SCOTUS - Kachalsky v Cacace (2nd ammendment bear case)

[Little Nemo]

Originally Posted by BrainGlutton

It is. Don't understand why the "original intent" SCOTUS justices have forgotten that. The politicians of the time added the Second Amendment because they wanted the U.S. to have a small standing army, and a large militia ready to be mobilized quickly in an emergency, bringing their own muskets from home, to serve the state, not to fight it -- remember how George Washington responded to the Whiskey Rebellion.

Eventually, it developed that that is not a good model for national defense, and that a large standing army is not the threat-to-liberty it appeared to be in the 18th Century. Now we have a large standing army, backed up by quasi-professional National Guards who do not supply their own weapons, and it all works very well regardless of whether anybody has firearms at home or not.

I agree. I think the Second Amendment is a bad idea given the changes that have occurred in firearms technology since it was adopted. But you should repeal a bad law not pretend it doesn't exist.

Slavery and prohibition were also bad ideas. But we acknowledged that and rewrote the Constitution.

[BrainGlutton]

Originally Posted by Little Nemo

I agree. I think the Second Amendment is a bad idea given the changes that have occurred in firearms technology since it was adopted. But you should repeal a bad law not pretend it doesn't exist.

So let's repeal it. Once again: For my part, I accept as a fact that America will never in your lifetime or mine or our grandchildren's be a disarmed society to the extent of the UK or Japan. I do not even have any brief for any particular gun-control regime (though I think Canada's is at least worth studying and learning from, the culture and conditions being so very similar to ours).

No, my position is simply that gun ownership is not a matter that merits constitutional protection. It should not be regarded as a "right" in the sense that free speech is a right. It does not deserve to be set above-and-beyond the reach of the ordinary legislative/political process in that way. Gun control should be merely a political issue, to be threshed out at the polls and in the legislatures, not in the courts -- and, of course, American gun owners and gun-rights activists will for generations to come be very strong at the polls and in the legislatures. So what? Legislatures can look at policy studies, evaluate gun-control efforts on their merits and effects, try things and reject what turns out not to work in practice, and be accountable to the voters for the results. That is good enough, it is how reasonable public policy can and is and should be made. But we do not have any good or rational use for the Second Amendment in this day and age.

My position, also, is that gun control in and of itself is not all that important, compared to other issues facing our society, like the distribution of wealth. It's like gay marriage -- I'm all and unreservedly for it, but, if I were a politician, I would not give it a very high priority compared with a lot of other things. The lack of it is no existential threat to our society, no more than the presence of it; and likewise with guns. They kill a lot of people needlessly, but in terms of the general health of American society, guns are like a flu compared to cancer.

[Little Nemo]

Originally Posted by BrainGlutton

No, my position is simply that gun ownership is not a matter that merits constitutional protection. It should not be regarded as a "right" in the sense that free speech is a right. It does not deserve to be set above-and-beyond the reach of the ordinary legislative/political process in that way. Gun control should be merely a political issue, to be threshed out at the polls and in the legislatures, not in the courts -- and, of course, American gun owners and gun-rights activists will for generations to come be very strong at the polls and in the legislatures. So what? Legislatures can look at policy studies, evaluate gun-control efforts on their merits and effects, try things and reject what turns out not to work in practice, and be accountable to the voters for the results. That is good enough, it is how reasonable public policy can and is and should be made. But we do not have any good or rational use for the Second Amendment in this day and age.

Again, I agree. I think the Second Amendment should be repealed and gun control should become an issue for the legislative process. (I personally would not support a general ban on fire-arms. I'd like to see them regulated by a process similar to what we use for driving a car.)

But the topic here is how the court system should rule on what the Constitution is now not on what we'd like it to be.

[Bone]

Originally Posted by Really Not All That Bright

Incidentally, the trial court decision at issue (Kachalsky v. Cacace, 817 F. Supp. 2d 235 (S.D.N.Y. 2011) aff'd sub nom. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)) indicates that the plaintiffs did appeal the denials under NY administrative procedures, and lost.

I was going to say - they did sue the right people up the chain. This is a step in a long series of strategic moves. Consider that Gura and the SAF were the ones who won in the 7th circuit in Moore, creating the current split with the 2nd circuit which increases the chances that SCOTUS will hear it. These cases, along with McDonald and Heller before (both Gura and the SAF) were chosen precisely. Each builds on the other and my hope is that the long term strategy pays off in breaking down years of bad law. After this, there are many other strategic cases in the works. People focusing on the legal strategy often say, this is chess not checkers.

Originally Posted by BrainGlutton

It is.

That may be true in BrainGlutton fantasy land, but it's not the law of the land in the US. You can ignore Heller and McDonald and insist on something else, but it would not be reality.

Originally Posted by BrainGlutton

So let's repeal it.

Great. You do that. In another thread, you know, that's about repealing the 2nd amendment. This one is about a particular case and discretionary issue of CCW permits.

[Really Not All That Bright]

Originally Posted by Bone

I was going to say - they did sue the right people up the chain. This is a step in a long series of strategic moves. Consider that Gura and the SAF were the ones who won in the 7th circuit in Moore, creating the current split with the 2nd circuit which increases the chances that SCOTUS will hear it.

Right, but the fact that New York courts ruled against them may foreclose on the whole issue. As far as I can tell, they have not argued that the NY law is an impermissible delegation by the legislature (at least, any such assertion does not appear in the petition). That appears to be a glaring omission. SCOTUS isn't supposed to rule on constitutional grounds when it can dispose of a case some other way.

Originally Posted by BrainGlutton

So the right is a "natural" one and constitutionally protected independent of constitutional provisions? Sounds like a Ninth-Amendment/Tenth Amendment argument; those are usually bullshit. "Natural-rights"/"natural-law" arguments always are.

I agree, but that is definitely for another thread.

[Bone]

I admit I may be ignorant of some of the procedural machinations, but my take was that the denial of the ability to exercise the right is a constitutional question. The case went to the state, then was lost at the federal appellate level. I would presume that if there was a venue issue that would have been addressed and resolved at the 2nd circuit. That and the fact that the 7th and 2nd circuits are now split makes this ripe for SCOTUS. I think. Are you thinking that SCOTUS will deny cert?

[Airman Doors, USAF]

Originally Posted by Bone

In NY, the number of permits issues is nearly zero, meaning that no one possess proper cause. That effectively makes bearing as it relates to the 2nd amendment, a fundamental right, impossible. That is a situation that doesn't seem likely to withstand constitutional scrutiny.

Be careful here. New York's CCW laws are complicated. As you have stated, they are "may issue" statewide, but they range from permissive in some counties to restrictive in others. Outside of New York City, they are much like California's hodgepodge.

Once you start talking about NYC, however, it all changes. Unless you are one of the elite few, NYC is essentially "no issue". Also, they do NOT recognize anybody's permits, including those of New York State. In other words, to carry concealed in New York City, you have to be approved by the authorities in New York City, which is approximately as likely as you winning the Powerball and probably would actually require exactly that.

The state itself isn't bad. Upstate you're almost guaranteed approval barring some sort of blip on your background check. It gets harder the closer you get to NYC, and then becomes essentially impossible.

[Bone]

CA is the same way. The majority of land in CA falls under counties that issue regularly. Nearly all the populated counties are no-issue counties, unless you are a celebrity, or donate a lot of money to the sheriff's re-election campaign.

[Really Not All That Bright]

Originally Posted by Bone

I admit I may be ignorant of some of the procedural machinations, but my take was that the denial of the ability to exercise the right is a constitutional question.

Right, but the fact that the law is incorrectly applied doesn't mean the law is a constitutional violation. Rereading the petition, however, I note that I might have missed something in the second question presented:

Do state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense?

I originally read this as saying the "proper cause" standard was invalid (based somewhat on the wording of your OP), but it sort of conflates both the validity of the statute and of the denial of the license. So maybe there's room for SCOTUS to rule that the denials were invalid but the statute isn't.

[Ibn Warraq]

Originally Posted by Bryan Ekers

Self-defense is the core of the 2nd Amendment? I thought state defense was the core of the 2nd Amendment.

Agreed.

The idea of the second amendment or private gun ownership being necessary due to crime is quite modern.

[Little Nemo]

Originally Posted by Airman Doors, USAF

Once you start talking about NYC, however, it all changes. Unless you are one of the elite few, NYC is essentially "no issue". Also, they do NOT recognize anybody's permits, including those of New York State. In other words, to carry concealed in New York City, you have to be approved by the authorities in New York City, which is approximately as likely as you winning the Powerball and probably would actually require exactly that.

I could carry a concealed gun in NYC. Which is ironic because I don't own a gun.

[Bone]

Originally Posted by Really Not All That Bright

I originally read this as saying the "proper cause" standard was invalid (based somewhat on the wording of your OP), but it sort of conflates both the validity of the statute and of the denial of the license. So maybe there's room for SCOTUS to rule that the denials were invalid but the statute isn't.

I suppose they could rule that way - or deny cert altogether. But if they do rule that discretuoany issue is permissible but the application was not, I would think they'd need to add quite a bit of clarity around how the standard could be applied. My take that any application of the standards that prohibits the vast majority of otherwise law abiding folks would be prima faci unconstitutional.

Anything short of shall issue is ripe for abuse and many jurisdictions including New York City, Chicago, and many in CA would do whatever they can to prevent regular folks from getting a permit.

Throughout Heller numerous comparisons were made between the first and second amendment. If any of these types of restrictions were placed on permits for holding a protest or building a place of worship it would be outrageous. My hope is the court makeup remains unchanged for at least 1.5 years and the same thought process is continued here. Using Heller and McDonald I thing a favorable result is the most likely outcome.

[Really Not All That Bright]

Similar restrictions are placed on protest permits. Have a look at the Thomas case I liked to earlier.

[Bone]

Not to continue the analogy too far - but if there were similar guidelines defense used for permits as in Thomas that may survive - depending on the application as notes in Thomas. That decision recognized that discretion which showed patterns of abuse would be unconstitutional. The restrictions described must be content neutral and were really focused on logistical issues. No such complaint could be made in NY since the issuance of permits themselves within their current scheme has procedures in place.

Given the central nature of self defense to the second amendment and the fact that New York explicitly says that self defense is not sufficient to justify a permit can you conceive of a way that the permitting scheme in its current form does not run afoul of the 2nd ?

[Really Not All That Bright]

Where does it say self-defense is not sufficient to justify a permit?

[Bone]

Originally Posted by Really Not All That Bright

Where does it say self-defense is not sufficient to justify a permit?

From the cert petition:

For most New Yorkers who are not otherwise barred from possessing and carrying weapons, the only theoretically available license to carry handguns in public for self-defense is a license “to have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” N.Y. Penal Law § 400.00(2)(f) (emphasis added). “Proper cause” is neither defined by the Legislature, nor has the Legislature set forth standards for determining when “proper cause” exists. Licensing officials enjoy “broad discretion . . . to determine whether ‘proper cause’ exists to issue a carry-concealed pistol license and may deny, revoke, or limit a pistol license for any ‘good cause,’ a determination that will not be disturbed unless it is arbitrary and capricious.” Bando v. Sullivan, 290 A.D.2d 691, 692, 735 N.Y.S.2d 660, 661 (3d Dep’t 2002) (citations omitted). The term “proper cause” denotes a legitimate reason, a circumstance or combination of circumstances justifying the granting of a privilege. A generalized desire to carry a concealed weapon to protect one’s person and property does not constitute “proper cause.” In re O’Connor, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992) (citations omitted) (emphasis added). To obtain a so-called “full carry” license, not restricted to activities such as target practice or hunting, applicants must demonstrate “a special need for selfprotection distinguishable from that of the general community or of persons engaged in the same profession.” Bando, 290 A.D.2d at 693, 735 N.Y.S.2d at 662
(citations omitted).

Each individual Petitioner sought a handgun carry license for the purpose of self-defense. Each application was rejected by one of the Respondent licensing officials for lack of “proper cause,” pursuant to Respondent County of Westchester’s recommendations. App. 131-47.

(I added carriage returns and bolding because the copy/paste didn't behave)

The appellate court also said that the self defense protections of Heller were limited only to inside the home, which I believe is a clear mis-reading of Heller. Heller stated that self defense interests are most acute in the home - which logically follows that they exist outside the home, though less acute.

[Really Not All That Bright]

That's an interpretation of the statute, though, not a provision of the statute itself. I agree that the "home only" reading is going to be overturned, assuming cert is granted.

[Bone]

Those legal readings are controlling in NY. They are interpreting the statute, but are binding none the less, no? Those need to be overturned. If at the end of the day it is decided that "lawful self defense" is sufficient proper cause, I'd be fine with that. NY need not be shall issue if that is binding as to meet the definition of proper cause.

This is actually what happened in Sacramento County in CA. A few years ago, they were a virtually no issue county. After lawsuits regarding their discretionary issue scheme, and mounting evidence that their good cause statements were being approved and denied based on varying standards, they settled and agreed to accept self defense as good cause.

[Really Not All That Bright]

Unless the New York court held that the statute is inseparable from its reading (doubtful), SCOTUS will overturn the interpretation rather than the statute.

[Bone]

That'd be fine with me, keeping the good cause requirement, as long as a valid good cause is self defense. NY keeps its statute, and people can get permits for self defense. That'd be a favorable outcome. Apply that nationally and I'd consider that a tremendous win. Of course, even better would be striking down the whole discretionary issue scheme all together.

[Lumpy]

Originally Posted by Bone

That'd be fine with me, keeping the good cause requirement, as long as a valid good cause is self defense. NY keeps its statute, and people can get permits for self defense. That'd be a favorable outcome. Apply that nationally and I'd consider that a tremendous win. Of course, even better would be striking down the whole discretionary issue scheme all together.

"Self-defense" would in practice strike down discretionary issue, because anyone who goes out in public could make the claim.

[Bone]

Shhh...Yes, it would SCOTUS could do that without striking down the NY statute if they wanted to rule more narrowly and stay within the constructs of Heller.

[HurricaneDitka]

Originally Posted by Bone

And talk about arbitrary - in Sacramento County, CA (after several lawsuits about the same), applying for a permit "lawful self defense" is sufficient justification. Go about 30 miles to the west and it is not. Of course, the permit is valid state wide so that makes tons of sense.

Most things in CA don't make sense, in particular their crazy gun laws. Pretty soon you guys will be shopping for 6-round mags.

[Shiloh2013]

I don't see where discretionary permits is an issue under 2A. If it's unconstitutional, it would be under 14.

[Lumpy]

Originally Posted by Little Nemo

I agree. I think the Second Amendment is a bad idea given the changes that have occurred in firearms technology since it was adopted.

I see this argument a lot, and I wonder about the reasoning behind it. Presumably the argument is that the invention of repeating arms makes guns simply too dangerous to be allowed to the general public. But no one would credit the same argument applied to freedom of the press: that single-sheet manual screw presses were fine, but cable TV and the Internet are "too dangerous" to allow. That's because the 1st Amendment has been held to safeguard the general principle of freedom of speech and expression from government censorship, not merely a utilitarian matter of some mechanism being allowed. Totalitarian governments were in fact based on the principle that government should have a monopoly on speech and expression, and the results were dismal.

I think the problem here is that people get hung up on the 2nd Amendment thinking it merely states a prescription on a particular mechanism, guns. You see this when people say that you don't have a right to own any other particular object, why a right to own guns? Gun proponents hold that the 2nd Amendment states a general principle just like the 1st Amendment does. This general principle might be worded to the effect that government shall not govern based on the powerlessness of the people; expressly that government should NOT have a monopoly on force, but should depend on the support- ultimately, the armed support- of a majority of the populace. A government that couldn't remain in existence except by disarming the people would be one utterly without popular support.

Now a lot of people DO wish to turn over all right of armed force to the government, and if they're an abiding supermajority, then they should prove it by amending the constitution, as previously said.

[Little Nemo]

Originally Posted by Lumpy

I see this argument a lot, and I wonder about the reasoning behind it. Presumably the argument is that the invention of repeating arms makes guns simply too dangerous to be allowed to the general public. But no one would credit the same argument applied to freedom of the press: that single-sheet manual screw presses were fine, but cable TV and the Internet are "too dangerous" to allow. That's because the 1st Amendment has been held to safeguard the general principle of freedom of speech and expression from government censorship, not merely a utilitarian matter of some mechanism being allowed. Totalitarian governments were in fact based on the principle that government should have a monopoly on speech and expression, and the results were dismal.

I think the problem here is that people get hung up on the 2nd Amendment thinking it merely states a prescription on a particular mechanism, guns. You see this when people say that you don't have a right to own any other particular object, why a right to own guns? Gun proponents hold that the 2nd Amendment states a general principle just like the 1st Amendment does. This general principle might be worded to the effect that government shall not govern based on the powerlessness of the people; expressly that government should NOT have a monopoly on force, but should depend on the support- ultimately, the armed support- of a majority of the populace. A government that couldn't remain in existence except by disarming the people would be one utterly without popular support.

Now a lot of people DO wish to turn over all right of armed force to the government, and if they're an abiding supermajority, then they should prove it by amending the constitution, as previously said.

This argument is based on an illusion - that the people have the ability to overthrow the government via the use of personal firearms. That hasn't been true since around 1800. The disparity between the firepower of citizen gun-owners and the government is overwhelming. As long as the government keeps the loyalty of the armed forces, it has nothing to fear from a possible armed revolution by the people.

If the right to keep and bear arms is based on being a check on government, then the Second Amendment is pointless. So modern gun rights advocates have wisely chosen to build on a more rational foundation of self-defense.

[Lumpy]

Originally Posted by Little Nemo

This argument is based on an illusion - that the people have the ability to overthrow the government via the use of personal firearms. That hasn't been true since around 1800. The disparity between the firepower of citizen gun-owners and the government is overwhelming. As long as the government keeps the loyalty of the armed forces, it has nothing to fear from a possible armed revolution by the people.

If the right to keep and bear arms is based on being a check on government, then the Second Amendment is pointless. So modern gun rights advocates have wisely chosen to build on a more rational foundation of self-defense.

But by that logic all of the provisions of the Bill of Rights are pointless, since if the only thing preventing the government from flatly violating the Constitution is that it doesn't want to, then we're screwed.

Think of it this way: the Bill of Rights is a "tripwire", a statement of principles that if the government ever violated them would raise alarms and red flags throughout the nation. Certainly a lot of people out there are taking what they perceive as infringement on the 2nd Amendment dead serious. You have the "Oath Keepers", you have county sheriffs and state legislatures declaring they'll refuse to recognize or enforce such laws.

[Little Nemo]

Originally Posted by Lumpy

But by that logic all of the provisions of the Bill of Rights are pointless, since if the only thing preventing the government from flatly violating the Constitution is that it doesn't want to, then we're screwed.

No. Freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and most other freedoms pretty much work in the way their authors intended. But if the intent of the authors of the Second Amendment was to guarantee the citizenry the ability to defeat regular military forces then the Second Amendment has failed in its purpose.

[Really Not All That Bright]

It's important to note that the existence of a circuit split does not automatically mean SCOTUS will grant cert. SCOTUS has allowed a three-way circuit split on a major constitutional issue to stand since 1989 (whether evidence that a defendant remained silent prior to receiving a Miranda warning may be admitted by the government for other than impeachment purposes).

Originally Posted by Shiloh2013

I don't see where discretionary permits is an issue under 2A. If it's unconstitutional, it would be under 14.

Yes, technically (assuming it is a violation), it would be a violation of the Due Process Clause of the 14th (the substantive right to keep and bear arms having been incorporated under McDonald v. Chicago.) It doesn't change the analysis, though, just the formal pleading requirements.

"Self-defense" would in practice strike down discretionary issue, because anyone who goes out in public could make the claim.

Not quite. Finding that self-defense must be deemed a valid ground for issuance of a permit doesn't mean the other requirements no longer need to be met.

[Bone]

Originally Posted by Little Nemo

No. Freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and most other freedoms pretty much work in the way their authors intended. But if the intent of the authors of the Second Amendment was to guarantee the citizenry the ability to defeat regular military forces then the Second Amendment has failed in its purpose.

It's good then, that one of the core purposes of the 2nd amendment is self defense. See Heller.

[Bone]

Originally Posted by Really Not All That Bright

It's important to note that the existence of a circuit split does not automatically mean SCOTUS will grant cert. SCOTUS has allowed a three-way circuit split on a major constitutional issue to stand since 1989 (whether evidence that a defendant remained silent prior to receiving a Miranda warning may be admitted by the government for other than impeachment purposes).

Yes, technically (assuming it is a violation), it would be a violation of the Due Process Clause of the 14th (the substantive right to keep and bear arms having been incorporated under McDonald v. Chicago.) It doesn't change the analysis, though, just the formal pleading requirements.

Yes, a circuit split only increases the likelihood, so I've been lead to believe. I think it could run afoul of both the 2nd and the 14th. The 14th if it's being applied unevenly, and the 2nd if no permits are granted whatsoever. I actually think Moore in Chicago would be a better case to take to SCOTUS since in Chicago it is a 100% ban, rather than discretionary issue like NYC. But Moore won Though it may go en banc - I think both parties have submitted their arguments in favor and against en banc review - I dont think the court has ruled on it yet. The deadline I thought was 3 days ago, so they may have let it pass meaning no en banc.

Not quite. Finding that self-defense must be deemed a valid ground for issuance of a permit doesn't mean the other requirements no longer need to be met.

True. It does overcome the major hurdle and if the licensing authority plays games with the other requirements they'd get sued again. The details of such an opinion would control how it gets handled. But at some point the city has to not like paying millions in attorney's fees.

[Little Nemo]

Originally Posted by Bone

It's good then, that one of the core purposes of the 2nd amendment is self defense. See Heller.

That was my point.

[Really Not All That Bright]

Update: the 7th Circuit refused en banc review of Moore, so the split remains.

[Bone]

SCOTUSBlog reports that cert was denied. No idea how the split gets resolved at this point.