With the briefs filed and oral arguments coming up in November it's a good time to take another look where this case is.
I'm only stronger in my opinion that there's no way the Court rules there is a 2ndA recognized, federally enforced right to carry concealed.
I'm thinking there is a slim chance the Court does recognize a federally enforced right to bear arms in public for self defense but the Court will allow states to set the manner of carry . . . Meaning that NY (and the other restrictive states like NJ, MD & CA) will be forced to institute a "shall issue" system with the states retaining the power to mandate the manner of carry.
I'm saying there is a slim chance of coming away with that relatively "clean" situation, because . . .
1) The
merits brief for the petitioners, (written by NRA lawyer Paul Clement), is a total disaster. It never actually gets to addressing the question SCOTUS wants argued . . . Incredibly, Clement never tells the Court how the denial of the petitioners’ applications for concealed carry licenses actually violated the Second Amendment. He spends most of his time pounding on the question the Court left open in
Heller; does the 2ndA right extend outside the home . . . Oh yeah, the Court is just gonna
love that . . .
2) Alito and Thomas have established a principled rule that they do not join majority opinions that endorse merits / questions / arguments not briefed by both sides. If those two simply reject the NYSRPA position on that principle, Roberts will surely flip in with Breyer, Sotamayor and Kagan and the end result would be a BIG win for NYC.
3) The case could end with a
per curiam decision issued without comment or dissent because no Justice will want to write an opinion and have their name associated this turd . . . A naked
per curiam decision would leave so much unresolved and the lower federal courts still wandering in the darkness, still with no standard of scrutiny and firm interpretive direction. It could be the beat result because it wouldn't set down new grand rules of law, it would just dispense with the case at hand.
OTOH, there are some points that would work to smooth out those bumps in the road . . .
A) The many amicus for petitioners are very good and Clement could save himself at oral argument. We know Thomas really wants to write a 2nd Amendment decision -- which, if the Chief Justice is in the dissent, Thomas, as senior Associate Justice could assign to himself. That scenario would be the best for gun rights supporters; losing Roberts' wishy-washy vote is worth Thomas writing the opinion. We will know if this -save the baby- attempt is happening if we see Thomas be an active participant at oral argument, asking Clement the questions Thomas needs answered to decide the case.
B) The Court does have a chance to fill in contours of the 2ndA, establish a standard of scrutiny and to remedy the rights abuses in these states without a RKBA provision in their state constitutions. Those states have run roughshod on the rights of their citizens and really need to be put in the constitutional paddock.
C) I doubt the Court would have taken this case if the will wasn't there to get the 2nd Amendment onto equal plane as the other rights as far as 14thA incorporation. States like NY, NJ, CA and MD have enjoyed essentially limitless power to restrict the right to arms of their citizens because they have no RKBA recognition and protection in their constitutions.
Looking deeper into "C", the Court knows the legal justification in NY, NJ, CA and MD for their state courts sustaining various state gun control schemes (not just for concealed carry, we are looking back 100+ years of gun laws) was not built upon any interest in what a "right of the people to keep and bear arms" is, and how that constrains legislative action. In fact, that lack of a RKBA provision was taken by those states to mean anything goes.
There was never any sophisticated testing of state gun laws being challenged against a state RKBA provision and certainly no consideration of the 2nd Amendment as an impediment. Those states sustained their laws by lazily relying on 20th Century (post 1942) lower federal court decisions pushing now invalid collective "militia right" / "state's right" theories and the legal fact that before 2010, the 2ndA did not apply to state action.
This has led to much real or purposeful ignorance regarding what the right to arms is in those states and has polluted their state court decisions which establish the underlying law for the federal districts and circuit courts to examine. It is a mess because decades of those state and lower federal court case law is actually abrogated and invalid and of zero use after Heller and McDonald and Ceatano.
With SCOTUS taking a hiatus from addressing the RKBA and the 2nd Amendment, judges (state and lower federal ones) have been allowed to just make it up as they needed and ignore (or misrepresent) what the 2nd is and what it does -- all in an attempt to avoid enforcing Heller and delay enforcing McDonald and the application of the 2ndA under the 14thA against the states. The Court knows this must be addressed and remedied.
This NY case could either be a bad loss, or a dud where the Court declines to settle these questions or, it could be Earth shaking and we will see the Court do for the 2nd Amendment in one decision, what it took 70+ years to do with the 1st Amendment.
Whether the Court has the chance to address any of that depends on whether the roadblock of the NRA's arrogance and stupidity can be overcome.
Clement's lousy merits brief has created a huge problem for the Court; he made those same arguments in the appeal for certiorari, and the Court in accepting the case, rejected Clement's rehashing and wrote its own question it wanted argued -- and Clement ignored it.
I'm hopeful but I'm far less optimistic about a big win . . . I believe the Court took this case knowing the Court needed to fix 2nd Amendment jurisprudence, now I'm praying the end result will be something other than a big defeat.
Yay NRA!
Originally Posted by Gunny
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