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

[Bone]

Earlier this month, Alan Gura with the Second Amendment Foundation filed a petition for Cert at SCOTUS in the matter of Kachalsky v Cacace from the 2nd circuit. This is asking SCOTUS to decide whether discretionary issuance of firearm carry liceses is unconstitutional. It highlights the circuit split in the 7th district with the recent Moore decision.

In NY, if you wish to apply for a permit to carry a firearm, you can be denied at the sole discretion of the licensing agency. A self-defense interest, the core of the 2nd amendment, is not sufficient to justify issuance of a permit. For all states that are not “shall issue”, I think 10 out of 50, this is the case. Similarly where I live in CA, the local sheriff may deny a permit to anyone for any reason. There is no state constitutional equivalent of the 2nd amendment and even though McDonald incorporated Heller, no substantial cases have come to pass striking down the numerous state restrictions on firearms.

A few selections from the petition:

A “right” that may not be exercised absent a government official’s discretionary determination that an individual has “proper cause” to exercise it, is not much of a right.

[A]n ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

For debate:

Discretionary carry permits are unconstitutional if ‘bear’ is to mean anything in the 2nd. If the current lineup of SCOTUS justices holds, I predict this case will be granted cert. Gura has built himself quite a reputation, and with the circuit split this is a great case to resolve the split.

I may be optimistic, but I think by the end of June 2014 some form of carry permit, either concealed or open, will be “shall issue” or some functional equivalent will be the law of the land in all 50 states.

[Boyo_Jim]

Did somebody shoot a bear?

[JLRogers]

@Bone

Discretionary carry permits are unconstitutional if ‘bear’ is to mean anything in the 2nd. If the current lineup of SCOTUS justices holds, I predict this case will be granted cert. Gura has built himself quite a reputation, and with the circuit split this is a great case to resolve the split.

I may be optimistic, but I think by the end of June 2014 some form of carry permit, either concealed or open, will be “shall issue” or some functional equivalent will be the law of the land in all 50 states.

I am hopeful that the case will be granted cert, but I am no legal scholar. I would not be altogether surprised if SCotUS balked at the idea of “bear” necessarily implying carry. As I recall in District of Columbia v Heller several justices seemed very careful to differentiate fully automatic weapons from their semiautomatic variants, apparently in order to avoid addressing the NFA of 1934 and subsequent laws regulating fully automatic weapons. As I understand the court’s interpretation of the 2nd Amendment a ban on modern (post -'86) fully automatic weapons seems a clear infringement, but SCotUS was uninterested in disrupting the status quo in that case.

I think you are optimistic in expecting SCotUS to find shall issue permits to be mandated by the 2nd Amendment. Speaking as a gun owner it would be nice to see a victory here, but I’m not entirely convinced it willt urn out that way. Still, I give the SAF money to pursue just this sort of case, and Gura is no fool. I hope I’m wrong.

[Bryan_Ekers]

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

[Really_Not_All_That_Bright]

For broad readings of “self”, I guess. In Heller, Scalia decided that there was a right to self-defense (which necessarily included the right to carry guns) which existed wholly independent of the Second Amendment.*

It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) , petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment ’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

Considering SCOTUS explicitly declined to apply strict scrutiny (or any recognizable standard of review, for that matter) in Heller and McDonald, it’s hard to see them doing it here. As long as a permit hasn’t been arbitrarily and/or capriciously denied the law will probably be upheld; in fact, the law will probably be upheld in any event and the specific denial reversed.

*perhaps the best proof yet that lawyers make bad historians.

[Bone]

@Bryan_Ekers

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

From Heller:

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional

(my bold)

@ JLRogers - NFA weapons weren’t addressed because they weren’t related to the specific issues raised. I suspect if enough legal groundwork is built, restrictions on certain NFA items like suppressors may be overturned. Maybe 2020?

[Really_Not_All_That_Bright]

He is saying that self-defense is the “core lawful purpose” of the right to keep and bear arms, not of the Second Amendment.

[Bone]

From the petition for cert, and quoting Heller:

Three times, Heller succinctly describes the Second Amendment’s “core” interest, to wit: (1) the Second Amendment’s “core lawful purpose [is] self-defense,” Heller, 554 U.S. at 630; (2) “self-defense . . . was the central component of the right itself,” id. at 599; (3) “the inherent right of self-defense has been central to the Second Amendment right.”

You included section (2) in your quote above.

I’m not sure how you are separating the right to keep and bear arms from the second amendment itself. From Heller, it is clear that self defense is central to the 2nd amendment and *a *if not *the *core purpose.

@Really_Not_All_That_Bright

Considering SCOTUS explicitly declined to apply strict scrutiny (or any recognizable standard of review, for that matter) in Heller and McDonald, it’s hard to see them doing it here. As long as a permit hasn’t been arbitrarily and/or capriciously denied the law will probably be upheld; in fact, the law will probably be upheld in any event and the specific denial reversed.

Any standard of scrutiny was avoided in Heller because no standard would have made any difference to the question presented. If a state wishes to have a discretionary licensing scheme, it’s process will almost certainly need to pass some level of scrutiny. I think this case will set that standard. Consistent with other fundamental rights, I am hopeful for strict scrutiny but that may be optimism.

It would not be sufficient to simply reverse a denial of license issuance because the SAF is an institutional plaintiff representing all of its members. This is done specifically to avoid the defendants ability to moot the case by issuing specific permits to the individual plaintiffs. Gura has historically been very adept at choosing plaintiffs and venue which also makes me hopeful.

[Really_Not_All_That_Bright]

The Petition misquotes the opinion, then. That’s perhaps not surprising, because Heller went beyond the arguments actually raised by Gura. As you can see from my quote, Scalia distinguishes the purpose of the Amendment (to protect the militia) from the purpose of the freestanding right to keep and bear arms.

The whole crux of Heller is that the right to keep and bear arms exists separate from the Second Amendment. I think that’s exactly the sort of right-creation that Scalia frequently scolds his colleagues for, but that’s what he’s saying.

[Bone]

I tend to think your interpretation is incorrect. While Scalia does say that the right to self defense essentially exists outside the constitution (I agree), the rest of the opinion and that section goes on to say that the right that is codified in the second amendment while explicitly done to prevent the elimination of the citizen militia, it is grounded in self defense.

[Really_Not_All_That_Bright]

Sure, but you must still distinuguish between the purpose of the Amendment and the purpose of the underlying right.

I think you may be misunderstanding me, though; I don’t think this makes any difference to the analysis. Whether the right in question is freestanding or constitutional, it’s fundamental, according to Heller.

[John_Mace]

@Really_Not_All_That_Bright

The Petition misquotes the opinion, then. That’s perhaps not surprising, because Heller went beyond the arguments actually raised by Gura. As you can see from my quote, Scalia distinguishes the purpose of the Amendment (to protect the militia) from the purpose of the freestanding right to keep and bear arms.

The whole crux of Heller is that the right to keep and bear arms exists separate from the Second Amendment. I think that’s exactly the sort of right-creation that Scalia frequently scolds his colleagues for, but that’s what he’s saying.

Are you saying that the right of citizens to bear arms was not firmly rooted in English common law at the time of the constitution? That seems to be the crux of Scalia’s argument, and I think he’s right. The BoR, as you know, was not meant to be an exhaustive list of rights. Unless the federal government was granted the authority to disarm the populace, that power resides in the people and the states.

As for this particular case, if it is a question of what the states can do, then we need to understand if the 2nd amendment should be incorporated. That’s a different question, and I’m not sure what the answer should be. However, if the right to bear arms is an individual right, then it would seem that the states do not have the authority to arbitrarily disarm a portion of the populace.

[Bone]

John - the 2nd was already incorporated in McDonald. Heller held the 2nd was an individual right, and McDonald incorporated that right.

[John_Mace]

@Bone

John - the 2nd was already incorporated in McDonald. Heller held the 2nd was an individual right, and McDonald incorporated that right.

Well, you kids are hard to keep up with these days!

I hadn’t really checked on incorporation for several years, and didn’t realize the 2nd had been given the nod. If it’s incorporated, then I think this is a no-brainer.

[Really_Not_All_That_Bright]

@John_Mace

Are you saying that the right of citizens to bear arms was not firmly rooted in English common law at the time of the constitution? That seems to be the crux of Scalia’s argument, and I think he’s right. The BoR, as you know, was not meant to be an exhaustive list of rights. Unless the federal government was granted the authority to disarm the populace, that power resides in the people and the states.

Yes, that’s what I’m saying. I don’t want to derail this thread, since we have a million others on legal analysis of the RKBA generally, so I’m going to spoiler the substance of my response and anyone who wants to can start another thread about it.

[spoiler]Often cited in pro-gun paeans is the English Bill of Rights, which supposedly codified the right in English law. It didn’t; it merely said that Protestants should be allowed to own arms to the same extent that “Papists” could:

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare…

<snip>

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law…

Thomas Jefferson went on at length in many treatises about how the new government would guarantee the right of freemen to keep and bear arms, but he apparently didn’t think it was a right they already had.

The Declaration of Independence contains an exhaustive list of things the colonies were upset about, but nowhere in there does it say anything about the King’s men taking guns away (even though one of the root causes of the rebellion was supposedly disarmament of the Massachusetts militia by Gage).

At best, Englishmen enjoyed a vague presumption that they could own guns if the government didn’t say otherwise. The right to self-defense is a separate issue, of course.[/spoiler]

[John_Mace]

But you forget that:

The War of Independence started because the colonists resisted efforts to actually confiscate the weapons in the armory in Concord.

[Really_Not_All_That_Bright]

That’s what I was referring to.

[FrankJBN]

The funny thing to me is that those who claim the 2nd Amendment as supporting their right to accumulate firearms, don’t really believe in the 2nd Amendment which as we all know by now reads in pertinant part: “the right of the People to keep and bear arms shall not be infringed.”

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the “people”. Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.

[Terr]

@FrankJBN

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the “people”. Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.

Hm. Are the 1st amendment advocates hypocritical because they don’t object to the abridgement of prisoners’ right “peaceably to assemble”?

[DrCube]

@FrankJBN

The funny thing to me is that those who claim the 2nd Amendment as supporting their right to accumulate firearms, don’t really believe in the 2nd Amendment which as we all know by now reads in pertinant part: “the right of the People to keep and bear arms shall not be infringed.”

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the “people”. Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.

I don’t know who you’re talking about here, but I’m certainly not one of those people. Felons (after serving out their sentence, of course, which may include restricted access to firearms) should be allowed to own firearms like the rest of us. Same with the mentally ill, except for specific times when they have illustrated they are a danger to themselves or others. (Mentally ill or not, people should have their firearms confiscated if they threaten themselves or others with them.)