Category: Courts

Breaking Down the Initial Amicus Briefs in Bruen

In New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court will answer: Did New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violate the Second Amendment? New York bars open carry of handguns, and the state has a “may issue” licensing scheme to carry a concealed handgun. This means the applicant must meet certain statutory requirements, and the licensing official has discretion in the final decision of whether to issue a permit. (Alternatively, states with “shall issue” schemes offer little to no discretion, instead relying solely on statutory requirements.) In New York, discretion comes in the form of determining if the applicant showed “proper cause” for needing to carry a concealed handgun. The standard of “proper cause” is not statutorily defined but has been interpreted as a “special need” above that of the public or of applicant’s specific profession.

There are two dimensions of particular importance in the case. First, the Court’s treatment of New York’s “may issue”/“proper cause” scheme will undoubtedly impact the other six states with similar licensing requirements. Second, the Court must deal with the question of how to evaluate claims regarding Second Amendment laws. Many amici, some judges, and even a few Justices argue that courts should look only to text, history, and tradition. Under this test, a law with no historical analogue would apparently be unconstitutional. However, every federal court of appeals to come across the question has settled on a different approach: a two-part means-ends scrutiny framework. At the first step of this test, courts ask if the law burdens conduct the Second Amendment protects. If not, then the law is constitutional. If so, then courts use a heightened level of scrutiny to determine if the law sufficiently furthers an important or compelling government interest. Given this dramatic difference in methodology, the Court’s decision has the potential to disrupt a considerable amount of case law.

Considering the stakes at issue, it is no surprise that there are copious amicus briefs filed in Bruen. Briefs in support of petitioner and in support of neither side were due July 20^th, 2021. There are 49 amicus briefs docketed on the Supreme Court’s website; and there will likely be a similarly large number in support of the state filed in September. All but two of the currently posted briefs are in support of petitioners. One of these, a brief of “Second Amendment Law Professors,” was written by Center Faculty Co-Directors Joseph Blocher and Darrell Miller, along with SMU Law Professor Eric Ruben. The professors argue the Court should “hold that the courts of appeals are using the proper doctrinal framework to adjudicate Second Amendment claims.” On another note, the brief of Patrick J. Charles provides a historian’s “contextualized understanding” of the history of modern laws concerning concealed carry and dangerous weapons.

This level of amicus support is consistent with a broader trend. Over the past ten years, the Supreme Court has seen a dramatic increase in the number of amicus briefs filed. From 1946-1955, there was an average of one brief filed per case. Then, 1986-1995 saw about five briefs per case. Most recently, the 2019-2020 term yielded an average sixteen briefs per case, for a total of 911 briefs. In the same term, eight cases had at least thirty briefs; Bostock v. Clayton County, a case contemplating Title VII protections for LGBTQ+ employees, had the most filed with 94 unique briefs. In Bruen, if there are as many briefs supporting the state as there are opposing it, the case will surpass the number in Bostock. Usually cases with controversial, social issues generate large numbers of amicus briefs. Interestingly, in 2008, District of Columbia v. Heller held the record for the most amicus briefs up to that time, with 68.

Source: “Amicus Curiae at the Supreme Court: Last Term and the Decade in Review,”

The National Law Journal, 11/18/2020

The Bruen amicus briefs cover a wide array of topics. Three briefs explicitly invoke corpus linguistics evidence. Twelve briefs discuss the Second Amendment’s treatment as a “second-class” or “disfavored” right. Eleven briefs note the racial/gender/outgroup impacts of laws. Of these, 2 discuss threats against women, 9 focus on racial divides, 3 note anti-immigrant discrimination; there are also single mentions of discrimination against LGBTQ+ individuals, religious minorities, indigent people, and ethnic minorities.

The following table highlights the breakdown of amicus briefs arguing for certain positions or invoking certain arguments.

The Center’s work also factored into the legal analysis of several amicus briefs. Four briefs cite posts on this blog. Additionally, there are 2 direct references to the Repository of Historical Gun Laws. (The Repository is a free, searchable database of gun laws. Laws are organized by subject-matter, with seventeen categories. It is also searchable by geographic area; laws are divisible by country – United States or English law – by all fifty states, or by one of twenty-two cities.) And 4 briefs cite scholarship from the Center directors.

Gun Control Orgs are Baffled by Judges Who Take the Second Amendment Seriously

In 2017, [Judge Roger T. Benitez] was assigned the large-capacity magazine lawsuit. Then came three more 2nd Amendment cases in the next two years, because of a court rule that allows either side to request that their case be heard by a judge with previous experience on the topic.

Gun control advocates have argued that gun-rights groups have used that rule to “judge shop,” filing 2nd Amendment cases in Benitez’s district in an effort to get a more favorable hearing.

The gun cases have become Benitez’s calling card, turning him into a polarizing figure: lionized by the firearms lobby as a hero unwinding onerous regulations, and vilified by advocates for stricter gun laws who say his interpretation of the 2nd Amendment is alarming and extreme.

After the assault-weapon ruling, Gov. Gavin Newsom excoriated Benitez as a “stone-cold ideologue” and a “wholly owned subsidiary of the gun lobby and the National Rifle Assn.,” comments that were criticized by multiple bar associations as personal attacks damaging trust in the judiciary.

Gun rights groups have hailed Benitez for what they deem an honest, clear-eyed approach to the law and an insistence that government lawyers prove that gun control measures actually work.

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Is it surprising that a state goobermint court would say that about a state goobermint law that has been in effect for a long time? Minnesota has been ‘shall issue’ since 2005, and was ‘may issue’ before that.
Also, the guy talked himself into this.

Minnesota Supreme Court upholds state’s permit-to-carry law

The Minnesota Supreme Court ruled Wednesday that a state law requiring individuals to have a permit to carry a handgun in public is constitutional and does not violate the Second Amendment.

The ruling comes in the case of a man who was charged with carrying a pistol without a permit. Nathan Hatch was arrested in 2018 after Metropolitan Airport Commission police stopped to help him after his truck broke down. He told officers he had a gun in the back seat and did not have a permit, and officers found a loaded pistol.

Hatch was convicted of a gross misdemeanor. On appeal, he tried to strike down the state’s permit-to-carry statute, arguing it violated his right to bear arms and failed to survive strict scrutiny because it was not narrowly tailored to advance the state’s interests.

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BLUF:
…there is simply no solid constitutional argument against what the NYSRPA plaintiffs — citing the D.C. Circuit — argued in the District Court:
The law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.

The Supreme Court Briefs That Dismantle New York’s Public Carry Ban.

Sometimes you feel overwhelmed in a good way.

Last week brought an avalanche of amicus briefs in the major Supreme Court gun rights case of New York State Rifle & Pistol Association v. Bruen, which is expected to be the Court’s most important Second Amendment case since the Heller and McDonald decisions more than a decade ago.

Gun control advocates first began getting nervous about this case in the spring, when the Supreme Court agreed to hear the merits of the case under its original name of NYSRPA v. Corlett.

Nearly four dozen briefs were filed in support of NYSRPA’s challenge to New York’s unconstitutional gun control laws. Contributors are, literally and figuratively, all over the map — Asian and African American groups, academics, dozens of states, and many more congressmen and senators.

Never let anyone tell you that the movement for gun rights is marginal, or confined to one demographic.

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Cruz and 24 Senate Republicans file amicus brief defending Second Amendment right to carry

Sen. Ted Cruz and two dozen Senate Republicans, including Senate Minority Leader Mitch McConnell, filed an amicus brief Tuesday in a Second Amendment case the Supreme Court is set to hear this fall, arguing that New York gun law violates the right to bear arms under the Constitution.

Cruz and his GOP colleagues filed a brief in New York State Rifle & Pistol Association v. Bruen, which the Supreme Court granted cert for in April.

The high court, in its October 2021 term, is set to consider whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

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[Kansas] AG Derek Schmidt to U.S. Supreme Court: Second Amendment rights extend outside the home

TOPEKA – (July 20, 2021) – The Second Amendment’s protection for the individual right of law-abiding citizens to keep and bear arms applies outside a person’s residence, Kansas Attorney General Derek Schmidt today told the U.S. Supreme Court.

Schmidt joined with 25 other state attorneys general in filing an amicus brief with the U.S. Supreme Court urging the justices to reverse a ruling from the U.S. Court of Appeals for the 2nd Circuit that upheld a New York law requiring law-abiding citizens to provide documentation of “proper cause” as to why they should permitted to carry a weapon for protection or other legal use outside the home.

The attorneys general said the New York law is in direct conflict with a 2008 U.S. Supreme Court ruling that the Second Amendment includes the right of law-abiding citizens to keep and bear weapons in self-defense, including legally carrying such a weapon outside the home and across state lines. Laws similar to the New York system have been invalidated in several cases in recent years, including a Hawaii law struck down by the 9th Circuit in 2018.

Schmidt said the U.S. Supreme Court’s ruling on the matter would provide clarity that the Second Amendment rights of Kansans and all law-abiding citizens to carry a weapon outside the home is constitutionally protected.

New York’s system for issuing permits runs contrary to Kansas and 41 other states that maintain a “shall issue” licensing regime based on objective criteria for granting a permit, which can include background checks, fingerprinting, and training in firearms handling and/or laws regarding use of force. The attorneys general argue in their brief that New York’s system creates a fundamental burden on citizens without advancing the objectives of public safety and crime prevention, leaving firearms in the hands of a select, chosen few who can demonstrate to the government a “special need.”

The amicus brief in N.Y. State Rifle & Pistol Association, Inc., v. Bruencan be found at https://bit.ly/3znJSgZ.

Judge Refuses to Confiscate Defendant’s Guns Despite Prosecutor’s Request

WOODLAND, CA – Any of Trent Stonerock’s concerns about having his legally-owned firearms confiscated were alleviated here this week as Yolo County Superior Court Judge David W. Reed refused to confiscate them, despite Deputy District Attorney Alex Kian’s strenuous request.

Stonerock, who now resides in Ohio, was charged with a misdemeanor for resisting/obstructing a police officer for an August 2018 incident in which he had a physical altercation with his son.

The presence of Stonerock’s firearms, which were loaded, allegedly made the officers “concerned for their safety” as they dealt with the situation.

Kian proposed that Stonerock “surrender his firearms for a period of a year.” Kian wanted to make sure that Stonerock knows he’s “getting off with a diversion [of the misdemeanor charge],” and stressed that there must therefore be “some consequences as an incentive to comply.”

Kian suggested Stonerock “surrender [his firearms] to a licensed gun dealer in his state [Ohio].”

Further stressing public safety concerns, Kian asked that “drug terms be imposed,” which included frequent drug testing. He also added that “there’s claims of mental health issues and what not,” which increase public safety concerns.

Hendrick Crowell, Stonerock’s defense attorney, suggested vastly different conditions for his client than Kian did.

Crowell began by dispelling Kian’s concerns over Stonerock’s mental health and criticizing Kian’s suggestion to apply drug testing, stating that “this is a case from August of 2018, so he’s [Stonerock] been just about three years clean with no law violations, no calls for services, [and] no issues. He completed six sessions of private therapy.”

Crowell then addressed Kian’s request that the court confiscate Stonerock’s guns, arguing that “he’s [Stonerock] is a lawful gun owner. [The incident] was at his home… he was close to his guns, [and] there was a struggle over the police trying to secure the guns and the court granted the diversion request, and I think it’s more appropriate that he just do some community service.”

Crowell then specifically suggested that Stonerock do 40 hours of community service for the church in which he is a very “active” member.

However, Kian objected to Crowell’s suggestions.

First, Kian maintained the incident showed how Stonerock failed to “demonstrate proper gun ownership” since he seemingly frequently left his guns loaded, adding the situation got so out of control that the police officers on the scene “were actually concerned for their own safety as well as that of the son [of Stonerock].”

Second, Kian objected to Stonerock “doing community service at his own church, since that is not consistent with the traditional way the court operates with community service.”

After the argument between Kian and Crowell, Judge Reed granted the misdemeanor diversion for a year.

However, Judge Reed also included conditions that Stonerock must follow. Most notably, Judge Reed declined to confiscate Stonerock’s firearms; he didn’t believe that the court could “have anything to do with the guns” even if Stonerock were convicted of the offense of which he was charged.

In addition, Stonerock must perform 40 hours of community service for “some non-profit other than his church,” said the judge, explaining he usually does “not allow people to do community service in their own church.”

The date for the review hearing is set for July 14, 2022, in Dept. 7.

Opening Brief Filed in Second Amendment Case Before the Supreme Court

“…….In reaffirming the promise of the Second Amendment, Heller surveyed a wealth of historical materials that made clear beyond cavil that the vast
majority of jurisdictions have honored the right to carry arms for self-defense. That remains true today in most of the Nation—but not in New York. New York continues to make it all but impossible for typical, law-abiding citizens to exercise their right to bear arms where the right matters most and confrontations are most likely to occur: outside the home. The only people who may carry a handgun beyond the curtilage are those who can show, to the satisfaction of a local official vested with broad discretion, that they have a special need for a handgun that distinguishes them from the vast bulk of “the people” protected by the Second Amendment.

As to everyone outside that small subset, there is no outlet to carry handguns for self-defense at all. That restrictive and discretionary regime is upside down. The Second Amendment makes the right to carry arms for self-defense the rule, not the exception, and fundamental rights cannot be left to the whim of local government officials.

New York’s regime is irreconcilable with the text, history, and tradition of the Second Amendment. The textual inquiry is not a close question, as the text guarantees a right to “bear” arms as well as “keep” them, and a right to bear arms only within the confines of a home offends both common sense and original public meaning. ………….”