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Court could bolster gun rights in NY case , this could change everything!

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Court could bolster gun rights in NY case 

Does 2nd Amendment extend beyond home?

Richard Wolf


WASHINGTON – The Supreme Court may be on the verge of expanding gun rights for the first time in nearly a decade. What’s surprising is how it got there.

The court on Monday will hear a challenge to an obscure New York City rule that set such rigid restrictions on transporting legally owned guns that it was repealed in July. Gun owners won without a shootout.

But, it turns out that wasn’t what they really wanted. Backed by the National Rifle Association and the Trump administration, the challengers to New York’s abandoned restrictions are hoping the high court refuses to declare the case moot. That would give them a chance to win the biggest Second Amendment victory since landmark rulings a decade ago affirmed the right to keep guns at home for self-defense.

Faced with a defunct ban on transporting guns outside city limits, the increasingly conservative court majority could render a decision making clear what some justices clearly believe: that the Second Amendment extends beyond the home, and that lower courts should view state and local limits on carrying guns in public with skepticism.

“This would be a strange case in which to go big,” says Joseph Blocher, a professor at Duke University School of Law and co-director of the Duke Center for Firearms Law. “Yet the stakes going forward are potentially huge.”

Gun rights groups were surprised in January when the high court agreed to hear the case. Gun control groups were surprised in October when the justices refused to jettison it, even after the city and state erased restrictions that were likely unconstitutional.

Both actions went against the court’s recent modus operandi when it comes to guns: avoidance. Since its 2008 and 2010 rulings striking down gun restrictions in the District of Columbia and Chicago, the court has refused to hear dozens of cases challenging lesser limits on who can own what types of guns, where they can be taken, what requirements must be met, and more.

During that time, lower courts have resolved more than 1,000 Second Amendment cases, ruling more than 90% of the time in favor of gun control measures, according to a study by Blocher and Southern Methodist University assistant law professor Eric Ruben. Since Connecticut’s Sandy Hook Elementary School shooting in 2012 that killed 20 students and six staff members, more than 300 gun safety laws have been passed.

The trend has frustrated gun rights groups as well as conservative justices who say federal and state court judges are not applying a stringent test to most gun restrictions.

When the Supreme Court refused in 2017 to second-guess an appeals court ruling that upheld California’s limits on carrying guns in public, Associate Justice Clarence Thomas summed up the frustration.

“I find it extremely improbable,” Thomas wrote, “that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

‘Text, history and tradition’

The court has changed since then. Gone is retired Justice Anthony Kennedy, who signed on to the late Associate Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller after ensuring it would leave the door open to state and local restrictions.

In his place: Associate Justice Brett Kavanaugh, who dissented as a federal appeals court judge from a ruling upholding the district’s subsequent ban on semi-automatic rifles and its firearms registration requirements. Kavanaugh said courts should analyze gun bans and regulations based on the Second Amendment’s “text, history and tradition.”

Enter an extreme rule such as New York City’s, which barred licensed handgun owners from taking their guns beyond its five boroughs, even to second homes or shooting ranges. Federal district and appeals courts upheld the 18year-old rule, but it looked like a goner at the Supreme Court.

Gun control groups such as Brady, Everytown for Gun Safety, and the Giffords Law Center to Prevent Gun Violence feared something else: a decision that would expand public carryrights elsewhere, including in nine states that give law enforcement officials discretion to deny licenses.

Those are California, New York, New Jersey, Massachu-setts, Maryland, Connecticut, Rhode Island, Delaware and Hawaii.

Rather than fight it out in court, the city repealed the rule, and the state replaced it with a statute that permits the previously banned transportation of firearms. The two liberal-dominated governments felt that would end the case.

Not so fast, the justices said. They called for oral argument on whether the case is now moot, as well as on the rule itself. The New York State Rifle & Pistol Association, which challenged the restrictions, claimed in court papers that gun owners’ rights still were limited and warned that the rule could be reimposed. The U.S. Solicitor General’s Office said gun owners still might seek damages for prior constraints.

With Thomas, Kavanaugh and Associate Justices Samuel Alito and Neil Gorsuch all in favor of a more robust Second Amendment, all eyes now are on Chief Justice John Roberts, the new swing vote in many areas of the law.

“The NRA has been looking for a way to get the Supreme Court to endorse its dangerously extreme view of the Second Amendment,” says Eric Tirschwell, managing director of litigation at Everytown for Gun Safety. “It hasn’t succeeded, but in this case a newly constituted Supreme Court seems to be opening the door, at least a little. The stakes could not be higher.”

Guns in public

Despite the losses in lower courts, the gun lobby doesn’t have it so bad. In most states, law-abiding adults not only can own a gun but carry it with them. Restrictions generally deal with permits, registration, background checks, types of weapons and restrictions on youths, felons and those with mental illnesses.

What’s protected is “the core of the Second Amendment — can I carry a gun around with me pretty much wherever I want?” says Clark Neily, vice president for criminal justice at the libertarian Cato Institute. “For the average person, there’s no interest in owning a fully automatic machine gun.”

The biggest issue left unresolved by the Heller decision was the right to carry firearms, either concealed or openly. When that case was decided, about 40 states already permitted it, but some big ones – notably California and New York – had major limitations. They still do.

“For too long, lower courts have stubbornly controverted the Supreme Court’s ruling in D.C. v. Heller,” says Jason Ouimet, executive director of the NRA’s Institute for Legislative Action. “The nation’s highest court should defend all Americans — and its own precedents — in a manner that vindicates the fundamental nature of the rights enshrined within the Second Amendment.”

If conservatives have their way, the court could extend Second Amendment rights beyond the home, or simply require that lower court judges demand more specific justifications for state and local restrictions.

Buoyed by recent victories, gun control groups and their allies worry that what the justices say when deciding the New York case could influence lower courts to strike down other restrictions.

“The court doesn’t have to look like it’s making a big change,” says Adam Winkler, a UCLA School of Law professor and Second Amendment expert. “It can make a big change by setting the foundations for future cases"



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"Despite the losses in lower courts, the gun lobby doesn’t have it so bad. In most states, law-abiding adults not only can own a gun but carry it with them."


yes, because PK' ability to carry his gun in AZ is just as good as if I could do the same in NJ. What an absurd thing to say?


Would the author say something along the lines " Despite the law in Alabama that makes it a felony punishable up to 99 years in jail for anybody that performs an abortion,  the abortion providers doesn’t have it so bad. In most states, adults have access to late term abortions"

Of course not because it's an equally asinine thing to say.


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As the Supreme Court heard oral arguments Monday morning in the New York State Rifle & Pistol Association v New York City case, gun control activists rallied outside the court in support of gun restrictions, though many of them were oddly silent on the specifics of this case.


Townhall.com’s Julio Rosas joined me from the Court for today’s program, and I also speak with Philip Van Cleave of the Virginia Citizens Defense League about the surge in Second Amendment Sanctuary counties across the state. I’ll have a separate post on the latest in Virginia but right now let’s talk about the Supreme Court and what it’s likely to do with the case now that justices have heard from both sides.

The biggest question at the moment is whether or not the Court will dismiss the case due to mootness. Transcripts of today’s oral arguments are now now available if you want to read for yourself, but most of the press coverage of the arguments indicates that Chief Justice John Roberts might be the deciding vote on whether the case goes forward and the Court rules on the New York City gun law in question, or if the city’s attempt to moot the case by changing the law a couple of months ago (after defending the law for several years) will end the litigation. From Reuters:

Conservative Justices Samuel Alito and Neil Gorsuch were most vocal in advocating for the court to issue a ruling. Chief Justice John Roberts, who could be a pivotal vote in the case, said little but asked whether the city residents who challenged the law would face consequences for violations of the prior regulation.

The legal challenge takes aim at a regulation that had prevented licensed owners from taking their handguns to other homes or shooting ranges outside the confines of the most-populous U.S. city. The regulation was amended in July to allow for such transport.

“What’s left of this case?” asked liberal Justice Ruth Bader Ginsburg. “Petitioners got all the relief they sought.”

Not really. As former Solicitor General Paul Clement, who’s representing the New York State Rifle & Pistol Association, told the court, some of the provisions of the revised law could still cause city residents to break the law if they so much as stop to get a cup of coffee on the way to the range. Clement also argued that, given the fact that the city didn’t change the law in question until after the Supreme Court agreed to hear the case, there’s no reason to believe the city was acting in good faith and wouldn’t simply change the law again if the lawsuit is dismissed.

Vox is claiming that Chief Justice John Roberts appeared sympathetic to the city’s position, but I would caution folks from trying to read too much into the questions asked by justices during the oral arguments. Moreover, even Vox acknowledges that if the Supreme Court decides that the New York City gun case is moot, there are other Second Amendment cases queued up and ready for the Court’s attention.

Meanwhile, while New York State Rifle is likely to be declared moot, there is another Second Amendment case — Rogers v. Grewal — that the Supreme Court could take up as soon as Friday. The questions presented in Rogers include “whether the Second Amendment protects the right to carry a firearm outside the home for self-defense.”

If New York State Rifle is declared moot, the Court could simply take up the Rogers case — and there’s still plenty of time for the Court to decide that case before its current term ends this June.

New York State Rifle, in other words, appears likely to end in the tiniest possible victory for gun control. The case will likely be dismissed as moot, but a Second Amendment reckoning is all but inevitable in the Supreme Court. And it’s likely to come very soon.

That’s the good news for gun owners. The Supreme Court has been holding the Rogers case for months now, and the speculation is that the Court did so pending the outcome of NYSRPA v. NYC. If the Court does decide that the case is still a live issue, the majority opinion could have an impact on the New Jersey carry case, and they could send Rogers back to the 3rd Circuit Court of Appeals with guidance directed by the NYSRPA v NYC opinion.

If, on the other hand, the Court does moot the New York case, it has Rogers to pick up instead, and the Court would be dealing with a much more explicit challenge to the infringement on the right to bear arms than the New York City case presents.

If the Supreme Court decides that the New York Case is moot, I’d expect a decision to come fairly quickly. If the Court does move forward with the case, expect a ruling in several months.

When the oral argument transcripts are made available, you’ll be able to access them here. In the meantime, check out today’s show with Julio Rosas and VCDL’s Philip Van Cleave, and we’ll be keeping an eye on any future developments at the Supreme Court.

Also on today’s show, we have an armed citizen story from Missouri, a criminal justice fail from Baltimore, and an off-duty officer who performed a very good deed in the parking lot of a fast food restaurant in the suburbs of Richmond, Virginia.

Don’t forget to subscribe to the show at Apple Podcasts, Spotify, Stitcher, or Townhall.com’s podcast page. We’ll have much more reaction to today’s oral arguments on tomorrow’s show, so be sure to tune in.



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by Theresa Inacker, CNJFO Communications Director 12-02-19

Keep Calm and Litigate On!

The day for oral arguments finally arrived, as attorneys appeared before the Supreme Court of the United States (SCOTUS) in Washington, D.C. to argue disputed matters in New York State Rifle & Pistol Association v. New York City. At the heart of the matter, it is a challenge to New York City’s firearm transport ban. Both sides—Pro-Second Amendment folks and anti-rights groups like Big Daddy Bloomberg-funded Everytown, Moms Demand and the Brady folks alike, anxiously awaited a long-overdue conversation on the substance of the Second Amendment’s application outside the home.

Disappointing to some, the Court focused on the issue of mootness more than the merits of the Second Amendment’s application outside the home. The issue of mootness seems so academic and theoretical: Well, it is exactly that. Unlike a right to Keep and Bear arms which is tangible and substantive, mootness isn’t very interesting.

You may be asking what is mootness? A case is moot “when the issues presented are no longer alive or the parties lack a legally cognizable interest in the outcome of the lawsuit.” See www.FedBar.Org March/April 2008. Not very exciting, but extremely critical to American jurisprudence.

Left-leaning media are enthusiastically pushing their articles about how the Court does not seem interested in expanding Second Amendment rights after today’s arguments. They think they’ve found an off-ramp for this 2A train barreling down the tracks. I tell them, do not count your chickens before they’ve hatched. If this train car doesn’t get heard on the merits, the Cheeseman case will, or another thereafter.

My pro-Second Amendment folks: do not lose heart. No one knows how the Court will rule. No one knows why a Justice asks a question or remains silent during oral argument. Justice Clarence Thomas asked his first question in three years back in March of 2019 ---that was after ten years of not asking any questions, from 2006 to 2016. I suggest not judging a Justice by his/her questions.

Keep calm and litigate on!


Theresa Inacker is a lawyer who loves Constitutional law and studied how SCOTUS operates. A former Managing Editor of the Seton Hall Law School Constitutional Law Journal, Inacker was admitted to the Supreme Court Bar earlier this year. While some news sources provide a slanted pro-gun or anti-gun Pablum, we at CNJFO strive to give you, our readers, expert ANALYSIS while others chime-in with half-truths, innuendo, and supposition. SCOTUS will release their opinion on mootness prior to hearing the actual case---IF that is to be our destiny. Stay tuned, and as more SCOTUS news breaks, we'll give Inacker her much-deserved "ink".

---The Editors

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Having read the transcripts, I have a hard time seeing how anything Roberts did could be construed one way or the other. These headlines aren't informed reporting, they are following the playbook trying to pressure Roberts just like they did in the ACA case. 

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There's more than one playbook.  Sometimes we fall victim to our own anxiety.  

Here's my editorial on Inacker's story from yesterday:

by Black Wire Media Tuesday Dec. 3, 2019 www.cnjfo.com/join-us

Scanning social media since yesterday's oral arguments in the SCOTUS case NYSR&PA vs. New York City leads us to believe most gun owners were left in the dark in high school by not having a Civics-101 class on how the US Supreme Court functions. As some 2A pundits decry "the other side had paid protestors along the Supreme Court buildings' sidewalk, how come we didn't see a huge crowd of our people?", ignorant gun owners are in holiday shopping and tree-trimming mode while reading & listening to MSM sources foretelling a huge victory for the anti's. Then everybody gets upset! Feeling flummoxed, they pour their souls onto social media stirring the pot, thus recklessly and inadvertently leading others to "spread the bad news like The Plague". Thing is, the news isn't bad at all, it was merely EXPECTED (mootness issue)! So why is everybody so unraveled?

Oh my gosh did an editorial staffer just call gun owners ignorant? YES WE DID! Why? Social media is ablaze with misinformation, pent-up emotionalism, OPINIONS (not FACTS!) and the end result is bewilderment on the part of gun owners seeking a glimmer of hope while reading & listening to a barrage of half-truths, innuendo & outright falsehoods beset upon us as only a well-oiled PROPAGANDA MACHINE can accomplish! In short, we are sometimes our own worst enemy when it comes to social media. Just STOP IT already!

From Theresa Inacker, a member of the Supreme Court Bar:

Associate Justice RBG asked a really hard question of the city: why is having TWO guns in TWO houses better than just having ONE brought between them? Leaving the one at the empty house vulnerable to theft".

There are several 2nd Amendment cases "in the que" waiting for molasses in January (SCOTUS) to do their due diligence and handle this case with the same nit-picking, often misunderstood rules & procedures that have both benefited and plagued this Republic since its inception! Put bluntly, we'll let you know if the ship is sinking, when it's time to protest, and (hopefully) when it's time to REJOICE!

Till then, pass the eggnog, pass the single malt, REMAIN CALM and consider placing some of that emotional energy in a VOLUNTEER ROLE with NJ's busiest 2nd Amendment group, CNJFO! You'll certainly feel better #DoingSomething than being a propaganda puppet. There's real WORK to be done, so JOIN HERE from anywhere in the 50 states: www.cnjfo.com/join-us

----The Editor


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