By LKB
This morning, the Supreme Court announced that it has granted cert in New York State Rifle & Pistol Association v. Corlett, the case challenging New York City’s “may issue” (read: no issue unless you are politically connected) system for granting concealed carry permits.
To paraphrase a certain cognitively diminished occupant of a prominent D.C. residence, “This is a big f***ing deal.”
Cue the hysterical shrieking from all the usual quarters in 5 . . . 4 . . . 3 . . . .
BREAKING: The Supreme Court announced it will hear an NRA-backed case to expand gun rights.
Easy access to guns does not make us safer. Every day, +300 people are shot.
We will continue to fight for Americans’ most important right: the right to live. https://t.co/ZOCzw9EgYw
— Brady | United Against Gun Violence (@bradybuzz) April 26, 2021
The Court granted cert on the issue of whether the state’s denial of petitioners’ applications for concealed carry licenses for self-defense violated the Second Amendment. Like New Jersey, Hawaii, Maryland and other “may issue” jurisdictions, the city of New York requires a showing of a particularized special need to carry a firearm. A generalized desire for self defense isn’t sufficient.
This results in a system where the average citizen has essentially no chance of ever getting a carry permit (not to mention the accompanying graft and corruption). The case is thus going to front-and-center the issue of whether the Second Amendment includes the right to “bear” arms outside the home and thus will likely squarely address the issue that will be coming in Young v. Hawaii.
More importantly, in order to decide this issue, at long last the Court will have to address the issue of what standard of review applies in Second Amendment cases. Resolution of that issue by adopting any standard stronger than the current “intermediate scrutiny” currently employed by many lower courts could open the floodgates of Second Amendment challenges to just about every gun-related restriction.
And unlike the last NYSR&PA case, I don’t see any way the city or New York state can do something to tactically moot this one to avoid the Court from ruling. There is simply no way New York politicians are going to surrender and adopt a “shall issue” system for New York City.
The Second Amendment community thought we had the votes last year on any number of cases. Unfortunately, the rumors percolating from the Court indicated that Chief Justice Roberts had gone squishy on the Second Amendment. That resulted in a return to the ideological standoff of the Kennedy years, where neither side could be sure they could “get to five” on a Second Amendment case. ‘
But with ACB replacing RGB, that calculus now appears to have shifted.
Justices Thomas, Alito, and Gorsuch appear to be locks for a strong Second Amendment decision. Based on her writings as a circuit judge, ACB appears to be as well. Kavanaugh has talked a good 2A game in the past, but there have been increasing concerns as to whether his supposed conservative views would outweigh his apparent desire to remain in good standing with the Beltway chattering classes.
In granting cert today, it would appear that the pro-2A wing of the Court is sufficiently satisfied that they can now get to five…which means Kavanaugh is likely on board. I’ll go out on a limb and say that Roberts will also wind up in the majority, but only for a purely tactical reason rather than any return to originalist sanity.
After the Court takes its preliminary vote on a case after oral arguments, if the Chief Justice is in the majority, then he gets to assign who writes the draft of the majority opinion (which almost always winds up being the Court’s opinion). If the the Chief Justice is not in the majority, that role falls to the senior-most associate justice in the majority.
Ergo, if Roberts goes squish on the NYSR&PA case, the assignment role would fall to Justice Clarence “Second Class Right” Thomas who would almost certainly take that job for himself and write a very expansive pro-Second Amendment opinion.
Even if the Chief Justice Robert doesn’t like (or may ultimately vote against) the majority in the case, he can tactically vote with the majority up front, thus being able to assign the opinion to someone who will produce an opinion that’s closer to his own. My guess is that he’d assign the opinion to Kavanaugh. If Roberts took it himself and tried to write a weak sauce opinion, there would be five votes that could reject it and join an opinion written by Thomas or Alito which would then become the Court’s opinion.
Buckle up, Buttercup. This is going to be interesting.
I can hear the leftist tears flowing…..and I love it.
“I can hear the leftist tears flowing…..”
Right now, at this very moment, Dirk wishes he could console Shannon *personally*…
*snicker* 😉
Only LKB, who comments below, has it right.
Everyone has ignored that the court re-wrote the question it is going to consider.
The only thing they are going to look at is the question “is self-defense a sufficient reason to grant a carry permit?”
Only if they grant Cert to Young versus Hawaii, will they address the question of do the people have a right to bear arms outside their home.
In that case the ninth circuit has ruled that Hawaii can deny both open carry permits and concealed carry permits to ordinary law abiding citizens.
“The only thing they are going to look at is the question “is self-defense a sufficient reason to grant a carry permit?””
You only need a ‘carry permit’ if you leave your home armed.
Did not ‘Heller-Macdonald’ effectively make shall-issue in all 50 states for guns inside the home?
What am I missing here?
I agree; except that in Young they need not address the right to carry outside the home. They need only build on the case in Corlett as to whether HI can deny Young an open-carry permit based on the fact that he merely wants to carry for self-defense and lacks a particularized need.
My prediction is that the five will remand Corlett to the 2nd Circuit requiring them to justify the Constitutionality of a denial of permit for lack of a particularized need. The 2nd Circuit will be hard-pressed to rise to the occasion. Should that occur with Corlett then the same result in Young follows.
The Court needn’t rule on anything more than “particularized need” is dubious; it won’t be upheld. May-Issue, if it is to survive at all, must be justified on some rationale other than “particularized need”.
i hear contractors are already measuring the bench for 4 more chairs.
I think they’re going to need a bigger bench.
And what stops the Supreme Court from ruling any enacted court-packing legislation as unconstitutional?
The first sentence Article III, Section 1 of the US Constitution states: “The judicial Power of the United States shall be vested in one supreme Court,…”
Article III further enumerates the authority of Congress in relation to the judiciary and the Supreme Court. Congress may:
1. Ordain and establish inferior courts under the Supreme Court.
2. Make exceptions and regulations regarding “law and fact” where the Supreme Court has appellate jurisdiction.
3. Direct the place or places of trials for crimes that have not been committed within any state.
4. Declare the the punishment for treason.
Congress does not have the constitutional authority control how the judiciary operates internally. The day-to-day functioning (i.e. – judicial assignments, court procedures, etc.) of the judiciary is the sole purview of the Supreme Court.
“And what stops the Supreme Court from ruling any enacted court-packing legislation as unconstitutional?”
The SC has no constitutional authority to determine the number of justices.
I beg to differ.
Determining the number of justices sitting on the Supreme Court is not an authority granted to Congress by the Constitution or enumerated therein. Congress has previously enacted legislation creating the six-justice (1789) and nine-justice (1869) Supreme Court and the court did not object at those times.
The Constitution does specifically vest the judicial Power in the Supreme Court. The argument could be made that the Chief Justice of the Supreme Court (the only Supreme Court judicial position officially enumerated in the Constitution) is the person that is granted that authority exclusively.
If the Chief Justice wished to expand the Supreme Court or inferior courts for whatever reason (workload, etc.), Congress would, however, need to pass legislation to fund the salaries and expenses of additional justices (unless the Supreme Court set up a fee schedule to fully fund the judiciary without Congressional appropriations).
I haven’t studied the history of the 1789 and 1869 legislation in any detail but I would guess it was all about the Benjamins.
Court packing is dead without dumping the filibuster and that looks like a dead issue.
How was the current number of 9 Justices arrived at, legislativley, in the 1960s? I have yet to hear an historical account.
And what stops the Supreme Court from ruling any enacted court-packing legislation as unconstitutional?
Because it’s not… The Constitution does not address the size of the court, but it does give the POTUS sole authority to appoint Justices AND it gives the Senate sole authority to advise and Consent to the seating of that appointee… A Constitutional Amendment would be required to limit or “set” the maximum number of Justices on the Supreme Court.
I would counter that the determination of the need for additional Supreme Court justices, or the lack thereof, is part of the judicial Power vested in the Supreme Court.
Quite frankly, if the Supreme Court can uphold Obamacare by turning a fine into a tax, they can just as easily claim that the detetmination of the number of justices on the Supreme Court to be in the authority of the Court itself. There is nothing to stop them short of a Constitutional Amendment.
they can just as easily claim that the detetmination of the number of justices on the Supreme Court to be in the authority of the Court itself. There is nothing to stop them short of a Constitutional Amendment.
You cannot amend something that does not exist… There is NOTHING anywhere in the Constitution that even remotely hints at giving the Court the authority to determine the size of the Court… They might make a “recommendation” or a request but there is NO requirement for Congress to act… If you have read otherwise in YOUR Constitution then please enlighten the rest of us, you MUST have some basis for your “counter” argument that the Court has the authority to control it’s own destiny… As far the Obamacare fiasco, read Roberts comments, they are self explanatory…
I think the Dems will try it and I think SCOTUS itself will overrule it.
Odd, but no more odd than Marbury v Madison when SCOTUS took for itself judicial review.
The number of justices is not in fact fixed by the Constitution but changing that number does result in a reviewable action; so it falls plainly in the Court’s lap.
Under judicial review “intent” is very relevant, in fact it may be primary. If the Court was expanded, as done on each of the prior 3 occasions, to accommodate a growing Country, it might stand—-if for purely political reasons, as is the current movement, it wont.
Yes, yes, yes our population is nearly 10x the size it was when the Court was set at 9, so should it grow too? No, the Court grew in response to the work load of the Justices who were also responsible for their respective Circuit Courts that kept them away from SCOUTS for many months.
That practice is long gone and the 9 person Court has never claimed, nor been accused, of taking on too many cases.
The Dems will do, they will fail and they will further poison the Country.
think the Dems will try it and I think SCOTUS itself will overrule it.
The SCOTUS has NO say in the number of Justices appointed and seated… The duty of the SCOTUS is to determine the Constitutionality of matters brought before them, not to create cases… The size of the SCOTUS is NOT a Constitutional issue and the Court itself has no jurisdiction over the matter, it is purely a Legislative matter to be decided by the two bodies that make up that branch of Government…
It would not be easy for the Supreme Court to expand the number of justices without Congressional approval because Congress must appropriate funding to cover the additional cost of the new justices or the SCOTUS would need to arrange another source of funding.
It’s a different story when the Supreme Court doesn’t want additional justices.
Marbury v Madison when SCOTUS took for itself judicial review.
In Marbury v. Madison (1803) the Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution…
Key words “inconsistent with the Constitution” Congress HAS the Constitutional authority to expand the size of the SCOTUS (therefore being CONSISTENT with the Constitution) and it is NOT subject to judicial revue at any level…
Court packing is “inconsistent with the Constitution” because the Constitution vests the judicial Power in the Supreme Court. Determining the structure and operating procedures of the judiciary is surely within the “judicial Power” enumerated in Article III.
A key component of a constitutional analysis of the power to chwngrvtge size of the Supreme Court is whether the Supreme Court justices requested an increase in the size of the court in 1869 in order for Congress to appropriate the funds necessary or did Congress just set the number of justices on the court without consulting it.
I’ll bet the Supreme Court was the initiator of the request and, therefore, still maintains control under it’s judicial Power. In other words, court packing is unconstitutional without it being formally requested by the Supreme Court.
@Mad Max: “. . . whether the Supreme Court justices requested an increase in the size of the court in 1869 in order for Congress to appropriate the funds necessary . . . ”
Strikes me as though this is one hell of an argument.
Congress has plenty of power over the structure of the Judiciary. However, if someone with “standing” can sue Congress for adopting an unConstitutional law then SCOTUS can grant cert. And, SCOTUS can rule a law passed by Congress as unConstitutional.
If SCOTUS objected to the packing of it’s institution for manifestly political reasons SCOTUS has the power to rule the act of Congress unConstitutional.
Would SCOTUS act in defense of its own institution? I’d expect that it would do so and it would stand on the grave of Notorious RBG to defend its decision. There is insufficient public support for a packing operation; and, the record from FDR is clear that Americans object to packing.
SCOTUS has ruled in cases where it did not have public support. Why wouldn’t it rule in a “self-defense” case where it DOES have public support.
I think YOU have GOT IT.
Not going to happen. Chatter about expanding the Supreme Court is practically an American tradition. But the will and votes to do so have been completely lacking for a very, very long time.
Interesting. When/if it’s decided in a couple years, it will not be a win for the 2nd amendment. I know this is a shocking statement to most normies and to people half way paying attention. This corrupt country is decaying rapidly, and going off of the last 90 years of history on this issue, and considering big “wins” like Heller and Macdonald, I will not hold my breath.
“Interesting. When/if it’s decided in a couple years,…”
Years? Try 14 months, *tops*…
This might be great news for the Caniglia V. Strom Case going our way. Don’t forget about that.
I can’t wait for the Oral Arguments. Excited to hear Justices Thomas, Gorsuch, and Alito scold the filthy, NY and other Leftist, Subversive Scum, including the Democrat Justices with that “Second Class Right” Mantra.
FUCK ‘EM!!! For that matter, let the CCP Bootlicker Democrats pack the Court. Let them fully expose who they are.
let the CCP Bootlicker Democrats pack the Court
Yeah, they add four now and… WTF… Could it be that the NEXT Republican POTUS (in 2025) takes advantage of ANOTHER epic fuck up by the Dems and adds still four MORE… WHOOPS, guess no one saw THAT coming… DO it Chucky, but be careful what you wish for… Can’t you just picture the SCOTUS looking more like the British Parliament with Liberals on one side and Conservatives on the other while arguments are presented from a little podium down in the middle, ahhhhh good times…
I still don’t understand all the rules, probably why I never had an interest in becoming a lawyer. If changing the size of the court is all so easy, why would the next conservatives add more justices? Why not just reduce the size of the court to one (Roberts) move all of them out, and then change the size of the court to 9 at the same time as proposing a Constitutional Amendment to make it 9 and end the madness. Thus a Court of 9, all conservative originalists, and start *seriously* tossing out the liberal bullshit of the past 50 years. Meanwhile, this should be proposed right now, using the fruitbars’ own tactics against them, namely “be careful what you wish for”. You’d think ending the filibuster (Harry Reid) would have educated them!
The constitution requires Supreme Court justices to be removed the same way a president is removed, through impeachment. I believe two thirds of the senators must vote to remove, just like the president.
Why not just reduce the size of the court to one
You can’t just arbitrarily remove a Justice, THAT would require impeachment and then removal of that seat… so, just KEEP adding, why stop at four? Dems add four this time, Reps add eight or twelve next time… Eventually SOMEONE will realize just how STUPID this bs really is and bring it to a halt… Harry has warned them about Court packing (Harry learned his lesson, but alas TOO late) Chucky will also learn but too late as well… Mancin and Sinema (never thought I’d see her as the conscience of the liberal side) have seen the future and I believe THEY will stand against Court packing…
Congress has the power of the purse. They can simply defund the Supreme Court. No impeachment necessary. Of course, the justices could work for free and provide their own quarters and stationary, etc.
4 more. If the Dems go down this road and the GOP regain all three houses they will spend those two years confirming new Supreme Court justices. Why add 4 more when Dems set precident and adding 24 new justices is just as easy. Lol.
No, like the Italian Parliament, complete with fisticuffs! If we’re going to destroy it, may as well make it fun…
“Excited to hear Justices Thomas“
Many of us would be excited to hear Justice Thomas actually speak words during oral arguments.
“. . . the Court will have to address the issue of what standard of review. . . ”
Thank you again, LKB, for your professional explanation of what we are seeing.
Could you elaborate on the standard of review issue? It seems to me that the Court could simply take the dodge “under no standard of review” is May-Issue Constitutional. Or something along these lines. A “right” that is subject to being dispensed at a magistrate’s whim is no right at all.
It seems to me that the Court has 3 options:
1. – leave the standard of review question unanswered for a long time
2. – decide that Intermediate Scrutiny is the standard applicable to 2A
3. – go nuclear and declare Strict Scrutiny for 2A
I can’t imagine that SCOTUS would take such a far leap as #3 given the slow progress on 2A cases. That would put into question nearly all the gun laws in one fell swoop. It would take only one of the 5 justices in the majority to get a little bitty squishy to make the other 4 pull-back. So, I just don’t see this happening.
I hope that they don’t lock-in Intermediate Scrutiny. That would likely foreclose a later decision (decades from now) of going to Strict Scrutiny. Those on the Court who lean toward Strict would (IMO) be better advised to write some scolding in the dicta that if the Circuits want to preserve any chance at Intermediate then they have to have a full-throated (not watered-down) Intermediate Scrutiny. Failing that, they would leave SCOTUS no alternative but to choose between Strict vs. virtually “Rational Basis”; and the latter is not appropriate for a fundamental right.
Your conclusion seems utterly incompatible with my analysis. So, I’d like to understand why you think SCOTUS will feel compelled to choose the standard of scrutiny now.
Short of some proceduralist dodge (such as some of the ones Prof. Blackman has hypothisized), if the court gets to the merits of the question presented — does X violate the 2A? — then the first part of any constitutional analysis is *always* “how are we supposed to go about deciding this issue?” I.e., what’s the proper standard of review?
I do not see how they can rule on the merits without addressing that issue. Even if they wanted to say “we’re not deciding what the proper standard of review is, because even under intermediate scrutiny the law is unconstitutional,” to do that they’d have to overturn the district court’s weighing of the facts of the case (nope) or hold that it fails intermediate scrutiny as a matter of law (even tougher to do). Not gonna happen.
Based on their writings to date, the weakest link is Kavanaugh, and even he says the proper test should be “text, history, and tradition” — not a balancing test like intermediate scrutiny. (Thomas, Alito, Goresuch, and probably ACB would likely just say “strict scrutiny.”)
I have never understood exactly how there can be any question that a right specifically addressed in it’s very own Amendment *must be* strict scrutiny. Particularly in the examination of the word “infringed”.
“I have never understood exactly how there can be any question that a right specifically addressed in it’s very own Amendment *must be* strict scrutiny.”
Because…..”No amendment is absolute.” (a declaration that extends to the basic document itself)
When a president declares, “No amendment is absolute.”, the Rubicon has been crossed.
“No amendment is absolute.”
I just wish somebody would ask him, “OK, Slow Joe . . . how about the 13th Amendment?” (Prohibition of chattel slavery.)
“I just wish somebody would ask him, “OK, Slow Joe . . . how about the 13th Amendment?” (Prohibition of chattel slavery.)”
Could it be argued a prison sentence of ‘X’ years of hard labor qualifies?
“The directive that the right to keep and bear arms be “regulated” is codified in the preamble of the 2A which requires that the militia should be “well regulated”.”
Just like a typical Leftist scum, the word ‘regulated’ today doesn’t mean “A list of rules and regulations”, at the time of the writing of the BOR ‘regulated’ was understood to mean “In proper working order”.
For proof, look at book about clock making of the era and you will see the name of the nut at the bottom of the pendulum of a grandfather clock (which fine-tunes the clock’s speed, slower or faster, is “The regulator”.
It’s an easy error to make since Leftist scum like you gets your panties damp at the prospect of a more massive government with more rules and regulations… 🙂
Thank you for trying to explain. Don’t think I fully understand your explanation; nevertheless, I take it that your view is well reasoned.
Now, a new question. Could it be that the five are thinking about going full-nuclear? That is, they re-wrote the Question Pending in such a way that they could take the bull-by-the-horns and rule Strict? Or, if they can’t quite bring themselves to do that, to remand with a threat to the 2nd Circuit (and 1st, 3rd, 4th and 9th) that they had better come back with a decision and reasoning that the five will be willing to buy into?
Blackman raises questions about what the five might be thinking about by re-framing the Question Pending. The re-frame must have some plan behind it.
The First, Second third and Ninth Circuits have adopted an intermediate review standard that is, in practice, little different that a rational basis analysis in which the state’s interest in public safety has been held to outweigh the right (if any) of the citizens to bear arms in public. In fact, Young v. Hawaii went so far as to conclude that there is no right to bear arms in public, and that it is the sovereign’s sole right, duty and privilege to provide for public safety, individual safety be damned.
Against that background, the Court may have to address in the first instance whether there is a right to carry arms in public at all, and/or whether the right to bear is subject to regulation in the public interest. In coming to its decision, the court will likely look back on the discussion in Heller about the right historically recognized was a right to bear arms openly, and that the carriage of concealed firearms could be banned, versus the fact that the open carriage of arms is, in some states, completely banned (NY and California both, Florida in part, NJ likely banned). But those statutes are not before the Court, since it limited the scope of its review to concealed carry. It is thus possible that the issue of open carry will be deferred, thus leaving a possibility that the court will only address concealed carry. There are three possible decisions: a) the State has the right in the exercise of its police powers to regulate concealed carry and therefore the current NY discretionary system is a valid; b) the State can regulate but the system must be “shall issue”; c) there is a right to bear arms, the right is subject to strict scrutiny, and therefore the State must allow for the carriage of arms in some fashion that is not discretionary (constitutional carry).
Of the three, I think con carry is not likely to carry the day. The Corut will likely reiterate the “sensitive places” dogma of Heller, and will allow states to perform background checks before issuance of a “permit” to concealed carry.
Requiring concealed = infringed
Requiring open =infringed
Requiring permission=infringed
Requiring payment =infringed
Requiring semiauto, revolver, limited capacity, minimum barrel length, certain calibers, certain locations. etc, *ALL* = infringed
This is not looking that complex to me.
If otherwise, we need to start an Amendment. I would suggest “The Second Amendment means what it says, not more nor less.”
“and/or whether the right to bear is subject to regulation in the public interest.“
The directive that the right to keep and bear arms be “regulated” is codified in the preamble of the 2A which requires that the militia should be “well regulated”.
“The directive that the right to keep and bear arms be “regulated” is codified in the preamble of the 2A which requires that the militia should be “well regulated”.”
Just like a typical Leftist scum, the word ‘regulated’ today doesn’t mean “A list of rules and regulations”, at the time of the writing of the BOR ‘regulated’ was understood to mean “In proper working order”.
For proof, look at book about clock making of the era and you will see the name of the nut at the bottom of the pendulum of a grandfather clock (which fine-tunes the clock’s speed, slower or faster, is “The regulator”.
It means the militia was in an effective shape to fight.” In other words, it didn’t mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.
It’s an easy error to make since Leftist scum like you gets your panties damp at the prospect of a more massive government with more rules and regulations… 🙂
It’s going to be b). “Shall issue”.
They could also side step 2a and rule against NY totally on equal protection grounds or even that the law discriminates based on race ( which it does ).
They could also rule for intermediate scrutiny but say this law does not pass for some reason, maybe make a “test” for lower courts to use.
They could apply strict scrutiny but rule narrowly so lower courts only have to use it on permit schemes.
They could rule “may issue “ is legal BUT not as applied here.
There is a lot they can do.
I am hoping they make the usa shall issue.
The bigger question is about the 9th. Will the en banc reviews of pro 2 a panels stop? Will the antis on the court be afraid they are sending a law to nationwide doom and just allow rulings they do not like ?
Guess what, I dont care what nine robes say.
Good or bad
What makes them Supreme?
The very same Constitution that enumerates 2A.
The very same Constitution that has been ignored when convenient by the tyrants in black robes for over 150 years.
Very little the Federal government does today (or the states for than matter since the ratification of the 14th Amendment) would be viewed by the Founders as Constitutional.
We are not even close to be living in the Constitutional Republic that our Founders envisioned.
Yeah, I’m going with possum’s answer and I think the Left/Progressive are saying the same thing. I mean I hate it we have arrived at this point but it is what it is.
The water is really starting to roll in that burning pot people talk about..pretty sure the frog is pi$$ed.
“More importantly, in order to decide this issue, at long last the Court will have to address the issue of what standard of review applies in Second Amendment cases.”
Wouldn’t it be “safer” if the SC simply rules that so long as a process exists for “permitting” people to bear arms, the procedural aspects control?
Essentially, cannot the SC can declare that just cursory review determined that so long as the police powers of the state do not deny absolutely the right to possess a firearm, there is no constitutional issue, only one of formality in deciding which people should be allowed to bear arms outside the home?
The SC ruled that civilian asset forfeiture (taking of private property without probable cause) was authorized under the Constitution, but only assets of value up to the fine designated in the civilian asset forfeiture law? Confiscation without probable cause is permitted, limited only by the value of the asset(s) to be confiscated. Don’t remember that decision being predicated on “strict” scrutiny.
Not strict scrutiny because the right is to be free of unreasonable searches and seizures, putting a lot of leeway in to what the government can do.
Something that I did not notice this morning is that SCOTUS took the very unusual step of slightly rewriting the issue on which they are granting cert (typically this is just presented in the cert petition, and the court just says either yes or no to accepting the question as framed).
As Prof. Blackman has just pointed out, the ways they subtly changed the question presented may portend a Roberts/Kavanaugh weaseling out of the hard questions:
https://reason.com/volokh/2021/04/26/making-sense-of-the-limited-cert-grant-in-nys-rifle-pistol-association-v-corlett/
So let’s not get too far ahead of ourselves. It’s progress but we’ve been burned before.
Prof. Blackman’s observations are not encouraging. Nevertheless, Young v HI is also coming up as a cert application.
I wonder if that might mean that in Corlett the five plan to make one small step to be followed in Young by another small step; and so forth. That is, we are in for a long slog which will give the state legislatures and Circuits time to adapt their carry laws and holdings so as to try to keep-up with SCOTUS.
Because people didn’t vote for Trump….in particular conservatives who didn’t like his tweets….we are just Thomas retiring to going back to a Roberts majority court where he will decide based on public opinion, not the Constitution……this is why we needed Trump to win…now, if Thomas retires, we have nothing…
if Thomas retires, we have nothing…
Thomas will not retire his seat to a Biden pick…
“…in Corlett the five plan to make one small step to be followed in Young by another small step; and so forth.”
LKB made mention of a strategy like that awhile back. Small steps at first, and on each one following, building as solid of a ‘foundation’ as possible,to make striking it down in the future more and more difficult.
The only problem is, the high Court isn’t a static bench. If the current administration gets a pick dropped in their lap, they get to choose a more rabidly Leftist younger replacement with decades in the future to strike down the 2A. But the overall balance is pretty much the same.
That’s a best case scenario, the worst case is someone like Thomas expiring, and losing a 2A friendly vote to a Statist vote…
And you will be burned again.
“And you will be burned again.”
Put a sock in it, Hicks…
Chief Justice Roberts had gone squishy on the Second Amendment.
Roberts didn’t go “squishy” on the 2A… Roberts went “squishy” on any and ALL Conservative values he might have held, he caved to outside pressures because he didn’t want HIS court being perceived as “politically biased” so instead of being the strict Constitutionalist he was expected to be he became a “squishy” middle of the road constructionist siding with the liberals more often than with the conservatives… History will NOT be kind to the Roberts Court, but then who cares, no one teaches history anymore so, a hundred years from now who’s going to know…
This is likely a 60-40 or 70-30 good thing……..there is a good chance from past experience that they are going to knife us in the back….even up to the last minute like obamacare. Once the left wingers threaten kavanaugh or barret, their votes could likely change ………
“There is simply no way New York politicians are going to surrender and adopt a “shall issue” system for New York City.”
I wouldn’t be surprised if NYC actually went “shall issue” with so many requirements and restrictions as to make it unaffordable to obtain a permit unless you are very wealthy.
That would be the NY way. In the upstate areas, most counties are sorta, kinda shall issue, but with a TON of red tape and expense. if you do your homework and learn how to create an application that says all the right things and doesn’t give offense, you’ll get your permit pretty much right at the six month deadline.
If you say something foolish like, “I have the right to a pistol permit for my own self defense, per the second amendment,” you will be denied because wanting to protect yourself means that you’re most likely a violent felon who just hasn’t quite committed to the role yet.
Instead, say safe and non-offensive things like, “I’d really like a pistol permit, if it please your honor, for occasional target practice at an approved range and also because I collect non-functional historical firearms that have no plastic on them.”
Someone should sue the NYS pistol permitting regime on compelled speech and 1st amendment grounds, honestly.
That would be a hilarious (and expensive) lawsuit that could cut some of the current restrictions but would undoubtedly lead to a bunch of new nonsense (social media background check) to compensate for a “reduced level of judicial discretion”. Would be great if we ended up on par with PA let alone VT/NH/ME. Ultimately I would mostly like to see our pistol permit system only be used for conceal carry and no registry of target/hunting permits like we have at the moment.
“… if NYC actually went “shall issue” with so many requirements and restrictions as to make it unaffordable to obtain a permit unless you are very wealthy.”
That works in our favor in the long haul for it being struck down as a clearly unconstitutional ‘poll tax’…
when it comes to the 2nd A ,We The People do not have a Supreme Court. We The People have an Inferior Court.
These so called “justices” will once again prove to us that they are interested in anything but justice.
Sad…but true.
“These so called “justices” will once again prove to us that they are interested in anything but justice.”
Then why not avoid the crowds and turn in all your guns now, quitter?
The Court may change its mind and dismiss as “improvidently granted,” or may affirm the lower court in a couple of years, or may duck, dodge and remand. Any way you slice it, BOHICA comes to mind.
The Court is part of government, and government is the problem.
Let’s hope we don’t end up tripping over our own dicks…..
Not finding any direct, or implied authority for the Chief Justice to expand or contract the number of seats. Indeed, the Constitution established the Supreme court, and granted Congress the authority to create lower courts, as Congress sees fit. If there is an “implication”, it is the implication that if Congress can establish courts, it can certainly delete those courts (except the SC). Another “implication” is that in creating courts, Congress has the authority to populate those courts with whatever number of justices Congress pleases. As to the Supreme Court itself, the only rational “implication” is that the creation of even a single seat (remember, the very first “seat” on the SC was established by Congress (since there were no justices on the Supreme Court when the Constitution was ratified), the very first judge had to be established. The authority to pay that judge is strictly the Congress. A judge with on location, no salary, no law library, had no place from which to conduct the business of the court.
One might also argue that the President is the only authorized agent to create new “seats” on the SC. If the President does not nominate a justice, a justice cannot be confirmed. A justice not nominated, and thus not confirmed by the Senate, cannot exist.
In the end, it definitely is not within the authority of the Chief Justice to create new justices, or assign them to the SC.
“One might also argue that the President is the only authorized agent to create new “seats” on the SC.“
Correct, the president has de facto control of the number of seated justices on the Supreme Court.
“his apparent desire to remain in good standing with the Beltway chattering classes.” This line explains about 98% of the Conservative to Leftie conversions when one arrives in DC. Didn’t take long to flip Roberts an likely less to flip Kavanaugh. He sure knows how to thank the enemy for the exemplary treatment he got at his Senate hearing.
I am pretty sure kavanaugh wants payback to the left for the smear. Thomas has gotten his over time.
Keg city is smart and patient.
Now that the court packing threat has been basically nullified and the left is going in other directions , scotus has more breathing room. If biden would have led with packing he might have gotten it. But his political capital is being used on other things now.
Also look at the timing. Roberts maybe half a cuck but he is no fool. This is going to come down before an election but close enough that votes on court packing are unlikely. And then in 22 the GOP is almost certain to have the house. Redistricting will give it to them even of they do not win any seats.
That gives them another 2 years. A chance at a GOP president. A chance biden dies and we have NO VP. A chance of a weakened potus if harris takes over. A chance people move on from court packing or the corporate dems take more power away from the left wing etc.
“I am pretty sure kavanaugh wants payback to the left for the smear. Thomas has gotten his over time.”
He has proven so far his ‘enthusiasm’ is no where near as strong today as he was in that hearing.
Kav has young kids.
Since Leftist scum will stop at *nothing* to get what they want, I fear Kav may have gotten a threat along the lines of “I know where your kids go to school”… 🙁
Yup, this is what I mean by saying we have five and a half Justices friendly to the Second Amendment. If we lose Roberts (he’s the half, obviously) we still have a majority.
It is encouraging to see the case be accepted. Now the real wait and fun begins!
We?
“We?”
Yeah, what’s this ‘we’ sh!t?
*Snicker*… 😉
Can we understand Corlett without considering Young at the same time?
NY forbids open-carry and licenses Concealed-Carry.
HI licenses armored car drivers to Open Carry and doesn’t seem to license anyone to Concealed-Carry.
Do these two states’ laws and practices create a “corner” where we must search for the right to bear arms?
Could it be that the 5 justices are planning on pushing NYS up-against one wall of this corner; and, then later, push HI up-against the other wall of this corner. Ask each state how it is that it reasons that their respective laws square with the right-to-bear arms which is not to be infringed by the states. These two states (probably in consultation with CA, MD, NJ, MA, etc.) have to come up with some coherent reasoning.
The 9th Circuit has reasoned that there is no right to bear arms worth discussing. Ninetieth-Century cases seem to say that “the right” to bear arms is the right to do so openly. That would seem to be a win for Young; and, set the stage for new litigation against NY for forbidding open-carry.
Could it be that the five justices don’t plan on dictating any answer; but, instead, force NY and HI to come up with an answer that the five can find untenable because the five can’t find in favor of both HI’s and NY’s respective positions without embracing some doctrine that would obviously be nonsense.
This might be a long drawn-out battle with the two states slowly roasting on an open fire.
From;
https://www.britannica.com/topic/Second-Amendment/Origins-and-historical-antecedents
……..”The right to “keep and bear Arms” was thus included as a means to accomplish the objective of a “well regulated Militia”—to provide for the defense of the nation, to provide a well-trained and disciplined force to check federal tyranny, and to bring constitutional balance by distributing the power of the sword equally among the people, the states, and the federal government.”
If this is the case, and I believe it to be, then any federal ruling or law against the Second Amendment constitutes federal tyranny, and can be checked by the peoples lawful excercise of the Second Amendment
All government employees take an oath to obey and defend the constitution. So how can lawmakers and judges get away with actions and rulings that directly contravene the Second Amendment ?
Federal Tyranny? No. Half of America thinks different and have representatives they elected to support that. There has been no dictatorial orders. Just a messy political and legal process. the Militia stuff is a dead argument.
In the beginning, allowing citizens to own weapons was more about providing soldiers for the king rather than some right of self-defense or freedom from tyranny.
And when it came became clear to the King that armed citizens could prove a threat to his reign, they they began using game laws to prevent citizens from owning weapons.
The kings did not want the commoners hunting, believing it a distraction from their work but allowed the upper class to hunt as an excellent sport befitting a gentleman.
The real problem with hunting was it encouraged private weapons ownership, encouraged proficiency with those arms, and it gave commoners an excuse to assemble armed groups that later proved to be a threat to the monarchy.
“I just wish somebody would ask him, “OK, Slow Joe . . . how about the 13th Amendment?” (Prohibition of chattel slavery.)”
Slow Joe, and his puppet masters, will tell you that the 13th is the exception that proves the rule. The 13th is not only absolute, it is inviolable, and cannot be altered or repealed by subsequent constitutional amendment.
Because social justice and white privilege.
“How was the current number of 9 Justices arrived at, legislativley, in the 1960s? I have yet to hear an historical account.”
This is a case of “the lack of evidence is the evidence.”
Have never read anything recording an instance where the Chief Justice of the SC presented Congress, or the President, with an order or notification that The Chief Justice had created new seats on the SC, required the President to appoint new justices, and Congress to fund those positions, and additional operations of the SC.
One must understand that if Congress has authority to create courts, it also has authority to set the size and jurisdiction of the justices serving in created courts.
When you say “we will fight for the right to live” but forget the gun is what got us this far with your rights in the first place…
Smh.
Brady | United Against Gun Violence SAID:
“…We will continue to fight for Americans’ most important right: the right to live.”
Hahahahahahaha….MAN, WHAT A BUNCH OF WHINY HYPOCRITES…..
How about the 62,000,000 babies killed since 1973 ???? I guess those Americans have NO rights.
Brady United Against Gun Violence, go back to crying in your snowflake corner safe zone for such unbelievably blatant lies about fighting for the right to live….The truth is that you WANT Americans to die (especially conservative ones).
As far as the “Supreme” Court, they also don’t understand plain English words, as is typical of most “highly” educated idiots. They are still deciding on how many angels fit on the head of a pin, and what the meaning of “is” is.
I don’t expect much out of that motley crew.
As others have indicated, I am not optimistic and immediately had a sinking feeling in my stomach when I heard this news. With 2 (possibly 3) exceptions, this court is cowering under the threat of a court packing scheme and has shown no backbone in protecting the constitution. They’ve already narrowed the petition so much that even if ruled favorably, it probably have minimal affect on blue zone gun laws. Maybe I’ll be pleasantly surprised, but I don’t think so.
“. . . narrowed the petition so much that even if ruled favorably, it probably have minimal affect on blue zone gun laws. . . . ”
I agree entirely on “blue zone gun laws”. Nevertheless, you UNDER-estimate the impact of any SCOTUS decision. They wouldn’t take a case where they expected to NOT advance 2A jurisprudence. Why waste their time when they could spend it on another case that would advance jurisprudence in some area?
I can’t rule-out that in negotiating the majority opinion that it won’t turn out to be too weak to amount to much. But that’s NOT apt to be the plan of anyone but Roberts.
Each case ratchets the case law on the 2A a little bit. Heller applied only in DC where nearly no one would both want to keep a handgun in the home and be able to afford to do so. McDonald merely incorporated the 2A on the states. This seemingly merely did what Heller did to DC; but, the impact was incalculable. Caetano (UNANIMOUS) held that the 2A is not just for muskets anymore.
The way SCOTUS has re-declared the Question Presented seems to point to a ruling that a Constitutional right can’t be withheld merely on a magistrate’s whim concerning the applicant’s “need”. This appears to be the MOST NARROW ground upon which to rule against Corlett. THAT IS the issue: the individual plaintiffs were denied their permits because a magistrate thought that they didn’t have more than general reason to carry for self-defense. Should the five determine that THAT wasn’t a Constitutional reason to deny then the individual plaintiffs get relief.
The closest analogue to this practice is the issuing of parade permits which touch on the rights of speech and assembly. Not just everyone can get a permit to hold a ticker-tape parade on Broadway.
What are the criteria for issuing/withholding a parade permit? Suppose I alone apply for such a permit to trumpet the cause of “Save the Pigeons!” Can they determine that the subject matter of my cause is unworthy?
They probably CAN deny me the permit on the grounds that I can’t make a reasonable case to tie-up Broadway just to parade by myself. I have no evidence that I will be accompanied by 10,000 paraders who self-identify as Thanksgiving celebrants, Irish or pigeon-lovers.
There is no case that an applicant for a CCW will consume – to the exclusion of others – a public resource which by necessity must be rationed (e.g., streets, radio spectrum).
The five have something in mind. A good guess is that “self-defense” as NOT an adequate reason to May-Issue is the target. That rational seems to cut to the heart of the core of the 2A.
I would LIKE to see the opinion go much farther; e.g., to specify that legislatures must spell-out in black-letter law objective criteria to deny a license. Yet, they MAY NOT wish to go that far just yet. E.g., they may not yet be willing to address a denial based upon police reports of belligerent behavior (or some such thing).
Killing “need” Constitutionally is a MAJOR step forward. All the five need to do is require the 2nd Circuit to explain why they believe that “need” to exercise a fundamental enumerated right might be Constitutional. If the 2nd Circuit isn’t up to the challenge, then, I think, that drives a Constitutional stake through the heart of “need”. And, at the moment, it’s precisely that which we PotG really “need”.
We have entered a new age where the whatever the SC decides on most anything really does not matter. As far as many of us are concerned they have already voted and decided to violate many of our rights. We are slowly reaching a time where true legislation will be enacted by the end of a muzzle. If democrats and republicans beleive Jan 6th was an “insurrection”, they have their heads in the sand. The fuse is lit, I pray it’s a long fuse.
“Could it be argued a prison sentence of ‘X’ years of hard labor qualifies?”
‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted…’