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« 10th Circuit on bump stocks | Main | Thoughts on Capitol Hill situation »

2A case coming up in SCOTUS

Posted by David Hardy · 14 March 2021 10:06 AM

NY State Rifle and Pistol Ass'n v. Corlett up for a March 26 vote on whether to accept review. Question presented:

"... numerous courts of appeals have squarely divided on this critical question: whether the Second Amendment allows the government to deprive ordinary law-abiding citizens of the right to possess and carry a handgun outside the home. This circuit split is open and acknowledged, and it is squarely presented by this petition, in which the Second Circuit affirmed the constitutionality of a New York regime that prohibits law-abiding individuals from carrying a handgun unless they first demonstrate some form of "proper cause" that distinguishes them from the body of "the people" protected by the Second Amendment. The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens' fundamental right to carry a handgun for self-defense."

I would've phrased it differently, but each to their own and here's hoping!

UPDATE: I would have phrased it more narrowly. Not so much the requirement of a permit, but the idea of a permit on a "may issue" basis. A fundamental right that is subject to a permit AND that permit is issued on an arbitrary basis. Just a matter of emphasis.

8 Comments | Leave a comment

RWH | March 14, 2021 11:41 AM | Reply

I’m curious how you would have phrased it. Is your critique one of style / preference? Or do you think the question presented should have framed the issue differently?

Anonymous | March 14, 2021 9:01 PM | Reply

RWH:

I’ll not presume to speak for David, but if you read the petition, the question presented is:

“Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

That question is broader than other possible questions, such as “Whether the Second Amendment allows the government to condition handgun carry licensure on the documentation of “proper cause” or “extraordinary need” surpassing a desire for self-defense.”

Personally I prefer the broader question, but legally speaking, courts prefer questions that are narrow. Clement is no novice at this stuff, however, and a majority of the current court is likely to be open to rule in a way consistent with the traditional view of the 2A.

Anonymous | March 14, 2021 9:09 PM | Reply

By way of contrast, here is the question presented by the NY AG.

COUNTERSTATEMENT OF QUESTION PRESENTED
“Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.”

Now, I have a question for David ... why might the petitioners want to present the broader question, and why might the respondents wish to narrow it?

MarkPA | March 15, 2021 6:44 AM | Reply

I think it might have been better to break-up the May-Issue and "bear" outside-the-home issues. In NY state you need a permit to keep a handgun inside the home; that's MAY-Issue. Is May-Issue to keep a handgun inside the home consistent with Heller?

If it IS consistent with Heller then DC should certainly want to know that. It would find Heller's "need" indistinguishable from anyone else's need. Likewise, McDonald's need. Could that stand?

If a "distinguishable" "need" is not Constitutional to keep arms, then, could it still be Constitutional to bear arms? Can we split hairs that finely?

Finally, can we find the word "bear" in the 2A? What does it mean? Does it mean bear from bedroom to kitchen? Or, does bear mean outside the home?

When so dissected, it becomes clearer that May-Issue threatens Heller and McDonald.

Geoff | March 15, 2021 2:43 PM | Reply

Yet criminals routinely carry handguns outside their home in New York and NYC. Why bother with a permit you can't get?

RWH | March 16, 2021 9:35 AM | Reply

Thanks to David for adding his update in response to my question, and to the other commenters as well. I have now had a moment to briefly glance at the first portion of the petition for cert, particularly the question presented (QP).

Under most circumstances, I would agree that a narrow framing of the issue would be most advantageous -- allowing incremental gains to form the foundation for more expansive litigation in the future. However, for the time being, we have a very favorable court for a Second Amendment case. One could argue it has the potential of being the most Second-Amendment-friendly Court in our nation's history. Unfortunately, time marches on. Justice Thomas isn't getting any younger. At least for the next four years, any new justices will not be favorable to our cause.

In my opinion, this factor of time must be considered in shaping Second Amendment litigation. A narrow QP may yield a victory, but we may not have the time for the *next* round of litigation. By time we get to the next round of litigation, we will very likely have a completely different court.

By asking the QP broadly, a potential majority Court has plenty of leeway to be as aggressive or as conservative

RWH | March 16, 2021 9:47 AM | Reply

[I accidentally clicked "submit" too soon.]

...By asking the QP broadly, a potential majority of the court has plenty of leeway to be as aggressive or as conservative as necessary to reach **an actual majority.** If everybody is on board, they can frame an opinion that reaches well past the issue of may issue / shall issue. But, if there is a lukewarm fifth vote, they can easily craft on opinion that only reaches the may issue framework of the statute in question. (I have no doubt that the Court will freely re-shape the QP as they see fit.)

For right now, I think we need to be as aggressive as possible. I fear that we are unlikely to get an equally favorable court for a very long time.

Heller was decided in 2008. McDonald was granted cert in 2009 and argued / decided in 2010. If this case is granted cert, that means an opinion in 2022? Assuming similar speed to McDonald, the next follow-on case might be up for cert in 2023, with a possible argument in 2024?

I hope Justice Thomas has a long and fruitful life, but I don't want to gamble against time more than we have to.

(Disclaimer: I have almost no appellate experience. Just a gun guy with a bar card.)

23 | March 27, 2021 8:27 AM | Reply

When will we know what they decided?

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