Supreme Court agrees to take up major Second Amendment case

[sarisataka]

Supreme Court agrees to take up major Second Amendment case

(CNN)The Supreme Court announced Monday it will consider the scope of the Second Amendment next term in a case concerning a New York law that restricts an individual from carrying a concealed handgun in public.

It has been more than a decade since the justices have ruled on significant case concerning the right to bear arms, and it comes in the wake of several mass shootings and the Biden administration's push for enhanced gun regulations.

The court's move highlights the impact of Justice Amy Coney Barrett's presence on the newly solidified conservative court. Justice Clarence Thomas and others had been urging the justices to take up the issue, and just last term, the court declined several cases.

This story is breaking and will be updated

https://www.cnn.com/2021/04/26/politics/supreme-court-second-amendment-case/index.html

[Paladin]

1. Far-right justices fixing to do you gun rights people another favor. (nt)

[sarisataka]

2. In my opinion

Guns don't have rights, people do. One is those rights is the Right to be armed for whatever legal purpose a person wants.

With rights come responsibilities. As with all rights, it is not unlimited. In order to keep arms it is reasonable to have to pass a background check to confirm the purchaser is not a danger. Bearing arms is a greater exercise of the right so it is reasonable to have further requirements. I see showing the ability to safely handle a firearm and a demonstration of proficiency fits with the "well regulated" language.

Hasn't it been the control side that has been pushing to get the issue to the courts?

[beemerphill]

3. Great Post

satisataka,
Your post sums up what many of us RKBA supporters have been hoping for a long time. A free citizen in our country should be able to exercise their right to bear arms. Most of us who do would have no problem proving our proficiency, knowledge of self-defense laws in our states, and following the law when carrying. The background check would be fine too IF a private citizen had the ability to check with the government about a prospective buyer's or seller's record before selling or buying a firearm.
Many on the gun control bandwagon assume that there is no middle ground in this discussion. There actually is. Those of us who believe in the Second Amendment are fearful that if we compromise this much, more demands will be made of us.
Thanks for the great post.

[yagotme]

4. That's the problem with compromise,

the ones wanting to ban guns never "give up" anything, they just take what they can get, and ask for more next time. "Machine guns" have been "banned" (heavily regulated) since 1934. Watched a PBS show the other day about an attack, and the witness was asked, "What kind of gun was used?" Of course, it was an AR-15 machine gun. In 9mm.

[discntnt_irny_srcsm]

5. About 5% of what I read from the "control" side...

...makes me think that there should be...
...well never mind.

[yagotme]

6. That's OK discntnt...

I never mind anyway...

[crono]

7. What is mind

No matter.

[jimmy the one]

8. Unanimous 8-0 scotus decision 1939, Miller, militia right

Sari: It has been more than a decade since the justices have ruled on {a} significant case concerning the right to bear arms,

It has been 8 decades since the supreme court ruled on the proper interpretation. The 1939 Miller decision which was unanimous 8-0 ruling it was a militia based right.
One would think that if the supreme court truly thought it was an individual right, as gun nuts spin miller, that at least one of the justices would've objected to the wording below, arguing that 'whoa, future generations will think we thought it was a militia based right', but not one objected.

excerpts, 1939 scotus Miller decision, 8-0 unanimous: Miller, 307 U.S. 174 (1939) Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view
https://en.wikipedia.org/wiki/United_States_v._Miller

United States argument, bolstered by Dept of Justice amicus brief to 1938 scotus (year initiated): In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams, 11 F. Supp. 216 (S. D. Fla.)), the contention was summarily rejected as follows (pp. 218-219):
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights. * * *
https://guncite.com/miller-brief.htm ha, guncite, shocked anyone?

[yagotme]

10. And, what all the anti-gunners miss in Miller;

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."

So, per the above paragraph, only military-type arms are allowed? Pass me my M-16, then, and thanks. An M-203 grenade launcher would be cool, too.

[discntnt_irny_srcsm]

9. He brought up Miller

Clinging to Miller as some victory is like declaring your softball team a victor when the opposing team doesn't show up.
On the date of the proceeding Miller was dead and the defense council did not show up.

[Surf Fishing Guru]

11. Supreme Court agrees to take up major Second Amendment case

With the briefs filed and oral arguments coming up in November it's a good time to take a look where this case is.

IMNSHO there's no way the Court recognizes a 2ndA right to carry concealed. 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.

If that is the decision NY and the other restrictive states like NJ, MD & CA will be forced to institute a "shall issue" system. Those states will of course mandate the manner of carry as concealed, so in the end gun rights people will back into a "concealed carry" win.

As it sits now, the gun rights side has a slim chance of coming away with that relatively "clean" situation, here's why . . .

1) The 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 . . . 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 reject the NYSRPA position on that principle, Roberts will surely fall with Breyer, Sotamayor and Kagan and the end result would be a win for NYC.

3) The case could end with a per curiam decision issued without comment or dissent --nobody wants their name on this turd . . . Leaving so much unresolved and the lower federal courts wandering in the darkness, still with no standard of scrutiny and firm interpretive direction.

OTOH, there are some points that would work to smooth those bumps in the road.

A) The amicus for petitioners are very good and Clement could save himself at oral argument. Because Thomas so wants to write a 2nd Amendment decision, (which he could assign to himself if the CJ is in the dissent), he may 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.

This has created a huge legal problem for SCOTUS to settle.

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.

This NY case could either be 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.

.