Balkinization  

Saturday, November 30, 2019

The Dormant Commerce Clause and the Second Amendment

Gerard N. Magliocca

On Monday, the Supreme Court will hear argument in New York State Rifle & Pistol Ass'n Inc. v. City of New York. Two aspects of the case are receiving lots of attention. The first is whether the case is moot because the city ordinance that is being challenged was repealed earlier this year. The second point (if the case is not moot) is whether the ordinance violates the Second Amendment.

There is, however, a third aspect of the case that is flying under the radar. Assuming that the Court reaches the merits, there is the question of whether the ordinance violates the Dormant Commerce Clause. New York said that almost all gun owners in the City could not take their guns beyond city limits. If they wanted to practice, then they could only use firing ranges with the City.

I submit that this restriction clearly violates the Dormant Commerce Clause. Imagine any other city ordinance providing that you could use some article of personal property only at a business within that city. There is no way such an ordinance would be upheld. Courts would rightly see this as a form of local protectionism that was either intentional or unduly burdensome to interstate commerce.

Why is this gun ordinance any different? The Second Circuit (in rejecting the Dormant Commerce Clause challenge) argued that the record was devoid of proof that the ordinance was intended to discriminate or was unduly burdensome to interstate commerce. A remand might be in order on this point, but I think that the ordinance is invalid on its face for discriminating in favor of local business without an adequate justification. I realize that this conclusion is a letdown for those who want the case to be a big Second Amendment decision, but I think that my analysis is correct on the merits.

Comments:

I agree that this shouldn't be a 2nd amendment case. Though it might be a FOPA case:

18 U.S. Code § 926A. Interstate transportation of firearms

"Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."

Neither, however, should it be a commerce clause case.

It should be more of a "Serfdom isn't a thing in America!" case.

Look, NYC's law ends at NYC's border, and people unfortunate enough to live in NYC aren't bound by it once they escape.
 

The Supremes have two fundamental opportunities here:

(1) Complete Heller's enforcement of the 2a right to keep (possess) firearms by enforcing a right to bear (carry) firearms.

(2) Adopt a true heightened scrutiny regime similar to that used to apply the 1A to public forums.

This could be the first case where replacing Kennedy with Kavanaugh could have a game changing effect.

If the Supremes enforce a right to carry in public subject to heightened scrutiny, then the Dormant Commerce Clause defense becomes an afterthought.

If the Dormant Commerce Clause becomes a central issue of oral arguments, the 2A is in trouble.


 

I don't think there's ever been a time in my lifetime when the Court lacked those sorts of opportunities. The problem hasn't been opportunity, it's been will.

Just under half the Court would prefer to utterly extinguish this particular right, and a controlling majority are willing to stop just short of that, but not by much.

The Heller/McDonald moment seems not to have lasted long, and then the Court went back to refusing all cases where the 2nd amendment was unavoidably at issue, regardless of circuit splits or any other conventional basis for taking a case. I'd love to be a fly on the wall while they're discussing certiori on these cases.

My money is on the Court declaring the case moot, with a fall back of them deciding it on any possible basis except the 2nd amendment. Such basis are hardly lacking in this case, this law is the sort of multi-dimensional outrage that would never be seriously contemplated except as an attack on the right to keep and bear arms.

This law actually presumed to dictate to people what they can do with their own property, outside the borders of the city. Is there any other activity, even not implicating a basic constitutional liberty, where that would be permitted?
 

The dormant commerce clause approach, aside from being fundamentally dubious as constitutional doctrine in my view, would have to rely in this case on a Darby view of commerce. Since the conservatives pretend to oppose that view except when it suits their policy choices (e.g., Raich), I'm sure they'd never rely on it.
 

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NY allows two kinds of licenses, a carry and a premise one. The premise is linked to, you guessed it, an address. This case involves people with those licenses wanting to take their weapon out of the city for target practice. To me a good analogy is this is like a law saying you can take your farm use vehicle to an agricultural supply store in the county or city of your farm but not outside it.
 

Brett: The Heller/McDonald moment seems not to have lasted long, and then the Court went back to refusing all cases where the 2nd amendment was unavoidably at issue.

I am fairly sure Kennedy was the problem.

The story is Scalia bought the Kennedy vote in Heller by inserting the infamous dicta that the opinion should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Subsequently, lower progressive courts, like the 2d Circuit in this case, used this dicta to justify all manner of infringements on the 2A short of complete prohibition. Thus, agreeing to take a post-Heller 2a case with Kennedy on the bench was in invitation to erase parts of the 2A to allow infringements like an "assault weapon" prohibition or "may issue" carry laws like those in place in the 2d Circuit.

The fact the Supremes took New York State Rifle & Pistol Ass'n Inc. v. City of New York, an excellent vehicle to establish right to carry in public subject to heightened scrutiny, suggests conservatives believe they now have the votes to complete what Heller started.

Fingers crossed.
 

This comment has been removed by the author.
 

To strike down democratically adopted longstanding hundreds of laws in over a dozen categories in a single ruling that did not need it done for appellant to win would of course have been the epitome of judicial activism (as well as something like Jacobinism).
 

Mr. W:

The purpose of the Bill of Rights and then the 14A was to prevent Congress and then state legislatures from abridging our fundamental liberties.

The purpose of the judiciary is to actively enforce those guarantees when legislatures sworn to protect and defend the Constitution refuse to do so.
 

"NY allows two kinds of licenses, a carry and a premise one. The premise is linked to, you guessed it, an address. This case involves people with those licenses wanting to take their weapon out of the city for target practice. To me a good analogy is this is like a law saying you can take your farm use vehicle to an agricultural supply store in the county or city of your farm but not outside it."

I've already pointed out above that there is a precisely on point federal law guaranteeing your right to transport firearms regardless of state or local law. So NYC simply could not bar transport of these firearms out of the city, period, end of story.

Then you add that the law purported to make conduct outside of NYC a crime under NYC law. No, we don't have the institution of serfdom in the US. Once you're outside of a city, it has no authority over you.

Spin all the crazy hypotheticals you want, no other piece of personal property would EVER be regulated in this manner.
 

"The purpose of the Bill of Rights and then the 14A was to prevent Congress and then state legislatures from abridging our fundamental liberties.

The purpose of the judiciary is to actively enforce those guarantees"

Of course, this is what all judicial activists say they are doing.
 

With somewhat more justification when they've got an unambiguous textual basis for their actions, like a directive that a certain right "shall not be infringed".
 

"I've already pointed out above that there is a precisely on point federal law"

If it's so obviously on point why didn't the appellants raise it here?

"Once you're outside of a city, it has no authority over you."

According to this logic a U.S. citizen who travels to another country for pedophiliac sex tourism could not be prosecuted in the U.S....

As to hypotheticals I see no crazy ones. Farm use vehicles, where vehicle property is only licensed for use at or in connection to a certain premises are common. Sounds like a premise licensed firearm to me.


 

"a certain right "shall not be infringed".

But of course the right isn't unambiguous. The most obvious reading of it is as a right to protect state militias.

But all judicial activists think they've got the 'obviously' correct reading of whatever text or principle they invoke.

The difference between judicial restraint and activism is one of deference (to democratically enacted provisions) and tradition (that of the common law in deciding cases and controversies narrowly instead of deciding grand philosophical questions with broad sweeping principles a la Bismarkian and Napoleonic code approaches).
 

"According to this logic a U.S. citizen who travels to another country for pedophiliac sex tourism could not be prosecuted in the U.S...."

I wasn't aware that the US was a city. You mean that if you live in Pork Rind Alabama, and I do some sex tourism in Thailand, I'll be prosecuted by the Pork Rind prosecutor under a local ordinance? Did not see that coming.

Of course you had to make the analogy be to something that's almost universally a crime, and not, say, the exercise of a fundamental right.
 

"But of course the right isn't unambiguous. The most obvious reading of it is as a right to protect state militias."

No, the heavily motivated reading of it is that it's a right OF state militias. People who let their English literacy overcome their policy preferences notice that it's a right of the people, not of the militia.

Which doesn't preclude the purpose of the right being to protect state militias. It's just that it protects state militias by preventing the people themselves, from which the militia are recruited, from being disarmed.

Like protecting a volunteer fire department system by guaranteeing an individual right to own and train with fire fighting equipment.

After all, while a well regulated militia may be necessary to the security of a free state, nobody with any sense is going to assume that the people running the state mean for it to remain free.

I keep saying this: A bill of rights isn't written on the assumption the government will have good motives, and needs to be assisted with them. A bill of rights is written on the assumption that the government will sometimes have BAD motives, and needs to be stymied.

You have to read these amendments in that light. If you start reading them from the presumption that the government is, of course, trying to do the right thing, you're going to go horribly wrong.
 

Mr. W:

The problem is not between active and passive jurists.

The problem with our judiciary (and the other branches as well) is between those who enforce the Constitution as written to protect our liberties and those who erase and rewrite it to expand the power of government to take away our liberties.

A jurist who actively enforces the Constitution as written is the best of both worlds.
 

Escape From NY! Where's Snake Plissken when you need him?
 

Should have been declared moot or should be declared moot.

The matter is granted here but generally there is a stronger individual rights argument as applied to the 14A. Anyway, I have long said I think there is an individual right to own a firearm & that is generally granted except by some minority at this point. For instance, AOC made sure to nod to the "Second Amendment." This case is harder since, unlike Heller and McDonald, we are moving past the home.

The SCOTUSBlog summary does cite the Commerce Clause so the briefing does cover it. For instance, within the summary is some reference that the federal statutory law involving traveling across state lines incorporates state law in such a way that allows this specific law. I won't try to parse the nuances there.

New York State law sets up a licensing scheme [e.g., age restrictions] for firearms and btw "ordinary rifles and shotguns are not subject to the licensing provisions of the statute." You don't go to Albany. You go to the local licensing officer and state law dictates that who the NYC licensing officer is.

There are two types of licenses, carry and premises. Carry is valid throughout the state; premise is tied to one's premises. The premise license does allow limited usage outside the premise. [Note Heller/McDonald held the 2A personal ownership right is at its highest zenith at home.] This usage includes local shooting clubs. NYC used to have target licenses too, but the rules weren't being followed. The challenges have premise licenses for their NYC residences.

A basic 2A issue here is the breadth of the right to carry guns in public. One issue is the right to a gun at a second home outside NYC. But, there is no reason offered why they couldn't get a premise license from the locality of that second residence. Guns are also available at out of city shooting ranges too.

On a basic level, a dormant commerce clause argument is curious to me since what seems to be at issue is intrastate commerce. But, I guess, there is some limited reference to a desire to carry a gun cross state lines too. Seems trivial to me though.

As to "discriminating in favor of local business without an adequate justification," the OP doesn't really (except by ipse dixit) refute it. The logic of a premise license is you have a gun for your home (the core of the Second Amendment according to Heller). The city rule (now replaced) doesn't just allow that though.

It allows a sort of penumbra right too to have guns outside the home near the home, including for training. But, this was limited since guns in public places are specially regulated for safety purposes. There was also evidence (as noted above) of people breaking the rules in place when traveling outside their home with guns.

Allowing limited public carry makes it easier for guns to be well regulated by local government here. The lower court cites Supreme Court precedent that allows such public safety rationale type laws. It isn't merely some economic protection rationale. The legitimate regulation also covers the right to travel argument. Regulation of guns in public places go back to colonial times. FWIW, I do think some clarity of what the rules are there might be helpful from the SCOTUS if the right case comes along.

Finally: "The Rule does not facially discriminate against interstate commerce, as it does not prohibit a premises licensee from patronizing an out-of-state firing range or going to out-of-state shooting competitions. The Plaintiffs are free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm."

Anyway, the law was changed. The challenge should be declared moot.
 

This comment has been removed by the author.
 

The quoted federal law has this section:

"entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm"

This law was passed, as noted by the NYC reply brief, after another federal law involving transporting guns was that did not likewise respect local gun laws.

FOPA thus helps NYC -- the federal law specifically speaks of "any place where [they] may lawfully possess" and "to any other place where." The New York regulation here is just such a possession law spelling out what "may lawfully" means.
 

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FOPA does not help NYC, because there are certainly places outside NYC where you can lawfully own those firearms, and NYC has no bearing on whether your possession in those other places is lawful, because NYC law does not follow you beyond the borders of NYC, and by the terms of FOPA, you can thus not be prevented from transporting them to those places.

I repeat, this law is the sort of outrage that would never pass the laugh test if it were not targeting a basic civil liberty a lot of people in the legal community don't like.

Imagine "premises licenses" for books. Oh, right, anti-gunners don't admit there's any analogy between Amendments 1 and 2... Imagine "premises licenses" for any random piece of personal property. Hammers. Coin collections. Cars.

Yeah, imagine a "premises licence" for a car: You are licensed to possess the car in a particular place, and permitted only to transport it to specified other places within the city, and need permission to transport it anywhere else. Not "drive", mind you, just transport: You can't even load your car, your lawfully owned, private property car, on a trailer and TOW it out of the city.

Think that would pass muster? Or do you think that the courts would rule that the city was violating the constellation of rights associated with the very concept of "owning" something?

This law would be constitutionally problematic in regards to ANY piece of property. It's just doubly so in regards to property that people are specifically, constitutionally guaranteed a right to.

You have to be a pretty hard core statist to even think a law like this COULD be permissible.
 

"I wasn't aware that the US was a city."

I'm always interested to find how so many conservatives struggle with analogies...The logic my example illustrated was how a polity, in general, can have authority over someone or thing even when they or it is taken out of the borders of the polity. It of course has to do with the idea of someone residing or being registered in the polity. Here NYC's authority is over their residents, their authority over the use of the property in question in that the property has been granted as part of a license tied to the premises of the NYC resident.

A common example of this kind of authority happened to me. My vehicle was registered in a local polity, but because of tending to family business I spent an entire fiscal year at another locality (within the same state). I was surprised when billed by the former locality but they explained it didn't matter where my vehicle *was* the past year, it mattered where it was registered, and it was that polity that retained the power to compel me to pay tax on it.
 

"No, the heavily motivated reading of it is that it's a right OF state militias"

No, it's the most natural reading of it given how English and history surrounding it work. It was the reading that ruled throughout about 95% of our history.

"Like protecting a volunteer fire department system by guaranteeing an individual right to own and train with fire fighting equipment."

But of course that can be understood to mean the right to have an operating fire station where citizens of that locale can volunteer and train, it doesn't mean the right of each individual to own a firehose. And given the Amendment in question was to protect the states that reading makes even more sense.

"A bill of rights is written on the assumption that the government will sometimes have BAD motives, and needs to be stymied.

You have to read these amendments in that light."

Of course. The 2nd should be read with the fear that the federal government might try to mess with states' well regulated militias. Absolutely.
 

"The problem with our judiciary (and the other branches as well) is between those who enforce the Constitution as written to protect our liberties and those who erase and rewrite it to expand the power of government to take away our liberties."

The Constitution was, of course, written precisely because the Founders realized the powers of government needed to be expanded to protect our liberties.
 

"FOPA does not..."

Curiously there's been no answer to my question, if FOPA is so obviously on point, whey didn't the appellants sue under it?

"This law would be constitutionally problematic in regards to ANY piece of property."

Under what constitutional provision?

" imagine a "premises licence" for a car"

We don't have to, I've already noted that such a thing (farm use vehicles with rights tied to a place and function only) are common.

And the 'transport' angle re a premised license car (you can't even haul it away angle) isn't helpful, it only exists because of the unique essential quality of the property in question in the hypo. The reality is that limiting the use of personal property to certain places is not unheard of.

 

"The reality is that limiting the use of personal property to certain places is not unheard of."

No, the unheard of part is prohibiting you from taking your personal property out of the city. Restrictions on the means of transport, sure, you can cite precedent for that, where over-sized loads or toxic compounds are involved. But flatly prohibiting removal of the property to another location without permission? No. Does. Not. Happen.

Restrictions on the use of farm vehicles only prohibit you from driving them on public roadways, because farm vehicles are not typically street legal. They would NEVER prohibit you from loading your tractor on a trailer, and hauling it off to another location. NEVER.

You'd never try this sort of restriction with any other sort of property. But some people think anything goes once guns are involved, because the cause of infringing this right justifies any means.
 

Mr. W: The Constitution was, of course, written precisely because the Founders realized the powers of government needed to be expanded to protect our liberties.

Quite the opposite. The Constitution dramatically reduced net government power.

Article I, Sec. 10 denied a panoply of powers to the states they were abusing to destroy the economy.

Article I, Sec. 9 and then the Bill of Rights denied Congress a variety of powers.

Article I, Sec. 8 limited the powers Congress was allowed to exercise.

Articles I and II separated national powers to the point where a supermajority consensus was required to exercise the short list of powers that government was granted.
 

"Curiously there's been no answer to my question, if FOPA is so obviously on point, why didn't the appellants sue under it?"

They did in fact originally incorporate this into their argument. On appeal they dropped that aspect for reasons I'm unaware of, though it is still being argued in the amicus briefs.

Perversely, NYC is citing FOPA themselves, so it is still part of the case before the Supreme court. They're claiming that they can, by a local law, make it unlawful for the plaintiffs to possess these firearms outside their own jurisdiction, even in states that have no licensing requirements for firearms at all.

They're actually claiming that the FOPA is on their side, not the plaintiffs'.
 

"it doesn't mean the right of each individual to own a firehose."

And it certainly would not mean the right of any private citizen to use a siren in the absence of a fire to which s/he was responding.
 

The nature of a vehicle is to be driven, so the fact that they let you haul it doesn't show much. They certainly don't let you use it for what it's meant for outside of a geographic limit. So no, what NYC is doing is not unheard of.

Also they are not 'flatly prohibited from removal of the property to another location.' The restriction in question is a provision of a license for NYC residents; the person can move at any time (or get a 'carry' license instead).

What the appellants are doing is equivalent to farm use vehicle owners arguing they should be able to have farm use licenses but drive to town to go to the movies too.
 

"The Constitution dramatically reduced net government power."

It's ridiculous revisionism to argue the Constitution reduced federal power relative the Articles of Confederation. This flies in the fact of everything we know about the contemporary motives and actions of the Convention and the times it happened in, as well as the debates surrounding ratification.

In other words, it's a perfectly predictable preposterous position for our Bircher.
 

"On appeal they dropped that aspect for reasons I'm unaware of"

I'm betting their lawyers might know something that Brett Bellmore, amateur legal scholar/expert conspiracy theorist does not. Interestingly, and tellingly for everyone's overall experience with him, I'm betting that's an idea that rarely floats across Brett's mind...

Just off the top of my head (since I don't claim anything is 'obvious' here), I'd bet it's because the availability of a 'carry' license means something re what joe was saying about why it doesn't run afoul of the 'obviously' on point law.
 

"And it certainly would not mean the right of any private citizen to use a siren in the absence of a fire to which s/he was responding."

Exactly. Essential to having a 'well regulated' fire company would be to disallow citizens Tom, Dick and Harry, with no training or direction from the local firehouse, from owning firetrucks and hoses and trying to respond to fires. Can you imagine the mess otherwise?
 

"They certainly don't let you use it for what it's meant for outside of a geographic limit."

You're just fantasizing at this point. If I own a combine, the local government might be able to stop me from driving it on the road, simply because combines are not street legal vehicles, but the idea that my local government could prohibit me from hauling it to another state and using it there is just delusional.
 

I'm curious what Brett is getting at.

The government can certainly tell you you can't use or move (at least in the sense in which the property's purpose is to move) certain personal property, my example demonstrates that. I'm curious as to what the 'hauling away' argument is trying to prove. For example, if a locality granted someone a license to use a ham radio in the locality but made a condition of the license that if you take the apparatus out of the locality to broadcast would that be forbidden?

Is the argument that local governments are prohibited legally from putting restrictions on the movement of personal property? If so, under what legal provision.

Remember, what we're talking about here is not a general provision, it's a condition of a locally granted license.
 

The logic of the farm use license is that the vehicle is for farm use and so it doesn't have to meet the street use regulations, so as long as it doesn't engage in street use the license is ok. If it does though the license requirements have been violated.

The logic of the premise license is that the gun is for use on premise and so it doesn't have to meet carry license regulations, so as long as it doesn't engage in carry use the license is ok. If it does though the license requirements have been violated.
 

BD: "The Constitution dramatically reduced net government power."

Mr. W: It's ridiculous revisionism to argue the Constitution reduced federal power relative the Articles of Confederation.


I know this may be expecting too much from you, but I assumed:

(1) You attended high school civics and are aware states, counties and cities also exercise government power; and

(2) Understood "net" does not mean "federal."

Here is what your government school American history class probably did not teach you. In 1787, the US was nearly a failed state because state governments erected trade barriers against interstate trade, destroyed the currency with fiat money and were enacting laws destroying contract and credit. The Constitution eliminated all of these abuses of government power and created the first continental free market in human history.


 

"The government can certainly tell you you can't use or move (at least in the sense in which the property's purpose is to move) certain personal property, my example demonstrates that."

No your example does not freaking demonstrate that. There's no place in this country that would prohibit you from loading a piece of farm equipment on a trailer, and hauling it away to use someplace else. The very idea of a local law doing that is absurd. At most, some of it might be regulated as an oversized load, and that's it.

The idea that you might have to ask permission of the local government to move a tractor out of state is ludicrous!

Seriously, you're just engaging in fantasy at this point, in a desperate effort to try to normalize what NYC was doing.
 

The dormant commerce clause approach, aside from being fundamentally dubious as constitutional doctrine in my view,

Who gives a sh*t what you think? There's 200 years of consistent SCOTUS precedent. Your arrogance in thinking your personal construction of the Constitution trumps that is astounding.
 

Everything Joe says in his comment starting with

Should have been declared moot or should be declared moot.

is correct.

The right to carry is a colorable claim which should be litigated. This isn't the case to do it with, though. And when it is litigated, the entire licensing system needs to be considered in determining if the right to carry is sufficiently protected. Not just one silly law.
 

FOPA does not help NYC, because there are certainly places outside NYC where you can lawfully own those firearms, and NYC has no bearing on whether your possession in those other places is lawful, because NYC law does not follow you beyond the borders of NYC, and by the terms of FOPA, you can thus not be prevented from transporting them to those places.

The federal law, which again amended existing federal policy purposely to respect state police power here, again says this: "entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm"

New York STATE (ultimately it is state; this lawsuit is an offshoot of a state law) is not trying to regulate beyond its borders. The people here have residences in the state. The city here is regulating their own area.

And, as noted by the lower court, the right to own and carry still exists in a range of ways and is not being wrongly violated. Like speech, the right is regulated. It even say so in the text.

The federal law specifically honors this ("to any other place where he may lawfully" etc.). Regardless, even these people can get a license for guns outside the city or use shooting galleries there etc.

I repeat, this law is the sort of outrage that would never pass the laugh test if it were not targeting a basic civil liberty a lot of people in the legal community don't like.

The regulation was limited and even then the law was changed anyway. I would turn this around. If this wasn't this specific liberty, this case very well wouldn't be here. Some free speech or search/seizure case of this nature would be seen as moot.

Imagine "premises licenses" for books. Oh, right, anti-gunners don't admit there's any analogy between Amendments 1 and 2... Imagine "premises licenses" for any random piece of personal property. Hammers. Coin collections. Cars.

Heller, which Justice Thomas joined, held that the Second Amendment does not mean there is an absolute right to guns. Five year olds can be denied a right to buy or own a gun. A gun is not treated the same as a book. Guns are not "random pieces of personal property."

Cars are regulated in special ways too even though they are important for one's right to livelihood, travel and other things of constitutional significance. Homes are regulated. The Fourth Amendment specifically honors the privacy of the home. But, that doesn't mean homes are not regulated.

Guns are regulated and always were regulated. Heller also noted that the right to arms are specifically strong at home and that they can be regulated more outside the home. So, it makes rather much sense -- Brett might think Heller is thin gruel (he said so), but it's the law of the land now -- to have premise licenses since you have the strongest right of a weapon at your residence (e.g., no obligation to retreat there) but less so in public places.

All the same, there are other licenses available here. The argument shifts to say they aren't good either! The sound approach there (though the argument is still weak) is to have a new lawsuit more narrowly targeted and addressing the new rule.

A rule that was passed because the right at issue is respected.
 

It's nice to see Bircher Bart be so explicit in his support for the federal government re local and state governments, but even then the Constitution is, of course, recognized by all non-Bircher maniacs, as being more government empowering than the Articles (which is point of the whole Federalist-Anti-Federalist debate).
 

I'm going to just repost this as Brett didn't address it at all:

I'm curious what Brett is getting at.

The government can certainly tell you you can't use or move (at least in the sense in which the property's purpose is to move) certain personal property, my example demonstrates that. I'm curious as to what the 'hauling away' argument is trying to prove. For example, if a locality granted someone a license to use a ham radio in the locality but made a condition of the license that if you take the apparatus out of the locality to broadcast would that be forbidden?

Is the argument that local governments are prohibited legally from putting restrictions on the movement of personal property? If so, under what legal provision.

Remember, what we're talking about here is not a general provision, it's a condition of a locally granted license.

 

Well, I'm just some guy on the Internet, so that and a buck will get you some coffee at the local bakery, I guess.
 

"Who gives a sh*t what you think? There's 200 years of consistent SCOTUS precedent. Your arrogance in thinking your personal construction of the Constitution trumps that is astounding."

I'm going to have to call you out on this Dilan. Even if, arguendo, Mark makes the mistake you are so exorcised over, Brett and Bart do it in spades and a lot more. You're bearing down on him is clearly some kind of commenter animus which from a third party is, well, 'messed up.'
 

"New York STATE (ultimately it is state; this lawsuit is an offshoot of a state law) is not trying to regulate beyond its borders. The people here have residences in the state. The city here is regulating their own area."

The NY CITY law would have prohibited you from transporting the gun to another state. The CITY can not make your possession of a given firearm unlawful in another jurisidiction, and hadn't make it unlawful in its own, and thus transport between them is explicitly protected by the FOPA. You're correct in so far as FOPA and destinations within NY state are concerned, though; FOPA requires that possession be lawful at both ends of the trip, under the laws applicable at each end of the trip.

"And, as noted by the lower court, the right to own and carry still exists in a range of ways and is not being wrongly violated."

The 2nd amendment does not say, "Shall not be utterly extinguished". I don't much care if the judge feels like reading it as though it did.

"The regulation was limited and even then the law was changed anyway."

It was changed after the Supreme court granted certiori, and could have been changed back at any time. This was a transparent effort to evade review, and nothing more.
 

"Is the argument that local governments are prohibited legally from putting restrictions on the movement of personal property? If so, under what legal provision."

The 9th amendment: Once you lawfully own property, you can't be prohibited from transporting it. Being able to take property (That is capable of being moved, obviously not real estate.) with you is an attribute of ownership, classic 9th amendment material, so fundamental and previously unchallenged that it went unmentioned because nobody would have imagined it being infringed.

Show me one single solitary law that prohibits taking lawfully owned, portable property out of a jurisdiction without the permission of a local government. Not regulating the manner of the transport, mind, simply flatly prohibiting removal.

Your example of farm equipment failed miserably, the regulations there have to do with manner of transport, not whether it can be.
 

"The 9th amendment: Once you lawfully own property, you can't be prohibited from transporting it."

LOL, so the law as truly 'UNwritten!'


 

When a 'conservative' retreats to the 9th, you know it's over.

Because the 9th is, to the Jacobin, akin to a woman of the night hiking her skirt up and smiling when meeting your gaze.

Remember Birche Brett saying 'well it's different when it's unambiguous!?' Now he invokes the most ambiguous part of the Constitution.

Never take the 'principles' these people proclaim seriously. Never. They don't have principles, they have principals.
 

When a "liberal" sneers at the 9th amendment, you know what a joke it is that they ever expropriated that name for their own, because they're sneering at liberty itself. They see government as all powerful, freedom as an archipelago of tiny, contingent exceptions to that endless ocean of power.

Again: "Show me one single solitary law that prohibits taking lawfully owned, portable property out of a jurisdiction without the permission of a local government. Not regulating the manner of the transport, mind, simply flatly prohibiting removal."

This law was, as far as I know, unprecedented. What is the 9th for, except to prohibit impositions so outside what anybody might have considered that it would never have occurred to anyone to explicitly prohibit them?
 

It might be worth citing Justice Taney on why, exactly, he declared that it was unthinkable that blacks should be citizens.

" It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

Gun controllers seek to reduce everybody to the status of antebellum slaves. In at least this respect, and perhaps ultimately, once we are disarmed, all respects.
 

The early reports is that swing-man Roberts is leaning on declaring it moot. Alito and Gorsuch do not like that & Kavanaugh and (obviously) Thomas didn't ask a question.

I'm moving past this "gun controller" stuff & the Mr. W./Brett stuff here at some point is tedious. Speech as well as guns is regulated in a myriad number of ways. Heavy-handed rhetoric leads to some aggravation from people like Mr. W. but just like Brett supporting a range of regulations on voting (a fundamental right protected by various provisions in the Constitution) that I and others disagree with doesn't mean he is a "voting controller," gun regulations -- supported by the very text of the Constitution talking about with is necessary for a free state -- are not the road to serfdom.
 

The NY CITY law would have prohibited you from transporting the gun to another state. The CITY can not make your possession of a given firearm unlawful in another jurisdiction, and hadn't make it unlawful in its own, and thus transport between them is explicitly protected by the FOPA. You're correct in so far as FOPA and destinations within NY state are concerned, though; FOPA requires that possession be lawful at both ends of the trip, under the laws applicable at each end of the trip.

I'm going to repeat here that the city law is ultimately a creature of the state law, which the Second Amendment (to the degree it is there to limit federal power) respects as well as FOPA does. The lawsuit concerns freedom to do things in New York as well. But, it seems you are actually agreeing with the core point I made here.

The 2nd amendment does not say, "Shall not be utterly extinguished". I don't much care if the judge feels like reading it as though it did.

It wasn't utterly extinguished. You disagree on the degree of regulation allowed. As Dilan notes, what that is (specifically public carry) is unclear & next term or whatever maybe SCOTUS will find a better avenue to clarify. From what I can tell, the circuits are somewhat split on the particulars and one federal constitutional rule is a basic reason SCOTUS takes cases.

It was changed after the Supreme court granted certiori, and could have been changed back at any time. This was a transparent effort to evade review, and nothing more.

So, someone flagged a problem and the government changed the law so it would not be in place. The fiends! Instead of letting local popular branches deal with something, you want the United States Supreme Court to step in instead. At least here. Some other matter involving your locality, you might not like that.
 

"The early reports is that swing-man Roberts is leaning on declaring it moot."

That would not shock me. Roberts is not the Justice he was when Heller and McDonald were decided. We may need to replace RBG, too, to get a Court that actually wants to more than minimally enforce the 2nd amendment.
 

Joe: "The early reports is that swing-man Roberts is leaning on declaring it moot."

Unless the four other "conservatives" thought they had Roberts on board, they would have declined cert on this case like they've been doing with other 2A cases for years now.

Sounds like another anonymously sourced, evidence-free Democrat media "report" to advance a preferred narrative.

 

"Unless the four other "conservatives" thought they had Roberts on board, they would have declined cert on this case like they've been doing with other 2A cases for years now."

I'm not so sure of that; At this point my default assumption is that Roberts is going to be a squish. But while he's a squish, he's at least not an anti-gun fanatic, and this law stinks on so many levels only an anti-gun fanatic could rule in favor of it.

It could be the other four thought the worst case scenario was indeed Roberts voting that the case was moot, and that there was at least an outside chance he'd be amenable to reason.

And, of course, Thomas doesn't vote tactically, so only 3 of the Justices would have had to have thought Roberts might see the light, whatever light they might prefer he see.
 

Those interested can on Twitter keep up with SCOTUS news from various sources (such as SCOTUSBlog), who are not anonymous, to get reporting on oral argument. Many of them then write reports at various publications.

This case is simply a bad avenue to take even if you wish to officially from up high expand on what local governments cannot do respecting such things like public carry of guns. They will, maybe rather soon (there is a case ripe for the taking, e.g., Rogers v. Grewal, there right now), deal with that. They have their fifth vote, Kennedy somewhat more reticent to go as far as the others.

A true believer might strategically realize this so Kavanaugh -- whose views here helped him get the nomination -- himself might join Roberts in declaring moot in part on that ground. It's parlor game, but some suggest that very limited nature of the case itself might have made conservatives pick it. They could use it to set forth a wider rule that would cover much more while not seeming to do much.

This is after all the road to Shelby v. Holder. In fact, the road to Shelby v. Holder included them punting but putting in Easter egg dicta that was later used. Something perhaps to look out to here though maybe (it's all guessing) Roberts will give it to someone like Kagan and she will ('see even a liberal') toss in some language saying Heller/McDonald is of course now precedent.
 

Brett:

Roberts cares about what the progressive legal establishment thinks about his legacy as CJ. When the establishment put on a full court press on behalf of Obamacare, he switched sides.

Roberts has been rock solid in the 2A case and the establishment does not appear to be all that concerned about defending NYC's carry permit system. I have barely heard the case discussed.


 

or, Roberts will take it himself and people will be "see, they are reasonable, even if you don't like what they did in that other case ..."
 

Joe:

SCOTUSBlog: Chief Justice John Roberts asked Dearing whether gun owners would face any consequences, such as the ability to qualify for a license to keep a gun in their homes under the new law, for past violations of the transport ban...Dearing assured the justices that they would not..

But it’s not clear that the justices will reach the merits of the gun owners’ complaint. Instead, it seemed possible (although far from certain) that they could throw out the case because the dispute is now moot – that is, no longer a live controversy – after the city repealed the rule last summer...Alito and Gorsuch were the only justices who spoke up as staunchly opposed to dismissing the case as moot. The court’s more liberal justices all seemed inclined to do so, and the only comments that Roberts made suggested that he might be open to doing so as well. Justices Brett Kavanaugh and Clarence Thomas did not ask any questions.


Looks like SCOTUSBlog is engaged in straw grasping and they know it.
 

"This case is simply a bad avenue to take even if you wish to officially from up high expand on what local governments cannot do respecting such things like public carry of guns."

It would be a good case if you want to hammer home that if you're going to legislate in the area of guns, you need to at least not be totally insane about it. It's also a good chance to say that the FOPA actually has teeth, won't be allowed to be rationalized away.
 

This comment has been removed by the author.
 

Still not a good case.

It is not "totally insane."

To quote a lawyer referencing a Dilan comment in another blog on this case: "a ton of cases saying that when a state or local government repeals a statute, it will be presumed to have done so in good faith and voluntary cessation won't apply unless there is strong evidence to the contrary." And, it's an uphill battle to meet that test even if true believers think so. (This would apply on some liberal issue too.)

As to FOPA, rejecting the challenge would do that given it would uphold local discretion as honored in the law. Not sure this is what Alito et. al. have in mind.

SCOTUS, with Kavanaugh, is better off waiting for another case.
 

Yes, it is totally insane, nobody would even consider this sort of regulation were it not for animus against gun ownership, "You can't transport "X" out of this city legally" laws are unheard of. I challenge you to point out even one such law that does not target firearms.

And the strong evidence to the contrary is that they waited until the Supreme court had granted certiori. This was a transparent effort to avoid review, in order to leave them free to reinstate the law later on.

Finally, NYC's take on FOPA stands FOPA on its head, the whole point of the law was to limit local discretion in the matter of firearms transport. If you can have the gun at point A, and could have it at point B, no state or local law is permitted to prevent you from taking the gun from point A to point B.

You can't set up a sort of Berlin wall around a community, and prohibit people from transporting firearms across it.
 

To toss in another reason, the specific nature of the challenge and relief desired is limited in nature (this came up in the oral argument), making it dubious avenue too.
 

Had the city really conceded the case, they wouldn't have argued that the case was moot, they would have proposed that the Court simply go directly to an uncontested verdict that the law is unconstitutional.

They didn't, because they want to preserve the ability to restore the law later on, ideally (from their perspective) after a change of justices.

Thus we know there wasn't a change of heart, it was merely a tactical move to prevent review.
 

Since non-lawyers read this blog, and since discussion of the “dormant commerce clause” is a bit arcane, I probably should explain it and my original comment doubting it.

The background requires some explanation. The interplay of Congressional power and state power arises because of a major omission in the Constitution: when the Framers enumerated the powers of Congress in Art. I, Sec. 8, they failed to specify whether the granted powers were exclusive to Congress. For example, it seems as if the power to declare war is exclusive and can’t be exercised by the states (an interpretation other clauses reinforce). Same with the power “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies” – if states could pass laws on top of Congressional laws, then the rules wouldn’t be “uniform”. But what about taxes? If Congress has the power to tax, does that mean states can’t levy taxes?

The tax issue got raised during the ratification debates and the Federalists needed an answer. Hamilton gave it in The Federalist: use common sense to decide which powers are exclusive to Congress and which may be exercised “concurrently” by the states. Taxes, he said, were concurrent powers – states could levy taxes. The reason, he said, was that if, say, Congress and the states had conflicting views of the need to declare war, interference was inevitable. But with taxes the situation was different. With taxes, both governments can levy taxes because they don’t affect the same money (money being fungible). This may mean you pay more in taxes, but states and Congress aren’t trying to seize the same dollar (except at the limit of 100% taxation).

So what about the commerce power? Well, most people think that Congressional power to regulate foreign commerce is exclusive. States can’t regulate it at all. The commerce clause, though, grants Congress power to regulate both foreign commerce and “commerce among the several states” in the same clause. Does this mean that Congress has exclusive power to regulate interstate commerce? And if you adopt a broad view of “interstate commerce” does this deprive states of the power to regulate most economic activity at all?


 

There are 3 possible solutions to this Constitutional omission. One is to say that the power is exclusive to Congress, similar to the war power. This means that states can’t regulate “interstate commerce” at all, even if Congress fails to act. This would be the strong version of the “dormant commerce clause”: even if Congress leaves its power “dormant”, states can’t jump into the gap. The Court has rarely enforced this strong version (and even then it’s dubious).

A second solution is the one applied to bankruptcy law. There was no federal bankruptcy law at all during most of the 1800s. States went ahead and passed their own bankruptcy laws, and since they didn’t interfere with anything Congress had done, those laws were upheld.
The third solution would be to treat interstate commerce as similar to taxes and let both Congress and the states regulate it. There’s a problem with this, however: while taxes don’t affect “the same” money, regulations of commerce very likely do affect “the same” goods.

The Court has adopted somewhat conflicting solutions to this issue when it comes to commerce. During the 1800s, the Court took the position that states retained a “general police power”. They could, for example, pass quarantine laws which might incidentally interfere with interstate or foreign commerce, but the state power was concurrent. See, e.g., New York v. Miln. https://supreme.justia.com/cases/federal/us/36/102/
This gets to be problematic because “general police powers” are likely to overlap in lots of ways with the regulation of interstate commerce, even more if you define “interstate commerce” broadly. In Cooley v Board of Wardens, https://supreme.justia.com/cases/federal/us/53/299/ , the Court held that even if Congress had legislated on a topic, states could still pass regulations as long as those didn’t “conflict” with the Congressional regulation.

That’s more or less where the law stands now. As long as states don’t try to discriminate against commerce involving other states or other countries, and as long as the impact on commerce is “incidental to a valid state purpose”, the regulation can stand.

In my view, the “soft” version of the “dormant commerce clause” shouldn’t be called by that name because the phrase “dormant commerce clause” evokes the strong version of that doctrine rather than the soft version which the Court actually applies. Use of the phrase is particularly inappropriate in the case of the New York law here which has at most an incidental effect on commerce (it probably increases commerce because it might require a gun owner to buy more than one gun for different residences), and because any effect on commerce is incidental to a valid state purpose (which is also a core “police power”).*

*I’m leaving aside the issue of the federal law, FOPA, discussed above. Joe has it right on that issue.
 

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