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Thread: Kavanaugh Joins Roberts and the Left on 2A Case

  1. #1

    Kavanaugh Joins Roberts and the Left on 2A Case

    Deeming a Lawsuit Moot, SCOTUS Passes Up a Chance to Correct Judicial Disrespect for the Second Amendment
    The Court decided that New York City's revision of its restrictions on transporting guns gave the plaintiffs what they sought.
    Jacob Sullum | 4.27.2020

    The U.S. Supreme Court today dismissed a challenge to New York City's uniquely onerous restrictions on transporting firearms, concluding that the lawsuit was rendered moot by changes the city made to its regulations after the justices agreed to hear the case. The Court remanded the case to the lower courts, which it said may consider whether the plaintiffs can add a new claim for damages.

    New York State Pistol & Rifle Association v. New York is the first case involving firearms and the Second Amendment that the Court had agreed to hear since 2010. Gun rights supporters hoped it would provide an opportunity to correct excessive judicial deference to state and local lawmakers.

    New York's rules, adopted in 2001, originally allowed residents to remove legally owned guns from their homes only while en route to or from one of seven gun ranges within the city. That meant they could not legally take their guns, even unloaded and stored in locked containers separated from the ammunition, outside the five boroughs to practice at ranges, participate in competitions, or defend themselves in second homes.

    "After we granted certiorari," the Court notes in its per curiam opinion, "the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint." It concludes that "petitioners' claim for declaratory and injunctive relief with respect to the City's old rule is therefore moot."

    Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, dissented. "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced," Alito writes. He notes that New York City successfully defended its regulations in federal district court and the U.S. Courts of Appeals for the 2nd Circuit, only to throw in the towel after the Supreme Court took up the case.

    "Although the City had previously insisted that its ordinance served important public safety purposes," Alito wryly observes, "our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance." He notes that "we have been particularly wary of attempts by parties to manufacture mootness in order to evade review."
    Had the Court addressed the constitutional question raised by the case, Alito says, the answer would be clear. "The City's travel restriction burdened the very right recognized" in the landmark 2008 Second Amendment case District of Columbia v. Heller, he notes. "History provides no support for a restriction of this type. The City's public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City's public safety concerns evaporated."
    Justice Brett Kavanaugh, although he joined the majority in concluding that the case is now moot, agreed with the dissenters that lower courts may need to be reminded of the rights that the Court recognized in Heller and in McDonald v. Chicago, the 2010 decision that applied the Second Amendment to the states.
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  3. #2
    Kavinaugh is a totalitarian deep state swamp GHW Bushbot thug, IOW a perfect fit for the Hogg Bros.


    Take the Guns First
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    Make America the Land of the Free & the Home of the Brave again

  4. #3
    Kavanaugh concurred with mooting BUT also agreed with Justice Alito had the court reached the merits. He also said the court should take up another 2nd Amendment case that is pending.

    Kavanaugh’s concurrence is very short:
    I agree with the per curiam opinion’s resolution of the
    procedural issues before us—namely, that petitioners’
    claim for injunctive relief against New York City’s old rule
    is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of
    Appeals and the District Court on remand.
    I also agree with JUSTICE ALITO’s general analysis of Heller and McDonald. Post, at 25; see District of Columbia v.
    Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561
    U. S. 742 (2010); Heller v. District of Columbia, 670 F. 3d
    1244 (CADC 2011) (Kavanaugh, J., dissenting). And I
    share JUSTICE ALITO’s concern that some federal and state
    courts may not be properly applying Heller and McDonald.
    The Court should address that issue soon, perhaps in one of
    the several Second Amendment cases with petitions for certiorari now pending before the Court.

    The key part of Justice Alito’s opinion are here:
    This is what Thomas, Kavanaugh and Gorsuch are now on record as having agreed with.
    I proceed to the
    merits of plaintiffs’ claim that the City ordinance violated
    the Second Amendment. This is not a close question. The
    answer follows directly from Heller.
    In Heller, we held that a District of Columbia rule that
    effectively prevented a law-abiding citizen from keeping a
    handgun in the home for purposes of self-defense constituted a core violation of the Second Amendment. 554 U. S.,
    at 635. We based this decision on the scope of the right to
    keep and bear arms as it was understood at the time of the
    adoption of the Second Amendment. Id., at 577–605, 628–
    629. We recognized that history supported the constitutionality of some laws limiting the right to possess a firearm,
    such as laws banning firearms from certain sensitive locations and prohibiting possession by felons and other dangerous individuals. See id., at 626–627; see also McDonald,
    561 U. S., at 787, 904. But history provided no support for
    laws like the District’s. See 554 U. S., at 629–634.
    For a similar reason, 38 N. Y. C. R. R. §5–23 also violated
    the Second Amendment. We deal here with the same core
    Second Amendment right, the right to keep a handgun in
    the home for self-defense. As the Second Circuit “assume[d],” a necessary concomitant of this right is the right
    to take a gun outside the home for certain purposes. 883
    F. 3d, at 58–59. One of these is to take a gun for maintenance or repair, which City law allows. See §5–22(a)(16) Another is to take a gun outside the home in order to transfer ownership lawfully, which the City also allows. §5–26(j).
    And still another is to take a gun to a range in order to gain
    and maintain the skill necessary to use it responsibly. As
    we said in Heller, “‘to bear arms implies something more
    than the mere keeping [of arms]; it implies the learning to
    handle and use them in a way that makes those who keep
    them ready for their efficient use.’” 554 U. S., at 617–618
    (quoting T. Cooley, Constitutional Law 271 (1880)); see also
    Luis v. United States, 578 U. S. ___, ___ (2016) (THOMAS, J.,
    concurring in judgment) (slip op., at 3) (“The right to keep
    and bear arms . . . ‘implies a corresponding right . . . to acquire and maintain proficiency in their use’”); Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011) (“[T]he core right
    wouldn’t mean much without the training and practice that
    make it effective”).
    It is true that a lawful gun owner can sometimes practice
    at a range using a gun that is owned by and rented at the
    range. But the same model gun that the person owns may
    not be available at a range, and in any event each individual gun may have its own characteristics. See Brief for Professors of Second Amendment Law et al. as Amici Curiae
    10–12; see also App. 51, 56, 59 (referencing differences
    across ranges and shooting competitions). Once it is recognized that the right at issue is a concomitant of the same
    right recognized in Heller, it became incumbent on the City
    to justify the restrictions its rule imposes, but the City has
    not done so. It points to no evidence of laws in force around
    the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits. The
    City argues that municipalities restricted the places within
    their jurisdiction where a gun could be fired, Brief for Respondents 18, and it observes that the Second Amendment
    surely does not mean that a New York City resident with a
    premises license can practice in Central Park or Times
    Square, id., at 21. That is certainly true, but that is not the question. Petitioners do not claim the right to fire weapons
    in public places within the City. Instead, they claim they
    have a right to practice at ranges and competitions outside
    the City, and neither the City, the courts below, nor any of
    the many amici supporting the City have shown that municipalities during the founding era prevented gun owners
    from taking their guns outside city limits for practice.
    If history is not sufficient to show that the New York City
    ordinance is unconstitutional, any doubt is dispelled by the
    weakness of the City’s showing that its travel restriction
    significantly promoted public safety. Although the courts
    below claimed to apply heightened scrutiny, there was
    nothing heightened about what they did.
    As noted, the City relied entirely on the declaration of Inspector Lunetta, but this declaration provides little support. See supra, at 9–10. Some of what Inspector Lunetta
    asserted was simply not relevant to the justification for
    drawing a distinction between trips to a range in the City
    and trips to a range in a neighboring jurisdiction. For example, he stated that persons holding premises licenses “do
    not always transport their firearms in a locked box carrying
    ammunition separately, as required by NYPD rules,” but
    the issue in this case does not concern the storage of a gun
    on the way to a range. App. 77–78. Similarly, he declared
    that “[p]remises license holders have not demonstrated
    proper cause to carry a concealed firearm in public,” id., at
    78, but the question before us is not whether petitioners
    have the right to do what they could if they had carry licenses.
    Other statements actually undermine the City’s public
    safety rationale. Thus, the fact that prosecutors typically
    do not bring even misdemeanor charges against licensees
    who carry a weapon in violation of the limitations of their licenses, ibid., does not suggest that the City regards violations as presenting a particularly significant threat to public safety.
    When all that is irrelevant is brushed aside, what remains are the three arguments noted earlier. First, Inspector
    Lunetta asserted that the travel restrictions discouraged licensees from taking their guns outside the home, but this
    is a strange argument for several reasons. It would make
    sense only if it is less convenient or more expensive to practice at a range in the City, but that contradicts the City’s
    argument that the seven ranges in the City provide ample
    opportunity for practice. And discouraging trips to a range
    contradicts the City’s own rule recommending that licensees practice. Once it is recognized that a reasonable opportunity to practice is part of the very right recognized in
    Heller, what this justification amounts to is a repudiation
    of part of what we held in that decision.
    Second, Inspector Lunetta claimed that prohibiting trips
    to out-of-city ranges helps prevent a person who is taking a
    gun to a range from using it in a fit of rage after an auto
    accident or some other altercation that occurs along the
    way. And to bolster this argument, Inspector Lunetta asserted that persons who have met the City’s demanding requirements for obtaining a premises license are just as
    likely as anyone else to use their guns in a fit of rage. App.
    77. If that is so, it does not reflect well on the City’s intensive vetting scheme, see supra, at 4–6, and in any event, the
    assertion is dubious on its face.
    More to the point, this argument does not explain why a
    person headed for a range outside the City is any more
    likely to engage in such conduct than a person whose destination is a range in the City. There might be something to
    the argument if ranges in the City were closer than those
    just outside its borders, but the City never attempted to
    show that. The courts below were incurious about the va-lidity of Inspector Lunetta’s assertion, and given the location of the City’s seven ranges, the assertion is more than
    Inspector Lunetta’s final justification for the travel restrictions was only marginally stronger. It goes like this.
    Suppose that a patrol officer stops a premises licensee and
    finds that this individual is carrying a gun, and suppose
    that that the licensee says he is taking the gun to a range
    to practice or is returning from a range. If the range in
    question is one in the City, the officer will be better able to
    check the story than if the range is outside the officer’s jurisdiction. App. 79–80.
    How strong is this argument? The City presumably has
    access to records of cases in which licensees were cited for
    unauthorized possession of guns outside the home, and it
    failed to provide any evidence that holders of target licenses
    had used their right to practice at out-of-city ranges as a
    pretext. And it is dubious that it would be much harder for
    an officer to check whether a licensee was really headed for
    an out-of-city range as opposed to one in the City. If a licensee claims to be headed for a range in the City, the officer can check whether the range is open and whether the
    individual appears to be on a route that plausibly leads to
    that range. But how much more difficult would it be to do
    the same thing if the range is in one of the counties that
    border New York City or across the Hudson River in New
    Jersey? A phone call would be enough to determine the
    range’s operating hours, and the route would still be easy to determine: There are only a few bridges and tunnels to
    New Jersey and just a few main thoroughfares to the neighboring New York counties. A court conducting any form of
    serious scrutiny would have demanded that the City provide some substantiation for this claim, but nothing like
    that was provided or demanded.
    Would the situation be much different if the individual
    claimed to be headed home from a range? Once again, it
    would not be difficult for the officer to check whether the
    range was or recently had been open. And it is not at all
    apparent that determining whether a licensee was on a
    route to his or her residence would be any harder if the
    range at which the licensee claimed to have practiced was
    outside the City.
    Inspector Lunetta’s declaration stated that ranges in the
    City are required to keep a record of everyone who practices
    there, and therefore if a person claims to be coming from a
    city range, the officer could easily check that story. But the
    declaration does not state that ranges in nearby jurisdictions do not keep similar records.13 It should have been
    easy enough for the City to check, and a court engaged in any serious form of scrutiny would have questioned the absence of evidence, but no substantiation was provided or demanded below.
    In sum, the City’s travel restriction burdened the very
    right recognized in Heller. History provides no support for
    a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in
    any way, and were accepted below with no serious probing.
    And once we granted review in this case, the City’s public
    safety concerns evaporated.
    We are told that the mode of review in this case is representative of the way Heller has been treated in the lower
    courts. If that is true, there is cause for concern.
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  5. #4

    Supreme Court Sides with New York City In Gun Transport Case Decision

    New York City changed its law, fearing the Supreme Court would find the law unconstitutional.

    The last thing anti-Second Amendment forces want is a high Court opinion that strengthens the Second Amendment.

    The City’s gambit paid off. In a 6 to 3 vote, the Supreme Court held that, since the City changed the old rule, the case is moot, because Petitioners can now lawfully transport their handgun to a second home or shooting range outside the City.

    But can they really? What will New York City do in the future to restrict the fundamental right of the people to keep and bear arms?

    This will almost certainly embolden New York City Mayor Bill DeBlasio and New York Governor Andrew Cuomo.
    "An idea whose time has come cannot be stopped by any army or any government" - Ron Paul.

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