Supreme Court - NYSRPA v. Bruen - Megathread

MaverickNH

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"On November 10, Judge David Counts of the Western District of Texas issued an opinion in United States v. Perez-Gallan holding unconstitutional 18 U.S.C. § 922(g)(8), the federal ban on possessing a firearm while subject to a court order that “restrains [the possessor] from harassing, stalking, or threatening an intimate partner . . . or child . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.”

...The judge also consulted pre-Bruen cases that performed historical analysis at “step one.” He concluded that these cases found that the protective-order ban and similar domestic-violence prohibitions were not longstanding and upheld the laws only under “step two,” the means-ends scrutiny step which Bruen rejected
."

Here's the gun control advocate's way forward:

"It is difficult to square the historical analysis in Perez-Gallan with Bruen’s statement that “other cases implicating unprecedented societal concerns . . . may require a more nuanced approach.” ...Under Bruen, concluding that societal concern about the use of guns in domestic violence incidents is unprecedented should lead a court to apply a higher-generality analogical inquiry...there is an unprecedented appreciation in modern society that those who have committed domestic violence in the past (and are thus among the most likely to do so in the future) are dangerous when armed. That should be sufficient under Bruen to analogize modern domestic-violence-related gun restrictions to Founding-Era laws based on assessments of “dangerousness.

Of course, every aspect of gun manufacture, distribution, ownership and use are now claimed to be part of a public health crisis and an existential threat to democracy as we know it. So, any and all gun laws would be "unprecedented social concerns."
 

Garys

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I don't think that gives them a way forward. Judge Counts clearly rejected that sort of approach in dismissing the charge and holding 18 U.S.C. § 922(g)(8) unconstitutional. I have no doubt that the government will motion for a stay on his order while they bring their appeal to the Circuit Court, and then presumably SCOTUS.

I don't think he will be overturned at the Circuit level and I would be surprised if cert was granted.

The majority opinion was quite clear in Bruen.



"On November 10, Judge David Counts of the Western District of Texas issued an opinion in United States v. Perez-Gallan holding unconstitutional 18 U.S.C. § 922(g)(8), the federal ban on possessing a firearm while subject to a court order that “restrains [the possessor] from harassing, stalking, or threatening an intimate partner . . . or child . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.”

...The judge also consulted pre-Bruen cases that performed historical analysis at “step one.” He concluded that these cases found that the protective-order ban and similar domestic-violence prohibitions were not longstanding and upheld the laws only under “step two,” the means-ends scrutiny step which Bruen rejected
."

Here's the gun control advocate's way forward:

"It is difficult to square the historical analysis in Perez-Gallan with Bruen’s statement that “other cases implicating unprecedented societal concerns . . . may require a more nuanced approach.” ...Under Bruen, concluding that societal concern about the use of guns in domestic violence incidents is unprecedented should lead a court to apply a higher-generality analogical inquiry...there is an unprecedented appreciation in modern society that those who have committed domestic violence in the past (and are thus among the most likely to do so in the future) are dangerous when armed. That should be sufficient under Bruen to analogize modern domestic-violence-related gun restrictions to Founding-Era laws based on assessments of “dangerousness.

Of course, every aspect of gun manufacture, distribution, ownership and use are now claimed to be part of a public health crisis and an existential threat to democracy as we know it. So, any and all gun laws would be "unprecedented social concerns."
 
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An 'unprecedented societal concern' cant just be a shift in societal opinion, and appreciation is a fancy word for opinion.

In other words, there is an unprecedented appreciation in modern society that those who have committed domestic violence in the past (and are thus among the most likely to do so in the future) are dangerous when armed.

Dangerous men carrying weapons is certainly a normal occurrence throughout history.

Bruen also directly notes this from Heller:
The District in Heller addressed a per-
ceived societal problem—firearm violence in densely popu-
lated communities
—and it employed a regulation—a flat
ban on the possession of handguns in the home
—that the
Founders themselves could have adopted to confront that
problem. Accordingly, after considering “founding-era his-
torical precedent,” including “various restrictive laws in the
colonial period,” and finding that none was analogous to the
District’s ban, Heller concluded that the handgun ban was
unconstitutional
. Id., at 631; see also id., at 634 (describing
the claim that “there were somewhat similar restrictions in
the founding period” a “false proposition”).

You basically have to believe there is some kind 'unprecedented' danger on one side of the of the door, but not the other. Especially considering the various types of mass housing.
 

MaverickNH

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A little fuel on the fire for Frank Lautenberg in Hell.
True, that. Laws that do not withstand the test of time are relegated to the political trashbin. Sometimes it takes generations to normalize again, unfortunately. That’s another reason why State law preemption and the COTUS Supremacy Clause are so important. The smaller the jurisdiction, the quicker the local government is to go tyrant on their population.
 

MaverickNH

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Standing to challenge “sensitive place” restrictions is certainly tricky - plaintiffs must actually intend to carry guns in categories of prohibited locations, rather than just objecting that should they want to go to them, they couldn’t carry.

“…an important point likely to arise in future sensitive-places litigation: it is crucial that judges closely scrutinize the plaintiff’s actual intention to carry guns in a prohibited location, lest courts allow the mere act of leaving one’s home with a weapon to automatically confer standing to challenge any location-based ban. One of the plaintiffs in Antonyuk, a volunteer firefighter, argued that he had standing to challenge most, if not all, of the state’s locational restrictions simply because he might be called to fight a fire at one of those locations. But Judge Suddaby properly rejected that argument, finding that the mere possibility of being called to one of those locations was not equivalent to a concrete intention to carry a gun there in the future.”

And it’s not the lions, tiger and bears to fear at the zoo - it’s the two-legged miscreants outside cages. Venues like sports stadiums, auditoriums, parks, zoos, malls, etc., admit full cross-sections of the population. With felon populations averaging 8% by state and about 1 in 5 felons convicted of violent crime, anywhere the public gathers is a risk zone.

When analyzing the state’s ban on guns in zoos, Judge Suddaby observed that “the Court can imagine some of the more trepid zoogoers of the time demanding to be armed in the presence of the more dangerous creatures.
 

MaverickNH

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Last Monday, many of us awoke to the terrible news about a shooting at the University of Virginia on Sunday night that left three students dead and two others injured. Another public college not far away, Virginia Tech, was the site of a horrific mass shooting in 2007 that killed 32 people and injured 17 others—and spurred a campus carry advocacy movement…

Recall that for Bruen, if a modern law seeks to combat a similar social problem as one that existed in the founding era, it is evidence of unconstitutionality if the Founders addressed the problem differently…

…the inquiry is made at an extremely high level of generality—guns hurting people in cities—but in the historical analogy context, Justice Viviano argues for slicing it very narrowly, requiring a much closer resemblance between the laws than Bruen says are required for assessing the social problems meant to be addressed. The result is an even more onerous burden on the government to sustain contemporary gun laws
.”

A case where campus-carry ban are rejected based on Bruen. The Duke author suggests that the analogy of “guns hurting people in cities” should be controlling versus looking for historical analogies of campus-carry bans. The lead-in about the recent VA bus killer is a stretch - the university and law enforcement dropped several balls repeatedly. And the link to Virginia Tech was just silly…
 

MaverickNH

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"Post-Bruen, some gun control advocates have been looking to Bowie knife laws as analogical justifications for bans on common modern rifles and magazines…

The knife category of Bowie knives plus dirks and/or daggers was frequently regulated at the same level as handguns. That is, prohibitions were rarities. The mainstream approach for handguns and knives was non-prohibitory for peaceable adults, such as laws forbidding concealed carry (while allowing open carry), prohibiting sales to minors, or specially punishing misuse
."

Some of my sharp things…
3CE7C006-676B-4A3C-99A1-F25E1058635E.jpeg
 

MaverickNH

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Falling like dominoes…

"Another one of New York's new restrictions imposed in the immediate aftermath of the Supreme Court's Bruen decision is the private property exclusion. That new provision makes it a felony for a license holder to possess a firearm on all private property, unless the relevant property holders actually permit such possession with a sign or by express consent….

Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes. Thus, the motion for a preliminary injunction enjoining Defendants' enforcement of this private property exclusion is granted.
"
 

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MaverickNH

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A comment from a recent NYT article on guns. "We haven’t had any incidents here" refers to a lawful CCW holder harming innocent people, not that there has been no violent crime in her upstate NY town. She fears what hasn’t happened more than she fears what happens routinely, as it hasn’t happened to her.

Ruth Upstate NY Nov. 26
Sadly, I live in a town in upstate NY where some places have posted signs that they ‘welcome’ armed guests. I don’t go to those restaurants, period! Our sheriff, also sadly, encourages this. We haven’t had any incidents here, thankfully, but I will place the blame directly at him and other - so far as I can see, Republican - politicians who think supporting ‘gun-rights’ over ‘human rights’ wins them votes.
 

42!

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A comment from a recent NYT article on guns. "We haven’t had any incidents here" refers to a lawful CCW holder harming innocent people, not that there has been no violent crime in her upstate NY town. She fears what hasn’t happened more than she fears what happens routinely, as it hasn’t happened to her.

Ruth Upstate NY Nov. 26
Sadly, I live in a town in upstate NY where some places have posted signs that they ‘welcome’ armed guests. I don’t go to those restaurants, period! Our sheriff, also sadly, encourages this. We haven’t had any incidents here, thankfully, but I will place the blame directly at him and other - so far as I can see, Republican - politicians who think supporting ‘gun-rights’ over ‘human rights’ wins them votes.
she puts the "blame" for there not being any incidents on the sheriff and republican politicians. OK, have it your way, but I'm confused. Maybe she needs to compare the definitions of blame and credit. [smile]
 

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she puts the "blame" for there not being any incidents on the sheriff and republican politicians. OK, have it your way, but I'm confused. Maybe she needs to compare the definitions of blame and credit. [smile]
Typical clueless sheeple Dem, she just repeats Dem talking points like the mindless moron she is.
 

crispnipz

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I've had my unrestricted (now thankfully a meaningless distinction) MA LTC for months and that is all well and good, but I can't take my guns to NY when I go to visit. As far as I can tell, NY does not issue permits to non-residents and therefore it is impossible for someone who is not a New York resident to carry there, which seems awfully non-compliant with Bruen. So when can we start talking about those of us who live in MA (or one of the 48 other states) suing NY?
 

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I've had my unrestricted (now thankfully a meaningless distinction) MA LTC for months and that is all well and good, but I can't take my guns to NY when I go to visit. As far as I can tell, NY does not issue permits to non-residents and therefore it is impossible for someone who is not a New York resident to carry there, which seems awfully non-compliant with Bruen. So when can we start talking about those of us who live in MA (or one of the 48 other states) suing NY?
Good thing is you get to keep all your rights, but not that one when crossing a made up line. So much for United, hey comrade
 
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I've had my unrestricted (now thankfully a meaningless distinction) MA LTC for months and that is all well and good, but I can't take my guns to NY when I go to visit. As far as I can tell, NY does not issue permits to non-residents and therefore it is impossible for someone who is not a New York resident to carry there, which seems awfully non-compliant with Bruen. So when can we start talking about those of us who live in MA (or one of the 48 other states) suing NY?
The non-resident rule is bent if you are a properly connected.
 

MaverickNH

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I've had my unrestricted (now thankfully a meaningless distinction) MA LTC for months and that is all well and good, but I can't take my guns to NY when I go to visit. As far as I can tell, NY does not issue permits to non-residents and therefore it is impossible for someone who is not a New York resident to carry there, which seems awfully non-compliant with Bruen. So when can we start talking about those of us who live in MA (or one of the 48 other states) suing NY?
As a NH resident, I had NH guns, MA guns and NY guns for travel. I gave up my MA Non-res LTC when they said they were not going to renew it maybe a decade ago - working in Southie after dark was no longer considered cause.

The NY SAFE Act eliminated my REM 7615 556 pump rifle. Two friends in Oneida County upstate NY with private contractor armed security licenses gave it up recently - they were told that unless they were full time staff for a licensed company, they would likely not see their licenses renewed.

NY is a worse sh*tshow now than ever…
 

42!

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I'm having a problem with the logical connecting of dots that results in this statement "Suppressors are “firearms” within the context of the Second Amendment"

I'm against regulating suppressors. Not because of 2a, like I said, I don't see the connection unless you're going to call everything that could potentially be attached to a gun a firearm, and we don't do that. Nor should we. I can see including anything that is necessary to the function of the gun, mags, bullets, etc., but not suppressors, any more than I see muzzle breaks or flash suppressors as falling under 2a.

Generally speaking I don't think the gov should be regulation anything without significant and quantifiable reason. They regulate DUI because some people do it and cause serious problems for others. If there was never an idiot who drove drunk, which at one point there wasn't we wouldn't have DUI laws. I've never heard of a RUI (Riding, as in horses) law, because even if it was done it wasn't likely to to harm anyone other than the rider. After all the drunk might fall off and break their neck, but the horse isn't going to crash into a school and kill a half dozen students. Even with this I have issues with how they regulate DUI, but I can see how it got there. And of course DUI is an action not a thing.

So maybe it's best to say, I can see how they get to regulating (laws or regulation, let's not get too caught up on the word) actions, murder, assault, theft, but things are just things until a person does something.

Of course that leaves us with how do you fight an unjust restriction? There is no amendment that says the gov will not restrict things, but can restrict the use, but not mere possession, of things, provided that use can be shown to be of significant danger to the public or person, and show that such a restriction will not violate the rights guaranteed to all people.

Now there might be some past ruling that connects these, but the existence of something like that still only pushes the question back, it doesn't give me the step by step connection to 2a.

I write this in hope of some real conversation. If you're one of those that just screams 2A 2A 2A, well... go ahead, it's your right. But it doesn't help make good conversation and frankly just makes that person look, well, not so smart.
 

KBCraig

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I'm having a problem with the logical connecting of dots that results in this statement "Suppressors are “firearms” within the context of the Second Amendment"
The reason that suppressors are covered by 2A, is because federal law defines them as firearms.

Repeal NFA, problem solved.
 

pastera

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The 2nd applies because the nature of the laws restrictions
A muffler on your car is required by law even though it serves the same purpose - to protect the user's hearing and lesson annoyances to others.
A silencer is only regulated when the muffiling device is designed to attach to a firearm with the effect of lessening its report. The actual action is against reducing the signature of firearms not sound mufflers in general.
 

42!

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The 2nd applies because the nature of the laws restrictions
A muffler on your car is required by law even though it serves the same purpose - to protect the user's hearing and lesson annoyances to others.
A silencer is only regulated when the muffiling device is designed to attach to a firearm with the effect of lessening its report. The actual action is against reducing the signature of firearms not sound mufflers in general.
Now that's the idea.
A muffler doesn't become unlawful until its used on a firearm, hence it's the action.
But this would mean the assumption of some kind or "constructive" use, since mere possession of a suppressor is unlawful.

On the other hand, a muffler isn't a car, so why would a suppressor be a gun?
And while there is regulation of the noise levels a car can make, they don't tell the manufacturers how to make it happen, if they can do it without a muffler that's ok too.
 
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