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Old October 19, 2021, 01:04 AM   #1
Bud Helms
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Last Brief Filed In SCOTUS Carry Case Is A Thing Of Beauty

I came across this article in a link on one of the aggregate news sites. As I read it I was struck by the quality of writing and the clarity of arguments made.

This is the case of the New York State Rifle & Pistol Association, Robert Nash and Brandon Koch (petitioners) versus the Superintendent of the NY State Police, the Justice of the NY Supreme Court and the Licensing Officer for Rensselaer County (respondents). Referred to in news articles as the NY Rifle & Pistol Assoc vs New York State.

This is an artful presentation. Just awesome. At the link, the red sidebars mark excerpts from the argument.

Here is an example: "When the state is not rewriting the historical record, it is attacking arguments petitioners did not make, while defending a law it did not pass and licenses it did not issue. The state proceeds as if its law restricts the right to carry only at Yankee Stadium and petitioners demand a right to carry always and everywhere. But very nearly the opposite is true. Petitioners do not challenge any of New York’s many separate laws prohibiting handguns in specific, sensitive places. They contest New York’s effort to treat virtually the entire Empire State as a sensitive place and to prohibit petitioners from carrying their handguns for self-defense virtually anywhere, even (contrary to the state’s repeated claims) in remote “back country” areas."

... Well then!

Here is the link to the article: https://bearingarms.com/camedwards/2...-beauty-n51030
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Old October 19, 2021, 05:18 PM   #2
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Bud,

Thanks for posting that.

It is always interesting to read the tortured prose, cherry-picked factoids, unscholarly methodology, and incoherent conclusions expressed in many anti-gun theses. I'm reminded of the 'historian' Michael Bellesiles and his (later-proven) fraudulent thesis that early Americans did not rely on their firearms and were not proficient with them. In contrast most pro-gun theses are quite clear.
[Wiki citations can be problematic, however, this citation offers a succinct reminder: https://en.wikipedia.org/wiki/Arming_America ]
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Old October 19, 2021, 06:49 PM   #3
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This is wonderful news. New Yor-Qatar is just like New Jerzistan in that it restricts its free citizens from exercising their enshrined rights.
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Old October 21, 2021, 03:43 PM   #4
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So, it looks like Paul Clement will be delivering the oral arguments. Good. He was brilliant in the orals for McDonald v. Chicago, and his arguments in Peruta convinced an otherwise hostile judge to rule for a right to bear arms outside the home in Peruta. I'm glad he's taking point on this.
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Old October 21, 2021, 04:14 PM   #5
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Apparently the Fourth Circuit recently rules pro-2A, and it could have a direct impact on cases in my home state of PA. It also seems to have deflated a lot of the case of the anti-gunners in New Yor-Qatar.
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Old November 3, 2021, 11:07 AM   #6
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Oral argument:

https://www.youtube.com/watch?v=lgzqGj_kuq4
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Old November 4, 2021, 09:23 AM   #7
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I listened to the oral argument live yesterday. Most commentators I've seen think the Court is likely to grant relief, though there is some debate about how broad it will be. I did relish a question from one of the justices (I don't know all their voices) who asked the state's attorney about a word she left out of a quote in a footnote in her brief. It was an early law or ordinance that made it an offense to ride out armed, but it was really an offense to ride out armed "offensively." The justice thought it entirely changed the meaning of the ordinance, but the state's attorney stuck to her guns (pun intended) and disagreed.This is the sort of thing, IMO, that one should never do in a brief.
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Old November 4, 2021, 10:35 AM   #8
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I know it's hard to handicap court cases but could someone speculate what a favorable ruling of this case mean nationwide?
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Old November 4, 2021, 10:59 AM   #9
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a little help...

The regular news is confusing to me, seems to be all "the supreme court is going to allow CCW for everyone...there will be blood in the streets (like there isn't now??)...the end of the world as we know it, .....dogs and cats sleeping together...etc.etc...

And, I know that the court, WHEN it rules, will rule as it sees fit.
So, what I'm asking is, can someone tell me (in simple terms) what is being sought with the case?

Are they seeking to have the NY permit system abolished?? (what the news implies) or is the suit about the "show cause" requirement, and the entirely arbitrary decision of each individual judge to issue or not, based only on their personal feelings?
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Old November 4, 2021, 11:26 AM   #10
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Good question 44 AMP. Maybe that will answer my question too
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Old November 4, 2021, 12:24 PM   #11
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The issue for which the petitioners sought review was "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens
from carrying handguns outside the home for self-defense".


The court accepted review with a more limited issue:

GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE'S
DENIAL OF PETITIONERS' APPLICATIONS FOR CONCEALED-CARRY LICENSES
FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.

With issue framed this way, the court can find for the petitioners on a very narrow basis and not get to the broader issue of whether states have the power to ban concealed carry. They would only need to find, for example, that the discretionary character of the prohibition is inconsistent with a "right".

Or they could find it necessary to first resolve whether any incorporated fundamental right is subject to state licensing, or conceivable find that concealed carry might licensing may be unconstitutional only if open carry is also prohibited, so long as carry itself isn't prohibited.

How would a ruling apply to states? That depends on the language of the decision. If the decision is that NY overstepped by granting its people discretion over the exercise of a right, but not in regulating how people carry, I'd expect only "may carry" states to have a problem. If the decision is that states have no power to regulate this fundamental right at all, a breadth as you see in Roe v. Wade, then all state licensing systems have a problem.

I would expect a narrow decision, but I've been wrong before.

Last edited by zukiphile; November 4, 2021 at 12:44 PM.
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Old November 4, 2021, 04:30 PM   #12
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ok. so, if I'm understanding this correctly the High Court agreed to hear arguments about IF Self Defense was a valid reason for a NY official to deny a ccw permit.
And nothing else??

not about the permit system overall, and not about the authority to deny applications arbitrarily, but ONLY if denial for "self defense" was valid. Is that right??
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Old November 4, 2021, 06:01 PM   #13
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Quote:
Originally Posted by 44 AMP
ok. so, if I'm understanding this correctly the High Court agreed to hear arguments about IF Self Defense was a valid reason for a NY official to deny a ccw permit.
And nothing else??

not about the permit system overall, and not about the authority to deny applications arbitrarily, but ONLY if denial for "self defense" was valid. Is that right??
I see where one could get that from the cert document language I quoted, but I'd say that's not exactly correct based on a few minutes of the oral argument I heard.

Apparently the NY law requires an unusual or atypical self defense need, and give the granting officer complete discretion to determine whether that's been met.

WHETHER THE STATE'S DENIAL OF PETITIONERS' APPLICATIONS FOR CONCEALED-CARRY LICENSES FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.

Emphasis added. The way I am reading this, there is the potential for review of any part of the state's denial all the way from the discretion of the issuing official to the claimed power of the state to license a claimed right.

If the State's denial violate the 2d Am., why does it violate it? The answer could be very narrow or very broad.
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Old November 4, 2021, 08:08 PM   #14
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Quote:
Apparently the NY law requires an unusual or atypical self defense need, and give the granting officer complete discretion to determine whether that's been met.
I think this is almost correct. While I don't know for certain, I believe that the actual statute law does not require unusual or atypical need, i believe it just specifies a need, and it is the issuing agents that determine what need qualifies and I'm CERTAIN many if not nearly all will only accept a need that you or I would consider unusual or atypical.

I base this opinion on personal experience, having grown up in NY state and obtained a pistol permit there in 1975. At age 18!

I don't think very many readers here really understand what a NY pistol permit requires, but then, neither do many New Yorkers.

I left NY "officially" in 1979, so I cannot and willnot speak to the exact state of the law as it exists today. I am going to share what I know for a fact to have been the requirements in 1975 and allow the reader to draw their own conclusions about if current NY law is more lax or more strict than it was then,

In 1975, a permit was required to POSESS any handgun in public or in your home. The permit allowed possession and OPEN carry where otherwise legal. The Permit issued anywhere in the state other than New York City was NOT VALID in New York City.

"Everyone knew" there was no concealed permit for "ordinary folk". Since I wasn't interested in concealed carry at that time I don't know the specific requirements but it was general knowledge that one needed a special reason in order to be approved, IF such a thing was even possible.

The permit to possess application required 5 (five) sets of fingerprints, 4 (four) photographs (passport type), and 3 (three) character references (citizens in good standing in the community and who could not be members of your family or extended family). And the fee, (at the time, it wss something like $20 I'm sure today its much higher)

You were investigated by the County Sherriff, (at the least I don't know who else but we were told one set of prints went to the FBI..)
and THEN it would go before a judge to be approved or denied. And the judge had complete and unquestioned authority and could give any reason, or none, for his decision.

There was a space on the application for the reason for applying. What you put in that box was critical to getting your permit or being denied. You had to know what the judge wanted to see. For example, the judge in Saratoga county would only approve a permit if it was for "Hunting and Sporting purposes". He would not approve any application that gave "self defense" as the reason for applying. The judge in Albany county would only approve applications listing self defense and would deny everything else.

Entirely up to each individual judge what he would approve or deny.

The physical permit was wallet size paper (not even thin cardstock like the NY driver's license) non laminated, with your picture stapled to the front and the state seal embossed over part of the picture. Thumbprint on the back. Also on the back were those handguns you were permitted to possess, listed by maker, caliber, barrel length, and serial number. Every pistol you possesed was listed on the permit, and you could not possess a handgun that was NOT listed on the permit.

I mention I got my permit at age 18. This ALSO was entirely up to each individual judge. State law did not specify any minimum age, for a possession permit. And I think there was a good and valid reason for that, learning that reason was why I applied at age 18 and so did my younger brother when he turned 18.

We learned the the reason due to a car wreck my family was in about 1970, 4 car collision. Fatalities were involved though we got through with only relatively minor injuries. However that led to us looking at a lot of things, and we discovered that had my father died, his pistols would have to have been surrendered to the authorities. Dad was an NRA rifle. pistol and hunter safety instructor and at the time had 6 handguns, more than anyone else around in our circle of friends at the time.

Anyway what we learned was that if no one else in the house had a permit, that listed Dad's pistols on it, then they would have to be surrendered. If we turned them over to the State Police, they would keep them 30 days then destroy them. (or so they told us) If we turned them in to the Sherriff, AND applied for a permit, they would keep them until the permit was approved or denied.

So Mom applied for her permit right away, and was granted, listing all Dad's pistols on it. My brother and I did likelwise when we turned 18, because we had learned the the judge in our county looked at each individual case under 21, and decided it its merit, rather than just having a blanket policy.

Now, here we have a case of the judge being the only authority deciding the conditions for issue to have worked in our favor. This is the (unfortunately rare) upside to sole discretionary authority. Its not a 100% bad thing, but sadly its more like a 98-99% bad thing due to the individuals and their beliefs involved.

Look carefully at any "shall issue" statues, and see if they are set in stone or not. its likely that the ones that are very ridgid not only prevent a baseless ruling against you but also prevent the judge from giving you any kind of break in your favor. Particularly regarding age limits.

Also, the NY state permit I got was valid FOR LIFE, unless revoked by a judge. There was no "reapply every X years".

I understand that has since been changed. I don't know what else has, but I'm sure its more than just the fee.

and, just FYI, New York never forgets. They may be decades remembering, but they never forget. I moved out of NY state in 1979. In 2002, Saratoga country sent me a letter informing me that since I was no longer a resident of NY state, my permit was no longer valid. And, they wanted it BACK!!!
Yes, that's right, they wanted the non-laminated wallet paper they issued 27 years earlier, returned!!! And, they also wanted to know the location of the guns listed on it. (my Dad's pistols, which I had not seen in decades).

My response would not pass TFL filters, but you can imagine..something on the order of go pound sand,.. but more vulgar

There more involved, but this is already long enough, I just wanted everyone to realize what honest, law abiding ordinary people had to go through to get a permit just to own and possess a handgun in New York state what is now 46 years ago. Think its any easier today? My bet is that it isn't.

so, now we have the US SUPREME COURT looking at the NY system, mostly likely only with a laser beam narrow focus, but perhaps they'll look just a bit wider and who knows, at this point what they will decide?
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Old November 4, 2021, 10:46 PM   #15
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As I read both the briefs filed and reports of questions asked by the Justices, the issue will boil down to citizens rights to "bear" arms (concealed) in public for self defense, and where that Constitutional Right may legitimately be denied by the State:

Quote:
Originally Posted by Associated Press
"Chief Justice John Roberts and other conservative members of the court, which has a 6-3 conservative majority, suggested New York’s law goes too far. Why, Roberts asked, does a person seeking a license to carry a gun in public for self defense have to show a special need to do so. “The idea that you would need a license to exercise a right is unusual with regard to the Bill of Rights,” he said.

But Roberts was also among the justices who pressed a lawyer for the law’s challengers on where guns might be prohibited. Could a football stadium or a college campus be off limits, he asked.

“What sort of place do you think they could be excluded from? Any place where alcohol is served?” Roberts asked.

Paul Clement, arguing on behalf of New York residents who want an unrestricted right to carry concealed weapons in public, replied that while government buildings and schools might be off limits, bars “might be a tougher case for the government.”

But answering questions from Justices Elena Kagan and Amy Coney Barrett, Clement suggested that perhaps bans on guns in the New York City subway system, Yankee Stadium and Times Square on New Year’s Eve might be all right."
In my opinion as well, the SCOTUS decision will likely admit that New York is within its rights to narrowly restrict locations where citizens may NOT bear concealed firearms for self-defense; however, (as stated in the brief filed by Clements linked by the OP) will find New York over-reaches in defining the entire State of New York as a de facto 'restricted location'.

This will likely send the matter back to the legislature to define where the line shall be drawn...

https://www.breitbart.com/news/supre...n-rights-case/
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Old November 5, 2021, 04:22 PM   #16
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Quote:
Originally Posted by Doc Intrepid
In my opinion as well, the SCOTUS decision will likely admit that New York is within its rights to narrowly restrict locations where citizens may NOT bear concealed firearms for self-defense; however, (as stated in the brief filed by Clements linked by the OP) will find New York over-reaches in defining the entire State of New York as a de facto 'restricted location'.
I hope the SCOTUS will also rule that New York's requirement for people to demonstrate a special need before they can obtain an unrestricted carry permit will also be axed. There's nothing in the 2A that says "The right to keep and bear arms for those who demonstrate extreme danger shall be be infringed."
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Old November 7, 2021, 03:47 AM   #17
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Even outside NY state there are places where the right to carry is limited (courthouses, other govt bldgs), but NYC is a place where I'll say in Times Square on New Year's Eve I wouldn't even consider drawing a gun in self defense because the chances of overpenetration or a miss will likely mean certain danger to bystanders.

Of course, that is a personal decision I make because I'm not a moron and understand the consequences of a DGU in such a crowded place. That said, would banning conceal carry in Times Square on 12/31 stop someone from doing it? No, laws stop absolutely nothing from being done, they just allow for punishment after the fact.

If the State of New York and others have the power to deny the use of certain items for self defense then they apparently they apparently have the power to deny a person from using any form of self defense and at that point we'll end up like England where even if a woman uses a dye to identify a rapist and it blinds him if it goes in his eye, she's guilty of assault.

The issue at hand is can a state deny a carry license for reasons of self defense, so I don't see the shall issue system of other states being affected, it's only going to be the few may issue states that are affected.

Even then, and I've discussed this before, but the next step those states will take is to deny people a permit they'll create a qualification process so difficult as to be impossible to pass, such as hitting a quarter at 1000 yards 100 out of 100 times or having to take 800 hours of classroom training at your expense.
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