself, am so old I remember whent there were more civil libertarians on the “left” side than the now lonely Alan Dershowitz, but I suppopse things change…

      • “All that could change, with the court ultimately concluding that “shall issue” is the law of the land in some form, either concealed or open carry.”

        What I would *love* to see is a ruling requiring ‘shall issue’, but leaving it up to the states whether carry will be open, concealed, or both.

        In my gun fantasy, I want to see California putting up an election referendum on mode of carry before the voters. Just *imagine* the pearl-clutching, teeth-clenching, wailing and crying that would ensue –

        It has to be one or the other, do they choose the ostrich ‘head-in-the-sand’ of not wanting to know, AKA – the ‘out-of-sight, out-of-mind’ of concealed carry, or do they choose ‘the right of the people to know who is carrying a gun’ of open carry’?

        Good Lord, the editorials in the ‘LA Times’ arguing for and against each choice would be fucking *priceless*… 😉

        • If given a choice, California will more likely go open carry, notwithstanding that open loaded was banned in 1968 and open unloaded in 2013 (the latter because gunz scare the soccer moms who all call 911). Several reasons. One, most people would rather not openly carry a firearm–at least in California. Second is the Gun Free School Zone Act (both state and federal) which bars carry within 1000’of a school premises without a concealed firearms permit. The practical effect of the GFSZA is to ban open carry in most if not practically all urban areas in the state, because the overlapping school exclusion zones leave almost nowhere where open carry is legal. Third, the Democrats and their city police chiefs (as well as a minority of sheriffs) are convinced that “more guns means more gun crime.” (It’s not true, but nonetheless they firmly believe it.) So any law that discourages carrying of firearms will be the way it goes. And who knows, if forced to allow open carry (the Ninth Circuit has already concluded that their is no 2A right to concealed carry), the Legislature would undoubtedly re-enact open unloaded carry and force another 10 year fight to require the state to allow open loaded.

        • Mark N.,

          Polite correction: the federal Gun-Free School Zones Act does not prohibit open carry. Rather, it prohibits carrying firearms within 1000 feet of a school unless you have a carry license from your state.

          If you are right and I am wrong, please provide the wording of the Gun-Free School Zones Act that only excuses licensed CONCEALED carry.

    • In short, many of us are hoping that the SCOTUS uses the case to declare that STRICT SCRUTINY needs to be applied by lower courts when a valid 2nd Amendment lawsuit is entered. I can’t think of a single Malum Prohibitum Law (prohibited because the government says so – a victimless law), for example “magazine capacity limits”, “AR-15/AK-47 bans”, etc would stand under strict scrutiny.

      • As the case stands now, how is it that this particular case is going to be forced to be held to strict scrutiny, vs how it’s being done now? Granted, I’m in favor of all abolishment of almost all laws (guns, speed limits, drugs, etc), so I’m trying to understand how the court saying that the NYC travel prohibition is not valid, makes the rest of the country follow suit.

        • When a SCOTUS decision is rendered that says: “Laws that infringe on enumerated rights must meet the strict scrutiny standard which this one does not. The lower court is overturned.”

          Really, all the “ban all the things” that fail tests of evidence only remain because they are not subject to “strict scrutiny.” You can throw all the stats, logic, and results at them you want. Until the folks who like “No guns for you!” are required to respond to evidence, they’ll just “Neener, neener, neener, we have the votes.” as they have been.

          As it is, even intermediate scrutiny would be an improvement for gun laws.

        • Jon in CO,

          New York City claims that allowing people with handgun licenses to transport their firearms outside of New York City will increase the number of firearms “on the streets” (even if those “streets” are in other cities in New York state and surrounding states) and therefore increase violent crime. And New York City implicitly claims that their law therefore reduces violent crime which is a “compelling government interest” — allegedly worthy of negating unalienable rights.

          New York City offers no evidence that their claims (both explicit and implicit) are true. Instead, New York City simply touts that their claim is common sense, in other words a “rational conclusion”. And the federal Second Circuit Court of Appeals upheld that rationale as “intermediate scrutiny” (which it is not).

          The plaintiffs in this case are asking the U.S. Supreme Court to overturn this case because there is no evidence which supports the alleged intent of the law and because the law totally destroys the right of the plaintiffs to keep and bear an entire class of arms (handguns) outside of the city.

          I believe the U.S. Supreme Court agreed to hear the case for two reasons:
          (1) The New York City law indeed totally destroys the right to keep and bear and entire class of arms (handguns) outside the city. (This totally conflicts with the U.S. Supreme Court’s recent Heller and MacDonald rulings.)
          (2) Various other state and federal courts are upholding firearm laws which effectively destroy the right to keep and bear arms — justifying their decisions strictly on emotional appeals dressed in “common sense” wording touted as intermediate scrutiny.

          Because various lower courts are abusing “rational basis” and “intermediate scrutiny” standards to allow firearm laws which totally destroy our unalienable right to keep and bear arms, many of us hope/believe that the U.S. Supreme Court will use this case to establish that all courts must use “strict scrutiny” on all cases involving firearm laws. This would be good for us because courts would no longer be able to uphold a law unless a law was extremely narrowly focused and there was compelling evidence that the benefits of that law would far outweigh the loss of the right in general.

          Allow me to provide an example of what New York City could do that would meet strict scrutiny. Suppose there is clear and compelling evidence that many/most licensed handgun owners who transport their handguns to flea markets outside of New York City give their handguns to felons convicted of violent crimes who then use those handguns to commit more violent crimes. And there is additional evidence that a law which forbids licensed handgun owners from transporting handguns to flea markets outside of their city reduces violent crime. In that scenario a New York City law which prohibits licensed handgun owners from transporting their handguns out of the city to flea markets would probably satisfy strict scrutiny. Why? Because that law would be narrowly tailored for a specific compelling government interest, it is based on actual evidence, and it would not totally destroy the right to keep and bear an entire class of arms.

          I hope that helps.

        • What “uncommon” there said.

          I am vaguely, cautiously hopeful that we’ll see some chipping back on scope of jurisdiction. So, maybe, NYC declaring a law for stuff outside of NYC gets laughed back on the facte of it.

          Of course, being NYC in NYS, they’re used to imposing their preferencss for stuff they’ll never be exposed to, on people they’ll never meet.

  10. They squirm and scurry from the light because, in the end, that’s all they have.


  12. For those in Virginia, the General Assembly will be in session next Tuesday, July 9th. The Virginia Citizens Defense League (VCDL), NRA-ILA, American Suppressor Association at a minimum will be there. Open Carry within the General Assembly is legal; Conceal Carry is legal assuming you have your state issued permission card.

    VCDL (at least) is organizing groups that will be ushered into committee hearings on these bills – anyone is allowed to speak. More information on VCDL’s website ( Gov. Northam (aka Gov. Blackface) had large donations from Bloomburg that certainly helped win his election.

  13. “The federal court no longer has constitutional authority to decide the case, as it is no longer “justiciable” as laid out in Article III of the Constitution.”

    The Supreme Court did not then, nor does it now, have explicit constitutional authority for Judicial Review. That is created doctrine… even government freely admits this fact. Judicial Review is not a power explicitly delegated to the Court. Every privilege created by government for itself is power usurped in spite of the Constitution.
    ‘Judicial Review

    The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803). ‘

    • “The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.”

      This is the most common argument of attorneys and judges when one brings up the unconstitutionality of Judicial Review; that it is now rendered moot. It matters not to them that Judicial Review breaks the constraints of the Constitution and set in motion wholesale violation of the founding document. There could be very little effect from activist judges if the Constitution were actually adhered to in matters of Judicial Review. The Constitution never explicitly granted the power for good reason.

      • “It matters not to them that Judicial Review breaks the constraints of the Constitution…”

        The more interesting element in discussing M v. M (1803) is that, like so often today, Congress abdicated its responsibility and authority by not instantly passing legislation that prohibited such review by the SC. Yes, SC overstepped (most likely for political retaliation), yet Congress kept its tail between its legs.

        The founders were convinced the branches of government would jealously and vigorously defend their turf at every turn. There was even conflict over the danger of judicial rule, yet the Constitution did not address such sufficiently. Neither did the still living framers of the Constitution take action to stop judicial expansion instigated solely by the SC.

        • It’s almost as if the founders realized that there needed to be a final check on the power of the Congress to stay within the Constitution because otherwise they wouldn’t.

          And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING? Marbury v. Madison is the only thing preventing the US from turning into Europe on guns.

          Oh, I know, the idea is that natural rights would somehow create an army of patriots to take back the republic from those dirty commies and water the tree of liberty. Except no, a dozen middle-aged white dudes would meet and immediately get infiltrated and rounded up while everyone under the age of 30 is too busy with the Kardashians and snapchat.

        • “And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING? Marbury v. Madison is the only thing preventing the US from turning into Europe on guns.”

          Some only seem to agree with constitutional constraints when it gets them where they want to go.

          The truth doesn’t seem to be sitting well with you tonight. That’s not typical of your posts.

        • “Oh, I know, the idea is that natural rights would somehow create an army of patriots to take back the republic from those dirty commies and water the tree of liberty. Except no, a dozen middle-aged white dudes would meet and immediately get infiltrated and rounded up while everyone under the age of 30 is too busy with the Kardashians and snapchat.”

          While there is some truth to your comment, I have one question to ask of you…

          Do you support gun control or do you support the unalienable individual right to keep and bear arms (shall not be infringed)? Simple question asked, simple answer desired.

  14. If a Democrat state senator drafted and got a preemption law passed in New York and the SCOTUS renders the question moot, what’s to keep another NY state senator (or indeed, the same senator) from submitting another bill which completely nullified the provisions of the original bill? The entire lengthy and onerous process of challenging the law through the federal system would have to start all over again, would it not? Much better to have the SCOTUS make a definitive ruling which would put a stop to the state’s unconstitutional chicanery once and for all.

    • I think it’s pretty much a sure bet that if SCOTUS decides to moot the case that “preemption” law would be repealed the same week.
      The only question is, is SCOTUS going to be gullible enough to fall for it?
      Gotta be honest, I’m kinda worried they might be. The liberal justices will take any excuse to make this case go away. And the conservatives are too caught up in some nebulous concept of “rule of law” that states like NY can just change laws on a whim to run circles around them.

  15. I feel sorry for all the normal people who don’t reside in NYC that are subjected to the democratic tyranny imposed on them by the hordes of idiots who live in the city. I don’t know how to combat the problem. Maybe one of the readers on this site has suggestions.

  16. “Thank you for the in-depth explanation. I really do appreciate that. If you see my comment response to the one below, the same question goes if you’re willing.”

    Regardless of the hopes of strict constitutionalists, the SC is loathe to address the constitutionality of a legal conflict. Rather, SC prefers to look only at process and procedures regarding how government produced a condition that resulted in a case reaching the SC for review; process over substance.

    In the case in hand, many hope the SC will rule that only “strict review” can be applied when addressing constitutional conflict, and that somehow such imposition alone will overturn all long standing restrictions of firearm ownership. The theory seems to further promise that once “strict scrutiny” is demanded, gun control laws will fall instantly, without further court action.

    What will likely happen is that the SC will rule that a process established by the SC (levels of judicial review) must be applied henceforth, but not address the actual constitutional question: gun control laws at large. If one looks closely, it is obvious that the SC would remand the case for application of strict scrutiny, allowing the restricting agent to fabricate yet another reasoning (this time surviving strict scrutiny) for the law at the bar. What this does is provide yet another “bite at the apple” for government. In short, if a restriction can survive strict scrutiny (as to how much burden government can impose), the issue of “shall not be infringed” is avoided entirely.

  17. “…but with the unbounded erosion of the host, the parasites eventually die. Out-migration.”

    Actually, that is more dangerous to more people. We have already seen what happens when blue parasites flee to red states. Not sure increased destruction is the cure for salvaging freedom.

    • NYS out-migration is dominantely from up state: leans red pretty hard. Take a look at the county “Nope to the SAFE act” map. Up state is potentially several kinds of vibrant, if the overlords ever take their boots off our necks. Meanwhile, down-state’s situation is more precarious than they realize.

      It’s hard to call exactly when, or exactly what path it’ll take, but as currently arranged, NYS internal arrangements are unstable. Interesting to me, therd’s a bit of a sub-segment of non-computing high tech in Rochester, now. They couldn’t figure out how to do a business that worked on its own. But there’s a lot of back office engineering, engineering services, even production, that build up or spun out, then got bought by grown ups somewhere else. Yes, salaries and personal taxes stay in state. Corporate HQ personnel, corporate spending, and corporate taxes do not. I can name a dozen of so off the top of my head…

      Thing is, NYS patronage systems and spending aren’t sustainable with operating divisions kicking their margin — “contribution” — to corporate entities elsewhere. Meanwhile the only industries that “thrive” are heavily subsidized and exempted.

      Even with — what was it $3 billion? — all that relief and subsidy on the table, it wasn’t worth it for Amazon to deal with the shenanigans. Even with a 9.7 to 1 payoff — their numbers — NYS and NYC couldn’t stop themselves from bgeing such jerks they drove it away. Even with projected payoffs in the neighborhood of 10:1 from rax and regulatory relief, NYC and NYS couldn’t being themselves to ask: “Why don’t we offer the same thing to everyone else; everywhere else, and get the same 10:1 payoff?”

      The problem with dialing back patronage (In the form of relief from impossible regulations.) is, if people can make it without your patronage, why do they need you? You gotta burn down everyone who doesn’t pay protection, pour encourage les autres.

  18. “Esso petrol stations used to be common downunder but I don’t think I’ve seen one in almost 30 years.”

    ESSO (S-O; Standard Oil) became Exxon here in the states, about 30 years ago. A whole bunch of former Standard Oil spin-offs were gulped into Exxon, almost re-creating the old Standard Oil of trust busting fame.

  19. We’re in for a fight in Virginia, but hopefully we can stop Northam in his tracks – Republicans hold (small) majorities in both legislative chambers.

    The Virginia Citizens Defense League is leading the fight against Northam’s gun grab, and anyone from Virginia who isn’t a member should join. Even if you aren’t from Virginia, but don’t want to see the Second Amendment violated anywhere, VCDL could use your donations.

    As usual, the NRA, who have their headquarters in Virginia, are nowhere to be seen.

  20. “NYS out-migration is dominantely from up state: leans red pretty hard. ”

    Florida, Colorado, Texas, Nevada seem to tell the story of the parasites in flight. Without Florida and Texas, game over. In Texas, the political map indicates every county on the border with Mexico is Blue, and all the major cities are Blue. Even in Texas, the urban clusters control the most votes. Florida is simply gagging for air these days, despite the governor. Virginia isn’t on the bubble because upstate New Yorkers moved in and turned the state Blurple.

    • You’re correct, “Sam I AM” it’s coming, and Y’all are just watching it happen. Democracy is to our advantage, blue is coming to you.

  21. “Go back and read all of Vlad’s comments. I don’t think he is “what” he claims to be, I think he is one of “us”, but making “true” statements to antagonize. ”

    2Asux was better.

  22. I’ve always thought right from the get-go that the NYC case was kind of odd duck for the SCOTUS to pick up. Clearly the law is unconstitutional (what gun-grabber law isn’t?), but the circumstances of it are unique to NYC. I can’t think of any other place that has such a law.

    So, why, I sez to myself, does SC pick this one, where a ruling is going to affect the least number of people? Why not pick something broader, like a challenge to “may-issue” permitting, assualt weapon bans, magazine bans, ad nauseum. Certainly there is no shortage of other challenges already in the courts, and if strict scrutiny is the goal, well, that’s something that can be applied to any judicial review.

    It almost looks like SCOTUS set itself up to be hoodwinked by New York. I just don’t get it.

    • It is a case where all of the justices likely will agree–albeit for different reasons–that the law is not valid. And this makes it easy to put together a majority opinion without hedging or compromising to get the critical fifth vote.

  23. My best guess is that it’s a signal of things to come. They’re starting out slowly, picking a law that is clearly indefensible. But I think it means “we won’t be refusing to hear Second Amendment cases anymore”.

    Now, some people think that the main thrust of the ruling will be that 2A cases must be looked at with strict scrutiny (and few laws can survive strict scrutiny). That would be ideal, but I don’t think that it’s going to happen. I think the ruling will be more narrow than that, and I’m not sure Roberts and Kavanaugh would agree to it anyway.

    But I do expect the Court to start granting cert in more 2A cases. I expect that within a few years, we’ll see mag bans, “assault rifle” bans, and may issue laws go out the window. I’m not optimistic that they’ll shoot down background checks or permits to carry entirely, but I’m hopeful that some of the more egregious infringements will be tossed out.

    Think of this case as a sign of things to come. I just hope it’s the first raindrop in a monsoon and not a light drizzle.

  24. “And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING?”

    One must understand the political structure created by the constitution; sovereign citizens, elected servants (representatives to the legislative branch) laws passed and negotiated between legislature and executive, executive to execute (not interpret through administrative offices)/prosecute the laws reflecting the “will of the people”. The sovereign people would approve or disapprove of representation through elections.

    Another important feature was/is that the judicial branch was not (in the beginning) co-equal. The judicial branch was established by “the people” through their representatives to the Constitutional Convention. Indeed, the constitution prohibits the judicial branch from expanding itself for any reason or purpose. If the size and jurisdiction of your branch of national government is subject to the direction of a different branch, your branch is, de facto, no co-equal with any other branch. This condition was intentional, and subjected to considerable debate. Letters of the founders describe the judicial branch as the weakest (co-equal?) of the three branches. Yet, the founders feared this “weakest” branch to be dangerous should it take upon itself the power to determine what is and is not within the powers of the other two branches.

    Article 4 of the Constitution declares: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;…” Note that the constitution further states no power of the judicial branch to determine the law of the land, much less decide to be the “supreme” arbiter of what is/is not within the powers of the legislature. Indeed, founders fretted that should the judiciary arrogate the power to be the supreme arbiter, the nation would be governed not by the citizenry, but by an oligarchy of Supreme and Inferior court judges. In short, the founders decided to not make a black and white, declaratory statement about how the Supreme Court would be permitted or prohibited from becoming a second, but supreme, legislature. Leaving the question, “Who gets to decide when Executive and Legislature come in conflict with each other, and the Constitution?”

    The lack of clear permission/prohibition regarding the SC powers was answered by M v. M in 1803, when the Chief Justice of the SC determined that it was he who held the power. The power of the sovereign citizenry to rule themselves was thus fatally impaired. We are living the result.

  25. Yeah, that’s nonsense.

    It’s true that judicial review isn’t mentioned in the Constitution. However, as a structural matter, it’s very clear that it was intended all along.

    The whole point of the Constitution is to impose limits on government. Without courts to strike down unconstitutional laws, the Constitution would be utterly powerless to impose these limits. Without judicial review, Congress could pass a bill of attainder, the president could sign it into law, and the subject of that bill would have zero legal recourse.

    The idea that the courts were not intended as a coequal branch of government is utterly without merit. Look at the structure of the Constitution, it makes it very clear that they were.

    Now, it’s true that the courts have not always lived up to their role, and have let bad laws stand while striking down good ones. This is not a structural problem with the Constitution, it’s a problem of bad judges who have political agendas, or bow down to political pressure from the other branches.

    • “The whole point of the Constitution is to impose limits on government.”

      The whole point of the Constitution was to create a government. If privileges are not explicitly granted government in the Constitution, those privileges are prohibited. What government did was break its chains early on through usurping the power of Judicial Review. Notice how long it took before the Supreme Court used that stolen privilege in any meaningful way? So very much of the unconstitutional expansion of government power has been through the perversion of Judicial Review. IMHO, that is no accident.

  26. “However, as a structural matter, it’s very clear that it was intended all along. ”

    Not familiar with any of the founders writings that support that statement. Can you point me in the proper direction?

    “The idea that the courts were not intended as a coequal branch of government is utterly without merit.”

    Can the judiciary appoint judges, or even reject them? Can the judiciary determine its own jurisdiction? Can the judiciary establish more courts and judges? Can the judiciary impeach judges? Can the SC increase or decrease the number of justices appointed to the SC?

    And there is this: “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community.”

    “The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

    “This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two;…” (A. Hamilton, Federalist Paper #78)

    No twisting of the language can equate “weakest” with “co-equal”. But, that was then, and we too often project our popular understandings upon the founders.

  27. Yeah. Nothing you have there proves any of your points. Saying that the courts are the weakest branch – as they lack the power of the sword or the purse – doesn’t mean that they aren’t coequal. Surely you’ve also read that Congress is intended to be the most powerful of the branches, but does that also not mean that the executive is a coequal branch of government?

    That judges don’t have the right to appoint other judges is, again, irrelevant. If you were trying to argue that the power of the courts is not unlimited and unrestricted, then yeah, it does show that. But Congress cannot appoint new members, nor can the president appoint the next president. You aren’t actually making the argument that you’re trying to make.

    Your argument amounts to “the courts do not have unlimited power, therefore they have no power”. This is just bad logic.

    The fact remains that a nation of laws requires an arbiter of those laws. That without judicial review, limits on the other two branches would be entirely meaningless. When Congress or the executive overstep their bounds, the court is necessarily there to put a check on their actions. But for judicial review, what would stop them from passing a bill of attainder?

    The fact that Article III of the Constitution, which establishes the courts, comes right after the articles establishing the other two branches should also be telling.

    Yes, it’s true that the issue never arose before Marbury v. Madison, and that Marbury clarified that yes, the courts do indeed have the power to invalidate unconstitutional laws. But any understanding that doesn’t involve cherry picking a few not-quite-on-topic quotes from the Federalist Papers makes it clear that judicial review was intended, and that without judicial review, the Constitution wouldn’t function.

    • “Marbury clarified that yes, the courts do indeed have the power to invalidate unconstitutional laws.”

      Check your facts. Even Justice Marshall conceded that Judicial Review was not a power explicitly granted the Court by the Constitution. It was clearly created doctrine.

      And again, according to
      “The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803). ”
      It is NOT a constitutionally granted privilege. It is a rationalized doctrine. There is a huge difference. You either support the Constitution or you don’t. This isn’t any different. If Judicial Review was desired for the Court, a constitutional amendment was the proper course of action. Likewise with exercise of the individual right to keep and bear arms. If government is not going to honor “shall not be infringed” then it ought to amend the Constitution and not use the unconstitutional doctrine of Judicial Review to violate the Constitution.

  28. “Your argument amounts to “the courts do not have unlimited power, therefore they have no power””

    You are making stuff up. Never said anything near “SC has no power”s. The powers of the SC are clearly stated in the constitution, and have never been changed/amended. My point is that this whole “co-equal” nonsense is modern, progressive interpretation, taught for about 70 or so years, but not supported by the founders (those who actually said SC is the weakest branch…you can’t twist yourself up enough to logically claim that “weakest” means co-equal”. The three branches are “co-equal” only in the sense that they all have limits to their power, but their powers are not equal. Dependency is never “co-equal”. The best that can rationally be said is all three branches are separate, with their own stated jurisdictions, with Executive and Legislature “co-equal” in that in certain matters one cannot act without the other. Judicial participation in promulgating or ratifying law is nowhere to be found in the constitution. This is the thrust of Federalist 78, like it or not.

    “Yes, it’s true that the issue never arose before Marbury v. Madison, and that Marbury clarified that yes, the courts do indeed have the power to invalidate unconstitutional laws. ”

    For that to be true, the constitutional declaration that the duly processed laws are the “supreme law of the land” is itself invalid, pointless, and not something the founders would have stated if they intended otherwise. SC can render opinions, but those opinions are not supreme law of the land.

    “But any understanding that doesn’t involve cherry picking a few not-quite-on-topic quotes”

    The point is that the SC is the weakest branch, with powers inferior to the other two branches. Simply put, SC (or any federal court) has no enforcement power the executive branch does not exercise. Even in local civil courts, opinions are enforced by the police function of the legislature? No? The executive? Yes. The executive branch can ignore an SC ruling? Yes (but no one has had the nerve since Andrew Jackson).

    Again, there is no clarity in the constitution that the SC was granted (by Congress), the power to decide which laws are the “supreme law of the land”. Otherwise, M v. M would be a minor footnote is obscure law journals. That case altered the constitution, and was the catalyst for errors since. I see nothing you have written that supports the idea that judicial rule was “clearly intended”.

    Reading between the lines is not the hallmark of clarity. Your insistence that somehow divine inspiration (or some other mystical source) clarifies the intent of the constitution has no foundation other than your preference to fill in a blank left by the writers of the constitution. “Someone has to do it” is not a legal principle, but a political one, an emotional appeal that soothes some.

    Judicial fiat we labor under is the very thing the founders feared in having a Supreme Court…rule by the unelected. So, we live in the current reality: Congress, for political reasons, allows M v. M to stand. A properly passed law could take judicial review for constitutionality completely out of the hands of the SC.

    Show me where, outside the self-serving decision in M v. M, courts are involved in law-making, or law enforcement.

  29. “The truth doesn’t seem to be sitting well with you tonight. That’s not typical of your posts.”

    Which truth?

    • That was to Hannibal. I was referring to the simple truth about Judicial Review not being explicitly granted the Court in the Constitution.

  30. “As a reply to both, I simply am reporting the facts and am making no leaps beyond the basic truth.”

    Which truth?

  31. “Do you support gun control or do you support the unalienable individual right to keep and bear arms (shall not be infringed)? Simple question asked, simple answer desired.”

    You responded to me regarding a comment I did not submit. Was this intended for someone else?

    • Yep, it was for Hannibal. I wanted to walk him through something and see if a light bulb might turn on.

      I quoted him. I guess I should’ve also put his handle. Sorry about that.

  32. “IMHO, you nailed it.”

    Thanks for the affirmation. I often make feeble attempts to stretch the subject matter beyond comfortable, repetitious sloganeering. Think it is worth understanding where we came from, as a guide to why we are where we are.

    • I like how sometimes I can drop a fact or idea and you can expand on it with such clarity and eloquence. I used to be able to do that! lol Nowadays, it’s usually just “Get off my lawn!” from me…

  33. ” If privileges are not explicitly granted government…”

    Very nice turn of a phrase…”privileges”.

    • One of the basic building blocks of my own philosophic view is that only living things can posses rights. Anything else must be granted privileges, if anything at all. Along those lines, rights, being unalienable to the individual, cannot be given away or sold. One cannot be disposed of them. Rights can only be infringed. Anything a government or the legal fiction of a corporation does must be done under granted privilege. So, the government, not having ever been capable of possessing a right, cannot grant what it does not have. It can only grant privileges as a subset of those granted to it. It cannot grant rights. A constitution could only, at best, grant privileges and not rights.

  34. Literally all of that is complete balderdash.

    The idea that the Founding Fathers wanted a court with no power – or whatever euphamism for “no power” you’re using, is belied by literally all of the evidence. You need to research this stuff in an open, non-partisan manner. Because what you seem to be doing is finding an answer you like, and ignoring all evidence to the contrary.

    The power of the court is different than the powers of the political branches. Nobody ever claimed otherwise. You read absurdly far into this, and come out with an answer that no reasonable person could possibly reach (and that approximately zero legal scholars would buy).

    Your thesis seems largely based on one sentence from the Federalist Papers which you remove from all context to take to a conclusion not intended by anyone. It’s disingenuous.

    You still have not addressed my main point – that without judicial review, the Constitution would not function, and that there would be no meaningful check on the political branches.

    Furthermore, your understanding of the “progressive” position on the courts is entirely backwards. It ignores the actions and words of left-wing presidents from FDR to Obama, people who sought to weaken the court, which they saw as an impediment to their agendas.

    Judicial review is an important check on the powers of government. It is the only means by which our Constitution remains viable. Without it, there would be no recourse for laws passed by Congress and signed by the President that are in blatant violation of the Constitution.

    Unlike Britain, we have a written Constitution. In Britain, where judicial review does not exist in the way it does here, their constitution consists of the entire body of laws passed by Parliament. This is why Britain, unlike the US, is able to pass laws banning speech and whatnot – the power of the legislature is essentially unlimited without the check that judicial review provides; laws passed there become part of the “constitution”, and are thus inherently constitutional. The judicial review we have here is a deliberate structural difference between our form of government and the British form.

    You mention the Supremacy Clause – that the Constitution is the highest law in the US. For that to be the case implicitly requires judicial review – otherwise, the legislature and executive would be entirely free to disregard it. Yes, it is true that the words “judicial review” are not explicitly mentioned. But without it, the Constitution is mere suggestion at best. If Congress decided to, say, ban the manufacture and sale of firearms, without judicial review, there would be nothing to stop that law from going into effect.

    The fact that the courts have no goon squad to enforce their decisions isn’t relevant – the courts are not the only branch of government, and their role is that of an arbiter, not an enforcer. Again, this does not prove whatever silly point you’re trying to make.

    I’d suggest taking a closer look at the Constitution itself, as well as the Federalist Papers – the whole thing, not just some non-contextual quotes. Because your argument here seems to come from a deep misunderstanding of those documents.

  35. The goal of the Constitution was to create a government with very strict limits on what it could do. You’re arguing semantics.

    Without judicial review, the limits imposed by the Constitution would be utterly meaningless. The very structure of the Constitution requires judicial review to function.

    Your problem here seems to be that bad judges have made bad rulings – and I agree, this is a legitimate concern. However, your remedy for this problem is to throw out the baby with the bathwater – bad judges notwithstanding, judicial review is why we still live in a constitutional republic and not some dystopia imagined by Wilson/Roosevelt/Johnson/Obama.

    It is true that the Constitution does not explicitly mention judicial review. But it is also rather clear that judicial review is intended – the Supremacy Clause, the specific limits on the powers of Congress and the president, etc. Without the courts to block the implementation of laws that violate the Constitution, there would be no point in putting in these limits in the first place.

    The Founding Fathers weren’t just men inventing a new government. They were also men who had just overthrown a government, and as such they were very wary of government power. Judicial review is a check on that power when judges take their roles seriously. Yes, you do get bad judges who take their job as a means of rubber stamping policies that they like (see the ridiculous ruling in Wickard v. Fillburn). But what you’re saying is that because this check on government power doesn’t work as well as it ought to, that it’s somehow wrong. This is not the case.

    Think of it this way – if you’re in a gunfight, and you have to choose between an unreliable weapon and no weapon at all, you’ll take the jam-o-matic every time. Because it may not be perfect, but at least it’s something. Judicial review is like a Hi-Point or a Jimenez or something. Yeah, it’s not perfect by any means, and we have far too many Ginsburgs on the bench and not enough Thomases. This isn’t a problem with judicial review, it’s a problem with the state of our political discourse that a Ginsburg can even get appointed to the bench.

    You’re looking for a structural solution to a political problem.

    • “You’re looking for a structural solution to a political problem.”

      If that reply was for me, I stated no seeking of solutions, structural or otherwise. I simply was pointing out the fact that Judicial Review was the result of DOCTRINE created in Marbury v. Madison and not the result of explicitly delegated constitutional power.

      What you read into things is your own cross to bear.

    • “The goal of the Constitution was to create a government with very strict limits on what it could do. You’re arguing semantics.”

      No, I am not arguing semantics. Words have meaning. When we want to convey a meaning, we carefully select (ideally) the words that have the best chance of conveying the meaning we intend. You wrote, “The whole point of the Constitution is to impose limits on government. That statement was incorrect and I responded to that fact.

  36. What you’re doing here is willfully misunderstanding and misinterpreting until you come to your desired result.

    It’s no different from those who make up various unconstitutional limits to the Second Amendment.

    I understand Marbury. I’ve read the ruling more than once, and discussed it in depth. Yes, Marbury established judicial review explicitly. However, it was by no means a novel idea, and it was one that was clearly contemplated and accepted by the drafters of the Constitution. Nobody with any reasonable understanding of the law or the Constitution would tell you otherwise. The fact remains – the Constitution is a document that sets a number of limits on government, and creates a system where the branches of government serve to check each other’s power. Without judicial review, this system would not function.

    Based on the structure of the Constitution, judicial review is very clearly required. I’m not sure what it is about this that you aren’t getting. I’m not sure what alternative you think was intended. But for anyone who has studied the Constitution, and studied the law, it is very clear that judicial review is a necessary part of our constitutional order, and that without it, we’d have government without any limits running wild.

  37. Marbury v. Madison did not create doctrine out of thin air. It confirmed a structural necessity that was not explicitly stated.

    Without judicial review, the Constitution would be entirely meaningless. It is the method by which constitutional limits are enforced.

    It wasn’t particularly controversial at the time, and it is accepted now by everyone except the odd leftist upset about the courts impeding his plans.