Kharn
Ultimate Member
I'm hoping the required written permission slip to take an inoperable firearm to the gunsmith will strike a chord as well.
Supreme Court Takes Major NRA Second Amendment Case from New York
- Thread starter Bigfoot21075
- Start date
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Oh they had no choice but to go this route. Once SCOTUS took the petition, it was game over.
The mootness issue has morphed into it's own case. It seems the case law is very vague and can go either way. Does the court want to accept that the law is already dead and move on or does it want to stop future cases from getting this far only to suddenly change laws in order to avoid judicial review by Scotus?
Lots of great comments here today. You motherscratchers are forcing me to increase my mootness doctrine kung-fu skills (which I hope I never have to use again...)
Dan B: Thanks for pointing out that the NYC attorney’s weak response about possible damages.
Cruacious: I think the underlying constitutionality of bearing outside the home is critical, and that it contributes to the idea of “continued public interest” and enabling the case to not be considered moot.
Knuckle Dragger: Yes, my thesis is not conclusive. But after reading what you and some others are saying I think that the court will need to rule on both mootness and the merits.
LeadSled: I think you’re right. If the Court doesn’t rule it enables bad behavior from other municipalities, counties and states.
Press1280: I don’t think the court can accept that the law is already dead and move on. And I don’t think it wants future cases to get this far only to have governments suddenly change laws in order to avoid judicial review by Scotus.
Cruacious & Mark75H: I’m not schooled up enough to know if having the USG have preemptive authority over the states on 2A issues is a good idea or not.
Based on what I'm reading here over the last day I now think the way that NYC managed this case will require the Supreme Court to rule on mootness and the merits. I don't think they have a choice. I also think that existing mootness doctrine gives the Court a means to address the underlying issues as well as clarify important doctrine about the nature of what's moot and what isn't.
On mootness: I draw my conclusions from this summary about mootness here...
http://congressionalresearch.com/RS22599/document.php
According to that site, there are two types of mootness: Article III mootness and prudential mootness. As the name implies, the former is derived from the constitutional requirement that judicial power be exercised only in “cases” or “controversies.” The latter concerns a federal court’s discretion to withhold use of judicial power in suits that — while not actually moot — should be treated as moot for “prudential” reasons. I think that mootness as understood in this case is related to prudential mootness.
The Supreme Court has recognized several exceptions to the mootness doctrine that, if found to apply to a case, would permit federal court adjudication of the dispute.
Possibility of Collateral Legal Consequences.
In Sibron v. New York, an individual convicted of unlawful possession of heroin had completed service of his prison sentence prior to Supreme Court review of the case. The Court explained that the case was not moot: Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid. This exception to the mootness doctrine thus applies in the criminal context, when there is a “possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Even a “remote” possibility of such consequences is enough to save a criminal case from becoming moot.
How I think Possibility of Collateral Legal Consequences applies to this case: The NYC attorney failed to argue convincingly that there wasn’t a “remote” possibility of criminal or other consequences to the plaintiffs or anyone else for any violations of the “old” law. And, the new law does not include written, regulatory limitations on penalties from violating the “old” law. And, as far as I know, people who were arrested or charged with violating the “old” law were not referenced in the new law anywhere saying that they would be “off the hook for any violations of the “old” law.”
Conduct Capable of Repetition, Yet Evading Review.
Some disputes or injuries may arise in the short-term and have the potential for recurrence, but always fail to last long enough to permit federal judicial review. In such a situation, federal courts have justified an exception to the mootness doctrine. A classic example is the landmark abortion case, Roe v. Wade. The Supreme Court explained why the exception should be invoked in this instance: [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more
than once to the same woman, and in the general population, if man is to survive, it will always be with us.
How I think Conduct Capable of Repetition, Yet Evading Review applies to this case: NYC and NY state worked in concert to overturn a clearly unconstitutional law when it was granted cert by the Supreme Court. By not adjudicating mootness and the merits, the Supreme Court will further empower other municipalities, counties and states to engage in similar conduct. The City and State were able to “speed up the clock” to pass legislation that is still constitutionally shaky. They can “repeat” the bad conduct evade review at their convenience because they have the power and resources to do so. Plus, the lower courts demonstrated that they would let the City and State engage in this kind of conduct time and again. Multiple pregnancies, if you will.
Voluntary Cessation.
If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been filed but retains the power to resume the practice at any time, a federal court may deem the case nonmoot. The “heavy burden” of persuading the court that a case has been mooted by the defendant’s voluntary actions lies with the party asserting mootness, and the standard for such a determination is a “stringent” one: “if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur.” This exception is supported by the Supreme Court because, in addition to ensuring that the defendant is not “free to return to his old ways,” there is “a public interest in having the legality of the practices settled.”
How I think I think Voluntary Cessation applies to this case: The NYC attorney bravely tried to claim that the State prevents them from returning to their wrongful behavior. But there’s a gaping flaw in that assertion: The State can change its laws at its convenience and pleasure, and we then fall into the “Conduct Capable of Repetition” trap. NYC has demonstrated that it is willing to violate rule/law making processes (they disregarded the majority of public comments that said the “old” rules should not be changed, and to this day the City refuses to admit that there were constitutional issues with the “old” law, and that there might be issues with the “new” laws.) NYC has placed itself in a substantial hole here. It is hard enough to prove a negative when one is virtuous, but even harder when one has demonstrated that it has no interest in doing so. And NYC and NY State have demonstrated this very clearly in numerous ways (e.g. “home means”, whatever that is, “reasonable diversion in travel”, etc.) Terms like “home means” and issues related to travel diversions are issues that are germane to both mootness and the merits. They speak to the “legality of the practices.” Therefore, in my opinion NYC and NY state remain VERY “free to return to their old ways.” And in addition to the City’s ability to “return to its old ways”, the manner in which they have passed new laws (in concert with NY state) creates a “a public interest in having the legality of the practices settled.”
People on the MDS forum seem to agree that mootness is not clear, and that it could go either way. It could, but with the gravity of the underlying constitutional issues, the ambiguity and uncertainties admitted by the defense (and claimed by the plaintiffs) around mootness, a perceived exposure of a gap in mootness doctrine, and ample leeway to use current mootness doctrine to hear the dispute, I think the court must at least rule on mootness. But, in order for them to do so I think they have to address voluntary cessation, especially with regard to “public interest in having the legality of the issues settled” and “returning to their old ways.” And because they may have to look at the public interest issues, which in some cases speak to constitutionality of the "old" and "new" laws, they may be right in the middle of the merits of the case.
NYC and NY state have engaged in regulatory chicanery and I believe the court must rule on mootness because if they do not do so it's very dangerous for any civil right. Any government can pass any manner of bad law, defend it, and then simply change it using any means (including unscrupulous means) when it advances to the Supreme Court to render the issues moot. I don't think the Supreme Court will want this to continue. I think they will need to rule that mootness also includes how and why new laws related to any dispute may be passed, and create doctrine that says if government does this it creates an opportunity for plaintiffs to automatically claim significant damages. In so doing, they may need to address the merits, too.
NYC really stepped in it on this.
Dan B: Thanks for pointing out that the NYC attorney’s weak response about possible damages.
Cruacious: I think the underlying constitutionality of bearing outside the home is critical, and that it contributes to the idea of “continued public interest” and enabling the case to not be considered moot.
Knuckle Dragger: Yes, my thesis is not conclusive. But after reading what you and some others are saying I think that the court will need to rule on both mootness and the merits.
LeadSled: I think you’re right. If the Court doesn’t rule it enables bad behavior from other municipalities, counties and states.
Press1280: I don’t think the court can accept that the law is already dead and move on. And I don’t think it wants future cases to get this far only to have governments suddenly change laws in order to avoid judicial review by Scotus.
Cruacious & Mark75H: I’m not schooled up enough to know if having the USG have preemptive authority over the states on 2A issues is a good idea or not.
Based on what I'm reading here over the last day I now think the way that NYC managed this case will require the Supreme Court to rule on mootness and the merits. I don't think they have a choice. I also think that existing mootness doctrine gives the Court a means to address the underlying issues as well as clarify important doctrine about the nature of what's moot and what isn't.
On mootness: I draw my conclusions from this summary about mootness here...
http://congressionalresearch.com/RS22599/document.php
According to that site, there are two types of mootness: Article III mootness and prudential mootness. As the name implies, the former is derived from the constitutional requirement that judicial power be exercised only in “cases” or “controversies.” The latter concerns a federal court’s discretion to withhold use of judicial power in suits that — while not actually moot — should be treated as moot for “prudential” reasons. I think that mootness as understood in this case is related to prudential mootness.
The Supreme Court has recognized several exceptions to the mootness doctrine that, if found to apply to a case, would permit federal court adjudication of the dispute.
Possibility of Collateral Legal Consequences.
In Sibron v. New York, an individual convicted of unlawful possession of heroin had completed service of his prison sentence prior to Supreme Court review of the case. The Court explained that the case was not moot: Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid. This exception to the mootness doctrine thus applies in the criminal context, when there is a “possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Even a “remote” possibility of such consequences is enough to save a criminal case from becoming moot.
How I think Possibility of Collateral Legal Consequences applies to this case: The NYC attorney failed to argue convincingly that there wasn’t a “remote” possibility of criminal or other consequences to the plaintiffs or anyone else for any violations of the “old” law. And, the new law does not include written, regulatory limitations on penalties from violating the “old” law. And, as far as I know, people who were arrested or charged with violating the “old” law were not referenced in the new law anywhere saying that they would be “off the hook for any violations of the “old” law.”
Conduct Capable of Repetition, Yet Evading Review.
Some disputes or injuries may arise in the short-term and have the potential for recurrence, but always fail to last long enough to permit federal judicial review. In such a situation, federal courts have justified an exception to the mootness doctrine. A classic example is the landmark abortion case, Roe v. Wade. The Supreme Court explained why the exception should be invoked in this instance: [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more
than once to the same woman, and in the general population, if man is to survive, it will always be with us.
How I think Conduct Capable of Repetition, Yet Evading Review applies to this case: NYC and NY state worked in concert to overturn a clearly unconstitutional law when it was granted cert by the Supreme Court. By not adjudicating mootness and the merits, the Supreme Court will further empower other municipalities, counties and states to engage in similar conduct. The City and State were able to “speed up the clock” to pass legislation that is still constitutionally shaky. They can “repeat” the bad conduct evade review at their convenience because they have the power and resources to do so. Plus, the lower courts demonstrated that they would let the City and State engage in this kind of conduct time and again. Multiple pregnancies, if you will.
Voluntary Cessation.
If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been filed but retains the power to resume the practice at any time, a federal court may deem the case nonmoot. The “heavy burden” of persuading the court that a case has been mooted by the defendant’s voluntary actions lies with the party asserting mootness, and the standard for such a determination is a “stringent” one: “if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur.” This exception is supported by the Supreme Court because, in addition to ensuring that the defendant is not “free to return to his old ways,” there is “a public interest in having the legality of the practices settled.”
How I think I think Voluntary Cessation applies to this case: The NYC attorney bravely tried to claim that the State prevents them from returning to their wrongful behavior. But there’s a gaping flaw in that assertion: The State can change its laws at its convenience and pleasure, and we then fall into the “Conduct Capable of Repetition” trap. NYC has demonstrated that it is willing to violate rule/law making processes (they disregarded the majority of public comments that said the “old” rules should not be changed, and to this day the City refuses to admit that there were constitutional issues with the “old” law, and that there might be issues with the “new” laws.) NYC has placed itself in a substantial hole here. It is hard enough to prove a negative when one is virtuous, but even harder when one has demonstrated that it has no interest in doing so. And NYC and NY State have demonstrated this very clearly in numerous ways (e.g. “home means”, whatever that is, “reasonable diversion in travel”, etc.) Terms like “home means” and issues related to travel diversions are issues that are germane to both mootness and the merits. They speak to the “legality of the practices.” Therefore, in my opinion NYC and NY state remain VERY “free to return to their old ways.” And in addition to the City’s ability to “return to its old ways”, the manner in which they have passed new laws (in concert with NY state) creates a “a public interest in having the legality of the practices settled.”
People on the MDS forum seem to agree that mootness is not clear, and that it could go either way. It could, but with the gravity of the underlying constitutional issues, the ambiguity and uncertainties admitted by the defense (and claimed by the plaintiffs) around mootness, a perceived exposure of a gap in mootness doctrine, and ample leeway to use current mootness doctrine to hear the dispute, I think the court must at least rule on mootness. But, in order for them to do so I think they have to address voluntary cessation, especially with regard to “public interest in having the legality of the issues settled” and “returning to their old ways.” And because they may have to look at the public interest issues, which in some cases speak to constitutionality of the "old" and "new" laws, they may be right in the middle of the merits of the case.
NYC and NY state have engaged in regulatory chicanery and I believe the court must rule on mootness because if they do not do so it's very dangerous for any civil right. Any government can pass any manner of bad law, defend it, and then simply change it using any means (including unscrupulous means) when it advances to the Supreme Court to render the issues moot. I don't think the Supreme Court will want this to continue. I think they will need to rule that mootness also includes how and why new laws related to any dispute may be passed, and create doctrine that says if government does this it creates an opportunity for plaintiffs to automatically claim significant damages. In so doing, they may need to address the merits, too.
NYC really stepped in it on this.
Knuckle Dragger
Active Member
- May 7, 2012
- 213
And some strong analysis from you as well.
I had one final thought on how the mootness issue will play out. Having spent close to 10 years following the federal judiciary on 2A issues and participating in many cases, I've come to believe that judges and justices rarely go where they don't want to go if the Constitution, statute, or precedent gives them even a sliver or a reason to do what THEY want to do. The analysis is secondary.
In NYSRPA, the justices have, or will, come to their individual positions on mootness based upon where they want the merits case to go (or not) and will then back into their analysis. Judges will issue decisions that go against their preferred policy outcomes when statute and case law clearly dictate. This isn't one of those cases. You can fly a C-5 Galaxy through the holes in mootness precedent and each of he justices will do just that to back up their view.
All good points, and it may be beneficial for SCOTUS to make a rule on such blatant action as NYC has done here. No one can seriously argue that the city, with no other stimulus, just decided this was a good thing to do. And it think it bears repeating that NYC essentially controls the rest of NYS. Whatever they say pretty much goes. So the state passing the law was simply for cover.
delaware_export
Ultimate Member
- Apr 10, 2018
- 3,239
@someguy, (didn’t want to quote your whole, good, post but...
My personal, amateur, thinking is that scotus May also need/want to say...
The courts really screwed up on this too.
as bad as nyc was, how did every court, up to scotus, get it so wrong. I think that’s as big, or even bigger, than nyc being wrong. If/when they rule on this, other than moot, I hope they drive that home in a limo.
That’s what I hope they say in any ruling, even if it’s some decent about mootness.
My personal, amateur, thinking is that scotus May also need/want to say...
The courts really screwed up on this too.
as bad as nyc was, how did every court, up to scotus, get it so wrong. I think that’s as big, or even bigger, than nyc being wrong. If/when they rule on this, other than moot, I hope they drive that home in a limo.
That’s what I hope they say in any ruling, even if it’s some decent about mootness.
Tebonski
Active Member
It's all up to Chief Justice Roberts Jr. Some fear he'll decide with the four Dems to show how impartial he and his court is.
Knuckle Dragger, Tebonski & Rambling One: You guys all seem to be aligned on the idea that the Supreme Court justices will rule based on their own ideas of policy, ethics and simply what they think is right – especially if there’s ambiguity or opportunity for them to do so. You’re probably right. My argumentation is based on what I learned in civic class about how the Supreme Court is supposed to work, and how I think I’d do it if I was a judge. That is, I’d rule by what the law and constitution say. You folks are probably right that some of these justices are political creatures. It’s no wonder we see them publically speaking alongside politicians and wonks so frequently. I hope they can muster the courage and honesty and rule on this to protect all civil rights, not just the rights endowed under the second amendment. This case clearly gives them the grounds to do so. I hope and pray they take advantage of this and see it as an opportunity to protect civil rights for everyone.
Press1280: Yep. It’s plain to see for anyone who spends five minutes reading about this case that the City and State consorted to subvert civil rights. I sure hope that the blatant nature of their suppressive actions cause even justices who do not support the second to consider the consequences for not addressing the City’s flagrant approach to violating civil rights – and gaming the system to do so. They will need to have courage to do this, let's hope they can find it.
No worries on not quoting the big honkin' post!
I also hope the court also takes an approach that compels the lower courts to follow the constitution and precedent on this. I hope they issue clear, strong and enduring requirements that cannot be misinterpreted, abused or ignored. I think it was Dan B who posted several months ago about this. If it wasn't him it was someone else on this thread that said they want something that is not only strong, but enduring and clear so lower courts cannot game it. Getting that would be a huge win for civil rights.
I also think the lower courts' gaming speaks to what Knuckle Dragger, Tebonski and Rambling One say, which is essentially that justices will determine where they want to go and then generate logic and language to get them there - regardless of the constitution, law or precedent that might be contrary to what they want to do. I think the Gould case that came out of Massachusetts is an example of this, where the majority opinion’s author said that the clearly infringing decision “was a decision that Scalia would be proud of” or something like that. Pathetic, and fallacious. But now it’s in the court record.
So yes, I hope that the Supreme Court does something that’s unambiguous about this matter, strong and doesn't allow the lower courts to flout precedent at the expense of our civil rights, and that it endures for future generations. Clearly the lower courts are doing what they want, because they can.
I hope and pray that the Supreme Court justices find the courage to stop this and protect civil rights for all of us. We've seen the consequences of judicial abuse and inaction in the Jim Crow era. I pray we don't see it again in our lifetimes from this decision. What NYC, NY State and the lower courts did here is flat out frightening.
I put a lot of stock in judges who are unabashedly Constitutionalists.
I don't believe the Chief Justice is one. That is all.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The courts keep getting it wrong because the arguments presented don't help them understand where the problems are. The plaintiffs keep arguing that they are not following Heller yet they do not explain why there are problems with the intermediate scrutiny standard that the courts use to determine other cases. One of the problems is that Heller does not explicitly rule out intermediate scrutiny and the lower courts have taken advantage of this ambiguity.
While I don't believe that this case adequately addresses why the lower courts were wrong, the lower courts have strayed far enough away that SCOTUS can address the issue with a case that will have little actual relevance.
I doubt the justices writing the majority opinion for Heller ever thought they would need to do that for an enumerated right. Now they know better.
delaware_export
Ultimate Member
- Apr 10, 2018
- 3,239
As a non-lawyer, I ask
Is there a 2A lawyers group, gura, clement, wolfwood/beck, and known successful professionals in that specialty area of law to explain it to others?
I’ve read your posts here, saying it was improperly argued, and being a computer guy, I can only take you at your word. But who are you telling?
If the argument is being made wrong, seems folks should be told how to make it right. Right?
I take classes to be a better programmer, who’s working to teach and learn better presentation of 2A cases?
Is there a 2A lawyers group, gura, clement, wolfwood/beck, and known successful professionals in that specialty area of law to explain it to others?
I’ve read your posts here, saying it was improperly argued, and being a computer guy, I can only take you at your word. But who are you telling?
If the argument is being made wrong, seems folks should be told how to make it right. Right?
I take classes to be a better programmer, who’s working to teach and learn better presentation of 2A cases?
Not directed to you Mr. jcutonilli.
I am going out on a limb here and am thinking that one might guess that 20K+ gun laws and "Shall not be Infringed" would lead another to imagine where the problems might be. When even rbg sees the need for a firearm in every house owned since one may not bear when traveling between them, the problem should be evident?. If the Supreme court of the land does not rule against this law/NYC we should expect it to spread quickly. Just a thought.
June, October 1st.
danb
dont be a dumbass
lol, no. This is naive. The dissents from denial have been pretty clear. Also, Alito's concurrence in Caetano was pretty clear. The courts thus far have engaged in results oriented reasoning - they know how they want to vote and reverse engineer a contorted rationale. And the Supreme Court has until NYSRPA refused to correct the problem.
But you could always file an amicus brief if you think you are smarter than Clement and Gura.
- Apr 26, 2012
- 5,290
It's been a while since I posted my last sarcastic remark to the "Super Lawyer". I figured he'd have joined their team by now... you know... because he's got all the winning strategies figured out...
danb
dont be a dumbass
It's been a while since I posted my last sarcastic remark to the "Super Lawyer". I figured he'd have joined their team by now... you know... because he's got all the winning strategies figured out...
Gotta love a guy who thinks hes smarter than a former law clerk of Scalia, Solicitor General, and litigator whos argued over 50 cases at the Supreme Court. Paul Clement in case you were unfamiliar, who also argued NYSRPA. lol.
Maybe said smart person should help Clement out and file an amicus in MSIs case: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-423.html
Just 2 more days until MD must file a response as requested from SCOTUS
