NRA Takes Carry Case to SCOTUS

[jrbway]

I hope you're right that the Court is willing to take a crack at prohibited persons categories, but I'm not sure the votes are there. Neither Alito or Roberts joined Thomas' dissent in Voisine v. United States, 136 S. Ct. 2272 (2016).

Why don't you think carry is the next incremental change they want to address? There is a clear circuit split, and when 11 2A cases were before the court last year for cert. at the same time, it was a carry case that drew a dissent from denial. Rogers v. Grewal, 140 S. Ct. 1865 (2020).

@joshs Your question is on point. I am merely an observer, not a Constitutional litigator. I see the Roberts Court as one focused first on the institutional sanctity of the court, and then on incremental (small) movements (unless it’s Obamacare). I also think the judges are not automata. With that, I suspect there’s more popular support for granting non-violent felons the right to self-defense inside their homes which Heller explained than there is for the Court explaining the right includes public carriage (even thought the original public meaning) likely does include carriage. I’m thinking about how a Justice Kagan could be persuaded to rule in favor of the 2A. . .

[BillSWPA]

Didn't that happen with this case—

https://www.scotusblog.com/case-file...york-new-york/

—last year?

Unless I misunderstood—and perhaps I did—what happened in NYSR&PA v. City of New York, SCOTUS vacated NYSR&PA v. City of New York last April because the city withdrew the regulation that prohibited NYC residents with “premises” handgun licenses from taking their own legally-owned firearms outside for lawful purposes at some prior point in time.

So, ASSuming that I understood correctly what happened in the prior case of NYSR&PA v. City of New York, what would prohibit the court from ''punting'' again?

I'd enjoy seeing a really desirable outcome, but won't believe it until I see it.

If I recall correctly, that case involved not only a change in New York City law, but also a change in New York State law which would have prohibited change in New York City law back to the way it was.

The reason why the case should not be moot is that merely changing the law, without more, presents no obstacles to simply changing the law back once the case is dismissed. While I do not agree with the mootness ruling in the New York City case, there is a stronger argument that New York City cannot simply change the law back after the case is dismissed.


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[the Schwartz]

If I recall correctly, that case involved not only a change in New York City law, but also a change in New York State law which would have prohibited change in New York City law back to the way it was.

The reason why the case should not be moot is that merely changing the law, without more, presents no obstacles to simply changing the law back once the case is dismissed. While I do not agree with the mootness ruling in the New York City case, there is a stronger argument that New York City cannot simply change the law back after the case is dismissed.

OK, thanks for pointing out that not-so-subtle nuance. I was unaware that there was contravening law involved in the prior case of in NYSR&PA v. City of New York.

Just as you are, I am hoping for not just an affirmative outcome, but one that is materially significant.

[Savage Hands]

Same thing. Some "may issue" states use "good cause," some use "proper cause," and others require an applicant to be a "proper person to be licensed." They all mean that the government can discriminate against individuals to deny them of their fundamental rights.

Thank you and best of luck on restoring our rights. I live in an issuing county in California but that can change depending on the current Sheriff.

[Glenn E. Meyer]

I’ve read the brief and hope for its success. I have some questions and remarks. First, I’ve just gotten done with the Erie Country permit process. Some facts. You can have and purchase long arms in NYS, outside of NYC, with ease as long as they are compliant (a pain) and you do the typical NICS checks. Thus, I came to the state with my compliant long arms without problem and were my major home SD guns.

It took me a year to get my permit and rescue my handguns (all compliant) from an FFL (pricey, shipping and storage). The main problem is that I’m magazine capacity limited. It might have taken less time except for Covid. The actual process of getting the permit and guns was 4 months from start to finish.
I had to take a course (as in many states). No shooting test (unlike TX). No test at the course on the laws. Just a lecture (https://ftwny.com/ - excellent outfit). The class was large – about 50 folks. The instructor supply forms and talked us through the forms.

The permits come in different flavors:

I am requesting a pistol permit for the following reason: Unrestricted/Personal Protection Target & Hunting Target, Hunting & Business Protection
Here’s an important point. You cannot purchase a handgun without a permit.

You can get permit that does not allow carry (you can request an upgrade) and that is an issue in some counties that are much tighter than Western NY.
You have to justify your need for personal protection. Some counties are tougher than others. Guess where, NYC is a totally different beast. I’m talking outside of there. The instructor has suggested prose that is rather sensible – you didn’t have to mention specific threats for an unrestricted permit. I also added some background about my training and competition history.

You have to supply four references. Various townships may vary in whom they accept based on locale, etc. I found simpatico neighbors. I was surprised at how many folks here have permits.

Then I was interviewed by an Erie County sheriff who asked about my reason, which was pretty generic and needed for an older couple. He asked me about my training, mentioned in my statement. I mentioned Mas, Tom Givens – his conference, the old NTI, Insights, KR Training, etc. as well as my long history of IDPA competition. It was pleasant and I received the permit letter. Here’s the deal – with the letter you have to register an actual handgun to get the plastic card. So off to the FFL and hours of forms for my selection. Wait a month, get the card, and get the guns. This is slow because of Covid. You used to be able to do it in a day or two. Everything is now by mail.
Blah, Blah – to the brief and my questions.

The focus is carrying a handgun outside of the home and the required justification. However, since the permit is needed even to have a handgun, I wondered why this wasn’t brought up. It would seem that Heller was somewhat ambiguous on carry outside the home. The brief argues it isn’t but it did support locale bans. It would seem the idea of justification for even one of the hunting and premises permits would be or should be mentioned but I’m not in on the strategy. Since you can be totaled denied a handgun, it would seem a point.

Next, the brief discusses carrying a firearm as compared to a handgun in several points. Is this ambiguous as doesn’t mix long arms and handguns? I dunno?

The brief states in
STATEMENT OF THE CASE
A. Factual Background

New York bans the open carry of handguns entirely. Kachalsky, 701 F.3d at 86. And while New York permits concealed carry of a handgun with a license, the state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license. A New York licensing officer enjoys the discretion to grant a concealed carry license to members of select professions, such as state court judges, N.Y. Penal Law §400.00(2), but a license to carry a handgun “without regard to employment or place of possession” may only be granted “when proper cause exists for the issuance thereof,” id. §400.00(2)(f). See Kachalsky, 701 F.3d at 86 (“Given that New York bans carrying handguns openly, applicants ... who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f).”).

Is that really true? It seems to county dependent. Western NY in particular has many permit holders, competitors and stores selling handguns. The Erie County office is processing a 1000 permits requests recently. Just a question of fact.
When I moved here, local and ‘Internet’ experts said it would take 5 years to get perhaps a permit. My research said this wasn’t true. Touch of mythology. However, in other counties it can be a horror show.

So would the local variability be a point to mention? The vagaries of justification seem the causal county variances.
Would relief be to remove the justification? Can the references be removed? The local variations have been a problem for some.

Let’s hope they take this and make a clear determinant that moves the country in its entirety to easy shall issue concealed permits. Constitutional carry can be fought later. I also opine that the felon/permission case is a sideshow and shouldn’t divert legal efforts.

[joshs]

I’ve read the brief and hope for its success. I have some questions and remarks. First, I’ve just gotten done with the Erie Country permit process. Some facts. You can have and purchase long arms in NYS, outside of NYC, with ease as long as they are compliant (a pain) and you do the typical NICS checks. Thus, I came to the state with my compliant long arms without problem and were my major home SD guns.

It took me a year to get my permit and rescue my handguns (all compliant) from an FFL (pricey, shipping and storage). The main problem is that I’m magazine capacity limited. It might have taken less time except for Covid. The actual process of getting the permit and guns was 4 months from start to finish.
I had to take a course (as in many states). No shooting test (unlike TX). No test at the course on the laws. Just a lecture (https://ftwny.com/ - excellent outfit). The class was large – about 50 folks. The instructor supply forms and talked us through the forms.

The permits come in different flavors:

I am requesting a pistol permit for the following reason: Unrestricted/Personal Protection Target & Hunting Target, Hunting & Business Protection
Here’s an important point. You cannot purchase a handgun without a permit.

You can get permit that does not allow carry (you can request an upgrade) and that is an issue in some counties that are much tighter than Western NY.
You have to justify your need for personal protection. Some counties are tougher than others. Guess where, NYC is a totally different beast. I’m talking outside of there. The instructor has suggested prose that is rather sensible – you didn’t have to mention specific threats for an unrestricted permit. I also added some background about my training and competition history.

You have to supply four references. Various townships may vary in whom they accept based on locale, etc. I found simpatico neighbors. I was surprised at how many folks here have permits.

Then I was interviewed by an Erie County sheriff who asked about my reason, which was pretty generic and needed for an older couple. He asked me about my training, mentioned in my statement. I mentioned Mas, Tom Givens – his conference, the old NTI, Insights, KR Training, etc. as well as my long history of IDPA competition. It was pleasant and I received the permit letter. Here’s the deal – with the letter you have to register an actual handgun to get the plastic card. So off to the FFL and hours of forms for my selection. Wait a month, get the card, and get the guns. This is slow because of Covid. You used to be able to do it in a day or two. Everything is now by mail.
Blah, Blah – to the brief and my questions.

The focus is carrying a handgun outside of the home and the required justification. However, since the permit is needed even to have a handgun, I wondered why this wasn’t brought up. It would seem that Heller was somewhat ambiguous on carry outside the home. The brief argues it isn’t but it did support locale bans. It would seem the idea of justification for even one of the hunting and premises permits would be or should be mentioned but I’m not in on the strategy. Since you can be totaled denied a handgun, it would seem a point.

Next, the brief discusses carrying a firearm as compared to a handgun in several points. Is this ambiguous as doesn’t mix long arms and handguns? I dunno?

The brief states in
STATEMENT OF THE CASE
A. Factual Background

New York bans the open carry of handguns entirely. Kachalsky, 701 F.3d at 86. And while New York permits concealed carry of a handgun with a license, the state makes it virtually impossible for the ordinary law-abiding citizen to obtain a license. A New York licensing officer enjoys the discretion to grant a concealed carry license to members of select professions, such as state court judges, N.Y. Penal Law §400.00(2), but a license to carry a handgun “without regard to employment or place of possession” may only be granted “when proper cause exists for the issuance thereof,” id. §400.00(2)(f). See Kachalsky, 701 F.3d at 86 (“Given that New York bans carrying handguns openly, applicants ... who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f).”).

Is that really true? It seems to county dependent. Western NY in particular has many permit holders, competitors and stores selling handguns. The Erie County office is processing a 1000 permits requests recently. Just a question of fact.
When I moved here, local and ‘Internet’ experts said it would take 5 years to get perhaps a permit. My research said this wasn’t true. Touch of mythology. However, in other counties it can be a horror show.

So would the local variability be a point to mention? The vagaries of justification seem the causal county variances.
Would relief be to remove the justification? Can the references be removed? The local variations have been a problem for some.

Let’s hope they take this and make a clear determinant that moves the country in its entirety to easy shall issue concealed permits. Constitutional carry can be fought later. I also opine that the felon/permission case is a sideshow and shouldn’t divert legal efforts.

Sorry I missed this earlier, here are some quick answers:

Open Carry

"Given that New York bans carrying handguns openly, applicants—like Plaintiffs in this case—who desire to carry a handgun outside the home and who do not fit within one of the employment categories must demonstrate proper cause pursuant to section 400.00(2)(f)." Kachalsky v. Cty. of Westchester, 701 F.3d 81, 86 (2d Cir. 2012). Since section 265.01 generally prohibits possession of a handgun and 400.00(2)(f) only provides an exception for someone "to have and carry concealed" courts have construed this as a complete prohibition on open carry even with a license.

Local Variation

We aren't challenging the local issuing practice in this case, we're challenging the state statutory scheme that gives discretion to deny an otherwise law-abiding person their right to carry a handgun outside the home for self-defense. The fact that some localities may have a more reasonable policy doesn't change the fact that the statute itself is constitutionally defective.

[Glenn E. Meyer]

I understand. I was wondering about the ' virtually impossible for the ordinary law-abiding citizen to obtain a license' line. That " The fact that some localities may have a more reasonable policy doesn't change the fact that the statute itself is constitutionally defective" is true. I totally agree. I just thought the impossible statement might be couched differently.

I'd hate for someone to nitpick that and weaken the case. The 'acceptable' solution is (if you don't go for constitutional carry) is a NICS check, no references or reason statement. Open carry is fine but fall back to shall issue would work for most.

Open carry over my -40 deg Jacket - need new gear for that

[Ed L]

You have to supply four references. Various townships may vary in whom they accept based on locale, etc. I found simpatico neighbors. I was surprised at how many folks here have permits.

As I have mentioned before, I used to live in NYC and NYC in the distant past and had permits for long arms and for handguns. The reference requirements apply to anyone who even wants to own a handgun. In NYC you also need to get a permit to even own a longarm, and it includes providing several references. As Glenn said, in the rest of NY State buying a longarm does not require a permit.

I think someone should challenge the requirement for references as being excessive and designed to make it as difficult as possible for average people to get a pistol permit. This is especially the case for someone who moves into the city or state and doesn't know anyone. It could take many years before they had enough people who were willing to sign as references. You may want to keep your firearm ownership confidential from people at work and neighbors which would cut down on the number of people you could approach for references. Then there are some counties and cities that require the references only be from someone in that county or city--which further cuts down the potential pool of people you use for references.

Some places in NY require that you give the reference forms to the the people who will provide your references and that they have those forms notarized, which makes it more of a pain in the ass for the people providing the references. Add to this that many people you know may in NY may be anti-gun, or they might not be comfortable providing a reference for someone they know to own a handgun. People often make many of their acquaintances at work or with their neighbors, but they might not want either of those groups of people to know that you have guns in today's environment. Also, in today's society people just don't make acquaintances like they used to.

Here are the requirements for the character references for a pistol permit in Nassau County on Long Island--and they require four of them:

"Character references: should be US citizens and must be Nassau County residents who have known the applicant for a minimum of 1 year.

The following categories of people
are unacceptable as character references:
1. Relatives, by either blood or marriage,
2. Active law enforcement officers,
3. Husband and wife combinations,
4. Two or more members of the same family or household."

[Catshooter]

Wow. The NRA doing something other than putting $ into LaPierre's pockets. Cool to see. Of course, since they're "partnering" I wonder who is actually doing the work/spending the money.

And based on recent past performances I expect the SCOTUS to not hear the case. It would be great if they would, and even better if they ruled in favor of the good guys but I wouldn't put any money on either one.


Cat

[joshs]

Wow. The NRA doing something other than putting $ into LaPierre's pockets. Cool to see. Of course, since they're "partnering" I wonder who is actually doing the work/spending the money.

And based on recent past performances I expect the SCOTUS to not hear the case. It would be great if they would, and even better if they ruled in favor of the good guys but I wouldn't put any money on either one.


Cat

When we partner with one of our state affiliates, we're usually footing all or nearly all of the legal fees. We also do a ton of legal work in house (all of our legislative legal work is done in house and some 2A litigation).

As in this case, we often use Paul Clement for Supreme Court litigation. The legal fees for extremely experienced appellate litigators are generally beyond what any of our state affiliates can swing.