Kachalsky v. Cacase - NY Carry - Cert Filed

I posted this over in MDShooters.

A decision on the merits is not really possible this Term, even with the early filing. 30 days for NY to respond (they could seek an extension but let's assume that they won't). The court won't wait for a reply at the cert stage, so it goes to conference 2 or 3 weeks after the opp is filed, so let's assume opp is filed ~ 2/8/13. Earliest Friday Conference the petition could be considered is March 1 (slim chance for Feb. 22), and after that March 15. If cert is granted, 45 days to file opening brief (mid to late April), 30 days after that for the response (late May or early June). See Rule 25 SCT Rules. A reply is optional but must be filed not later than 2:00pm, a week before argument. The last argument day this Term is April 24. The only way this could be argued this Term is if the Court accelerated the schedule, which they will do but not really that often or to the extent you would need to do so here.

That said, we likely will have a decision on whether to grant the petition this term. The likely conference for this petition is March 1, the last Friday conference this Term is June 20. The SG sat out McDonald and may sit out this case. Either way, the SG is very unlikely to intervene with an amicus brief at the cert stage unless the Court requests the views of the United States. I don't see the Court doing that here, as federal law and policy are not at issue. Even then, standard policy of the SG's office is that the SG will file its views in time for the cert petition to be decided this Term. So I am quite sure we will have a cert grant or denial this Term, probably in March. That leaves plenty of time for briefs to be filed for an argument in October or November.

As to the 4th Circuit in Woollard, I tend to doubt that they will wait for the cert petition, but they would likely wait if the petition was granted, UNLESS they want to have their opinion considered by the SCT in deciding Kachalsky. They can do anything they want.
 
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Alan Gura offers the Court 2 questions. The first question is the most important one:

1. Does the Second Amendment secure a right to carry handguns for self-defense outside the home?
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If this question is answered in the affirmative, then the next question becomes the crux of the holding:

2. 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?
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"Proper cause," good and substantial," "good cause," these (and similar statements) are all the reasons that "May Issue" States have used to deny the right to its citizens. A grant of cert and an opinion in Gura's favor, will affect every State that does not use objective criteria in determining who may lawfully carry and who may not.

Alan Gura starts right out of the gate, with:

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.
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In various parts, Gura introduces the prior restraint argument (to keep that argument alive, I suspect), such as this:

But for purposes of certiorari, it suffices to observe that Petitioners’ “crude” understanding of the Second Amendment is informed by Justice Alito’s opinion in McDonald, which rejected the argument “that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety.” McDonald, 130 S. Ct. at 3045.
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While there are quite a few good points in this petition, I believe the following paragraph is aimed directly at C.J. Roberts:

The lower court’s reliance upon NFIB is misplaced. Whatever else the Affordable Care Act concerned, it did not implicate a fundamental, enumerated right to refrain from buying health insurance. Stating that Congress is presumed to have acted within an enumerated grant of legislative power – a “permissive reading of these powers,” NFIB, 132 S. Ct. at 2579 – is hardly the same as declaring that legislatures are presumed to honor individual rights where those rights are profoundly impacted. NFIB overruled neither the constitutional doctrine announced in Carolene Product’s fourth footnote, nor Heller’s application of that doctrine to the Second Amendment.
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Which I think is a good reminder.

Additionally, I also like the ending:

Respectfully, this Court’s decisions in Heller and McDonald, like the Second Amendment to which they gave operative force, were not published with an asterisk. “[W]hen a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.” Perkins v. Endicott Johnson Corp., 128 F.2d 208, 218 (2d Cir. 1942), aff ’d, 317 U.S. 501 (1943) (footnotes omitted).

This Court should answer the lower courts’ recurring requests for additional guidance in this area, and resolve the splits of authority regarding the essential question of the Second Amendment’s application in public settings.
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Now, if things go smoothly, we should know by March or April if the Court will grant cert. No chance of hearing the case until OPct. or Nov. of the next session. However, if cert is granted, it will likely put a hold on every single 2A case that we have been following.
 
From the docket at SCOTUS:

Jan 8 2013 Petition for a writ of certiorari filed. (Response due February 11, 2013)

Jan 11 2013 Consent to the fiing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.

Jan 31 2013 Order extending time to file response to petition to and including March 13, 2013.
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This means that there are at least 2 amici briefs being submitted and that NY State has until March 13th to file their response. A reply brief may be filed no later than March 27th.

Then we will wait to find out if cert is granted. According to the calendar, conference dates are: Mar. 29; Apr. 12, 19 and 26. I expect we will know the Monday following one of those days.
 
Yesterday, 7 briefs were submitted as amicus curiae for support of certiorari for appllants. My thanks to the Firearms Policy Coalition for hosting these briefs.


While I haven't had time to read everything (yet), I will make note of the opening statement by Virginia:

The Amici have an interest in this Court holding that the self-defense interest animating the Second Amendment’s individual right to keep and bear arms applies broadly beyond the confines of an individual’s home and that no government may condition the exercise of this constitutional right on a ex ante showing of cause. Because this Court’s interpretation of the federal constitutional right will affect the constitutional rights of Amici States’ citizens with regard to the federal government and with regard to other States as they travel, the Amici States urge this Court to interpret the scope of the right and to apply a standard of review to its infringement that will recognize the inherent right of all citizens of the United States to “bear arms” and so lawfully and effectually protect themselves from unlawful violence.
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I strongly suspect that when NYS files its response to the petition, we will see amici briefs from the two usual "friends:" The Brady Campaign and the LCPGV (LCAV).
 
“The power to license necessarily includes the power to inhibit unlicensed persons from doing the acts authorized by license. The power to refuse license necessarily gives the power to limit the issuance of licenses.” Ex parte M.T. Dickey, 76 W. Va.576, 585; 85 SE 781.
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Doesn't this imply that that May Issue with open carry banned is illegal? If it's illegal to bear without license... And Bear is a fundamental part of the 2A right...
 
Doesn't this imply that that May Issue with open carry banned is illegal? If it's illegal to bear without license... And Bear is a fundamental part of the 2A right...
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That's what Kachalsky is asking SCOTUS.
 
So this is designed to strike down all the May Issue laws to be replaced with Shall Issue, or Open Carry with May Issue?
 
Well kinda.

Where we THINK the court is going to go is with a set of options for the states, backed first by the idea that there's a right to carry.

There's a bunch of case law (mostly 19th Century but with some as late as 2003 such as the Ohio Supreme Court in Klein) that says concealed carry can be restricted or even eliminated so long as (loaded) open carry is legal. The US Supremes might back this view. We know that as actually happened in Ohio in 2004, we can "annoy our way" from there into a shall-issue concealed permit law we can live with.

The court may also back a shall-issue concealed carry system as a more modern alternative, and as long as the costs are low and the equality high, we can cope with that.

What I don't think we're challenging just yet is a situation such as Texas/FL where a fairly expensive ($200 or so with training) concealed permit is necessary to carry at all, and permitless open carry as a zero-cost alternative is banned. Kachalsky isn't the case that will challenge this. Kachalsky was designed to confirm that carry outside the home, IN SOME FORM, is a basic civil right.

We know that states where permitless, zero-cost open carry and permitted concealed carry exist will be upheld as constitutional. There's a lot of these states. The only ones that might be constitutionally questioned are those where open carriers are extensively harassed, or that one bizarre state (can't remember if it's Mississippi or Missouri?) where the moment ANY part of a gun is covered by a holster it's considered concealed, per some really dumb court rulings. (Somebody is already making clear plastic holsters...)
 
Guess I should be thankful I live in Shall Issue with legal open carry. Except in one town that just made the news for trying and failing to ban any carry in too many "sensitive areas" despite state preemption.
 
What I don't think we're challenging just yet is a situation such as Texas/FL where a fairly expensive ($200 or so with training) concealed permit is necessary to carry at all, and permitless open carry as a zero-cost alternative is banned. Kachalsky isn't the case that will challenge this. Kachalsky was designed to confirm that carry outside the home, IN SOME FORM, is a basic civil right.
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I doubt such a concept will ever successfully be challenged. SCOTUS is deeply divided on the issue of firearms (as is America), and getting them to rule in our favor on even the most fundamental issues was the slimmest of 5-4 victories, both in Heller and even more depressingly, McDonald.

I think they'll take Kachalsky and perhaps even mag capacity and some other must-be-solved issues, but once those are done, I think they'll refuse to grant cert to pretty much everything, esp something that is so clearly a state-level issue.
 
Kachalsky was designed to confirm that carry outside the home, IN SOME FORM, is a basic civil right.
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That's what the court said in Moore/Shepard

Kachalsky deals with just cause.

Politics aside, theoretically Illinois could have passed carry legislation that would have addressed the complaints made by Moore/Shepard case, but Illinois could have instututed may issues / good cause.
 
Luger_Carbine said:
Jim March said:
Kachalsky was designed to confirm that carry outside the home, IN SOME FORM, is a basic civil right.
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That's what the court said in Moore/Shepard

Kachalsky deals with just cause.
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Kachalsky dealt with "proper cause" only because New York does not allow carry in any manner without the permit. In the pleadings and in the orals (both district and CA2) this point was made several times. The point was also made that the plaintiffs didn't care if it was open or concealed; with or without a license, as long as they were able to exercise their basic right of self defense.

What the CA2 did was to agree that there was a right to self defense outside the home, but that the right was far enough removed from the core of the right (They didn't say "in the home" but the implications were quite clear) that the State could regulate it however they desired (rational basis review, however the court chose to dress it up).

Politics aside, theoretically Illinois could have passed carry legislation that would have addressed the complaints made by Moore/Shepard case, but Illinois could have instituted may issues / good cause.
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They still can. Nowhere in judge Posner's decision does it say that IL must provide a "shall issue" means of carry.
 
What the CA2 did was to agree that there was a right to self defense outside the home, but that the right was far enough removed from the core of the right (They didn't say "in the home" but the implications were quite clear) that the State could regulate it however they desired (rational basis review, however the court chose to dress it up).
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It's interesting that Judge Hamilton’s dissent in Moore concedes that Rational-Basis should not be applied:

Nevertheless, it’s reasonably clear at this point that the standard is more demanding than rational-basis review and less demanding than strict scrutiny.
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It doesn't seem like Hamilton is arguing that rational-basis should be used and Judge Posner didn't. It seems like he's conceding that a stricter standard than rational basis should be used (he's not willing to buy into strict scrutiny).
 
The political reality is that there will never, ever, as long as the United States of America governs the country, be legal guns in the holsters, whether open or concealed, of citizens walking the streets of New York City.

New York City is "different," "special." It's the headquarters of the United Nations. It has the New York Stock Exchange, Broadway, Times Square, Central Park. It's one of America's two truly international cities. It should properly be considered as America's Hong Kong.

Until SAF and Gura recognize this basic political reality and craft a means of allowing New York City, or just Manhattan Island, not to be governed by the same gun laws that bind the rest of the state, Gura's going to lose, and our rights are going to pay the price.

In Kachalsky, at any level, the court will first look at the case and consider the outcome of granting Gura his desired remedy. If this remedy includes citizens carrying loaded firearms up Seventh Avenue, he's gone too far, and he's going to lose.

If the case were filed blind, where no state names, city names, party names were present in the case, where the pleadings contained merely the text of the disputed law, argument and the remedy requested, he'd probably win the case in a walk. Sadly, cases are not decided in abstract detachment.

The best hope for getting gun rights restored to the rest of New York is probably to have New York City severed from the United States as an international territory. The United States would retain protection duties of NYC under treaty, but its laws would not apply. Without the laws of the United States controlling NYC, the Second Amendment would not apply, and the citizens of Schenectady could have a good chance at getting their gun rights restored. Of course, this plan would really disrupt the balance of power in Albany, so it would likely never go anywhere, but I see it as the only means of getting good gun rights in that state.
 
In Kachalsky, at any level, the court will first look at the case and consider the outcome of granting Gura his desired remedy. If this remedy includes citizens carrying loaded firearms up Seventh Avenue, he's gone too far, and he's going to lose.
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While I have no doubt "public safety" will be the central focus of the city's arguments, the Court is ruling on a larger issue. If they rule in our favor (which I can't see them avoiding, at least to some extent), that ruling will bind the island as well as the rest of the state.

The idea of severing NYC from the rest of the country is a bit silly.
 
Tom Servo said:
While I have no doubt "public safety" will be the central focus of the city's arguments, the Court is ruling on a larger issue. If they rule in our favor (which I can't see them avoiding, at least to some extent), that ruling will bind the island as well as the rest of the state.
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Ergo, they won't rule in our favor. There will never, ever, be shall-issue carry that permits carry on Seventh Avenue.

The idea of severing NYC from the rest of the country is a bit silly.
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You mischaracterize the point. Unless something like that happens, you're not going to get anywhere near shall-issue carry across the entire State of New York.
 
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