When the Subject is Guns, The New York Times Discovers the Benefits of Judicial Restraint

Supreme Court Gadsden flag scotus

Courtesy Jeff Hulbert

[I]t would be funny if it wasn’t so serious. Of course there’s maneuvering on both sides. That’s the nature of Supreme Court practice these days, and it applies not only to Supreme Court lawyers but to the other side of the bench as well. Justice Alito is an Olympic-quality champion at writing opinions that invite attentive and like-minded readers to bring him exactly the case he wants in order to achieve his desired result.

This case offers a snapshot, a little drama in which all the players are in their assigned places. The court’s liberals, who surely never wanted the case on the docket in the first place, just want it to go away. Consistently applied law, at this point, happens to be on their side. The appetite of the conservative justices for a vehicle to expand the Second Amendment is palpable, and at least some of them are willing to turn cartwheels to keep this one going.

In the faraway land of not-too-long ago, it was judicial conservatives who invoked the virtues of judicial modesty and relied on doctrines like mootness and standing to keep cases out of court. Now, seemingly, it’s come down to this: whatever it takes.

– Linda Greenhouse in Gunfight at the Supreme Court

comments

  1. avatar Missouri_Mule says:

    I seek neither judicial restrain or activism. I seek strict application of the Constitution and its amendments,

    1. avatar Mark N. says:

      Mootness is actually a Constitutional doctrine premised on the “cases or controversies” clause of the provisions creating the Supreme Court. The basic idea is that if the case is moot, the court has no jurisdiction to consider it. The issues in the case, then, are never reached.

      1. avatar Someone says:

        You are right, Mark. But we have seen too many times unconstitutional legislation passed and enforced by gun grabbers, up to the point the case against it reaches the SCOTUS. After we spend years of effort and hundreds of thousands of dollars fighting it, gun grabbers just cancel it for long enough to be considered moot and then reinstall it again.

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

          There is precedent, when moot-ness is claimed, for the court to bitch-slap the attempt…

        2. avatar Southern Cross says:

          It’s called financial lawfare. Make the opposition go broke.

    2. avatar Someone says:

      Exactly – the Second Amendment doesn’t need to “expand”. It even doesn’t need to be supported. It simply needs to be obeyed. When not followed voluntarily, it needs to be enforced. It is a part of the supreme law after all.

      1. avatar Victoria Illinois says:

        The 2nd amendment doesn’t tell us what we CAN do. It tells the government what it CAN’T do.
        On a slightly different note….After listening to those law professors at the impeachment hearing, I’m surprised that any law school graduate has any understanding of our laws.

        1. avatar Chuckers says:

          FDR throws thousands of Japaneese, US citizens in concentration camps and Trump is the worst violator ever. Somebody has his head up his butt in my opinion. Of course I’ve never seen it there but he’s guilty of it because it’s my opinion.

      2. avatar Michael says:

        This is why Our founding FATHERS not Framers Ratified our 10 Bill of Rights as Law from Above not by man. INFRINGe means no Trespass on my pearsons or my properties,my Sovereign Rights.The heroes of Our Freedom are written on tombstones of Patriots.

        For Evil to prevail is for Good Men to do nothing!

  2. avatar Merle 0 says:

    “In the faraway land of not-too-long ago, it was judicial conservatives who invoked the virtues of judicial modesty and relied on doctrines like mootness and standing to keep cases out of court. Now, seemingly, it’s come down to this: whatever it takes.“

    I like how in liberal minds being conservative means simply supporting precedent to the point of shooting ourselves in the foot for their sake. All of the sudden liberals are now experts on American conservatism, and by their dictate we aught to bend to their will simply because the left has up until recently been winning in the courts. Hint to the liberals: you don’t know what American conservatism is, the same way you still don’t know why Trump won. American conservatism isn’t like British or Canadian conservatism where the conservatives simply reject any forms of change and worship at the altar monarchy. American conservatism reveres the constitution, individual liberty, separation of powers, the original meaning of federalism, and doesn’t respect precedent set by an activist liberal tyrannical court. It doesn’t matter how old or long standing activist precedent is set. It’s wrong and harmful to the republic and must be undone.

    1. avatar Ing says:

      “…in liberal minds being conservative means simply supporting precedent to the point of shooting ourselves in the foot for their sake.”

      They’re mostly right about this. For decades now, this has been precisely the case. Conservatives have supported precedent, remained polite and passive, and played by the rules even when it’s clear the rules were invented by our opponents solely as a handicap for fools who feel compelled to obey them.

      I also hope they’re currently being proven wrong. You’re right, there is no reason why we should obey precedent or respect any rules that allow people to undermine the supreme law of the Constitution. If you’re not willing to aggressively fight for it, you’re not actually willing to conserve it.

    2. avatar Chuckers says:

      Bless you child, you are entitled to your opinion.

      1. avatar Merle 0 says:

        Blow me lUberal.

  3. avatar neiowa says:

    The NYT has NO relevance today. The fiction of “the nations newspaper of record” is an ancient fable. Forget it and read the National Enquirer, proven to be more reliable.

    1. avatar enuf says:

      Nonsense. All news outfits have relevance today. The difficulty is in discerning the wheat from the chaff. There is always truth to be found right alongside and frequently mixed into the worthless partisan crap. There is not one single news source that is free of this behavior. Which one people believe the most depends upon their own loyalty to their country as compared to their loyalty to a side.

      I do not care which side a person is on. If they are more a Party Member, a Party citizen over a Citizen of our American Republic, they are doing a great disservice to our Republic.

      1. avatar I Haz A Question says:

        Unfortunately, you’re correct. Journalists are human beings. The only way to “purge” journalistic pieces of any personal nuance is to turn them into strict facts-only documents, like sterile police reports.

        1. avatar Victoria Illinois says:

          Read the paper without their adjectives. Big difference.
          Read an article about Obama then Trump. Switch out the adjectives. Big difference.
          Example 1: Obama is meeting with (fill-in-the -blank) about beneficial trade deals, making great progress on the world stage. This will be a landmark deal. Most are in agreement.
          Example 2: Trump is meeting with (ditto) trying to make a deal, although he has no experience dealing with foreign governments, he’s clueless about protocol and he doesn’t take advice from the knowledgeable past administration officials. He’s embarrassing himself and is a disgrace to the office. Now, over to Fredo for the impeachment update…..

    2. avatar Green Mtn. Boy says:

      The NY Slimes is the nations bird cage liner of record.

      1. avatar LazrBeam says:

        It’s a fish wrapper.

  4. avatar enuf says:

    Nothing new or impressive here.

    Judicial Restraint, Judicial Activism, Legislating From The Bench, Strict Scrutiny, Settled Law, all these and other cncepts are alternately embraced or rejected issue by issue depending upon which side a Party or a Party Citizen is on. There is very little honesty from anyone on this point. Most all Party Citizens believe the other side’s poop stinks while their’s smells like flowers.

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

    From the article’s comment section :

    “I think a nation that legitimizes citizens arming up to shoot each other has only contempt for its people.”

    Huh. I believe a government that insists it’s citizens remain vulnerable to attack is the very definition of a government that has callous contempt for its citizens…

    1. avatar Ing says:

      It’s amazing how consistently the “liberals” get everything backwards.

      Just like all law-abiding citizens, I’m not arming up to shoot anybody. I’m arming up so that I don’t become a helpless victim of someone else’s violence — and if all goes well, nobody gets shot at all.

      If the government disarms all its law-abiding citizens, it only privileges the criminals who initiate violence.

      1. avatar Victoria Illinois says:

        They don’t care about criminals, only political criminals.

      2. avatar forp says:

        Ing, I can’t remember where I heard this argument, but I’m sure you’ll like it.

        Leftists say only police should have guns, but leftists are also quick to say police are racists who use excessive force.

        So who should have the guns? (this is a rhetorical question for leftists, POTG already know who should have the guns)

    2. avatar Mark N. says:

      Must be one of those “have gun will kill” group who think that no one “needs” a gun.

  6. avatar Alan says:

    As a matter of necessity, The Court must hear this matter, for if they set it aside, without a final decision, what is there to keep NYC from, in the future which could be most any time, from reinstating it’s foolishness? As for the N.Y. Times, it’s entitled to it’s opinion, however that’s all there is from them, their opinion and well established record of anti gun rights diatribes and polemics.

  7. avatar TFred says:

    Classic liberal drivel.

    The case is not moot. The plaintiff’s attorney made that quite clear during oral arguments, PLUS the defendants didn’t even TRY to hide their openly brazen attempts to circumvent the authority of the court with their “herculean” efforts to weasel out of the judicial consequences of their illegal law.

    Worse than all of that: A finding of moot would cement in place a well-lit golden path for all future infringers of ALL civil rights for how to do exactly that for as long as possible, outspending, and outlasting the vast majority of those who might choose to fight such infringements in the courts. Finding NYSRPA moot removes the judicial system as a last hope of justice for vast majorities of American citizens.

    1. avatar Mark N. says:

      I think that NYC’s contempt for the court and its (probable) expansive stance on gun rights is palpable in the maneuvering to moot the case, since it is a patent admission that the law as written was unconstitutional, even if it had managed to convince a trial court and the Second Circuit Court of Appeals otherwise..

      1. avatar TFred says:

        The oral arguments were amazing. Highly recommend you read the transcript, and even listen when the audio comes out. UPDATE! The oral arguments are out!!!

        https://www.supremecourt.gov/oral_arguments/audio/2019/18-280

        The NYC defendant all but admitted their case was lost.

        I don’t really regard a win here as “expanding” Heller. In spite of the massive and fundamental misrepresentation of what Heller said regarding gun control laws by the gun-haters, Heller specifically did not opine on the legality of anything other than the one issue at hand, whether the 2nd Amendment included the right to keep an operable firearm in one’s own home.

        For everything else, Scalia was merely acknowledging the status quo. Heller did not say they were legal, nor did it say they were illegal. They were described as “presumptively lawful,” simply because there was no cause to describe them in any other way – in the scope of Heller.

        This is the first case since Heller. It was this, and any future cases, that Scalia left to decide whether that “presumption” was correct or incorrect.

      2. avatar Anymouse says:

        The fact that lower courts found in favor of a law that the consensus knows is unconstitutional shows that the Supreme Court needs to provide better guidance, which is done by issuing an opinion. Similarly, they need to rule on one of the cases where lower courts are exceeding their jurisdictions and issuing nationwide restraining orders.

        1. avatar TFred says:

          Agreed, but what happened over the last 9 years was that Kennedy went wonky. The other Constitutionalist justices could not count on Kennedy, and it would have been FAR worse to lose a case than to wait for Kennedy to retire.

          I don’t believe the 5 who decided Heller ever intended to go that long before taking another case to look at the “presumptively lawful” regulations. Kennedy really messed things up.

  8. avatar Jim Bullock says:

    Ahhh, the progress-progressive people’s game with “Judicial Restraint”

    — It means “don’t interfere with the other branches” when they are doing what the p-p people want. (A priori, before considering interference or non-.)

    — It means “respect procedures, protocols and precedent” when that’ll advance what the p-p people want. (A priori, before considering procedures & etc.)

    — And it never means “Limit yourself to applying the law at hand, as written, let the other chips fall where they may.”

    Contra the p-p people, the way to “expand” or “restrict” the 2A is not the courts, administrative fiat, or even legislation. It says what it says. You wanna change that, pass an amendment. They run to the courts when they *can’t* pass an amendment.

    1. avatar Jim Bullock says:

      The stupid R-party (but I repeat myself) stupidly never makes their best argument against “over-reach”: “We’ve already got that.”

      By gum, there’s no need to hack around the edges at the “scope” of the 2A through the courts, enforcement or legislation: change the amendment.

  9. avatar Jim Bullock says:

    It turns out amendments everybody agrees with sail right through. Refining the presidential succession, for example, post Reagan getting shot.

    It’s the stuff those deplorable other people don’t agree with, that that pesky “consent of the government” gets in the way of.

  10. avatar BierceAmbrose says:

    The “p-p people’s” problem is that they have to show their actual agenda, and some people object.

    Like, shockingly some people, when fold they’re irredeemably deplorable, maybe don’t want whoever said that to have a bully-er pulpit and near unlimited executive power.

  11. avatar Robert Messmer says:

    Quote: “The appetite of the conservative justices for a vehicle to expand the Second Amendment is palpable, and at least some of them are willing to turn cartwheels to keep this one going.” Utter nonsense. No one is going to or even trying to “expand” the Second Amendment. What those lined up against New York City are trying to do is to get SCOTUS to tell NYC and other gun grabbers to go pound sand. The Second Amendment is the LAW and you have to pass another amendment to change it.

  12. avatar Robert Messmer says:

    From the transcript; Quote: “…historically, the location where people were
    permitted to train was — was fairly extensively restricted…” This is from the shyster arguing for the City. Historically the location where people were permitted to train was —pretty damn near anywhere. Find yourself some trees, nail up a target, and bang away. Does this idiot really think that Davy Crockett or Daniel Boone unloaded their guns, locked them away and went to a government approved firing range to train?

  13. avatar supergun says:

    All the courts,,,,,all of the courts of the land, has to do is protect the Constitution of These United States of America. That means all of the AMENDMENTS. If they tried to protect the 2nd Amendment as strongly as some of the judges have obstructed the progress of the President of the United States,,,then we would have no problems.

  14. avatar tmm says:

    To say that “conservative justices” are looking “for a vehicle to expand the Second Amendment” is to not understand the Second Amendment.

  15. avatar Will Drider says:

    The “Case” is not Moot if Lower Court’s Decisions (every one Ruled in favor of NYC) continue to Stand as “Case Law” even if NYC got rid of the unconstitutional Law: the prior Rulings give the unconstitutional Law the Power to impact future cases.

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