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    Default NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    An Important New Development in NYSRPA v. Bruen – the Supreme Court concealed carry case
    By Charles Nichols - Sat September 18, 2021
    https://newsblaze.com/business/legal...y-case_181574/

    (Oral Arguments are scheduled for November 3, 2021)

    Justice Scalia read an excerpt of his opinion in District of Columbia v. Heller from the bench when he announced the opinion in District of Columbia v. Heller.

    The part of the Heller opinion he read was from the beginning of Section III that began with saying that prohibitions on concealed carry do not violate the Second Amendment.

    Although the majority opinion was 5-4, all four justices in the two dissents said they agreed with the five justices in the majority that concealed carry is not a right, and can be banned.

    Justice Alito, who wrote the majority/plurality opinion in McDonald v. City of Chicago responded to one of the dissents by saying that nothing in his opinion changed the limitations on the Second Amendment right that Justice Scalia wrote in Section III of the Heller opinion.

    The only justice in the 13 years since the Heller opinion was published who has ever said anything about Section III of the Heller opinion was in a dissent by Justice Thomas who referred to the Second Amendment not applying in schools and government buildings as dicta from the Heller opinion.

    Justice Thomas did not say that the dicta was meaningless but he did say that it is a limited restriction because people can simply choose not to enter a school or government building while bearing arms.

    Given all of that, New York was handed a win on a silver platter in NYSRPA v. Bruen when the justices rewrote the questions presented in the case to one question, and limited the question to concealed carry, and limited the question further to whether or not the denial of the two petitioners applications for [unrestricted] concealed carry licenses violated the Second Amendment.

    All New York had to do to win was to limit their brief on the merits to the very simple question the justices rewrote from the question presented by the NYSRPA cert petition that asked whether or not the Second Amendment protects a right to carry a handgun in public.

    The question the justices rewrote is even narrower than the counterstatement of the question presented in New York’s brief in opposition to granting the cert petition.

    New York’s counterstatement presented the question as to whether or not there is a right to carry a handgun concealed in public.

    New York’s win was all but guaranteed because the NYSRPA lawyers never answered the question presented by the justices for the justices in this case in their brief on the merits.

    Not only did the NRA lawyers NOT argue that the denial of the two petitioners’ applications for concealed carry licenses violated the Second Amendment, but the NRA lawyers also did not argue that there is a right for anyone to carry a concealed handgun in public, under any circumstances or for any reason.

    Instead, the NRA lawyers argued in their brief on the merits that the Second Amendment protects the right to carry a handgun in public, which was the question they presented in their cert petition that was rejected by the justices.

    Justices Alito and Thomas do not join in majority opinions where the majority answers a question not presented to the court.

    Add their two votes to the votes of Justices Breyer, Kagan, and Sotomayor, and you have five votes in favor of the proper cause requirement for a concealed carry permit.

    Add to that the vote of Justice Kavanaugh who said in his dissent to Heller 2 as a circuit judge, and in his confirmation hearing to be a justice of the Supreme Court that according to the Heller opinion concealed carry is not a right and can be banned.

    Since neither of the sides in NYSRPA v. Bruen have asked the justices to overrule Section III of District of Columbia v. Heller, that was all that was needed for New York to not only win but for New York to have the six votes required for a per curiam opinion.

    A per curiam opinion likely without a dissent.

    To win, New York never had to argue whether or not the Second Amendment applies outside of the home.

    But the New York lawyers went beyond the narrow question presented and did exactly that.

    New York argued in its brief on the merits that the Second Amendment does extend to public places, but only to remote, unpopulated rural places where one is unlikely to encounter another human being.

    A reason why Justices Thomas and Alito do not join in majority opinions that answer questions not presented to the justices is because they believe that it is improper for the justices to answer a question that was not briefed by the two sides in the dispute.

    That is no longer an obstacle for the justices.

    New York chose to argue in its brief that although the Second Amendment applies in public, it does not apply to cities or to any place where one is likely to encounter other people.

    New York could still win, and likely will as to the proper cause requirement for a concealed carry license.

    But New York may discover that by going beyond the question presented and arguing that the Second Amendment does apply to public places but does not apply to places where there are people and therefore the state is free to restrict the carrying of firearms except where the State of New York permits, the justices now get to weigh in on where outside of the home the right to keep and bear arms applies.

    If the justices want to that is.

    The justices could still simply answer the narrow question presented, and leave it at that.

    Chief Justice Roberts is in favor of limiting opinions of the Court to narrow questions and he was no doubt one of the justices who decided to rewrite the original question presented by the NYSRPA to a very narrow question that applied only to the two petitioners who were denied unrestricted concealed carry licenses.

    If Chief Justice Roberts sticks to his guns, as it were, I have little doubt that Justices Breyer, Kagan, and Sotomayor will align with the Chief Justice and simply hold that the proper cause requirement for a concealed carry license does not violate the Second Amendment.

    That’s four justices and only five justices are necessary for one side to win.

    It is just as likely that Justices Thomas, Alito, and Gorsuch will answer the broader question as to whether or not the Second Amendment is limited to rural, unpopulated places where one is unlikely to encounter another person as New York contends, or whether or not there is a right to carry a handgun in cities and other places where there are people.

    That leaves the decision as to whether or not to answer the very narrow question the justices rewrote or to answer the broader question presented in the cert petition to Justices Kavanaugh and Barrett.

    Another inexplicable error made by New York was to argue in the alternative that Intermediate Scrutiny applies and New York’s proper cause requirement for a license to carry a handgun concealed satisfies Intermediate Scrutiny.

    This is baffling to me because in the District of Columbia v. Heller oral argument the Chief Justice was dismissive of the tiers of scrutiny, which includes intermediate scrutiny.

    The Chief Justice referred to the tiers of scrutiny as accumulated baggage and he saw no reason why Second Amendment jurisprudence should be burdened with them.

    Chief Justice Roberts expressed a simple methodology in deciding Second Amendment cases.

    His methodology was to define the Second Amendment right and then apply that right to the challenged law.

    If the challenged law conflicts with the Second Amendment right as defined by the Supreme Court then the challenged law is unconstitutional.

    It should come as no surprise to anyone who can read and who has read the Heller opinion to realize that is exactly what the 5 to 4 majority opinion did.

    And the four justices in the majority criticized the majority for doing exactly that.

    Justice Breyer, in his four justice dissent, wrote that the tiers of scrutiny are invariably the same thing as judicial interest balancing and that judges should be allowed to engage in judicial interest balancing when it comes to Second Amendment challenges.

    Although Justice Scalia disagreed that they are the same thing, the majority of justices explicitly rejected judicial interest balancing.

    In short, what was an open and shut case in favor of New York is now anybody’s guess as to what the justices are going to decide in their published opinion.

    An opinion we will have by the end of next June.

    We will get some idea where the individual justices stand based on the questions they pose in the oral argument on November 3rd.

    It may surprise you to learn that the justices do not discuss cases except in two very limited circumstances.

    The first time the justices discuss a case is when they ask questions of the lawyers for the two sides in an oral argument.

    To quote Justice Kagan, “Everybody knows we really don’t care what the lawyer is going to say.” The questions we ask are directed at our fellow justices.

    The only other time the case is discussed, and the only time in which the case is discussed to any degree, is at the end of the week when the justices meet in a private conference to vote on the outcome of the cases argued that week, and where the senior judge in the majority decides who will write the majority opinion.

    Justice Kagan has likewise expressed her frustration at this court procedure but procedure is the lifeblood of most judges.

    The procedure has not changed.

    Justice Stevens, who was one of the four dissenting justices in the Heller and McDonald opinions said the only time he could remember ever lobbying a justice was in the Heller case. He said he lobbied Justices Kennedy and Thomas to include Section III in the Heller opinion.

    Justice Thomas refused but Justice Kennedy agreed to his request. And since Justice Kennedy’s vote was required for a five-justice majority, we have today Section III of the Heller opinion.

    A section that neither of the parties in NYSRPA v. Bruen has asked the court to overrule or revisit.

    Justice Ginsburg said that the place to convince a justice in the majority to change his vote is in the writing of a dissent.

    She said it is rare for a justice to change his vote based on a dissent but she succeeded in persuading Justice Scalia to change his vote in a case based on the dissent she wrote.

    Justice Kagan said her methodology in getting her fellow justices to side with her is by not arguing how she would decide a case, but by making an argument her fellow justices on the right would make in support of her position.

    Justice Kagan is one smart justice regardless of what you may think of her views.

    Finally, there are two more possibilities.

    The least likely of the two is that the Supreme Court simply remands the case back to the lower court for a do-over. That is an alternative that New York argued for in its brief on the merits.

    The other possibility is more likely and that is a fragmented, multi-part opinion in which there is neither a majority nor a plurality of justices joining in the opinion.

    For a recent example, look at Masterpiece Cake v. Colorado.

    Although Masterpiece Cake technically won in a 7 to 2 opinion, the seven judges could not agree on the opinion.

    Justice Kagan filed a concurring opinion, joined by Justice Breyer.

    Justice Gorsuch also filed a concurring opinion, joined by Justice Alito.

    Justice Thomas filed an opinion concurring in part and concurring in the judgment and was joined by Justice Gorsuch.

    Masterpiece Cake won this time but Colorado is still free to enforce its law.

    Including against Masterpiece Cake.

    I have a postscript:

    Someone once emailed me pointing out that violating the restrictions placed on the New York concealed carry license is not punishable as a crime under New York law.

    I did not think that New York would bring that up in its brief on the merits, but it did.

    The reason I did not think New York would bring it up is because New York, unlike California, does not have an explicit ban on the Open Carry of handguns.

    Unless foreclosed by a state court interpretation of New York law that makes it a crime to openly carry a handgun even if one has a concealed carry permit, that leaves open the possibility that someone who has a concealed carry permit can openly carry a handgun in New York.

    The lawyers for New York who wrote the brief on the merits wrote some really dumb things in their brief and so this does not surprise me in the least.

    That’s all for this article.

    Charles Nichols
    https://CaliforniaOpenCarry.com

    Charles Nichols is a proponent of open carry. In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense. Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.
    Interesting.

    (Bolding Added)

    ...
    Last edited by ImminentDanger; October 18th, 2021 at 02:29 PM.

  2. #2
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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Thanks for posting that. It is extremely interesting and unfortunately leaves me a bit depressed.
    Strange women lying in ponds, distributing swords, is no basis for a system of government.

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    They forgot to read the second amendment in any and all cases. The right of the people to keep and bear arms shall not be infringed. What part of those words give the government the authority to restrict citizens from carrying a firearm concealed or not? A: The government has no authority in this matter but they believe they do.
    We now live in an era which future generations will refer to as “the Great Deception”

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Quote Originally Posted by EFK View Post
    Thanks for posting that. It is extremely interesting and unfortunately leaves me a bit depressed.
    I*d like a translation from someone who reads law.
    "Cives Arma Ferant"

    "I know I'm not James Bond, that's why I don't keep a loaded gun under the pillow, or bang Russian spies on a regular basis." - GunLawyer001

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    I don't read law but I did stay at a Holiday Inn Express. My interpretation of the article is that Scotus is most likely going to pull the wishy-washy card and kind of leave the whole situation hanging in confused limbo. I believe this is why the author brought up the Masterpiece Cake situation, because essentially nothing was *really* resolved and the opinion in this article seems to indicate that this type of outcome is most likely.
    Strange women lying in ponds, distributing swords, is no basis for a system of government.

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Quote Originally Posted by PAMedic=F|A= View Post
    I'd like a translation from someone who reads law.
    Well - Not a translations but a summary: The real essence of the article is to prove, once again, what I posted in 2013 - Big Government, including the SCOTUS, will never Protect & Exercise the Constitution as written nor treat THE PEOPLE rightly!

    Founders Intention for Government - Constitutional Carry:
    "The Supreme Court has become a defacto super-legislature with it's attendant political factions and pressures to assure a pleasing result to those to whom it is beholding for it's power. It has not only failed to protect us from the rest of the government lording their power over us, but has joined-in just such an effort."

    ...

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Majority of Supreme Court appears to think NY gun law is too restrictive

    The US Supreme Court is seen through a metal barricade on Capitol Hill in Washington on Nov. 3, 2021.
    A majority of Supreme Court justices indicated Wednesday that they believe Americans generally have a right to carry a handgun outside the home for self-defense and that a New York law requiring special justification for getting such a permit is too restrictive.

    But it was unclear from a two-hour argument in the case how much more the court was willing to do to clarify the Second Amendment. Several expressed concern about allowing those with concealed weapons in sensitive areas, such as stadiums, crowded public events, or places where alcohol is served.

    The court*s six conservative justices expressed varying levels of support for the two individuals and the National Rifle Association affiliate challenging New York*s requirement, enacted more than a century ago, that says those who want to carry a concealed weapon for self-defense show a *special need for self-protection distinguishable from that of the general community.*

    Chief Justice John Roberts, the conservative member of the court thought least eager to want to weigh in on state and local gun control measures, nonetheless said New York*s law seemed at odds with a constitutional right.

    *The idea that you need a license to exercise the right, I think is unusual in the context of the Bill of Rights,* Roberts said.

    Justice Brett Kavanaugh was more direct: *Why isn*t it good enough to say I live in a violent area, and I want to be able to defend myself?*

    The Supreme Court in 2008 ruled for the first time that the Second Amendment bestowed an individual the right to keep a gun in the home for personal defense rather than related to military service.

    Justice Antonin Scalia*s decision in District of Columbia v. Heller struck down a law that severely restricted gun ownership, but answered only part of what it means to *keep and bear arms.*

    But it is not until now that the court has taken up the question of what it means to *bear* arms.

    A ruling against New York would have consequences for at least a half-dozen states with similar laws.

    Video: SCOTUS conservatives take aim at New York gun law (Reuters)


    SCOTUS conservatives take aim at New York gun law

    Washington lawyer Paul D. Clement said the court should look at the experiences of the dozens of other states that do things differently. State laws saying that permits *shall* be issued to qualified applicants are much more common, he said, and cover some of the nation*s biggest cities.

    He faced tough questioning from the court*s liberal justices. Justice Stephen Breyer said states have a reason to worry about *gun-related chaos* that could result from the proliferation of firearms in public places.

    Justice Sonia Sotomayor said history shows that states have traditionally had the ability to regulate the carrying of weapons.

    Justice Elena Kagan pushed Clement on whether such a right extends everywhere * on the New York City subway for instance.

    She was joined there by Roberts, who wondered about football stadiums, university campuses, or places that serve alcohol. Justice Amy Coney Barrett mentioned Times Square on New Year*s Eve.

    Clement tried to avoid specifics, but said generally states do have a right to ban guns from sensitive places.

    The two people challenging the law * Robert Nash and Brandon Koch * have licenses to carry handguns for hunting and target practice. But New York authorities denied their requests for *unrestricted* licenses for self-defense because officials said they could not show a *special need for self-protection distinguishable from that of the general community.*

    During the two-year period of 2018 and 2019, at least 65 percent of applicants in New York were approved for an *unrestricted* license, according to a state analysis of records submitted to the court.

    But New York Solicitor General Barbara Underwood conceded the state was worried about issuing such permits in densely populated areas.

    Roberts said that was a paradox, because that would seem to rule out urban, high-crime areas.

    *How many muggings take place in the forest?* he asked.

    Justice Samuel Alito pressed a similar line of questioning, saying the law only hurts *law-abiding* citizens who are *scared to death* when working late at night, for instance.

    *There are a lot of armed people on the streets of New York and in the subways late at night right now. Aren*t there?* Alito asked. *All these people with illegal guns, they*re on the subway, they*re walking around the streets. But the ordinary, hard-working, law-abiding people I mentioned, no, they can*t be armed.*

    Underwood responded, *The idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement, because when they come, they now can*t tell who*s shooting and the shooting proliferates and accelerates.*

    Four of the court*s conservatives, Clarence Thomas, Neil Gorsuch, Alito, and Kavanaugh, have shown impatience with the high court*s reluctance to jump back into the gun debate. In 2017, Thomas and Gorsuch said the court was treating the Second Amendment as a *disfavored right.*

    https://www.msn.com/en-us/news/us/ma...ive/ar-AAQi4qu
    "Cives Arma Ferant"

    "I know I'm not James Bond, that's why I don't keep a loaded gun under the pillow, or bang Russian spies on a regular basis." - GunLawyer001

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    My fear is that these rulings will be later seen as the establishment of the 2nd Amendment PRIVILEGES conveyed by the (NOW) partisan US Supreme Court, which can just as justifiably be taken away by another ruling.

    The Heller & McDonald rulings are already portrayed and discussed as 'establishing' the 2A Rights.

    The most disturbing fact of these discussions is the LACK OF SELF-EVIDENCE of these Rights. There has been an ongoing attack (for decades or perhaps from the founding) on the idea that The People should be Free, Self-determining, Personally Responsible, citizens in which lies ALL THE POWER of governance. Only some of that power is doled out, in limited amounts, for specific functions, thru Constitutions, to elected representatives of The People, while most of that POWER OF SELF-GOVERNANCE was to be reserved to The People themselves.

    The egregious power grabs of government entities has violated the very nature of the Founding Principles of Governance. And the fact that the Supreme Court has acquiesced to this raid on our Rights, garnering to itself this position of Super-Legislature, is the most egregious violation of all.

    The Founding Fathers provided for a method of altering the Constitution - but it has been eskewed by goverment entities BECAUSE the Supreme Court has not done its proper work of PROTECTING THE PEOPLE FROM THE GOVERNMENT.

    A Licensed Right is simply a facade for, in reality, A Conditional Privilege.

    I perceive of the possibility that Properly Licensed Gun Ownership & Controlled Carry will be soon construed as Constitutional Carry.

    ...

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Quote Originally Posted by ImminentDanger View Post
    My fear is that these rulings will be later seen as the establishment of the 2nd Amendment PRIVILEGES conveyed by the (NOW) partisan US Supreme Court, which can just as justifiably be taken away by another ruling.

    The Heller & McDonald rulings are already portrayed and discussed as 'establishing' the 2A Rights.

    The most disturbing fact of these discussions is the LACK OF SELF-EVIDENCE of these Rights. There has been an ongoing attack (for decades or perhaps from the founding) on the idea that The People should be Free, Self-determining, Personally Responsible, citizens in which lies ALL THE POWER of governance. Only some of that power is doled out, in limited amounts, for specific functions, thru Constitutions, to elected representatives of The People, while most of that POWER OF SELF-GOVERNANCE was to be reserved to The People themselves.

    The egregious power grabs of government entities has violated the very nature of the Founding Principles of Governance. And the fact that the Supreme Court has acquiesced to this raid on our Rights, garnering to itself this position of Super-Legislature, is the most egregious violation of all.

    The Founding Fathers provided for a method of altering the Constitution - but it has been eskewed by goverment entities BECAUSE the Supreme Court has not done its proper work of PROTECTING THE PEOPLE FROM THE GOVERNMENT.

    A Licensed Right is simply a facade for, in reality, A Conditional Privilege.

    I perceive of the possibility that Properly Licensed Gun Ownership & Controlled Carry will be soon construed as Constitutional Carry.

    ...
    It looks like that is always a possibility. Even AJ says that, "No Amendment is absolute", out of one side of his mouth, whist he spouts, "Abortion is a constitutional right", out of the other side of it.
    Fuck joe biden and the ho beside him

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    Default Re: NYSRPA v. Bruen – SCOTUS Concealed Carry Case - Oral Arguments 11/3/21

    Future Looks So Bright For 2nd Amendment, It's Gotta Wear Shades
    By Michael Dorstewitz - 05 November 2021
    https://www.newsmax.com/michaeldorst...05/id/1043489/

    Roberts told Fletcher that when considering constitutional rights, the Constitution "gives you that right, and if someone's going to take it away from you, they have to justify it" -- they have to show why that right should be removed.

    Accordingly, Roberts wondered why New York should require its citizens to demonstrate a need to exercise a constitutionally-guaranteed right.

    Even CNN, which has been on a crusade for more restrictive gun control measures in recent years, sounded ready to throw in the towel, stating, "Supreme Court seems poised to expand Second Amendment rights and strike down NY handgun law."
    As if on queue --- Here is proof of my postulation above that our 2A Rights will be construed as granted by the US Supreme Court.

    And even more disturbing, if the above article is correctly reporting the Roberts / Fletcher interchange, Chief Justice Roberts' statement that the US Constitution 'gives you that right' is WHOLLY WRONG and promulgates that WRONG-HEADED idea. The Bill of Rights (attached to the Constitution) is intended to deliberately RECOGNIZE that our Rights pre-exist - It does not create those Rights. It demands that the government respect those pre-existing Rights.

    This is a HUGE distinction - One that is far too often overlooked.

    ...

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