Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish

BY Herschel Smith
6 months, 2 weeks ago

The New York Times:

A couple of weeks ago, the New York Police Department held an unusual public hearing. Its purpose was to make a Supreme Court case disappear.

In January, the court agreed to hear a Second Amendment challenge to a New York City gun regulation. The city, fearing a loss that would endanger gun control laws across the nation, responded by moving to change the regulation. The idea was to make the case moot.

The move required seeking comments from the public, in writing and at the hearing. Gun rights advocates were not happy.

“This law should not be changed,” Hallet Bruestle wrote in a comment submitted before the hearing. “Not because it is a good law; it is blatantly unconstitutional. No, it should not be changed since this is a clear tactic to try to moot the Scotus case that is specifically looking into this law.”

David Enlow made a similar point. “This is a very transparent attempt,” he wrote, “to move the goal post in the recent Supreme Court case.”

The regulation allows residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city. But it prohibits them from taking their guns to second homes and shooting ranges outside the city, even when the guns are unloaded and locked in containers separate from ammunition.

The city’s proposed changes, likely to take effect in a month or so, would remove those restrictions. Whether they would also end the case is another matter.

Until the Supreme Court agreed to hear the dispute, the city had defended the regulation vigorously and successfully, winning in two lower courts. In inviting public comments on the proposed changes, the Police Department said it continued to believe the regulation “furthers an important public-safety interest.”

Still, the city seems determined to give the plaintiffs — three city residents and the New York State Rifle and Pistol Association — everything they had sued for. The plaintiffs, in turn, do not seem to want to take yes for an answer.

Move the goal posts, make it moot, and avoid an even bigger loss.  At least that’s what the controllers in New York are thinking.  Never allowing the free exercise of God-given rights is apparently their duty as they see it, regardless of their oath upon swearing in.  But the NYT writer, Adam Liptak, expands the discussion in history to one that is near and dear to our hearts.

There is a precedent for the city’s strategy, from a surprising source. The National Rifle Association tried a similar tactic in connection with the 2008 Supreme Court case that ended up revolutionizing Second Amendment law, District of Columbia v. Heller.

The N.R.A. was initially skittish about the case, which was brought by a scrappy group of libertarian lawyers led by Robert A. Levy.

“The N.R.A.’s interference in this process set us back and almost killed the case,” Mr. Levy said in 2007. “It was a very acrimonious relationship.”

As Mr. Levy and his colleagues were persuading a federal appeals court to strike down part of Washington’s tough gun control law, the N.R.A. tried to short-circuit the case.

“The N.R.A.’s next step was to renew its lobbying effort in Congress to repeal the D.C. gun ban,” Mr. Levy wrote in 2008 in a Federalist Society publication. “Ordinarily that would have been a good thing, but not this time.”

“Repealing D.C.’s ban would have rendered the Heller litigation moot,” he wrote. “After all, no one can challenge a law that no longer exists.”

Only an intensive countereffort kept the case alive, Mr. Levy wrote.

“After expending considerable time and energy in the halls of Congress, we were able, with help, to frustrate congressional consideration of the N.R.A.-sponsored bill,” he wrote.

The N.R.A. came around in the end. In the Supreme Court, it supported the suit, working closely with the lawyers who had brought it.

The NRA only “came around” because they couldn’t stop what was happening despite their best efforts.  Now this is interesting, yes?  The hand-wringers will claim that losing Heller would have been more harmful than any potential gain from a win.  Thus, the best strategy to avoid losing is never to enter the field of battle in the first place.

To some extent this has proven to be correct, only in that Heller hasn’t brought much in terms of recognition of the free exercise of gun rights.  There are still “may issue” states, and the notion of getting a carry permit in Hawaii is absurd.  Heller was so weak that the Supreme Court needed yet another similar to it (i.e., McDonald) that has also been simply ignored by the city of Chicago.

While every Podunk, no-name judge in America seems to think s/he can boss the federal executive around concerning immigration, and the administration kowtows to their demands, the rest of America seems to ignore the courts when it doesn’t like the outcome (e.g., Heller, McDonald).

On the other hand, losing Heller wouldn’t have been that big of a deal in my estimation, first of all because it has been mostly ignored by the lower and appeals courts, and second because states could still decide to honor our God-given RKBA regardless of whether the FedGov saw it the same way.  Open carry was allowed in North Carolina before Heller, and South Carolina was a shall issue state before either Heller or McDonald.

The hand-wringers might also claim that the NYT is only reporting this way to aid and assist the downfall of the NRA.  The more controversy that can be generated, it might be claimed, the more financial trouble the NRA will have.  Or so goes the thinking.

But when the smoke dissipates and you think about this clearly, the writer is only reporting the facts.  They are all out there for everyone to see.  The NRA either [a] didn’t actually want Heller to be argued before the Supreme Court, or [b] was so afraid of a loss that they took the strategy to stay off of the field of battle – retreat and give up before the battle even starts.

Is this the kind of organization that deserves your money?

Fortunately, it might not be that easy for New York.

The question of whether the changes to the city’s gun regulation will make the case moot is a hard one. The city lost an initial skirmish at the court last month when the justices turned down its request to suspend the filing of briefs while changes to the regulation were considered.

The plaintiffs opposed that request. “To state the obvious, a proposed amendment is not law,” they wrote.

The changes to the regulations will happen soon enough, though, and the Supreme Court will then have to consider whether there is anything left to decide.

The court has said the “voluntary cessation” of government policies does not make cases moot if the government remains free to reinstate them after the cases are dismissed. But formal changes in laws may be a different matter.

To hear the plaintiffs tell it, the court should not reward cynical gamesmanship.

“The proposed rule making,” they wrote, “appears to be the product not of a change of heart, but rather of a carefully calculated effort to frustrate this court’s review.”

This is actually good reporting.  I’ve come to expect far less from the NYT.


Comments

  1. On May 28, 2019 at 1:58 am, Dan said:

    Be interesting to see if the SCOTUS will now hear this case as the law being challenged has been changed thus the basis for the challenge is
    now moot…..irrelevant. The Courts history regarding 2A issues is to
    WHENEVER POSSIBLE avoid making all but the narrowest of rulings…
    and that’s IF they even agree to hear a 2A case, the vast majority of
    appeals for a hearing regarding the Second Amendment are declined.
    Judges at ALL levels simply HATE issuing rulings on whether or not
    a law or action is or is not Constitutional. They do not want to create
    precedents that can come back to bite them in the ass later in time.
    Thus they always seek to find a technicality to deal with rather than
    discussing the obvious. I see no reason they will change that reality
    this time……assuming they don’t boot this case from their docket.

  2. On May 28, 2019 at 7:44 am, Fred said:

    That’s too funny. The NYC is copying an NRA tactic to ensure gun control stays the law of the land.

    The NRA only comes onboard with constitutional carry in a state after it appears to be a done deal. It has done this repeatedly much to the annoyance of state and local groups who do all of the lobbying and ground work and incur the expense.

  3. On May 28, 2019 at 11:38 am, MTHead said:

    Ya, the court allowed NRA into “Heller” just 3 weeks before oral arguments!
    Their all weasels!

  4. On May 28, 2019 at 8:31 pm, Badger said:

    The NYT writer is likely to find they are suddenly assigned to compile statistics on hotdog sales at Yankee Stadium. That, or the embalming process of the NYT kool-aid hasn’t been done yet.

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You are currently reading "Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish", entry #21314 on The Captain's Journal.

This article is filed under the category(s) Gun Control,National Rifle Association and was published May 27th, 2019 by Herschel Smith.

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