New York City, Which Defended Its Onerous Gun Transport Restrictions As Necessary for Public Safety, Concedes They Weren’t
Several justices seem skeptical of the claim that revising the rules after SCOTUS agreed to consider a challenge to them made the case moot.

For decades, New York City enforced uniquely onerous regulations that effectively prohibited licensed pistol and revolver owners from taking their weapons outside their homes, even when they were unloaded and stored in a locked container, unless they were traveling to or from one of seven gun ranges in the five boroughs. When several gun owners challenged those regulations, the city successfully defended their constitutionality for five years, obtaining favorable rulings from a federal judge and the U.S. Court of Appeals for the 2nd Circuit. But after the U.S. Supreme Court agreed to hear an appeal of that decision, the city rewrote its rules, backed a state law that eased restrictions on transporting guns, and urged the Court to drop the case, arguing that the regulatory and statutory changes made it moot. During oral arguments today in New York State Rifle & Pistol Association v. City of New York, several justices seemed skeptical of that claim, which is transparently aimed at avoiding a Supreme Court decision that could clarify the contours of the Second Amendment.

Chief Justice John Roberts asked Richard Dearing, the attorney representing New York City, whether a prior violation of the old transportation regulations might be held against a gun owner when he tries to renew his license. “It absolutely will not,” Dearing said, although the discretion to deny licenses for “good cause” seems to make that a real risk.

Justice Neil Gorsuch suggested that the possibility of obtaining compensation for economic damages related to the old regulations, although it was not specifically sought by the plaintiffs, might be enough to keep the case alive, as Principal Deputy Solicitor General Jeffrey Wall argued. “This litigation, I think, has taken five-plus years, and that [issue] has become relevant only at this late stage, after the city and the state have enacted a new law,” Gorsuch observed. “Why isn’t the prospect of allowing damages to be added to the complaint enough?”

Gorsuch also noted that it’s unclear whether the new rules allow gun owners to make stops while en route to ranges, competitions, or second homes outside the city. The city says such trips have to be “continuous and uninterrupted,” while the state law says gun owners have to be traveling “directly” to their destinations. If those restrictions might be read to preclude stops for coffee, gas, or bathroom breaks, Gorsuch wondered, “why isn’t there a live controversy remaining?” He suggested that “despite herculean, late-breaking efforts to moot the case,” there is still relief the plaintiffs could obtain only through a decision on the merits.

Dearing assured the justices that the NYPD would not look askance at “reasonably necessary” stops for coffee, gas, or bladder relief, prompting Gorsuch to wonder, “Is coffee reasonably necessary?” While that remark prompted laughter, Gorsuch emphasized his point: “What’s going to qualify? I’m just a little unclear about that.”

So was Dearing. Justice Samuel Alito, who like Gorsuch remarked upon “the quite extraordinary step of trying to moot the case after we granted review,” wondered about a gun owner who drives to a range in New Jersey and stops to “visit his mother for a couple of hours to take care of a few things for her.” Dearing was unsure whether that would be allowed. “I think that would have to be a question now to be litigated under the state law,” he said. “I hadn’t considered the mother or mother-in-law example before.”

Speaking for the plaintiffs, Paul Clement said Dearing’s assurances are not good enough to make the case moot. “The city took it on itself in Section 7 of the new regs to tell you what they, at least at that point, thought was sufficiently direct, which is ‘continuous and uninterrupted,'” he said. “They’re now making representations that the reg doesn’t mean what it seems to mean….My client[s] shouldn’t have to rely on those representations. They should get that in writing in an injunction that would be enforceable. That would be effectual relief.”

Perhaps the most telling exchange involved not the mootness issue but the constitutionality of the original rules:

Alito: Mr. Dearing, are the people in New York less safe now as a result of the enactment of the new city and state laws than they were before?

Dearing: No, I don’t think so. We made a judgment, expressed by our police commissioner, that it was consistent with public safety to repeal the prior rule and to move forward without it.

Alito: Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?

Dearing did not have a very good answer, except to say that the city’s arbitrary restrictions on transporting firearms may have made its other rules a bit easier to enforce. As the petitioners note, “The only ‘evidence’ the City has ever mustered to support the tailoring of its policy is an affidavit from a former commander of the state licensing division hypothesizing, with no evidentiary support whatsoever, that the mere presence of a handgun—even unloaded, secured in a pistol case, separated from its ammunition, and stowed in the trunk of the car—might pose a public-safety risk in ‘road rage’ or other ‘stressful’ situations.” The city will have to do better than that if it wants to demonstrate that its rules were consistent with the constitutional right to keep and bear arms, which is why it is so desperate to stop the Supreme Court from considering that question.

Gun Control Showdown At The Supreme Court

Keep you fingers crossed. Dick Heller (of DC v Heller fame) opines that NYSRPA has a winning case. If retired Justice Kennedy was the only concern, I might be more optimistic, but Chief Justice Roberts seems to be the new ‘squish’. This case should provide some clarity about him, as well as Gorsuch & Kavanaugh.

That New York City is openly hostile to gun rights is not news.  Relief may finally be coming to the citizens of the five boroughs, however – and the residents of other towns ruled by anti-gun zealots – via the Supreme Court. On Monday Dec. 2, the high court hears NY State Rifle & Pistol v. City of New York, a challenge to restrictions the Big Apple places on the few citizens lucky enough to be permitted to keep a firearm in the city. This is the first big gun-control case in over nine years at the Supreme Court and gun-rights advocates are hoping the additions of Justices Gorsuch and Kavanaugh yield a favorable result.

A Tale Of Two Cities

If you want to own a legal handgun in NYC, you must first be granted a license. The two basic types are carry licenses and premises licenses. A carry license gives the holder permission to own and carry a concealed firearm on their person, wherever they go – but you can’t get a carry license. Well, you can if you’re a celebrity, a friend of or donor to the mayor or a police honcho, but that’s about it. It was always one of those things everybody knew but it was not exposed to scrutiny – until January of this year. As reported by local TV journalist Hazel Sanchez, former NYPD Lt. Paul Dean, a commander in the gun licensing unit, claimed:

“[H]igh-profile politicians, entrepreneurs, and even an actor with a prior felony conviction skated past requirements because of their generous donations to the Police Athletic League, New York City Police Foundation.”

Dean pleaded guilty to accepting bribes in exchange for gun licenses. If you’re not a celeb and you’re short on bribe money, you might be able to get a premises license, though. That’s if you’ve already paid the application fees of over $400 and passed the city’s arbitrary review. The case at the Supreme Court is based on the premises license and the fantastic restrictions placed on gun owners.

You Can’t Take It With You

If you have a premises license, you were previously permitted to keep the handgun only at your home or one of the seven approved gun ranges inside the city – or transport the weapon to or from the range, locked and unloaded. If you live in New York City and have a cabin upstate, you couldn’t legally take the firearm with you when you traveled there. You couldn’t legally take it one foot outside the city limits. As the Supreme Court summarized in its grant to hear the case:

“The City thus bans its residents from transporting a handgun to any place outside city limits – even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.”

The restrictions in the law were so bad that not even the most strident anti-gunners thought they could pass constitutional muster. As Amy Howe of SCOTUSblog put it, “the only real question seemed to be whether the justices would issue a narrow ruling that only addressed the constitutionality of the city’s ban, or whether they might instead say more about the broader right to have a gun outside the home.” The prospect of these restrictions leading to broad recognition of gun possession rights outside the home terrified the gun grabbers – and so they rushed to stop the case the only way they knew how: They changed the law.

Going For Moot

The Supreme Court announced in January that it would add the case to its fall term (the current term). By early April, the NYPD announced the rule would change, saying, “The NYPD plans to loosen its rules around gun transportation to allow licensed owners to carry firearms to a second home or a business – instead of restricting them to shooting ranges.” That change set off another battle at the court – the battle by gun rights advocates to keep the case on the docket. After changing the law, the city petitioned the Supreme Court to drop the case, arguing that since a new rule was in effect, the case was moot and the court need not hear it.

Pro-gun advocates were not willing to go along quietly with the change, however. They have been desperate themselves for the court to take a case concerning gun rights outside the home. The Supreme Court last ruled on a gun-control case in 2010’s McDonald v. Chicago, which incorporated the Second Amendment’s protections recognized in the landmark Heller decision against state governments. That’s because it has refused to take any cases, not that none have been brought. After his fellow justices decided not to hear a challenge to California’s new gun laws last year, Justice Clarence Thomas wrote in dissent, chastising his colleagues:

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Progressive Senators Threaten The Supreme Court

In an attempt to avoid a new ruling favorable to gun owners, progressives in Congress threatened the Court, in the persons of Democrat Senators Sheldon Whitehouse (RI), Mazie Hirono (HI), Richard Blumenthal (CT), Richard Durbin (IL), and New York’s own Kirsten Gillibrand. The Senators, bar Gillibrand, are all members of the Judiciary Committee, and all signed an 18-page screed as brief to threaten the justices’ power through court-packing. The piece attacked Kavanaugh’s nomination, the groups that supported it, and conservative legal groups generally. The conclusion, however, was nothing short of threatening:

“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

Perhaps the Supreme Court will rule in an entirely different direction. It took the case to ask if the law “is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.” The court may rule without a new line drawn in Second Amendment jurisprudence or it may find that the case is moot after all and not even issue a ruling. Justice Kavanaugh’s nomination was widely championed by the NRA, as the progressive Congress members’ brief discusses at length. Will his replacement of Justice Kennedy make the difference and see the court finally address the rights recognized in the Heller and McDonald cases? We will find out by summer, when the ruling is issued

 

Kavanaugh Joins Gorsuch in Fight To Revive Nondelegation Doctrine
An important development in the legal wrangling over the separation of powers.

Giving the Attorney General – the head of the department that can arrest and charge people with committing a violation of law – the power to literally make a law (even one that deals with the dregs of society) is one of the things the founders were deathly afraid of, as the British Crown was in effect doing just that for the Colonies. Give that power to an Office the Constitution didn’t give it to and even if the current person in that Officer is a ‘good’ man, one day another man will be in that place and when he is not so good……….

A certain bit of a movie comes to mind:

 

The U.S. Supreme Court narrowly upheld a law in June that, in the dissenting words of Justice Neil Gorsuch, “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.” Today, Justice Brett Kavanaugh spoke up in support of Gorsuch.

The June ruling came in Gundy v. United States, a case that centered on a 2006 federal law known as the Sex Offender Registration and Notification Act (SORNA). Among other things, SORNA required convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

The law also contained this provision: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” Translation: Congress gave the attorney general a blank check when it came to dealing with the estimated 500,000 individuals whose convictions predate SORNA’s passage.

It was that delegation of legislative authority to the executive that sparked Gorsuch’s ire. “The rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else,” the justice wrote in dissent. According to Gorsuch, SORNA combined the lawmaking powers of Congress with the law enforcement powers of the executive, and then gave those combined powers to a single federal official. For the Supreme Court to let that outcome stand, Gorsuch argued, marks “the end of any meaningful enforcement of our separation of powers.”

Justice Brett Kavanaugh took no part in Gundy, leaving some court watchers to wonder about how he might have ruled. The Court’s newest justice answered that question today. In a statement respecting the denial of certiorari in Paul v. United States—another separation of powers case, which the Court turned down this morning—Kavanaugh wrote in praise of “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine” in Gundy, noting that this “thoughtful” dissent “raised important points that may warrant further consideration in future cases.”

In other words, Kavanaugh seems to have joined Gorsuch’s campaign to put some judicial teeth into the nondelegation doctrine. That’s welcome news for those who think that the Constitution meant what it said when it placed federal lawmaking power in the hands of Congress, not in the hands of the executive branch.

Supreme Court Blocks House Subpoena For Trump’s Financial Records

The U.S. Supreme Court late Monday blocked a House subpoena directing President Donald Trump’s accounting firm to turn over several years’ worth of financial documents, giving the president at least a temporary legal victory.

In a brief order, the court said the subpoena would remain on hold until the president’s lawyers file their appeal and the court acts on the case. The court gave his lawyers until Dec. 5 to file their appeal, a sign the justices intend to move quickly. But if the court agrees to hear the appeal, the stay would remain in effect for several more months.

The Democratic majority on the House Oversight Committee issued the subpoena in April, ordering the accounting firm Mazars USA to turn over Trump-related financial documents covering 2011 through 2018.

Ilhan Omar ‘Qatari asset,’ Florida court hears
The Democratic Congresswoman is said to have passed information to Qatar which was subsequently handed along to Iran.

Which fits to a ‘T’ the definition of Treason, to wit;
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” – United States Constitution. Article III, section 3

Ilhan Omar was recruited by a foreign government, received funding from a foreign government, and passed sensitive information through intermediates to Iran, a Florida court has been told.

The claims came during testimony by Kuwati-born Canadian businessman Alan Bender, who was giving evidence in the trial of Sheikh Khalid bin Hamad al-Thani. The Qatari emir’s brother stands accused of ordering his American bodyguard to murder two people, and of holding an American citizen hostage. His deposition, obtained by Al Arabiya English, was authenticated by the attorney for the plaintiffs, according to the

Speaking from Toronto by video link, Bender told the Florida District Court that he met with Qatar’s Secretary to the Emir for Security Affairs Mohammad bin Ahmed bin Abdullah al-Masnad and two other senior Qatari officials.

According to his sworn deposition, the three officials told him: “If it wasn’t for our cash, Ilhan Omar would be just another black Somali refugee in America collecting welfare and serving tables on weekends.”

Bender testified that the officials asked him to recruit American politicians and journalists as Qatari assets, and that when he objected, was told that several prominent figures were already on the payroll. US Congresswoman Omar was described as the “jewel in the crown,” he said.

Qatar “recruited Ilhan Omar from even way before she thought about becoming a government official. […] They groomed her and arranged the foundation, the grounds, for her to get into politics way before she even showed interest. They convinced her,” he added.

The deposition shows he further told the court that, during a 2017 meeting with Turkish President Recep Tayyip Erdogan, Omar swore allegiance to him. At the time she was a junior state representative in Minnesota…………….

Omar has already been found by the Minnesota Campaign Finance Board to have broken campaign finance rules, by improperly using campaign money for out-of-state travel while a state representative. Conservative group Judicial Watch has also called on the House Ethics Committee to investigate Omar for alleged offenses, including immigration fraud. But these claims go much further.

Omar was one of 107 House Democrats who co-signed a letter Thursday, calling on Secretary of State Mike Pompeo to reverse his announcement on the legality of West Bank settlements. The signatories claimed such a move “severely damaged prospects for peace” in the region.

Man Stripped of Guns After Lawsuit Rival Files Red Flag Complaint.

Weren’t we most definitely assured that abuse like this could never happen?

An incident in New Jersey is testing just how far red flag laws can be pushed, and the results aren’t pretty.

The gun seizure comes as part of a heated court case between Alfred Conti and his former physician, Dr. Matthew Kaufman. The defamation lawsuit revolves around negative reviews left by Conti.

Months after the suit was opened, police stripped Conti of firearms and ammunition on Sept. 25.

The firearm seizure was put into action thanks to a red flag complaint made by Kaufman and his lawyer, the Asbury Park Press reported.

Before his guns were taken, it seems Conti was just intent on receiving treatment. Hurting from an apparent failed surgery, Conti was first kicked out of the clinic where Kaufman practiced, allegedly due to his aggressive behavior with staff.

Shortly after, Conti would write the negative reviews that sparked the entire lawsuit.

A month later, Conti called Kaufman’s lawyer several times, asking for the doctor to see him again in an attempt to end his pain. In one call played to the court, the injured man used vulgar language and threatened to bring the authorities into the matter.

Conti’s error appears to be in mentioning he knew where both Kaufman and the doctor’s lawyer lived in one of the calls.

However, both sides agreed that it doesn’t appear any threat was made.

Despite this, police acted on the red flag complaint and seized multiple pistols, a rifle and ammunition from Conti. According to police, the injured man cooperated peacefully as authorities disarmed him.

As red flag laws go on the books in more locations, cases like this that sit squarely in a gray area are virtually guaranteed to keep happening.

Supreme Court to Review Lawsuit Pitting Michael Mann Against Free Speech

The Supreme Court on Friday will consider whether to take up a prominent climatologist’s defamation suit against a venerated conservative magazine, in a case that pits climate scientists against the free speech rights of global warming skeptics.

The dispute between scientist Michael Mann and the National Review has drawn attention from lawmakers, interest groups, academics, and media, as the court weighs adding a potentially blockbuster First Amendment showdown to an already politically charged docket.

Scientists hail Mann’s lawsuit as a necessary defense against efforts to erode public confidence in the scientific consensus that climate change is an urgent threat, while free speech advocates have rallied around the iconic conservative publication.

The case has made for strange bedfellows, with the National Review receiving backing from the Center for Investigative Reporting, which has produced award-winning coverage of climate change; Senate Majority Leader Mitch McConnell (R-Ky.); The Washington Post; and the American Civil Liberties Union (ACLU).

Symposium: Supreme Court should address lower court nullification of the Second Amendment

David B. Kopel is Research Director at the Independence Institute and an Adjunct Professor at University of Denver, Sturm College of Law. Randy Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown Law. Kopel wrote and Barnett  joined an amicus brief filed by Second Amendment professors on behalf of the petitioners in New York State Rifle & Pistol Association Inc. v. City of New York.

In the 2008 decision District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment is an individual right of all Americans, like everything else in the Bill of Rights. Yet many lower courts have refused to accept the Supreme Court’s holding. Among the worst offenders are the U.S. Courts of Appeals for the 2nd and 9th Circuits. In New York State Rifle & Pistol Association v. New York City, the Supreme Court should address the problem of lower court nullification of the Second Amendment.

The case involves New York City’s ban preventing licensed handgun owners who live in the city from taking their handgun outside the city. Under the regulation, licensed owners could not take their handgun to a second home, or anywhere else. They could not use their New York City handgun at a target range in New Jersey or a safety training class in Westchester County.

The only places for a New York City resident to practice gun safety were seven target ranges within the city, whose population is 8.6 million. These small urban ranges cannot match what is available elsewhere. For example, while small ranges allow shooting straight ahead at a short distance, facilities with more space can teach students how to shoot while moving, and how to defend against attackers who are not directly in front of them. By preventing better training, the NYC travel ban gravely endangered the lives of law-abiding handgun owners.

When the NYC travel ban was challenged, the 2nd Circuit stated that the ban probably did not even implicate the Second Amendment. According to the appeals court, the travel ban was such a trivial inconvenience that judicial review of the law was probably unnecessary.

The 2nd Circuit is not the only court to pretend that obvious restrictions on the Second Amendment have nothing to do with the Second Amendment. The Supreme Court in Heller specifically instructed lower courts not to use the “rational basis” test in Second Amendment cases. Under the rational basis test, the most lenient standard of review in constitutional challenges to government actions, laws are almost automatically upheld. In the 2017 case Texeira v. Alameda, the 9th Circuit used the rational basis test to validate a California county’s ban on all new gun stores.

Another problem in some lower courts is willful cluelessness about the actual exercise of Second Amendment rights. In this case, the 2nd Circuit brushed off the travel ban by stating that city residents who venture outside the city can just rent a handgun.

Actually, many ranges do not rent guns. More importantly, forced rentals contradict gun safety and good training. As firearms-safety instructors emphasize, a person who might have to use a gun for self-defense should train with that particular gun. In the crisis of a violent attack, the defender often relies on muscle memory. This requires using the particular firearm with which the defender has become familiar via practice.

Even within a given make and model, handguns vary in operation. Just as 10 cars of the same model and year will all drive and handle a little differently, handguns vary too. One reason is small variations in the sizes of parts. Another reason is that final assembly is done by hand, with the assembly person manually adjusting internal settings, such as trigger pressure. As guns are used, they differ even more, due to variances in wear, replacement or upgrading of parts, and so on. Thus, one gun may reliably feed a particular brand of ammunition, and another gun may not. The only way to know how one’s gun will perform is to practice with that gun.

For example, “trigger break” is the exact point in trigger movement when the trigger initiates the firing of the ammunition. By muscle memory, a proficient user knows this exact point for her gun.

The “reset point” is where the trigger returns after the gun has fired. When releasing the trigger, the proficient user should move her finger exactly far enough forward to let the trigger reset—and no further. Then, the user is ready to pull the trigger again with just the right amount of finger movement.

Learning the trigger break and reset point requires muscle memory, built through practice with a particular gun. Practice with one’s own gun improves control, safety and accuracy.

According to the 2nd Circuit, preventing practice with one’s own firearm is such a minor inconvenience that the Second Amendment is not even at issue. For the sake of argument, the 2nd Circuit did imagine that the travel ban should be reviewed under “heightened scrutiny.” Heightened scrutiny requires the court to carefully examine the evidence about the burdens and benefits of the challenged law. The burden of proof is on the government.

The weakest form of heightened scrutiny is called “intermediate scrutiny”—an easier standard than “strict scrutiny.” Strict scrutiny was originally created for judicial review of government discrimination based on race; intermediate scrutiny was first used for review of government discrimination based on sex.

The 2nd Circuit says that strict scrutiny never applies to the Second Amendment. Some federal courts elsewhere have said the same. So the 2nd Circuit reviewed the travel ban under intermediate scrutiny.

The Supreme Court’s cases have established detailed rules for applying intermediate scrutiny. Among them: 1. The government must produce substantial evidence. 2. The government must overcome rebuttal evidence. 3. The government must prove that its objective is achieved more effectively through the regulation than through other means. 4. The government must consider substantially less burdensome alternatives. In upholding the travel ban, the 2nd Circuit ignored all these requirements.

According to the Supreme Court in City of Los Angeles v. Alameda Books, the government cannot “get away with shoddy data or reasoning.” And in Edenfield v. Fane, the court emphasized that the government cannot pass intermediate scrutiny with merely an “affidavit … which contains nothing more than a series of conclusory statements.”

What was the evidence in favor of the NYC travel ban? An affidavit with nothing more than a series of conclusory statements. The entire evidence in support of the travel ban was an affidavit from a former gun-licensing official. He speculated that licensed New York City handgun owners transporting unloaded handguns outside the city might perpetrate “road rage.”

The affidavit did not supply a single example of a licensed New York City resident misusing a transported handgun before the 2001 travel ban. To the 2nd Circuit, the retired official’s speculations were all that was needed to uphold the ban.

The problem of lower courts’ relying on flimsy evidence in Second Amendment cases is widespread. When the 3rd Circuit upheld New Jersey’s confiscation of all magazines with over 10 rounds in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, dissenting Judge Stephanos Bibas observed: “[T]he majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.”

Not all lower courts have refused to enforce the Second Amendment. When Chicago outlawed all target ranges open to the public, the U.S. Court of Appeals for the 7th Circuit held the ban unconstitutional. In response, Chicago adopted zoning rules banning indoor target ranges from 98 percent of the city. Further, parents were prohibited from teaching firearms safety to their teenage children at target ranges. The 7th Circuit held these laws unconstitutional too. Similarly, a federal district court in Chicago overturned a ban on all gun stores within city limits.

Decisions by the U.S. Courts of Appeals for the District of Columbia Circuit and 7th Circuit resulted in adoption of fair laws for bearing arms in D.C. and Illinois. In both places, an applicant for a concealed carry permit must pass safety training and a fingerprint-based background check. Applicants may not be denied a permit just because a government official opposes exercise of the right to bear arms.

The lower court nullification has been noticed. Justices Clarence Thomas and Neil Gorsuch and the late Antonin Scalia dissented from several cert denials in which lower courts upheld especially egregious violations of the Second Amendment. For example, a San Francisco law prohibits residents from having a firearm available for immediate self-defense in a bedside table while sleeping—or even while changing clothes. A Chicago suburb outlaws many common firearms, including the most widely owned rifle in American history.

Scalia and Thomas denounced the opinion upholding the Chicago suburb’s gun ban as an example of widespread “noncompliance with our Second Amendment precedents.” Regarding the Supreme Court’s refusal to consider the San Francisco ordinance, Thomas and Scalia observed: “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” In short, as Thomas stated in his dissent from the denial of certioriari in Silvester v. Becerra, “the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment.”

The problem is well known. It is time for the Supreme Court of the United States to defend its preeminent role in constitutional interpretation and to address lower-court nullification of the Second Amendment.

Trump to flip 11th Circuit to majority GOP-appointed judges; third appeals court to change majority.

Senate Republicans confirmed one of President Trump’s judicial nominees to the 11th U.S. Circuit Court of Appeals Tuesday and will flip the federal appeals court to a majority of Republican-appointed active judges with another confirmation later this week.

It will be the third federal appeals court to be turned to a GOP-majority under the president’s promise to remake the federal judiciary with a conservative bent.

Judge Robert J. Luck cleared the Senate Tuesday by a 64 to 31 vote.

Judge Luck currently serves on the Florida Supreme Court, where he was appointed earlier this year by Gov. Ron DeSantis. He has been a judge in lower Florida courts since 2013. Prior to that, Judge Luck served as an assistant U.S. attorney in the Southern District of Florida.

With the addition of Judge Luck, the circuit now has six active Republican-appointed judges and six Democratic-appointed ones. When adding senior judges to that count, the circuit has 11 GOP-appointed and nine Democratic.

Mike Davis, president of The Article III Project which backs Mr. Trump’s judicial nominees, said it’s important for the president to flip the federal appeals courts so when cases that decide binding law for the circuit are heard by the full panel of active judges, Republicans are at an advantage.

“As you see President Trump flip these critically important federal circuit courts and transform the judiciary, it reminds Republicans and conservatives why elections matter,” Mr. Davis said.

Arguments set for case of Ohio gun owner drunk inside house

Guns and alcohol don’t mix, we all know that. But possession of a firearm while above the legal alcohol limit in your own home is against the law?  Does it also mean that if you imbibe at all you can’t have any guns in your home? What about if it was necessary to defend against a burglary, or some other instance where you had to defend yourself, or others? Are you simply out of luck in Ohio if you’ve ‘had a few’?
This case sure sounds like a prosecutor wanted to make that point.

Laws against carrying while drinking come from the idea that doing so isn’t being responsible. This is the law in Ohio and most other states and that’s okay. But this is stupid.

COLUMBUS, Ohio (AP) — The Ohio Supreme Court will hear arguments in February to decide whether a law prohibiting gun owners from carrying firearms while intoxicated should be applied inside a gun owner’s home.

Lawyers for a Clermont County man arrested in 2018 after he acknowledged having an unloaded shotgun while drunk say the law is unconstitutional when applied to homeowners.

They say a person’s sobriety or intoxication level should have nothing to do with possessing a weapon “in the hearth and home.”

Gun control advocates argue the safety of Ohio residents and responding police officers would be jeopardized if the court overturned the arrest.

The court has scheduled oral arguments for Feb. 25. A decision isn’t expected for months.

Supreme Court asks Solicitor General to weigh in on whether gun case is moot

On Friday, the Supreme Court requested the Solicitor General to submit his views on the mootness of New York State Rifle & Pistol Association v. New York City, a Second Amendment challenge pending before the Supreme Court that the city of New York has been desperately trying to wriggle its way out of since certiorari was granted. The City’s principal argument is that, because they changed the subject law, there is no case to hear. (Despite, of course, several doctrines preventing exactly this type of abuse from standing.)

Moments after the Court requested the Government’s brief, the Solicitor General submitted their letter brief. The filing, quite flatly, rejects the City’s mootness argument. This is only a brief, of course, not a binding opinion. It doesn’t foreclose the City’s argument. It does, though, make the City’s argument look weak.

Here’s the slightly re-paginated letter, with legal citations deleted, to make it easier reading:

Honorable Scott S. Harris
Clerk
Supreme Court of the United States
Washington, D.C. 20543
Re: NY State Rifle & Pistol Assn., Inc., et al. v. City of New York, et al., No. 18-280
Dear Mr. Harris:
On November 15, 2019, this Court ordered the United States to file a letter brief addressing whether this case is moot. In the United States’ view, respondents have not established that this case is moot.
1. The prospect that petitioners may seek damages suffices to keep this case alive.
This Court has held that a case becomes moot only if intervening events mean that a court can no longer “grant any effectual relief” to the plaintiff Mission Prod.

The Court has further held that “money damages” for past injuries qualify as effectual relief, and that, as a result, a claim for such damages, “if at all plausible, ensure[s] alive controversy.

(“[M]ootness is defeated so long as damages or other monetary relief may be claimed on account of the former provisions.”). Most courts have held that even a claim for nominal damages prevents a challenge to a repealed statute from becoming moot.
Although one court of appeals has held that a claim for nominal damages does not suffice, even that court agrees that a claim for actual damages ensures a live controversy.
Under those principles, this case remains live, because petitioners could still seek and a court could still award actual or nominal damages on account of the transport ban’s alleged violation of their Second Amendment rights.
Petitioners have brought their lawsuit under 42 U.S.C. 1983, a statute that authorizes courts to award “damages * * * to compensate persons for injuries that are caused by the deprivation of [their] constitutional rights.”

The entities they have named as defendants—the City of New York and the License Division of the Police Department—are municipal bodies, which enjoy neither sovereign immunity nor official immunity from claims for damages.
Moreover, the complaint includes allegations, and the summary-judgment affidavits include evidence, that the application of the transport ban to petitioners caused them injury in the past.
And petitioners have never forsworn or waived damages in any of their pleadings or filings.
Although petitioners’ complaint does not specifically request damages, any omission in the complaint would not, by itself, be conclusive as to mootness if petitioners were now to assert a claim for damages.

And in the unusual circumstances of this case— where the City waited until after the grant of a writ of certiorari to amend the challenged law, and where the City waited until after the completion of briefing on mootness to make additional representations about the future consequences of past regulatory violations, see infra—it may well be excusable for petitioners to make an express request for damages at this stage, even if they have not already done so.
In all events, questions about whether it is too late for petitioners to seek damages go to the merits, not to jurisdiction. Under Article III, the relevant inquiry is whether it is still possible for a court to grant “effectual relief,” not whether “[u]ltimate recovery” is certain or even likely.
It is still possible to grant damages for the past violations of petitioners’ constitutional rights. To the extent petitioners seek such damages, the case remains live.

2. Petitioners propose several alternative theories under which this case remains live.

a. Petitioners first contend that this case remains live because they could still suffer future consequences as a result of their past violations of the repealed law.
We agree that, in principle, the possibility of future consequences for past violations of a repealed law can be sufficient to keep a case from becoming moot.
We further agree with petitioners that, on the record before this Court, the possibility of such future consequences does keep this case from becoming moot.
Under state law, a licensing officer enjoys “considerable discretion” in evaluating applications for handgun licenses. On the current record, there is a real possibility that licensing officers in the City would exercise that discretion to hold past violations of the transport ban against petitioners when considering future applications for handgun licenses.
The City, however, has informed the United States that, in exercising its discretion, the City will not give adverse effect to past violations of the former transport ban in future licensing 2  decisions.
If the City makes such a representation to the Court, then the possibility of future enforcement by the City would be too “remote” to keep this case alive.

b. Petitioners also contend that this case remains live because they still object to restrictions contained in the new provisions enacted by the Police Commissioner and the State. Pets. Resp. to Suggestion of Mootness 13-16.
Although petitioners’ objections to the new provisions would establish a live controversy regarding those provisions, they do not establish a live controversy regarding the City’s original transport ban.

c. Finally, petitioners invoke the principle that a defendant’s voluntary cessation of a challenged practice moots a case only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”  But that principle does not apply to the new statute enacted by the State of New York.
First, the voluntary cessation doctrine applies only to “a defendant ‘s voluntary cessation of a challenged practice.” The State of New York is not a defendant; it is a third party.
Second, this Court has never applied the voluntary-cessation doctrine to a statute enacted by a state legislature or Congress. The Court has instead “consistently and summarily held that a new state [or federal] statute moots a case.”

Sincerely,
Noel J. Francisco
Solicitor General

Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

Remember, I’ve said more than once, I’m not anti-cop. I’m anti-stupid cop. This is one that qualifies.

The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house’s resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.

In this case, South Carolina police officer David Belue’s legal rep tried to tell the court Betton’s response to a bunch of heavily-armed men rushing through his door — grabbing a gun and moving into the hallway from the bathroom — created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn’t want to get shot, he shouldn’t have been in his own house when it was invaded by officers who never informed him they were police officers.

Here’s a recap of the events leading to the lawsuit, from the Fourth Circuit’s decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.

Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton’s weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.

Officers also lied about their entrance to Betton’s home. They claimed they knocked and announced their presence. Betton’s surveillance camera told the real story. Nine seconds elapsed between the officers’ arrival on Betton’s lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.

To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Despite this — and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home’s occupants — Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer’s actions.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.

With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

The Appeals Court sees no reason to upend this finding, especially when there’s precedent on point saying actions like this clearly violate Constitutional rights.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

Officer Belue also argued Julian Betton was so inherently dangerous it didn’t matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton’s mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn’t interested in advancing this terrible legal theory.

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

Betton’s case goes back to the district court and Officer Belue will have to face a jury if he doesn’t attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue’s attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively “fears for his safety,” context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can’t turn around and claim residents have no right to react with alarm to armed intruders.

Colorado Supreme Court considers gun magazine limit

DENVER (AP) — Gun rights groups are urging the Colorado Supreme Court to follow guidance from the U.S. Supreme Court to throw out the state’s ban on gun magazines that hold more than 15 rounds.

In arguments before the state court Wednesday, the groups’ lawyer, Barry Arrington, said that since the U.S. Supreme Court has found that the right to bear arms is a fundamental right, the state has a heavier burden to prove that the magazine limit is needed. He said they cannot meet that standard.

The law was passed in 2013, a year after the Aurora theater shooting, in an effort to limit the number of deaths in mass shootings. While large capacity magazines were used in the Columbine and Aurora shootings, Arrington said that have also been widely used by gun owners, with millions of them in existence when the law was passed.

\The legal challenge brought by Rocky Mountain Gun Owners and the National Association for Gun Rights is based on the gun rights’ provision in the Colorado Constitution, which expressly protects the right of people to be armed to defend their homes, property and themselves. Given that, Colorado Solicitor General Eric Olson told the justices they have the right to interpret the state’s constitution on their own, noting that U.S. Supreme Court guidance changes over time.

Olson argued the state Supreme Court should instead stick with the approach it established in 1994 in a challenge to an assault weapons ban passed by Denver — deciding whether a law furthers a legitimate government interest without being too broad.

The case that Arrington wants the state court to look to came later. In 2008, the U.S. Supreme Court ruled that Americans have a constitutional right to keep handguns and commonly used firearms in their homes for self-defense. The ruling struck down the District of Columbia’s 32-year handgun ban as incompatible with gun rights under the Second Amendment.

This just in:

The Supreme Court has denied cert. for the Remington v Soto case in Connecticut where the state is allowing a suit against Remington to proceed under their  Unfair Trade Practice law.

The orders list is here:

CERTIORARI DENIED

19-168 REMINGTON ARMS CO., LLC, ET AL. V. SOTO, DONNA L., ET AL

SCOTUS Gun Watch, Episode 4

More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.

Since January 2017, President Trump has appointed, and the Senate has confirmed,158 life-tenured federal judges, including 20 who today serve in Texas. Taken together, the president’s nominees over the last three years have filled one-quarter of the seats on our nation’s circuit courts of appeals, and two of the nine seats on the U.S. Supreme Court.

Few legacies will be longer lasting than this judicial one. These new judges are principled constitutionalists who have demonstrated excellence and professionalism throughout their legal careers.

These are judges we can rightly expect will remain faithful to the law. This is good news for all of us who care about the Constitution, individual liberty, and democracy. I’ll be joining the president Wednesday at the White House to recognize this historic achievement.