Supreme Court - NYSRPA v. Bruen - Megathread

[pastera]

But the historical analysis takes place at the time of the founding, not in the modern era. It doesn’t matter if even 49/50 states in 2024 think AWB/mag bans are cool today, if there’s no historical tradition of it from 1791 then it’s unconstitutional.

Realistically Bruen isn’t even involved with arms ban cases, SCOTUS already did the historical analysis in Heller and found that only dangerous and unusual weapons can be banned. If a weapon is in common use by Americans for lawful purposes, including but not limited to self defense, then it can’t be banned.

My point was that scotus already determined that lack of laws in a certain area can be precedent that that area is outside the government's purview. Even though this was stated as a method of historical analysis, if it is valid to interpret the past it should be valid in the present.
The majority of states have no bans even though they face similar crimes as those that states with bans use as justification. Those states do so because they are following the will of the people who believe the government not to possess those powers

 

[Picton]

Alito, Barrett, Gorsuch and Thomas are smart enough that they wouldn't grant cert in a case they were concerned with if they only had the minimum four votes.

This is what I'm thinking. They want a sure thing, and they probably want the "right" sure thing (Thomas especially). They want this entire issue put to bed, and it takes a case that covers all the legal angles to create a sweeping ruling like that. Not all cases are created equal, even though they're all about 2A and we want them all overturned. They're trying to do this systematically.

 

[Joeldiaz]

Alito, Barrett, Gorsuch and Thomas are smart enough that they wouldn't grant cert in a case they were concerned with if they only had the minimum four votes.

But we know for a fact they don’t just have the minimum votes to grant cert. They for sure have the minimum votes to win, not even counting Chief Justice Roberts (assuming you’re right and ACB is on our side).

At the very least we also have Justice Kavanaugh who would also join the majority and strike down AWBs. We know because he already did this back when he was just Judge Kavanaugh on the DC Circuit where he dissented in the Heller II case: (PDF Warning)

“In my judgment, both D.C.'s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.” -Kavanaugh, Circuit Judge, Dissenting.

That’s 5/9 votes right there.

 

[pastera]

But we know for a fact they don’t just have the minimum votes to grant cert. They for sure have the minimum votes to win, not even counting Chief Justice Roberts (assuming you’re right and ACB is on our side).

At the very least we also have Justice Kavanaugh who would also join the majority and strike down AWBs. We know because he already did this back when he was just Judge Kavanaugh on the DC Circuit where he dissented in the Heller II case: (PDF Warning)

“In my judgment, both D.C.'s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.” -Kavanaugh, Circuit Judge, Dissenting.

That’s 5/9 votes right there.

We don't know that they do not have the minimum votes for a magazine/AWB case - what we know is that they don't want the specific cases currently before them.
They pick and choose cases very carefully and steer clear of those not fully ripe - there is too much out there that hasn't made it completely through the circuits after Bruen for them to really put any thought into taking a case.

 

[Joeldiaz]

We don't know that they do not have the minimum votes for a magazine/AWB case - what we know is that they don't want the specific cases currently before them.
They pick and choose cases very carefully and steer clear of those not fully ripe - there is too much out there that hasn't made it completely through the circuits after Bruen for them to really put any thought into taking a case.

That’s what I was arguing from the very beginning and I guess you all got lost in the sauce. SCOTUS wants to let these cases percolate through the inferior courts first and pick the perfect vehicle to strike down AWBs, which is why they hate getting involved in interlocutory appeals.

 

[VTski4x4]

That’s what I was arguing from the very beginning and I guess you all got lost in the sauce. SCOTUS wants to let these cases percolate through the inferior courts first and pick the perfect vehicle to strike down AWBs, which is why they hate getting involved in interlocutory appeals.

Yeah, well, if their plan is to strike down AWBs, they're wasting a lot of valuable time and lawyer fees $$$.

 

[milktree]

Yeah, well, if their plan is to strike down AWBs, they're wasting a lot of valuable time and lawyer fees $$$.

Maybe, maybe not.

If their plan is to strike down AWBs, they better have a damn solid case for doing it. No shortcuts. The more ripe everything is, the harder it is to contradict them in the future.

 

[Joeldiaz]

Yeah, well, if their plan is to strike down AWBs, they're wasting a lot of valuable time and lawyer fees $$$.

SCOTUS doesn’t necessarily care about that. They play the long game more often than not and are looking down the chessboard 2-3 moves ahead. The case has to be the right vehicle.

 

[Picton]

SCOTUS doesn’t necessarily care about that. They play the long game more often than not and are looking down the chessboard 2-3 moves ahead. The case has to be the right vehicle.

Couldn't agree more.

Haste now means Bruen and its supporting cases might get overturned down the road, even as soon as 50 years from now; look at Roe. It was a sketchy case decided hastily, and it didn't hold up.

If I'm a SCOTUS justice with a pro-2A agenda, I want the best case to come along so that the opinion I write will be durable for 100, 200, or even 300 years. Measured against that, waiting two or three more years for a ripe case is nothing, despite its effect on gun owners who are suffering in the meantime.

 

[pinefd]

Couldn't agree more.

Haste now means Bruen and its supporting cases might get overturned down the road, even as soon as 50 years from now; look at Roe. It was a sketchy case decided hastily, and it didn't hold up.

If I'm a SCOTUS justice with a pro-2A agenda, I want the best case to come along so that the opinion I write will be durable for 100, 200, or even 300 years. Measured against that, waiting two or three more years for a ripe case is nothing, despite its effect on gun owners who are suffering in the meantime.

My concern about being patient, is what the makeup of SCOTUS will look like a few years from now. I'm afraid it won't be as 2A friendly by then.


Frank

 

[Joeldiaz]

My concern about being patient, is what the makeup of SCOTUS will look like a few years from now. I'm afraid it won't be as 2A friendly by then.


Frank

It all depends on the outcome of this next 2024 election, which is another reason a lot of these anti-gun circuits are intentionally slow-walking these cases. They’re hoping Biden wins again so that they can replace a few of the older conservative Justices with more liberals like KBJ. The two most pro-2A Justices on SCOTUS (Alito & Thomas) are both knocking on death’s door and about to kick the bucket any day now.

 

[Nightshift]

My concern about being patient, is what the makeup of SCOTUS will look like a few years from now. I'm afraid it won't be as 2A friendly by then.


Frank

Take it a step further…….

It doesn’t matter what this collection of Justices say or rule. A future Libtard court will just reverse the decision(s). And i can tell you they won’t worry about interlocutory anything. I hate that F’ing word!!!

 

[Picton]

My concern about being patient, is what the makeup of SCOTUS will look like a few years from now. I'm afraid it won't be as 2A friendly by then.


Frank

That's valid from our perspective, but not from SCOTUS'.

Philosophically, I don't want the justices worrying about politics. I want them worrying about the law. Now, I'm also realistic enough to realize that's a naive way to think about this, but still: when thinking about SCOTUS, you have to think long-term. Like, longer than 10-20 years. That's the only way their role makes sense. You want to create law that sticks.

I'll put it this way: suppose SCOTUS changes its conservative/liberal balance in five years, and that state of affairs lasts for ten years (until 2040 or so, when the conservatives take over again). Despite the cost to myself, personally, I'd rather that conservative court get ironclad rulings in place on 2A, even if it takes until 2045 or so, so that my kids and grandkids and great-grandkids won't even have to worry about their RKBA even slightly. I'd trade that for a short-term gain that gets me some rights now, at the cost of a neutered RKBA in the 22nd century.

I know that's a bitter pill, and not all will agree with me. But that's okay. We took 70-some years to ruin RKBA, and only now are we starting to fight back. We should probably expect it to take that long to restore our rights, unfortunately. Too bad that we're living at the wrong part of the curve, but someone has to.

"These are the times that try mens' souls."

 

[MaverickNH]

Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arm

papers.ssrn.com

While not obvious from the abstract below, the “especially prior drug convictions” bit was the tip-off - the paper is all about disproportionate incarceration of Blacks and their loss of 2ndA rights as felons for “victimless crimes”. It’s a valid point, but if the main point, why not make it clear in the Abstract? The reason is that the law student author was being careful to avoid being accused of anti-racist activism. Women overtly playing the Gender Card or Blacks playing the Race Card is still career-limiting in the law profession. Fani Willis did Black female lawyers no favor in Georgia’s prosecution of Trump.

The author speaks of “communities” but means Black people - more coded language. “Americans of color” popped up deep in the paper too - first I’ve heard that label.

Liberals talk funny, especially when appearing to support the 2ndA, if even tangentially.

”The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws. This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal. I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi. I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.”

 

[Rob Boudrie]

There is already a federal (but not MA) exclusion of certain felonies from the definition of felon for the purposes of prohibited person status, specifically felonies regarding restraint of trade or anti-trust violations. I wonder who was owed a favor back when NFA38 was authored. This smells like the Panera "baking bread" exeption to the new CA minimum wage law.

There is a correlation between running an undocumented pharmacy and gun violence, so that is not really a good felony to base a case on.

It would be better to attach it based on non violent felonies,like failure to report a hotel fire; receipt for deposit by insolvent banking institution or running a pump and dump(*). Offenses that are not associated with violent activity would make for a much more solid case ... bad cases make bad law.


* - I'm refering to stock manipulation, not illegal dumping of septic tank pumpouts into the public sewer.

 

[sbhaven]

No surprise. The US district court for the central district of CA upheld CA's AWB ban (Rupp v. Becerra/Bonta). The court uses the "dangerous and unusual" reasoning, along with laws during the period of Reconstruction, and tosses in mass shootings as a societal concern and dramatic technological development to uphold the ban as constitutional. All of which appear to be at odds with Bruen.

Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment

CONCLUSION
The very text of the Second Amendment contemplates that the right to bear arms will be subject to regulation by noting that a “well regulated Militia” is “necessary to the security of a free State.” U.S. Const. amend. II. The English Declaration of Rights, on which our Bill of Rights was based, similarly accounts for the need for this regulation and only guarantees “Arms for [] Defence … as allowed by Law.” Heller, 554 U.S. at 593 (citing 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441). For as long as the Supreme Court has recognized an individual right to bear arms, it has recognized that this is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Understanding that the Second Amendment has always been subject to regulatory limitations and understanding that a state may use its police powers to withhold dangerous and unusual weapons from private citizens, California has singled out a subset of firearms for such restriction. The AWCA is constitutional because either: (1)assault rifles are dangerous and unusual and, therefore, not protected by the Second Amendment at all; (2) assault rifles may be banned in accordance with this nation’s regulatory tradition of placing severe restrictions on dangerous and unusual weaponry, including a tradition of outright possession bans that proliferated during Reconstruction when states first became subject to the Second Amendment; or (3) mass shootings with assault rifles pose such an unprecedented societal concern, engendered by dramatic technological development, that California is constitutionally permitted to use a slightly different regulatory method that is still consistent with a general tradition of limiting offensive and unlawful use of dangerous and unusual weapons.

For the foregoing reasons, the Court GRANTS the Attorney General’s motion for summary judgment and DENIES Plaintiffs’ motion. Within five (5) days of the date of this Order, the Attorney General shall file and lodge a Proposed Judgment.

Edit to add: If you hate Mark Smith, scroll by. He opines on this opinion:

View: https://twitter.com/fourboxesdiner/status/1768835796998439238

Mark W. Smith/#2A Scholar
@fourboxesdiner
#2A The Rupp v. Bonta opinion by CA federal Judge Josephine Staton is dumb, reflects a misunderstanding of her role as an "inferior" court judge, and even misquotes Supreme Court case law. If this were a law review article edited by young law students, the opinion as drafted would be sent back to the judge with demands for correction. In my view, the decision, reflects the judge's ignorance of the law or her disingenuousness (or both). Ironically, this is a helpful 2A decision because she was never going to rule correctly and, thus, it is better when anti-2A judges write moronic trash like this opinion instead of ruling against 2A in a more nuanced, persuasive way. It kills their credibility with SCOTUS, which is all we should care about re today's "Arms/AR-15 ban" fights. And, yes, do not fear.... I intend to do a detailed break down of the opinion listing the errors contained therein in a Four Boxes Diner video.
@MorosKostas @2Aupdates


View: https://twitter.com/fourboxesdiner/status/1769043170585727353

Mark W. Smith/#2A Scholar
@fourboxesdiner
#2A I have reviewed CA Judge Staton's opinion more closely and it is even worse than first thought. One thing that comes across, in my opinion, is that she does NOT want Americans to have guns and she will write anything needed to accomplish that goal. Her opinion bends over backwards to pretend to be following the law but she clearly does not. A pathetic performance UNLESS all you care about is the result, which I suspect is all the anti-gunners and their handmaidens on the bench care about. A couple detailed videos breaking this down are coming up
@2Aupdates @MorosKostas

 

[Parker Schreiber]

No surprise. The US district court for the central district of CA upheld CA's AWB ban (Rupp v. Becerra/Bonta). The court uses the "dangerous and unusual" reasoning, along with laws during the period of Reconstruction, and tosses in mass shootings as a societal concern and dramatic technological development to uphold the ban as constitutional. All of which appear to be at odds with Bruen.

Order Granting Defendant’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment

WTF quotes:

"Pistol Grip—§ 30515(a)(1)(A): It is undisputed that a pistol grip allows a shooter to reload faster"
"It is undisputed that a forward pistol grip “can help insulate the non-trigger hand from heat during rapid fire.”
"even under Plaintiffs’ version that looks only at ownership rates, there is no genuine dispute as to a material fact that assault rifles are unusual."

 

[xtry51]

The problem here is not the lower courts. It's SCOTUS. Because they never strip prosecutors or lower court judges of their immunity for issuing rulings that clearly violate rights.

 

[Picton]

The problem here is not the lower courts. It's SCOTUS. Because they never strip prosecutors or lower court judges of their immunity for issuing rulings that clearly violate rights.

I'm almost certain SCOTUS has zero power to do anything even remotely consequential to US attorneys or federal circuit judges. I'm 100% sure they have no power to do anything at all to state court judges, DAs, AGs, or defense lawyers.

The remedy for citizens who've had their rights violated is a lawsuit, not a nonexistent fiat-based smackdown from SCOTUS. They've never had that power AFAIK.

 

[xtry51]

I'm almost certain SCOTUS has zero power to do anything even remotely consequential to US attorneys or federal circuit judges. I'm 100% sure they have no power to do anything at all to state court judges, DAs, AGs, or defense lawyers.

The remedy for citizens who've had their rights violated is a lawsuit, not a nonexistent fiat-based smackdown from SCOTUS. They've never had that power AFAIK.

There is nothing stopping them from stating in a ruling qualified immunity was broken when the prosecutors and judges clearly violated a right. They don't need to punish directly. All they need to do is state QI no longer applies and citizens can then sue the officials on a personal, civil level. As soon as one public official is forced into personal bankruptcy, this bullshit would stop.

 

[Picton]

There is nothing stopping them from stating in a ruling qualified immunity was broken when the prosecutors and judges clearly violated a right. They don't need to punish directly. All they need to do is state QI no longer applies and citizens can then sue the officials on a personal, civil level. As soon as one public official is forced into personal bankruptcy, this bullshit would stop.

Um, no?

If they're inclined to overturn QI (I don't think they are, unfortunately), they need to rule on a case involving QI, and it needs to be a case the circumstances of which will allow them to overturn it comprehensively.

That means waiting for that case. And that's if SCOTUS wants to overturn it. Lower courts and the politicians who control access to them are likely to be careful NOT to allow such a case to get close to SCOTUS.

They can't snap their fingers and invent doctrines out of whole cloth. They need to RULE on a legal question that's brought before them.

 

[milktree]

Um, no?

If they're inclined to overturn QI (I don't think they are, unfortunately), they need to rule on a case involving QI, and it needs to be a case the circumstances of which will allow them to overturn it comprehensively.

That means waiting for that case. And that's if SCOTUS wants to overturn it. Lower courts and the politicians who control access to them are likely to be careful NOT to allow such a case to get close to SCOTUS.

They can't snap their fingers and invent doctrines out of whole cloth. They need to RULE on a legal question that's brought before them.

Sure they can. Qualified Immunity itself was invented out of whole cloth by SCOTUS.

 

[xtry51]

Um, no?

If they're inclined to overturn QI (I don't think they are, unfortunately), they need to rule on a case involving QI, and it needs to be a case the circumstances of which will allow them to overturn it comprehensively.

That means waiting for that case. And that's if SCOTUS wants to overturn it. Lower courts and the politicians who control access to them are likely to be careful NOT to allow such a case to get close to SCOTUS.

They can't snap their fingers and invent doctrines out of whole cloth. They need to RULE on a legal question that's brought before them.

Not saying abolish QI in the ruling. They have established the boundaries of QI (in a garbage way but that doesn't matter for this discussion). They need only state in the ruling the violation of the right as established by case law clearly nullifies their QI and parties may seek compensation for having to wait for this decision.

Nothing I'm saying requires abolishing QI. QI already has stated thresholds for voiding it. They are just never enforced.

 

[sbhaven]

If you hate Mark Smith's Four Boxes Diner videos, scroll by the following video where he discussed the recent Rupp v. Bonta opinion upholding the CA AWB.


View: https://www.youtube.com/watch?v=bzjUsaz8TC0

Federal Judge Josephine Staton issued major ruling upholding California's "assault weapon" ban in an opinion full of legal errors. Mark Smith Four Boxes Diner discusses the lowlights of this opinion.
Edit to add: Smith indicates he may do a second video on the opinion.

 

[Joeldiaz]

Yeah, these are very annoying and often not on topic. Going to put this on ignore, which I almost never do. Need to go figure out where that is.

See you next time someone posts a Mark Smith video.

 

[HARRYM]

The Left has already made it clear that upon seizing the majority of both houses and the WH they will ignore any ruling the SCOTUS hands down that they disagree with.

 

[Joeldiaz]

Edit to add: Smith indicates he may do a second video on the opinion.

Can’t wait to see @Coyote33 to give his opinion on the video again.

 

[sbhaven]

Sotomayor rejects emergency application to vacate the 2nd Circuit's stay pending appeal attempt to halt "morality requirements" for NYC licensing rules. The case is Srour v. New York City, U.S., No. 23A870.

Sotomayor Denies Bid to Halt Morality Requirement for Gun Owners

US Supreme Court Justice Sonia Sotomayor declined to put on hold a New York City licensing rule requiring prospective gun owners to show good moral character to own a firearm.

In rejecting a stay request on Thursday relating to a district court order that’s being appealed, Sotomayor turned away yet another bid to prohibit government officials from enforcing their laws while being challenged in court.

Sotomayor, the justice who hears emergency requests out of the New York-based US Court of Appeals for the Second Circuit, denied the request without referring the matter to the full court.

The latest request was filed by a New York resident who says the city’s rule violates the Second Amendment as outlined in the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen.

A separate challenge to the morality licensing requirement is pending before the justices.

The Supreme Court last year turned away attempts to halt an Illinois ban on assault weapons.

 

[sbhaven]

Out of Washington State. Cowlitz County judge Gary Bashor finds the WA magazine ban unconstitutional under the 2nd Amendment. The WA Supreme Court imediatly (within 2 hours) stays Judge Bashor's opinion keeping WA's magazine ban in place.

Judge Bashor's opinion:
https://s3.documentcloud.org/docume...-guns-inc-ruling-and-orders-23-2-00897-08.pdf

WA’s ban on high-capacity gun magazines ruled unconstitutional

 

[Bonesinium]

Um, no?


They can't snap their fingers and invent doctrines out of whole cloth.

Lol, that's where qualified immunity comes from!

But I digress. SCOTUS can do whatever the heck they want the same way all courts do whatever the hell they want. Nothing matters. The law is meaningless. Their rulings are meaningless. Because neither are followed unless it suits them.

There will never be any magical ruling that will ensure our rights are respected by government. Like everything in life, you only have what you can protect. Governments rule by force and not by law and that will never change. Unless we the people respond in kind, there will be no temporary change.

All men are born equally free and independent; Therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.​

June 2, 1784​

​

All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.​

June 2, 1784​

​

All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.​

December 1, 1982​

​

When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.​

June 2, 1784​

​

Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience.​

June 2, 1784​

​

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.​

June 2, 1784​