The Firing Line Forums - View Single Post - Drake (NJ carry permits) files for cert with SCOTUS

62coltnavy · February 7, 2014, 01:02 AM

I don't think SCOTUS will grant review simply to state that the 2A applies outside the home. Heller was sufficiently clear on the point, notwithstanding that it was not a holding in the case, and the court has been double dared to grant cert by several decisions concluding that the right does not exist outside the home. (I don't recall immediately which circuit it was that stated if the Supremes wanted the right to apply, they had better say so in less ambiguous language. Well, that didn't get review.

I see that two large issues are presented that must eventually be answered. First, what is the proper standard of review (Heller and McDonald assiduously avoided the question), and even assuming it is "intermediate scrutiny," what does that mean? As noted in the petition, some courts require actual evidence, others pay lip service to the standard, but apply what amounts to rational basis by refusing to evaluate a legislative decision--if the legislature said that the restriction was necessitated for "public safety," the court would not revisit that issue. [Personally, I think this "punt" is total political nonsense.]

Second, there is the question of whether the right to carry can be regulated in some fashion, and how the history of gun control plays into the equation. Once upon a time, concealed carry was evil--cases the Supremes specifically mentioned in the Heller analysis--but today, open carry is anathema to the soccer mom crowd, and concealed carry is definitely preferred under the "out of sight, out of mind" rational. Thus, arguably, the old case law is no longer apposite to current conditions, yet the court must decide the issue irrespective of the fashion of the day.

Which raise a purely political point that I think nonetheless has played a controlling role in the lack of a grant of cert to date. The issue revolves around the question of "may issue" and "shall issue," and the logical conclusion that, if carry outside the home is a guaranteed right (which seems likely), then the state must allow some method by which that right can be exercised by the average citizen, whether open carry or concealed carry (or both). If one is prohibited, the other must be allowed.

There is only one remaining "no issue" jurisdiction, D.C., that prohibits any kind of carry except locked unloaded under the FOPA. But that court is doing all that it can to avoid cert by delaying its decision in Palmer v. D.C. I cannot conclude, particularly after the years delay and the Second Circuits refusal to do anything about it, that the delay is anything but intentional. So we can disregard the Second for the purpose of this discussion.

There are a number of jurisdictions that are virtual no issue for CCW (despite a "may issue" regime), including NY, NJ, Hi and Ca. Of these, jurisdictions, on the Ninth has not weighed in. There are currently pending at least five "may issue" challenges (and one open carry challenge, currently appealing the denial of a preliminary injunction) that are pending determination, Richardson, and Peruta being the two lead cases (to which the Hawaii case is joined), with Birdt and a companion to it (also filed by attorney Birdt) chugging along behind. The lead cases were argued in December 2012, but no decision has issued. Obviously the decision will be hugely important.

I think that SCOTUS is waiting on the Ninth, but it is also possible that the Ninth is waiting on SCOTUS so that it does not have to decide a case that may have massive impact. Who will blink first?

February 7, 2014, 01:02 AM	#20
62coltnavy Senior Member Join Date: February 1, 2011 Posts: 356	I don't think SCOTUS will grant review simply to state that the 2A applies outside the home. Heller was sufficiently clear on the point, notwithstanding that it was not a holding in the case, and the court has been double dared to grant cert by several decisions concluding that the right does not exist outside the home. (I don't recall immediately which circuit it was that stated if the Supremes wanted the right to apply, they had better say so in less ambiguous language. Well, that didn't get review. I see that two large issues are presented that must eventually be answered. First, what is the proper standard of review (Heller and McDonald assiduously avoided the question), and even assuming it is "intermediate scrutiny," what does that mean? As noted in the petition, some courts require actual evidence, others pay lip service to the standard, but apply what amounts to rational basis by refusing to evaluate a legislative decision--if the legislature said that the restriction was necessitated for "public safety," the court would not revisit that issue. [Personally, I think this "punt" is total political nonsense.] Second, there is the question of whether the right to carry can be regulated in some fashion, and how the history of gun control plays into the equation. Once upon a time, concealed carry was evil--cases the Supremes specifically mentioned in the Heller analysis--but today, open carry is anathema to the soccer mom crowd, and concealed carry is definitely preferred under the "out of sight, out of mind" rational. Thus, arguably, the old case law is no longer apposite to current conditions, yet the court must decide the issue irrespective of the fashion of the day. Which raise a purely political point that I think nonetheless has played a controlling role in the lack of a grant of cert to date. The issue revolves around the question of "may issue" and "shall issue," and the logical conclusion that, if carry outside the home is a guaranteed right (which seems likely), then the state must allow some method by which that right can be exercised by the average citizen, whether open carry or concealed carry (or both). If one is prohibited, the other must be allowed. There is only one remaining "no issue" jurisdiction, D.C., that prohibits any kind of carry except locked unloaded under the FOPA. But that court is doing all that it can to avoid cert by delaying its decision in Palmer v. D.C. I cannot conclude, particularly after the years delay and the Second Circuits refusal to do anything about it, that the delay is anything but intentional. So we can disregard the Second for the purpose of this discussion. There are a number of jurisdictions that are virtual no issue for CCW (despite a "may issue" regime), including NY, NJ, Hi and Ca. Of these, jurisdictions, on the Ninth has not weighed in. There are currently pending at least five "may issue" challenges (and one open carry challenge, currently appealing the denial of a preliminary injunction) that are pending determination, Richardson, and Peruta being the two lead cases (to which the Hawaii case is joined), with Birdt and a companion to it (also filed by attorney Birdt) chugging along behind. The lead cases were argued in December 2012, but no decision has issued. Obviously the decision will be hugely important. I think that SCOTUS is waiting on the Ninth, but it is also possible that the Ninth is waiting on SCOTUS so that it does not have to decide a case that may have massive impact. Who will blink first?