You can get the audio here https://www.supremecourt.gov/o...ts/audio/2021/20-843 and avoid CNN.
Paul Clement is very impressive. I've worked with him on a few cases and he's even smarter than he appears at argument, but one of the nicest and most humble people I've met. He also argued Heller on behalf of the government and McDonald for the NRA so he has a pretty solid track record.
Supreme Court appears likely to void New York's gun permit law
The justices seem inclined to find that the right to keep and bear arms extends to carrying them outside the home.
The Supreme Court appears inclined to wipe out a series of gun control measures that require firearm owners to show a particular, unusual need to get a permit to carry a gun outside the home.
During arguments Wednesday on New York state’s strict gun laws, the high court’s conservative majority signaled that it is likely to rule that the constitutional right to keep and bear arms precludes states from insisting that individuals show “proper cause” before being licensed to carry a firearm for self-defense.
The Republican-appointed justices contended that such rules treat Second Amendment rights as inferior to other constitutional rights like freedom of speech and freedom of assembly.
Justice Brett Kavanaugh said he was troubled that New York’s system allows officials “blanket discretion” to accept or reject a request for a permit. “That’s just not how we do constitutional rights,” Kavanaugh said.
Chief Justice John Roberts expressed similar reservations.
“You don’t have to say when you’re looking for a permit to speak on a street corner that your speech is particularly important,” Roberts said. “The idea you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”
Much of the nearly two-hour court session Wednesday sounded more like a history lesson than a typical legal argument. Those challenging New York’s law contended that it is out of step with how other states view the Second Amendment, while defenders of New York’s approach pointed to a long tradition of many states putting a variety of limits on gun possession in public.
The liberal justices said gun control opponents were asking to invalidate a slew of laws dating back through American history, even to the colonial era and to England.
“What it appears to me is that the history and tradition of carrying weapons is that states get a lot of deference on this,” Justice Sonia Sotomayor said. “I don’t know how I get past all that history.”
Justice Stephen Breyer said the competing historical claims demonstrated the shortcomings of turning to history to interpret constitutional protections.
“This is a wonderful case of showing both sides. I’m not sure how to deal with the history,” said Breyer.
And Justice Elana Kagan conceded that many states allowed possession of weapons without any permit, but she noted that those states often banned concealed carrying and favored open display.
“If you look to the history, you end up with a completely different set of rules form the ones that you are suggesting. … It’s an example, I think, of the difficultly of looking to history,” Kagan said to Paul Clement, a lawyer for two New York state gun owners suing over that state’s law.
Clement acknowledged that some mores around guns have “flipped,” but said that doesn’t mean the justices should ignore the fact that carrying guns in public was legal in most states for most of U.S. history. “You cannot sort of throw it all out,” he said.
The case argued Wednesday explores an issue left unresolved by the Supreme Court in its 2008 ruling, District of Columbia v. Heller, a 5-4 decision which found a constitutional right for individuals to keep a gun at home.
The challenge to New York’s law prompted the justices also to debate whether recognizing a right to carry a gun in public would trigger a flurry of suits over efforts to restrict the possession of weapons in particular places ranging from government buildings to universities to bars.
Clement said the right should cover places “typically open to the general public,” but Roberts asked whether that meant one could or could not bring a gun to a football game. Clement offered a noncommittal answer, saying, “You’d probably take it on its own and look to the historical analogues.”
That prompted Kagan to swoop in. “How does it cash out? What does it mean?” she said, asking if a university campus was generally public or not.
Justice Amy Coney Barrett asked Clement whether his test would require the state to allow guns in Times Square on New Year’s Eve, since it is generally open to the public, although access tends to be more controlled on that night.
Clement said he’d view that as the kind of time, place and manner restriction that courts already allow for First Amendment activity such as protests or rallies.
Justice Samuel Alito offered some unique arguments against New York’s law, suggesting that it was rooted in racism against Irish and Italian immigrants who streamed into the state about a century ago. He also contended that the statute is effectively elitist because it is more difficult for typical citizens to get a concealed carry permit.
“There is the right to self-defense for celebrities and state judges and retired police officers, but pretty much not for the ordinary kind of people who have a real, felt need to carry a gun to protect themselves,” Alito said.
New York Solicitor General Barbara Underwood acknowledged that permits to carry a gun for hunting or target shooting are widely available in New York, while those for self-defense are harder to come by, particularly in the more urban parts of the state. She warned that allowing anyone who worked in Manhattan late at night to carry a gun would mean flooding the city’s subways with weapons, raising what she called “the particular specter of a lot of armed people in an enclosed space.”
While some justices acknowledged that most constitutional rights aren’t seen as applying differently in one part of the country than another, others seemed to see valid reasons for distinguishing in the gun rights context between urban areas and rural ones.
“It seems completely intuitive there should be different gun regimes in New York than in Wyoming … but it’s a hard thing to match with our notion of constitutional rights generally,” Kagan said. “We would never really dream of doing that for the First Amendment.”
A lawyer representing the Biden administration, Deputy Solicitor General Brian Fletcher, encouraged the justices to embrace such an approach when it comes to guns, given the country’s long tolerance of widely varying gun regulations. “The Second Amendment has a distinct history and tradition,” Fletcher said.
Perhaps the most colorful line at Wednesday’s arguments came from Clement who seemed to paraphrase a famous bit of dialogue from the diner scene in “When Harry Met Sally” as he said his clients want the permitting regime many other states have where applicants are presumed eligible to carry a gun for self-defense unless there is a basis to deny a permit.
“The thrust of this case is: We’d like what they’re having,” Clement said.
A decision in the case is expected by the end of June or early July.
I wrote the following on the very day on which SCOTUS granted Certiorari for this case:
"Even following the precedent of this case, in my perception this case will not be the singular vehicle to settle carry as the law of the land.
For instance, NYC, NYS Et Al., in turn, must not even put forth a complex metrics in order to enact a "single" restriction which will negate any practical implications of a SCOTUS Second Amendment ruling.
Namley, they can and most probably will ban carry anywhere within 1000 feet of a school zone. In hyperdense Liberal cities this application of a "long-standing" restriction will leave carry bans at its default."
All which I witnessed, both in the form of filed briefs and today's Oral Arguments, aligns with my initial perception.
In defending its may-issue schematic in which the more conservative rural jurisdictions issue unrestricted carry permits with relative ease whereas the liberal licensing authorities in cities refuse to do so, NYS asserted that densely populated cities are "sensitive places."
In addition, there is an added facet to this case. Namley, the liberal justices on the court highlighted that there exists an analogy in our history in which states traditionally restricted concealed carry.
Blanket bans on concealed carry, in turn, may be constitutional if and only if the state allows open carry.
However, the court rewrote the presented question to NYS's concealed permits only.
This is akin to The Blind Man and the Lame where independently no one can be flogged.
To overcome this the Conservative majority on the court would need to rule on this challenge statute "as applied."
I believe that they be be hesitant to issue such a broad ruling, and I further do not know if the plaintiffs even requested such.
In summation, I do believe that the court will rule that there exists a constitutional right to carry in public; however, it will be a neutered right similar the the restricted right upheld by the lower courts. The lower courts, other than the 9th Circuit US Court of Appeals, also held that there is a public carry right, yet, one which is subject, at least in say-cities, to "may-issue" restrictions.
Allow me to correct New York Solicitor General Barbara Underwood.....Bullshit! You cannot touch a handgun in NY unless you have a NY Pistol Permit. Not for hunting, not for any reason. Nothing is "widely available". If I go to a range with a friend or even if we're shooting on private property I cannot legally use or try his or her handgun unless it's on my permit. Yes, we have to have each owned handgun listed on out permit. We don't have registration or anything like that though.
|Little ray |
Two hours of argument seems like a fair amount. But then you think of how important these cases are and it doesn't seem like anything at all.
The amount of preparation it takes for one counsel's allotted time is incredible, too. They probably have a hundred hours of prep time for an important oral argument, which includes several lawyers listening, drilling, and acting as mock judges. At least fifty hours. (And that is just prep - not brief writing, etc.)
I have never argued to an appellate court - the few appeals I have been involved with did not get granted oral argument and were done only on the paper. I have been part of hearings in trial courts that didn't involve witnesses, but none that have lasted much more than an hour or an hour and a half.
Appearing before a court wears you out. If you're not ready for it, you are surprised by how tiring it is. You have to be focused constantly, listening to everything, and evaluating so much input during every moment. I warn witnesses how tired they will be after even a few hours of live testimony. After a full day of trial, you are ready for bed.
But, as I say, this stuff is important.
The fish is mute, expressionless. The fish doesn't think because the fish knows everything.
|Now in Florida|
I wasn't able to listen but I did read the transcript. Clement was very impressive as always.
The Deputy Solicitor for the US Brian Fletcher is also an excellent advocate. I was less impressed with NY's Solicitor General Barbara Underwood.
Never easy to predict which way SCOTUS will go, but if I had to make a guess, I'm gonna say they will split the baby in half and create some kind of rule that gives May Issue states the ability to continue to exist in some form that eases restrictions on rural areas and allows the major cities leeway to restrict carry to a greater degree. Not sure what form it will take, but that would be my guess as to the effect.
|fugitive from reality|
The only area in NY state that has it's own pistol license law is NYC. In every county outside of the five that make up NYC, it's a county or state superior court judge that issues pistol licenses. The issue at hand is this process can and be administered differently in each of those counties, making the application of NYS pistol licensing law an arbitrary process .
'I'm pretty fly for a white guy'.
|Gracie Allen is my |
Read the transcript. I have to admit I found myself starting to get thrown a bit by the urban/rural thing.
The working assumption seemed to be that people were much more likely to be victimized in cities than in rural areas and small towns. There may be a difference but the purpose of an individualized right is to meet the needs of each individual. I don't really agree with the proposition that someone is more likely to encounter criminal violence in the city than in rural areas anyway, but why would that matter? Municipalities don't have any more rights under the Second Amendment than any other governmental organization. Nor will anyone care what the violent crime rate is in either place when they need a gun to defend themselves.
I have no love for arbitrary decisions by local officials, but why wouldn't the same rules apply to both environments?
Kagan seems like an intellectually honest liberal. And I would not be surprised if her opinion is that the rights are same in all 50 states. Densely populated or not. It’s kinda BS that there are like 21 constitutional carry states and another 20 shall issues states. Saying NY is not an outlier in it’s restrictions. 82% of the states you can either carry without a permit or get a license as long as your not a felon. I also find it odd that some constitutional rights are subject to felonies whether you get to exercise them or not let alone requiring a permit on some rights.
I agree. SCOTUS will likely cower and punt on this issue, yet again, because the court doesn't have the stones to tell us all, once and for all, what "the right of the people to keep and bear arms shall not be infringed" means. If they answered that question in line with the founders intentions, most all of these stupid gun cases could end.
Nope. Kagan will do as she's done from the day she was sworn in and simply lean over to Sotomayor and ask her how to vote. IMO, Kagan is the biggest clown on the court in the past 25 years.
Guns are awesome because they shoot solid lead freedom. Every man should have several guns. And several dogs, because a man with a cat is a woman. Kurt Schlichter
Gottlieb seems convinced this will be a win, but I'm with Bigdeal on a punt. The SC is just too cowardly. They don't want to deal with any backlash.
I could see them sending it back to the lower court, the lower court just ignoring them, and we're back to square one.
Gottlieb noted that the two attorneys representing the respondents — New York Solicitor General Barbara D. Underwood and Brian H. Fletcher, the U.S. Justice Department’s Principal Deputy Solicitor General — repeatedly suggested that if the justices did not support New York’s law, they should remand the case back to the lower court for a fact-finding trial.
Gottlieb Predicts a Supreme Court Victory for Gun Rights After Justices Tipped Their Hands
“The oral arguments went very well for the gun-rights movement. I think the questions from the justices were telling. It appears from the questions that we may not get any of the Democrat-appointed justices to fully recognize the Second Amendment.” Gottlieb said. “However, the remaining justices tipped their hands. I predict at least a 5-4 or possibly a 6-3 victory, but the Chief Justice didn’t tip his hand too much during questioning.”
I listened to it while reloading and I felt the NY AG and DAG were dishonest when speaking about laws from other jurisdictions in regards to history etc…he mentioned Texas and how since the 1860s concealed/open handguns have been forbidden. Which is just not true. You can get a LTC/CCW and since this year you can open carry….I saw him being sneaky.
I hope the justices are aware or look up what the rules are today and see that the rest of us are doing fine with our CCW/LTC and “wanting what they have” is allowed.
"Violence, naked force, has settled more issues in history than has any other factor.” Robert A. Heinlein
“You may beat me, but you will never win.” sigmonkey-2020
“A single round of buckshot to the torso almost always results in an immediate change of behavior.” Chris Baker
|Little ray |
Luckily, you are wrong. You are wrong because you think the Supremes care about external, national politics. They don't much care about that, if at all.
They are, and more importantly, they know they are, virtually unaccountable to anyone. So each justice will vote as they think is right. When you count up the players and votes on this I think it will be 5-4 and there is a good chance it goes 6-3.
The fish is mute, expressionless. The fish doesn't think because the fish knows everything.
|fugitive from reality|
Since we're making predictions mine is they leave the NYS licensing system intact, with the direction that it is now on a must issue basis.
'I'm pretty fly for a white guy'.
“How many muggings take place in the forest?”
Um, everyone in the forest is armed, at least around here.
Let's Go Brandon!
Uh huh. Ruth Bader Ginsburg didn't care about "external, national politics", did she?
Yeah, among sane people, that's called a "clue".
|Step by step walk the thousand mile road|
Perhaps that was once the case, but I do not believe it still true today, and it hasn't been entirely true for a long time.
I would submit that Roe v. Wade is a perfect example of the court being influenced by outside forces. Brown v. Board of Education is another example, though here any effect of outside influences resulted in the correct decision by the Court.
I would agree that the Justices spend far more of their time and legal brain power deciding how to narrow their role in cases to the maximum extent possible.
Its why the Court rewrote the dispute in NYSRP, to make any decision arguably only affecting the two plaintiffs.
Nice is overrated
"It's every freedom-loving individual's duty to lie to the government."
Airsoftguy, June 29, 2018
In Nassau and Suffolk, it's the county Police and Sheriff depending on location, so a down state thing.
Sliced bread, the greatest thing since the 1911.
Seems like it is possible Roberts might have some concerns about court packing. Then again, if Virginia and some other elections earlier this week are any indication, it may well be that the tides are shifting and after next year it will be a while before that is a concern. Who known, my crystal ball is still broken.
I’ll stick with the fact that there is potential for some good things to happen, but I’ll wait to celebrate until if and when they do. In the meantime I’ll just drive on and pretend to be patient while I watch to see what happens.
|Lawyers, Guns |
John Roberts is a wimp and only seems to care about what the cocktail circuit thinks and writes about him. ACB will do what Roberts tells her. It's sad.
"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."
-- Justice Janice Rogers Brown
"The United States government is the largest criminal enterprise on earth."
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