On the Arguments: Predicting the Outcome of New York State Rifle & Pistol Assn. v. City of New York

Supreme Court NYSRPA v City of New York

LKB for TTAG

Our correspondent, LKB, is a member of the Supreme Court Bar and arrived outside the Supreme Court building at 3:40am to line up for a place in the courtroom to hear the arguments in New York Rifle & Pistol Association v. City of New York.

Supreme Court NYSRPA v City of New York

LKB’s first spot in line — that small stool — early this morning in front of the Supreme Court. (LKB for TTAG)

That dedication got him the first place in line, right in front of attorneys for Everytown for Gun Safety and the Brady Campaign.

LKB called me and dictated his impressions of the proceedings, which follow. He’ll be writing up a more complete account of the arguments later today.

-/-/-/-/-

The courtroom was packed for the arguments. There were only about 30 seats available for members of the Supreme Court bar and about 50 for the general public available after all of the plaintiffs, respondents, press and invited guests were seated.

As to the claim that the case is moot now that the City has repealed the law in an effort to sidestep the case, Chief Justice Robert expressed skepticism, asking the City’s attorney why the Court should believe the City’s promise not to enforce or prosecute violations of the old law. He also asked if violations could result in the non-renewal of home permits.

Throughout the arguments, as is their practice, Justices Thomas and Kavanaugh were silent. Gorsuch and Alito, however, attacked the mootness claim.

Even the liberal Justices’ arguments seemed to stretch in order to support a finding of mootness given the City’s transparent attempt to dodge the case.

The NYSRPA was represented by Paul Clement who, arguing the merits of the underlying case, began by stating that under the text, history and tradition of the Second Amendment, New York City’s law prohibiting transport of home-permitted handguns is clearly unconstitutional.

Justice Sotomayor argued that text, history, and tradition is a made-up standard that isn’t clearly applicable in this case. Justices Kagan and Ginsburg argued that the City’s limited home permitting of handguns doesn’t affect the transport of firearms…that’s regulated by the city’s carry permits.

On the other side, Justice Alito won a major concession from the City’s attorney. The city’s case is based on the need to protect New Yorkers from crime. Alito asked if crime had been impacted since the law was repealed. The attorney conceded that it hadn’t.

Alito then asked the City’s attorney if an outright prohibition on transport outside the home would be a violation of the Second Amendment. The attorney said it would. Alito then asked if the City’s home permit, then, includes an implicit right to transport a firearm outside the home. The attorney conceded that it did.

This is important because the City’s case has been based on their argument that there is no right to keep and bear arms outside the home. The admission that such a law would violate the Second Amendment explicitly undermines the City’s case.

From LKB’s reading of the tea leaves based on the questions and arguments, he believes that the votes to declare the case moot aren’t there. The motion to kill the case will probably lose by a 5-4 vote.

As for the merits of the underlying case, Alito and Gorsuch were clear skeptics of the constitutionality of the law. Thomas and Kavanaugh, while silent, have made their positions widely know and should be counted on to vote against.

The question, then, comes down to Chief Justice Roberts. He only questioned attorneys on the mootness question and seemed to be solidly against dropping the case on that basis.

As to the merits, questions from Justice Ginsburg suggesting analysis of the case under intermediate scrutiny and conceding no safety issue with regard to the law might have been intended to give Roberts a way to send the case back to the circuit court without ruling on its constitutionality.

Whether Roberts will take that opportunity or fall in line with Thomas, Alito, Gorsuch and Kavanaugh is the $64,000 question.

comments

  1. avatar MICHAEL A CROGNALE says:

    Ginsburg giving Roberts a way to weasel out? Oh say it ain’t so! I DO NOT trust that son of a bitch.

    1. avatar Anymouse says:

      That’s also Kagen’s MO- building a consensus by limiting the scope. She’d be quite happy to rule against NYC as long as the decision said it only applies to NYC or transportation for a permitted gun.

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

        “She’d be quite happy to rule against NYC as long as the decision said it only applies to NYC or transportation for a permitted gun.”

        The least acceptable ruling for me would be for the ‘Firearm owners protection act’ (FOAPA) to mean what it says. If you aren’t a legally prohibited person, travel with your firearm should be hassle-free everywhere in the USA.

        NYC should not be able to arrest you for simply catching a connecting flight at LaGuardia…

        1. avatar Jerry Sweet says:

          The o ly way to stop the tyrants has always been to kill them we will come to this eventually

  2. avatar Chip Bennett says:

    Speaking of “made-up standards”:

    Justice Sotomayor argued that text, history, and tradition is a made-up standard that isn’t clearly applicable in this case.

    I guess some “made-up standards” are more equal than others:

    As to the merits, questions from Justice Ginsburg suggesting analysis of the case under intermediate scrutiny…

    IMHO, SCOTUS once and for all declaring that the constitutionality of laws that otherwise violate second amendment protections must be scrutinized to the same (“made-up standard”) level to which the constitutionality of laws that would otherwise violate any other protections in the Bill of Rights – i.e. strict scrutiny – would be the biggest possible win for this case.

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

      Is the “made-up standard” argument really surprising?

      Leftists are the ones with stars shining in their eyes when the subject of a another “made-up standard” is brought up, the concept of a “living constitution” (*gag*). Change the meaning as often as changing one’s underwear, to fit the mood of the day…

    2. avatar No one of consequence says:

      Yes, this caught my attention also.

      If “text, history, and tradition is a made-up standard” then what the heck else is there other than feelings?

      How did Sotomayor ever get a seat?

      1. avatar Sam I Am says:

        “If “text, history, and tradition is a made-up standard…”

        Would be more impressed if Thomas, Gorsuch or Kav had bounced Soto with the truth that “levels of scrutiny” are made-up standards; judicial fiat.

      2. avatar MICHAEL A CROGNALE says:

        She and that other worthless broad, Kagan, were placed on the court to do exactly what they are doing; acting as a bulwark against overturning the Obama treason agenda.

        1. avatar Mike V says:

          No, that can’t be right, Roberts lectured Trump and us that there was no such thing as an Obama judge, so yeah…

      3. avatar Roger J says:

        She got on the Court because she is a ‘wise Latina’. We know this because she says so. That ought to be good enough for you and all the American people.

        1. avatar Sam I Am says:

          “She got on the Court because she is a ‘wise Latina’. We know this because she says so. That ought to be good enough for you and all the American people.”

          Well….thanks for that. I was really confused about what was good for me. If she is a wise Latina regarding law, I wonder if we should be looking for wise whatever ethnic group representatives to show us how math and science for different groups would be good enough for all of us. It would be fascinating to watch a PBS special on how physics for Asians differs from physics for Native Americans, and so on.

    3. avatar I Haz A Question says:

      @Chip,

      I copied that same text and scrolled down here to expound on it, but you beat me to it. In fact, it looks like the sentence popped out like a neon sign to everyone here.

      I don’t know whether to chuckle, cry, or face palm over Sotomayor’s lack of understanding.

    4. avatar GS650G says:

      By her wise Latina standard many liberal leaning decisions are wrong. We’ll remember that as we take apart a few decisions after RBG retired to her gingerbread house.

    5. avatar Stuart K says:

      I’m no fan of hers, but I could not believe I read that.

    6. avatar carnitas says:

      I still do not understand why intermediate scrutiny would be applied to 2A infringements. I mean the 2A is an enumerated right, therefore “fundamental” and it is my understanding the strict scrutiny must be applied to fundamental rights. I get that precedent on this issue is scarce, but why only intermediate scrutiny?

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

    The issue of mootness (or lack thereof) will be decided in days?

    1. avatar LKB says:

      Exceedingly unlikely.

      1. avatar Mike Crognale says:

        Matt Vespa, a 2A advocate, writing in a Townhall.com article a few minutes ago, read today’s proceeding and states flatly that Roberts will join the other traitors on the court and declare mootness.

        1. avatar LKB says:

          Yes, and Vespa simply cites a NBC “analysis” as his basis. Hardly definitive (or even reasoned).

          Again, nothing I saw or heard at the argument supports the media spin that Roberts is in favor of mootness. Only he knows for sure what he’ll do, but the media spin is not supported by what was said in court today.

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

          Could the Court “Split the baby” and declare it moot, and that ‘strict scrutiny’ applies?

        3. avatar CplCamelToe says:

          If they split the baby, it’ll be the lazier cut:

          “The case is not moot, but the ruling is so narrow as to apply only to the plaintiff… only in the confines of NYC…. and don’t forget to keep your 2nd amendment Right-tax paid up so you don’t lose it.”

          Don’t forget who we’re dealing with here.

  4. avatar TommyGNR says:

    I think the verdict was in when SCOTUS agreed to hear the case. The conservative justices would not have voted to hear the case if they were not sure of the outcome. Its just a matter of what guidance they give with their decision.
    Liberal circuit courts have been thumbing their nose at Heller and McDonald for years. I think it got to the point where even Roberts decided enough is enough.

    1. avatar TFred says:

      But remember, it only takes four to accept a case. That’s not the same as five, needed to rule one way or the other.

      It is widely believed that one of the main reasons the court’s conservatives had not taken a case before now was the fear that Kennedy might go wishy-washy. But any hope of winning now that Kennedy is gone very much requires Roberts to join the conservatives.

      1. avatar TommyGNR says:

        I’m saying Alito/Thomas/Gorsuch/Kavanaugh would not have voted to take the case if they did not have Roberts on board.

        1. avatar Sam I Am says:

          “I’m saying Alito/Thomas/Gorsuch/Kavanaugh would not have voted to take the case if they did not have Roberts on board.”

          Do we all understand that we, just like the leftists, are favoring national rule by an oligarchy of nine? That we forfeit the right to complain about leftists (dems, to be redundant) using the courts to get what they lose in legislation?

        2. avatar pwrserge says:

          What’s that complaining gotten us so far? Rusiahoax 2: Ukrainian boogaloo. While the most successful US president in 30 years is dragged through the mud for doing things that every president in his right mind should and has the full authority to do.

        3. avatar uncommon_sense says:

          Sam I Am,

          You ask very poignant questions.

          I see three reasons to go through the courts:
          (1) We really, REALLY want to avoid physical unpleasantries. If the courts can facilitate an amenable situation, that is a good outcome and worthwhile effort.
          (2) In theory the courts are apolitical and are a righteous way to seek redress of our grievances when politics or outright tyranny move our President, governors, and legislatures to violate our inalienable rights and constitutions.
          (3) In the event that the courts fail us, going through the process demonstrated that we were extremely patient and exhausted all possible peaceful resolutions. Thus, we will be able to claim the moral high-ground and hopefully garner much public support if we have to go “hands on” and actually apply the Second Amendment.

          And I will demonstrate the value in those points:

          Imagine a state law which says women who resist rape enrage their rapists who, as a result of their rage from the woman’s resistance, frequently go on rampages and injure/kill countless additional people beyond the single woman rape victim. Therefore, that state requires that women cooperate with their rapist and women who resist rape are guilty of a felony. Of course the state justifies that law claiming that stopping rapists from going on rampages in public is a compelling government interest. Finally, imagine that a woman resists a rapist and police arrive to arrest the woman for felony rape resistance.

          If the woman and/or her husband resist arrest before anyone had ever challenged that obscene law in the courts, the public (including their jury pool) would be significantly less sympathetic to the woman and/or her husband because they still had legal recourse available. On the other hand, if the woman and/or her husband resist arrest after the courts uphold felony rape resistance law, the public (including their jury pool) would be significantly more sympathetic. Why? Because the woman and/or her husband had no legal recourse left and complying with the law requires women to submit to rape which is obscene. In that situation resisting the rapist and resisting police is the right thing to do and the public would likely be on their side.

        4. avatar Sam I Am says:

          Your example is a variation on the same theme….political gains we cannot prevent (because our message is unpersuasive) are taken to the courts to give a result not achievable via legislation.

          In the example, you take the position that it is somehow wrong to require women to peaceably (not peacefully) endure rape. Says who? The people who control the majority of voters who agree with that position. In the example, apparently the majority of voters agreed with the legislation, or had so little interest as to take no notice of it (recall the dolts who established the law). In the example, the correct-thinking voters lost to the incorrect-thinking voters, and would go to the courts to obtain what was denied via a legitimate process.

          None of this is to say there are no instances where appeals to the judiciary make sense. The Second Amendment is being subjected to political modification short of repeal, or revision.

          The political position of the anti-gunners masquerades as concern for public safety. The political position is that safety must be the prime consideration in any decisions regarding private possession and use of firearms; there must be zero threat of violence to innocents (inner cities excepted). The political opposition is that possession and use of firearms is more important (and realistically exercised) that absolute safety from rare and random events.

          The political losers (the faction that cannot persuade sufficient numbers of voters to agree that zero accidents and outbursts is impossible, unachievable) go to the courts not about a matter of law, but about losing elections. This faction proposes an outcome that masquerades as some sort of cosmic truth that can be applied without consideration of accidents and outbursts.

          Whether dealing with rape, or restrictions on enumerated rights, the losing political faction turns not to a more energetic (and successful) political campaign to persuade voters, but to the nine super legislators. Just like their opposition does when politically frustrated.

          This in not criticism, but a critique that calls on us to admit we are just as comfortable frustrating political contests via the courts, as are the leftists/liberals/statists/dimwitocrats (apologies for the redundancy), who, as we, are convinced they hold all the moral authority in the universe.

        5. avatar UpInArms says:

          ” losing political faction turns not to a more energetic (and successful) political campaign to persuade voters, but to the nine super legislators ”

          There are a couple of holes in this view.

          First, they are not nine super legislators. Our system recognizes that the legislative process can and does overstep its limits. The nine justices are not there to make or re-make the law, which would be a legislative function, but to declare whether or not the legislation in question has stayed within the boundaries of the supreme law of the land. This is their function (yeah yeah, we all know about Marbury).

          Second, majority rule is not absolute. The Disarmament Cartel is always quick to point out that rights are not absolute (true) and very quick to forget that there are limits to how far the majority can go. This is exactly why the Bill of Rights was included in the Constitution. Moving a case to the Supreme Court, then, is not some sort of trickery or end-run around a majority decision. It is an integral part of the process, and since it is there is no reasonable need to suffer under a “tyranny of the majority” law until the slow-moving ship of public opinion can turn it all around. Judicial review (whether its in the Constitution or not) functions as a fairly effective safety valve against abuses by the state and the majority.

        6. avatar Sam I Am says:

          “First, they are not nine super legislators.”

          Surely, you jest.

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

          “Your example is a variation on the same theme….political gains we cannot prevent (because our message is unpersuasive) are taken to the courts…”

          That requires all parties to be acting in good faith to the Constitution.

          In the ‘Heller – McDonald’ decision, the Court went into *considerable* detail, referencing history, as to why the 2A is a crucial component of curbing tyranny and ensuring the people have the tools available to “hit the reset button” if necessary.

          From the Helller dissent –

          “The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text;…”

          It doesn’t matter to Leftists, they don’t care what clear as day evidence or logic you present, they will just casually dismiss it with – “So what? Guns bad. We’re in charge now. Mr. and Mrs. Americans, turn ’em all in”…

        8. avatar Sam I Am says:

          “That requires all parties to be acting in good faith to the Constitution.”

          In what sense? Politicians hostile to the constitution are commonly elected, and proceed to erode the principles and protections of the constitution. Judges are not saints, they are political animals, just like the rest of us. They try to avoid stark rulings, especially seeking to decide constitutional questions without ever reaching the words of the constitution itself.

          In one case, a power not delegated to the central government was discovered by members of the US Supreme Court. Non-delegated powers remain in the control and jurisdictions of the states. Yet, the court fashioned a politically attractive and convenient ruling that, indeed, the government does have non-delegated power. The plaintiffs were losing at the state level, and in the national legislature. The plaintiffs sought to overcome an unpopular political landscape through the super legislative powers of the Supreme Court (and won).

          My entire observation was that 2A defenders often are among those who decry opponents seeking activist courts to secure otherwise unpopular outcomes, yet the 2A supporters also do the same, rather than push to change the political question through hard work at the retail level, we ultimately will look to the courts to fashion a favorable outcome not reachable otherwise.

        9. avatar Chip Bennett says:

          Hey, Sam,

          My entire observation was that 2A defenders often are among those who decry opponents seeking activist courts to secure otherwise unpopular outcomes, yet the 2A supporters also do the same, rather than push to change the political question through hard work at the retail level, we ultimately will look to the courts to fashion a favorable outcome not reachable otherwise.

          There’s just one problem with this assertion: we already have the favorable outcome. The Rule of Law reigns supreme over political whims, and the second amendment is enshrined already in the highest law of the land: the constitution.

          We do not need the courts to enforce political outcomes, whether popular or unpopular; nor do we ask the courts to fashion favorable outcomes. Rather, we merely ask the court to uphold the law of the land.

        10. avatar Sam I Am says:

          Hi, Chip….you should come here more often.

          “There’s just one problem with this assertion: we already have the favorable outcome. The Rule of Law reigns supreme over political whims, and the second amendment is enshrined already in the highest law of the land: the constitution.”

          If that were true, would we even be in the current situation, where the “favorable outcome” is under constant barrage?

          Regards 2A, “the law” is completely political. Politics is the source of restrictions. Unlike “normal” law (torts and crimes), people who are offending are not punished (because the entire matter is political) as in tort or criminal law.

          I think no one but police and military should have firearms. I rally the saints, and pass a bunch of laws that enshrine such restrictions. What “law” have I broken? What is the remedy? In torts, the remedy is to be “made whole again”. In criminal law, the remedy is jail time. What, specifically is the restitution, or punishment for me when the courts overturn my restrictions? Does voiding my restrictions prevent me (upon pain of jail or heavy fine) from coming back next election cycle and doing it all over again?

          The Second Amendment is a political animal because it can be subject to political passions of people, politicians and jurists. We don’t punish political “crimes” in this country. We don’t “settle” constitutional issues forever (such as murder, or extortion being universally illegal) through fines and jail. We just reset the landscape and go at it again.

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

          “I’m saying Alito/Thomas/Gorsuch/Kavanaugh would not have voted to take the case if they did not have Roberts on board.”

          Yeah, about that, just one little problem –

          That was before the 3 Senators letter warning Roberts that they would ‘repair’ the Court if they didn’t vote the way they wanted.

          At this point, all bets are off. I have *zero* confidence in how he may decide to vote. I can easily see him throwing the 2A under the bus in an effort to ‘protect’ his Court…

  5. avatar NH Guy says:

    Roberts is the new David Souter. Due to his past arbitrary positions I wouldn’t bank on him being a champion of Constitutional rights.

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

      Roberts proved that in 2012 (?) with his ACA ruling that it was a “tax”…

      1. avatar tdiinva says:

        In retrospect, Roberts’ vote for calling it a tax was the wise decision. It has allowed President Trump to dismantle key elements of ACA.

        1. avatar LarryinTX says:

          Poo! If Roberts had not done that, the whole thing would have been tossed as unconstitutional, Trump would not have needed to address it at all.

        2. avatar I Haz A Question says:

          @tdiinva,

          Well, yes and no. The penalty has been reduced to $0 by Congress, but the ACA still stands as current and enforceable law, if I’m understanding the history correctly. If the Dems take control of the hill again, they’ll simply vote to reinstate the financial penalty.

      2. avatar Just Saying says:

        Watch the last 5 seconds when the ‘reporter’ nearly faints after hearing the 2A could be upheld as a 1st class right.

      3. avatar strych9 says:

        Straight off I’m not particularly happy with Roberts on the ACA. But… all in all I can see some logic to his decision. He kind of split the baby on this one in terms of governmental power growth.

        Unhappy as I might be at the lay explanations given in the media it’s probably worth noting that he did cut the Left off on three different routes to power in that opinion and he even managed to get Breyer and Kagan to agree with him. Though it’s not often mentioned they both originally voted that the Medicaid expansion was acceptable and later changed that vote due to Roberts’ arguments.

        The government basically offered three different reasons why the ACA was Constitutional. The Commerce Clause, the Origination Clause and the Spending Clause. Robert’s decision invalidated all of these arguments and blocked the Medicaid expansion.

        The question is exactly why he chose to do this in the manner that he did. Some argue that he he thought the individual mandate was only inseverable from “community rating” and “guarantee issue” provisions of the law. This would mean that other portions of the ruling created a situation where the mandate was effectively a tax because it raised revenue but didn’t need to originate in the House because that revenue wasn’t earmarked for any specific purposes. Others argue that he did it to “protect the court”. The real answer is that only Roberts really knows which, if either, of these is the real reason for his actions.

        I do however note that the ACA wouldn’t have just been “the ACA problem” if the SCOTUS had accepted the government’s argument. Accepting the government’s argument would have either vastly broadened Wickard or created significant precedent for government expansion via other parts of the constitution, effectively creating Wickard II on another clause. Neither of these things happened so in many ways the ruling, unsatisfactory as I might find it, did actually limit the growth of power in D.C. rather substantially.

        From the opinion (emphasis mine):

        “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.

        As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.

        The Federal Government does not have the power to order people to buy health insurance. Section 5000A [of the Internal Revenue Code] would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”

        and

        …it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.

        1. avatar Jerry sweet says:

          No body readsv these long rants

        2. avatar Sam I Am says:

          “No body readsv these long rants”

          Yeah, the danger of actually being provoked to re-think per-conceptions is too risky. Plus, the chance that new information (education?) might be uncomfortable. Nobody comes here to learn anything, it is more satisfying to shout slogans and thump our collective chests, virtue signaling how our memes are superior to anyone else’s.

          Reading for illumination and understanding is just simply tiresome.

        3. avatar Sam I Am says:

          “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

          From
          http://sites.gsu.edu/us-constipedia/wickard-v-filburn-1942/

          “Wickard v. Filburn was a landmark Supreme Court of the United States case that was decided in 1942. This case pertained to the constitutional question of whether the United States Government had the authority to A) regulate production of agricultural goods if those goods were intended for personal consumption and B) whether the Federal Government had the authority to regulate trivial intrastate economic activities even if the goods and/or services were not intended for interstate commerce.

          Holdings –

          The decision of Wickard V. Filburn was unanimous and each justice ruled that, under the Commerce Clause, Congress does have the power to regulate the production of wheat intended for personal use and not placed on interstate commerce…

          Majority Opinion

          The Supreme Court held, in regards to the first constitutional issue raised, that even though the wheat may have only been used for personal consumption, it still is competing with wheat in commerce, because the demand for wheat is being taken away by the one who is growing it. Because Filburn was producing wheat for his own consumption, he in turn, did not have to purchase wheat, which affects the demand for wheat on a microeconomic level. ”

          The ACA citation at the top proclaims people cannot be forced into commerce, yet Wickard says otherwise. Roberts did not specifically address, nor overturn Wickard. To do so would have implications well beyond a healthcare mandate/tax.

          So……which is it?

        4. avatar strych9 says:

          Sam:

          There is a subtle difference which I think is what Roberts was trying to get at here.

          In Wickard Wickard took a positive action in growing wheat specifically for the purpose of avoiding having to buy it at market. That is, he produced a good himself so that he could refrain from engaging in interstate commerce. It’s that positive action that was the interstate commerce because he didn’t actually fully withdraw from the market.

          Roberts is saying, in my admittedly limited understanding here, that it’s that positive action that matters. If Wickard had simply refused to participate (a negative action in my parlance here) in the market at all the government couldn’t compel him to participate but his positive action of going out of his way to produce something so as to avoid the market where others had produced the same thing actually had an effect on that market by removing some of his demand for a regulated product and was therefore commerce. He didn’t simply withdraw from the market in terms of reducing his demand to 0, he had the same demand, he just used other methods to meet his demand and those methods were regulatable.

          IOW the government cannot force you to demand something you do not want but it can regulate your use of or method of procuring that thing which you do actually demand but wish to obtain through grey/black market means.

          It would be interesting to get Roberts drunk in private and find out his real feelings on the Commerce Clause. I suspect strongly that in many ways if he could he’d overturn Wickard or at least reign it in. SCOTUS gave a lot of deference to Wickard until that whole Gun Free School Zones Act thing in the 1990’s and then they slapped the government back one. Reno did an end run around the court there and I don’t think that ever sat well with the justices.

        5. avatar Sam I Am says:

          The base problem I see with “not withdrawing completely from the market” is that the logic can be used to require me to hire a yard or landscape company because buying equipment, seed, and tools to manage my own lawn is a form of not completely disengaging from the lawn care market place. Thus, I can be compelled to engage in the lawn care market because doing it myself removes demand from the lawn care market.

          Keeping in mind that Roberts instructed the government to not use the “it’s a tax” rationale during oral arguments, then went to great lengths to reason that the mandate could be declared a tax. What Roberts actually did is a familiar form of judicial activism often seen in contract disputes.

          When contracting parties dispute the very meaning of the contract (one, the other, or both declaring that there is no contract – meeting of the minds), courts will work to create a contract, rather than tell the litigants to simply go back to square one, and write a contract they can both agree to, and perform. I find this, and all its permutations egregious judicial activism…creating what isn’t there. Courts should look at facts, and if a contract, or in the case of ACA legislation, is so unclear that a court must essentially rewrite the document, turn the case back on the litigants, letting them suffer from their own folly or incompetence.

          Courts should not be in the business of “fixing” incompetent contracts, legislation, or regulations. With ACA, Roberts found a convenient way to prove that he wasn’t politically motivated, and no matter how sloppily, he could set aside his personal considerations, and rise above politics. That, in and of itself is a political move.

          Wickard was no different, creating a legal theory where none existed. Wickard declared clearly that government could compel individuals to engage in commerce. Roberts said government had no such power, then proceeded to create that power through logic no less specious and convoluted than Wickard.

        6. avatar strych9 says:

          “No body readsv these long rants”

          I’m tired enough of this kind of bullshit that I’m just going say this flat out.

          I don’t write stuff like OP here for the TLDRfags (hat-tip to the chans). They’re idiots and not worth my time. They’re a drag on the 2A community, society and the species. It does however mildly amuse me that they labor so hard under the delusion that I give a flying fuck about their openly ignorant opinion.

        7. avatar strych9 says:

          I won’t disagree with you on the contracts thing at all.

          I also won’t defend the finding in Wickard. I’ve said here before that I find it to be, at best, a massive stretch. I’ve also noted the historical context of that finding juxtaposed to the previous rulings on the same topics from the same court and the probable reason why they changed.

          I will however point out with your lawn care example that I think you’re taking it a bit far. The government, at least under Roberts’ read of things, cannot compel you to hire the landscapers. They can however, *encourage* you to do it via taxation. For example, they could tax the items you’d need to do the job yourself to the point that it’s actually cheaper to hire the landscaping company. Or they could apply a tax to you for not having your landscaping done. If they correctly assessed the rate it would be cheaper for you to hire the landscaper than to pay the tax on having not hired them. That’s part of where the ACA fell flat on it’s face in terms of execution, the “penalties” were cheaper than the cost of the product those penalties were designed to encourage you to buy.

          As someone far smarter than I once pointed out: not everything that’s a good idea is constitutional and not everything that’s constitutional is a good idea. That’s where we’re at here. Constitutionally there are usually numerous ways to skin a cat but that doesn’t make any of them good public policy. On the other hand what may in fact be perfectly rational public policy may not jive with the Constitution.

          It is however interesting to note that courts do not need to stick to the arguments presented to them in either direction. The court can find something unconstitutional due to arguments the plaintiff fails to raise or find the government to be in line with the Constitution based on arguments the government didn’t make. There’s no rule against either and they both occasionally happen. Such is the nature of a court because it offers “opinions” based on the judge/justices’ read of the laws they find to be applicable. It’s just rare, particularly at the SCOTUS level due to the relative competence of the lawyers who tend to argue the cases.

          But let’s be honest here. If a gun control law was argued back and forth at the federal level on 2A grounds but struck down based on Commerce Clause grounds would POTG care? No, we’d chalk up the win and move on. We can hardly expect the other side to be any different.

          I only bring that up because I’ve said before that the root of most federal gun control laws is the Commerce Clause and guns being interstate commerce (see my previous comment about Reno). Were we to go back to a pre-Wickard view of things it would dramatically reduce the number of 2A cases we need to file because the foundation of the government’s argument for creating the laws in the first place wouldn’t exist. We wouldn’t have to have an argument about which is supreme, the BoR or the body of the Constitution, but rather we’d have no argument at all because the government couldn’t claim authority to create the law in the first place. At that point we’d mostly be left with state and local laws at which point we’d be in 14A territory.

        8. avatar Sam I Am says:

          The founders debated the commerce clause extensively. They understood well that the clause could be used to justify curtailing all the provisions of the constitution and amendments.

          14th Amendment? Interesting that there is still some question about the reach of the amendment vis-a-vis retained powers (federalism). During a case involving “civilian asset forfeiture”, one of the justices admitted surprise that the Eighth Amendment had not yet been incorporated to the states.

          Overall, the danger of judicial activism, such as Roberts on ACA, Wickard on commerce, is that “finding” what is not there is truly legislating from the bench; judges trying to “fill-in the gaps” in legislation are shaping “the law” to their own political sensitivities. POTG are just fine with that, so long as the shape is to our liking. We would do well to admit that the law is politics, and politics is about power, not justice.

        9. avatar strych9 says:

          For the most part I don’t disagree with you. Where I quibble it’s minutia not worth bothering with.

          I will say that sometimes you get a case that offers a big surprise though (in a happy way).

          When I was living in Ohio there was a rather large row between the Legislature and the State Supreme Court.

          Very, very long story *fairly* short: Ohio had, many years previous, changed the way it funded schools to mainly funding them with the revenues from the State Lotto. The Legislature had told the people that this money would supplement the already existing education funds but then, over time, siphoned off most of the statutory funding derived from the State’s general fund. This meant that when the Lotto didn’t sell enough tickets school funding was problematic.

          Over quite a number of years the Legislature had tried to fix this various ways. They essentially refused to reinstate the baseline funding they had promised to keep and were looking for ways to create a fund as a stop-gap measure that would shore up school funding in the years that the Lotto wasn’t very profitable but still allow them to spend it on other things in years when the Lotto revenue was sufficient.

          The problem was that everything they came up with was illegal and kept getting shot down by the State Supreme Court. So when I was living there they were on something like the sixth iteration of this nonsense and the Court rejected the Legislatures attempt yet again.

          That’s when a few members of the Legislature broke down and literally asked the Court “OK, what would be legal for us to do here?”.

          Shockingly (to me at least) the Court replied essentially that “We can’t tell you that. Our job is simply to tell you if what you’ve done passes muster or not. If we told you how to craft legislation so as to pass legal muster then we’d essentially be legislating from the bench and that would be unacceptable”.

          That was an amazing turn of events which angered A LOT of people. However, no matter the gnashing of teeth it might have produced that was exactly the right answer.

        10. avatar Sam I Am says:

          Agree we are often mostly in agreement.

          The Ohio SC court ruling they can’t legislate is a big surprise. A BIG surprise.

          Keying off LKB’s report today, it is clear that the justice system is political. (And why wouldn’t all three branches of the central committee be political?)

          Cheers

    2. avatar Anymouse says:

      Roberts’ philosophy is to assume the what Congress passes is constitutional, and to twist things so that they are. He won’t give NYC the same deference, so it’s anyone’s guess. He’ll rule against NYC, but he might be in favor of limiting the verdict and not calling for strict scrutiny in future 2A cases.

  6. avatar Green Mtn. Boy says:

    “As to the merits, questions from Justice Ginsburg suggesting analysis of the case under intermediate scrutiny and conceding no safety issue with regard to the law might have been intended to give Roberts a way to send the case back to the circuit court without ruling on its constitutionality.”

    “Whether Roberts will take that opportunity or fall in line with Thomas, Alito, Gorsuch and Kavanaugh is the $64,000 question.”

    A truly originalist court will not be attained until C J Roberts is mooted by another originalist justice,as he currently is the 64,00 dollar Turd in the punch bowl.

    1. avatar Baldwin says:

      “A truly originalist court will not be attained until C J Roberts is mooted by another originalist justice,as he currently is the 64,00 dollar Turd in the punch bowl.”
      Nailed it!

  7. avatar Sam I Am says:

    RGB opened the door to level-of-scrutiny. As in an enumerated right does not require anything more than intermediate scrutiny. If accepted as appropriate analysis, the Second can be eviscerated, as can any other right, under intermediate scrutiny. Indeed, to rule that a clearly defined right can be dispensed with so easily also indicates that every other constitutionally protected right can be likewise eviscerated. That should put a nail in the coffin of the only “absolute” right recognized by courts – abortion.

    Interesting that the commerce clause issue did not arise.

    1. avatar uncommon_sense says:

      Sam I Am,

      All excellent points. I tip my hat to you fine sir.

  8. avatar Jay in Florida says:

    The way I see it this time. Whats in it for Roberts to vote with the ladies this time around ?? If he does he will justify being called a turd and worse. By our side.

  9. avatar Slavery is just a tax says:

    Government interpreting the law that limits the government. Nothing wrong with this picture.

  10. avatar Shire-man says:

    This is reassuring. Every MSM source and even the SCOTUSBlog is reporting mootness is the likely outcome based on today’s arguments.

  11. avatar uncommon_sense says:

    The City’s justification (for prohibiting city residents from transporting their handguns to locations outside the city for legal/legitimate use) boils down to this:

    Law abiding citizens, who have no criminal record and were so upstanding that they even obtained a firearm license, will use their handguns to commit crime once they leave their home with their handguns.

    That claim is ludicrous.

    Sure, it could happen — just like every person who leaves their home could step into a crowded movie theater and falsely yell, “Fire!!!” And just like every person who drives away from their home could purposely drive their car at high speed into pedestrians.

    So, do we require New York City residents to wear a muzzle before leaving their homes to ensure that they cannot go into a crowded movie theater and falsely yell, “Fire!!!”? Do we require New York City residents to leave their cars parked in their parking space because they could plow into pedestrians?

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

      “Sure, it could happen — just like every person who leaves their home could step into a crowded movie theater and falsely yell, “Fire!!!””

      The crucial difference is, no one is duct-taping your mouth shut as you enter the theater…

  12. avatar Jerry sweet says:

    As a follower of Jesus Christ i will trust him with the scotus decision.i am reminded that God guns and guts made this nation and the same will keep it Lord willing

    1. avatar UpInArms says:

      God is not sitting on the Supreme Court. Roberts is.

      1. avatar Jerry sweet says:

        Upinarms God is even in control of our Supreme Court

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

      “As a follower of Jesus Christ i will trust him with the scotus decision.”

      Marriage may be made in heaven, but the bills that keep a roof over your head are paid on earth…

  13. avatar OBOB says:

    My main question!!

    could you really tell that Ginsburg was alive and really talking for herself during court time???

    We have doubts that she is living or is just some sort of Alzheimer’s dulled puppet!

    1. avatar uncommon_sense says:

      Good point!

      TTaG contributor LKB could finally dispel or confirm the claims once and for all whether or not Justice Ginsburg is actually still alive and functioning!

    2. avatar LKB says:

      Decidedly frail, but she was engaged and asked probative questions in both arguments.

      1. avatar OBOB says:

        any que cards or teleprompter present???

        have to ask!

        LOL

  14. avatar Ralph says:

    “The question, then, comes down to Chief Justice Roberts.”

    Which is exactly why we believe that we are well and truly screwed.

  15. avatar FB says:

    Kavanaugh is a hack.

    1. avatar Mark says:

      He’s far more successful than you’ll ever be. You are a nobody. He is a somebody.

  16. avatar Huntmaster says:

    None of this matters. In the end the matter will be settled in the streets.

  17. avatar Hannibal says:

    The arguments don’t matter, the justices will find an argument to support their ideology or whatever conclusion they want to reach for other ends.

    1. avatar PROUD chicano says:

      Safe to say each judge has their mind made up already.

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

        That’s not set in stone.

        It may have been true at the time when the vote was taken to grant cert., but all bets are off now, thanks to the 3 Senators letter threatening the court…

  18. avatar Stateisevil says:

    Let’s assume for a minute that Kavanaugh and Roberts are hard core statists (they are). What is this ruling going to say then? That the 2nd amendment is just as much a right as the 1st amendment? Ok then. Is that going to stop any other Kourt or anti gun jurisdiction from enforcing anti gun laws other than permitted transportation of an unloaded and encased handgun? No. Will such a ruling make, say, Texas, Florida, or South Carolina a constitutional carry state? No. Will it strike California’s 10 day waiting period? No. Well, maybe it will 10 years from now. You can see how it’s hard to get excited about these things.

  19. avatar Sam Hill says:

    @upinarms…”Judicial review (whether its in the Constitution or not) functions as a fairly effective safety valve against abuses by the state and the majority.”

    Maybe it is and maybe it ain’t. Depending upon which way they vote and if it corresponds to your particular line of thought. My personal opinion is it’s just bs. I liken it to having the Pope or the late Billy Graham explain the bible and religion to me. I can read. I have an extensive vocabulary and words I might not have a grip on, I have one large dictionary, if by chance it does not suffice, the public library has one only slightly better/larger than mine. They also have an extensive law library where answers to some of the most perplexing questions can be found. Legal opinions are like any opinions and assholes, every body got one, however therefore to illuminate my hemroids are the only ones important to me.

  20. avatar Jerry Sweet says:

    They will find shall not be infringed has a very real meaning i am afraid thousands will die because of this basic right

  21. avatar Jerry Sweet says:

    Death to any tyrants you break your oath you deserve death the Constitution is more powerful than any political group

  22. avatar Richard Steven Hack says:

    All of this is irrelevant. None of this is going to matter in the long run (as always, depending on your view of what “long run” actually means – and leaving aside whether you live long enough to see your or anyone’s “long run”).

    In my “long run”, some form of “gun control” – if not an attempt at outright gun confiscation – is going to occur within perhaps the next couple of decades, i.e. ten to twenty years. There’s just far too much “social effort” – i.e., political pressure, mass media pressure, etc. – going on to make sure it happens. And the opposition just doesn’t have the same level of social media pressure to prevent it. The NRA and other firearms associations have been the bulwark against this, aided by some favorable Supreme Court decision, in the past. But the tide is building against this being effective for many more years.

    I could be wrong. But obviously I don’t think I am.

    So ask the next question: What are you doing to prepare for that eventuality? Do you intend to comply with laws that impose on your Second Amendment right? Do you intend to not comply and conceal your firearms ownership or otherwise evade the law? What are you willing to risk to do so?

    These are questions firearm owners need to start thinking about. Putting one’s head in the sand about the probability of firearms confiscation or extreme gun control laws is not a good idea.

    Neither is the idea that there is suddenly going to be some form of “armed insurgency” as a result that has any reasonable chance of being effective given the likelihood that any and all existing “militias” are already heavily infiltrated by the FBI and ATF. Any “Second American Revolution” is likely to polarize the US far more than it already is – and it is much more likely that the majority will come down against 2nd Amendment followers than not. It is also likely that the resulting polarization will result in an even more oppressive regime coming to power in Washington – this is historically the usual result of civil conflicts.

    Being a pessimist in general, I’m not too concerned either way it goes. I’m planning on surviving whatever happens with whatever firearms I’ve acquired in the meantime intact and available if needed. Deception and evasion is preferable to confrontation – and if confrontation is unavoidable, ambush is the preferred tactic – when remote control assassination isn’t.

    The bottom line: Assessing all the possibilities in an unbiased manner and planning in the PACE manner is important. Hope for the best but plan for the worst.

    1. avatar Jerry Sweet says:

      I do t read long rants period

      1. avatar Sam I Am says:

        “I do t read long rants period”

        Agree. I prefer two or three line repetitious sloganeering into the echo chamber. Makes it easier to read more input than hacking through something that might actually have a valuable nugget in it.

        Or not.

  23. avatar Hannibal and the Elephants says:

    From Scotusblog.com regarding an unrelated case: [a representative of the Federal Government]‘…acknowledges that allowing the executions to go forward will mean that the inmates’ appeal will become moot after their execution, but he explains that when the inmates have suffered a “purely procedural injury” that is “likely illusory and at most harmless,…”’
    Glad for the petitioners in this case that NYC and NYS did not try this approach. Just find a way to execute the petitioners and the case is moot.
    These are scary times indeed.

    1. avatar Hannibal and the Elephants says:

      Oh wait, wasn’t that exactly the approach the Feds effectively took in United States v. Miller, 307 U.S. 174 (1939) which gave the green light to the NFA?

  24. avatar Shadow says:

    I do not trust Roberts. He is a spineless wimp who does not know the meaning of upholding the Constitution and Bill of Rights. I also do not trust Kavanaugh. He has a wife and family: Perfect for black mailing purposes by those who would seek to destroy the country. Black mail his family, and he will vote accordingly. Thus, I see him as another, vote-whichever-way-the-wind-blows-Roberts, sad to say. Kavanaugh being strong in anything? I will not hold my breath.

  25. avatar Will Drider says:

    I think there was a major oversight in the Pro gun arguments as to why the Case is not Moot. Every Level of Appeal sided with NYC! Those Courts Ruled the Law was Constitutional yet NYC seeing the HAZARD of a SCOTUS Ruling backpedaled. NYC killed the Law, Passed another Law saying NYC couldn’t reinstate the old Law (to void a Pro gun argument point). NYC knew the Law was unconstitutional from the start but continued to oppress gun owners through several layers of Court proceedings. ONLY when NYC stands to get slapped down: do they void the Law.

    The Q of WHY NYC reversed themselves after years of Winning Court Cases needs to be put to them! That will tell the Tyrannical answer.

    LAWYERS READ THIS:
    The Case is not Moot because ALL the Appeals Courts Sided with NYC. These Courts also need to be brought to heel for Ruling/supporting a clearly unconstitutional Law that NYC- itself has abandoned. If those Appeals CASE LAW remain Standing “the Issue” remains a legal loss for gun Rights. Mooting the Case at hand will continue to damage other UNCONSTITUTIONAL 2A litigation.

    1. avatar Sam I Am says:

      “These Courts also need to be brought to heel ”

      You do realize there is no effective way to accomplish that, right?

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