A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
United States Constitution, Bill of Rights, 2nd amendment.
While the rest of the country seems intensely focus on whether Roe v. Wade is overturned, a good number of us are pretty interested in how this one goes.
The People’s Republic of New York, the most statist state that ever stated, is under the scrutiny of SCOTUS again, thanks to the New York State Rifle Association (NYSRA), and their crusade against New York’s tyrannical positions on guns.
The latest kerfuffle is over permits to carry. You see, New York knows they can’t ban guns outright, but they have done everything in their power to make sure you can’t actually wield it.
One of these rules is that in order to carry a gun on your person in New York, you must apply for a permit, and show cause for getting one, such as someone has been threatening you, or you’re in some high-risk job.
This seems totally fair, right? Criminals are always courteous enough to give you a heads up that they’re coming for you, so you can apply for such a permit, buy a gun, and be prepared.
Counsel for NYSRA opened by saying, “Carrying a firearm outside the home is a fundamental constitutional right. It is not some extraordinary action that requires an extraordinary demonstration of need.”
We’re of course biased here at Logical Libertarian towards the freedom to own and carry a gun, but few other rights, if any, allow the state to make you prove your desire to exercise that right. This is highly “atypical” as Counsel Paul Clement put it. The bill of rights specifically says, “to keep and bear arms,” but NY’s law effectively makes “bearing” a privilege the state grants you, not a right.
For instance, you don’t have to go to the Mayor and get a permit to tell your local conseltwerp to eat a bag of dicks, and then be required to supply a load of evidence to suggest said counseltwerp has a demonstrable need to eat that bag of dicks.
Justices Barrett, Roberts, Alito, and Kagen all pressed NYSRA’s counsel on the “sensitive places” allowances. This is the idea that the majority of justices agreed in previous decisions, the government has a right to refuse carrying in places like schools, government buildings, etc. So they were testing the idea of whether NY is just basically declaring the entirety of a city or district, can be deemed a “sensitive place.” The crux of the argument being, when is it OK to declare a place a sensitive place, versus when is the place to broad to be declared as much.
One thing to note, in the sensitive place issue, people still have the right to carry in general, and even if they have a permit, they can’t carry in a sensitive place, so it seems a little disingenuous to debate. The law in question forces people to get a permit to carry in general. The sensitive places restricts anyone other than law enforcement from carrying in that particular place. While they’re related, they are not the same.
Counsel for NYSRA stated succinctly:
At the end of the day, I think what it means to give somebody a constitutional right is that they don’t have to satisfy a government official that they have a really good need to exercise it or they face atypical risks.
~Paul Clement
Counsel Clement went on to point out that while they accept the “sensitive places” limits, and even limits on who can carry, such as criminals and people with mental illness, their side opposes the “atypical” stance NY has adopted. Meaning, that NY is essentially saying a typical person may not carry, only a person who’s atypical, such as someone at elevated risk, is the problem. It can’t be a right, if one has to be unique to exercise it.
One issue that also comes up, is tradition. SCOTUS like to make sure laws are adjudicated consistently, so people who were perfectly OK one day, aren’t criminals the next. Change should come gradually, and not sweeping and fast.
They’ll look at old law, sometimes even English law adopted prior to the Constitution, but which the Constitution got it’s basis from. Sotomayor wanted to cite traditional laws restricting weapons, which states have adopted, many of which American law is inspired by.
She stated:
The one thing that I’ve looked at in this history is the plethora of regimes that states pick, and that starts in English law, through the colonies, through post-Constitution, to post-Civil War, to the 19th Century, to even now, those 43 states that you’re talking about, most of them didn’t give unrestricted rights to carry in one form or another until recent times. Before recent times, there were so many different regulations.
What it appears to me is that the history tradition of carrying weapons is that states get a lot of deference on this.
And the one deference that you haven’t addressed is the question presented is what’s the law with respect to concealed weapons. In 1315, the British Parliament specifically banned the carrying of concealed arms.
In colonial America, at least four, if not five, states restricted concealed arms. After the Civil War, there were many, many more states, some include it in their constitution, that you can have a right to arms but not concealed. You can go to Alabama, Georgia, and Louisiana, which are now more open—more free in granting the right to carry guns, but they prohibited through their history concealed weapons, the carrying of concealed weapons.
It seems to me that if we’re looking at that history and tradition with respect to concealed arms that there is not the same requirement that there is in the home. One of the things Heller pointed to was there were few regulations that prohibited the carrying or the keeping of arms in homes. But that’s not true with respect to the regulations about keeping of arms outside of homes. Putting aside the prohibitions, regulations on sensitive places, regulations on the types of people, it seems to me that I don’t know how I get past all that history
~Justice Sotomayor
But justice Kavanaugh, speaking with Clement reiterated that rights start with the Constitution’s text, not tradition or other laws. So basically, Sotomayor’s argument was stupid, and she should shut the fuck up with that noise.
As counsel Underwood for the state of NY came to make her shitty arguments, Justice Roberts hit a home run with this question:
Now Heller relied on the right to defense as a basis for its reading of the Second Amendment, or that was its reading. Now I would think that arises in more populated areas.
If you’re out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street.
On the other hand, there are places in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How is that, regardless of what we think of the policy of that, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies a direct personal right is for self-defense?
~Chief Justice Roberts
Counsel Underwood argued:
Well, and the other thing is that these regulations are all an effort to accommodate the right, to recognize and respect the right of self-defense while regulating it to protect the public safety.
And in areas where people are packed densely together, as the questioning that just happened displays, the risks of harm from people who are packed shoulder to shoulder, all having guns, are much more acute.
~Barbara Underwood
Justice Roberts, realizing this argument was weak, countered with:
What if it’s one of these crime waves, whether it’s a celebrated spate of murders carried out by a particular person, I don’t know who that is—you know, the Son of Sam or somebody else? Is that a good reason to—a atypical reason? Is that a justification? Some random person is going around shooting people.
I’d like to have a firearm even though I didn’t feel the need for one before?
~Chief Justice Roberts
Justice Alito, not to shy away from this line of questioning, pushed Underwood further by asking:
Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense? So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record.
They’re all law-abiding citizens.
They get off work around midnight, maybe even after midnight.
They have to commute home by subway, maybe by bus.
When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has said I am going to mug you next Thursday.
However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?
How is that consistent with the core right to self-defense, which is protected by the Second Amendment?
~Justice Alito
Counsel Underwood’s arguments in response again were that basically, a lot of people crowded together with guns, is inherently an unsafe situation, and thus why NY should have the right to prevent such a situation. An argument not supported by any evidence, but commonly argued as justification for restricting gun rights.
Justice Alito really went after her in this exchange:
Samuel A. Alito, Jr.
There are — there are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?
Barbara D. Underwood
I don’t know that there are a lot of armed people.
Samuel A. Alito, Jr.
No?
Barbara D. Underwood
I think there are people —
Samuel A. Alito, Jr.
How many — how many —
Barbara D. Underwood
— there are people with illegal guns if that’s what you’re —
Samuel A. Alito, Jr.
Yeah, that’s what I’m talking about.
Barbara D. Underwood
— referring to. Yeah.
Samuel A. Alito, Jr.
How many illegal guns were seized by the — by the New York Police Department last year? Do you — do you have any idea?
Barbara D. Underwood
I don’t have that number, but I’m sure there’s a — it’s a substantial number.
Samuel A. Alito, Jr.
But the people — all — all these people with illegal guns, they’re on the subway —
Barbara D. Underwood
I don’t — I don’t —
Samuel A. Alito, Jr.
— they’re walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?
Barbara D. Underwood
Well, I think the subways, when there are problems on the subways, are protected by the — the — the transit police, is what happens, because the idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people. The other point is that proliferating guns in a populated area where there is law enforcement jeopardizes law enforcement because, when they come, they now can’t tell who’s shooting, and the — the — the — the shooting proliferates and accelerates.
And, in the end, that’s why there’s a substantial law enforcement interest in not having widespread carrying of guns in densely —
As you can see, NY’s laws are common among anti-gun legislators, that the people should rely on government to protect them, as she points out the transit police. While it may be a compelling argument to people who don’t like guns, it’s antithetical to the principles this country is founded on.
Justice Kavanaugh, took issue with her underlying premise that the state can and should be able to restrict guns in densely populated areas because that’s inherently dangerous, arguing:
Has that happened in those states? I mean, can you make a comparative judgment? Because it seems like before you impose more restrictions on individual citizens and infringe their constitutional rights based on this theory, you should have to show, well, in those other states that have shall issue regimes, actually, there is a lot more accidents, crime.
And I don’t see any real evidence of that.
~Justice Kavanaugh
He clearly felt her justification was based on dubious, if not an entirely fabricated premise. While she responded with generalities that she seemed to thing we should just accept as true, no data was provided.
The United States (The Biden Administration and their merry band of assholes) had an amici also argue, but again, Justice Roberts wasn’t having any of his bullshit. He fired this salvo:
John G. Roberts, Jr.
I mean, what is the appropriate analysis? I mean, you sort of — we — we, I think, generally don’t reinvent the wheel.
I mean, the first thing I would look to in answering this question is not the Statute of Northampton, it’s Heller, and Heller has gone through all this stuff and, obviously, in a somewhat different context, although that’s part of the debate, self-defense at home.
You know, this is different. But I still think that you have to begin with — with Heller and its recognition that the Second Amendment, you know, it — it has its own limitations, but it is to be interpreted the same way you’d interpret other provisions of the Constitution. And I wonder what your best answer is to the point that Mr. Clement makes in his brief, which is that, for example, if you’re asserting a claim to confront the witnesses against you under the Constitution, you don’t have to say I’ve got a special reason, this is why I think it’s important to my — my defense. The Constitution gives you that right. And if someone’s going to take it away from you, they have to justify it.
You don’t have to say when you’re looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?
Brian H. Fletcher
So let me start with the general question and then get to that specific point for Mr. Clement. As to the general question about Heller, we agree completely that the Court ought to apply the method from Heller, which we, like I think all the parties, take to be look to the text, history, and tradition of the Second Amendment right, and we’re applying that now to a somewhat different issue with the benefit of somewhat broader materials. Now, as to the question about why you have to have a showing of need, I think the problem with Mr. Clement’s formulation is that it assumes the conclusion. If you had a right, the Second Amendment conferred a right to carry around a weapon for possible self-defense just because an individual wants to have one available, then, obviously, you couldn’t take away that right or make it contingent upon a discretionary determination. But the whole question is whether the Second Amendment right to keep and bear arms confers that right to have a pistol with you for self-defense even absent a showing of demonstrated need.
John G. Roberts, Jr.
Well, I’m not sure that’s right.
I mean, you would — regardless of what the right is, it would be surprising to have it depend upon a permit system.
You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.
A district court and the Second Circuit in New York, being sympathetic to New York’s tyrannical scheme dismissed NYSRA’s claims, but luckily for New Yorkers, SCOTUS think those courts are basically idiots.
In a 6:3 split partisan decision, where Breyer, Kagan, and Sotomayor dissented, arguing that states should have the necessary powers to reduce gun violence, even if it involves violating fundamental rights, Justice Thomas laid down the law. New York State’s law violates the 14th amendment (the one that guarantees equal protection and shit), denying some people their second amendment rights. He rightly points out, as was argued, no other right has this burden, so why is the second amendment special? Justice Alito added that a right is a right, whether you intend to lower murders by gun is fucking irrelevant.
Roberts and Kavanaugh agreed, but pointed out that background checks, mental health checks, and other checks to make sure someone is the type of person we agree shouldn’t carry are fine, but that has a foundation in that it’s a right until you prove you’re not someone who should be allowed to exercise that right, where as what NY did, was say you don’t have the right, until you prove you need it, and this shit just ain’t OK.
Hear oral arguments and/or read about the case here.
6th Amendment – Bill Of Rights – United States Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
14th Amendment – Section 1
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
All around Louisiana scumbag, Evangelisto Ramos allegedly murdered someone. He went to trial, and opted for a jury. Ten of the jurors thought he was guilty AF, but two weren’t so convinced. However, in Louisiana, you don’t need to convince all twelve jurors, ten will do just fine.
So Ramos appealed, citing the 6th amendment, which says nothing about unanimous decisions, somehow alludes to the notion that decisions must be unanimous. The appeals court told Ramos to get fucked. And the Supreme Court of Louisiana told him they didn’t even have time to listen to his bullshit. SCOTUS on the other hand seemed bored, and were happy to have a listen.
His argument is based on 1972’s Apodaca v. Oregon where SCOTUS decided that while the 6th amendment guarantees the people a right to trial by jury, and that federal jury trials require a unanimous jury verdict, such a unanimity verdict requirement does not apply to the states. They need only be a trial by jury.
Ramos’ team argues that if it’s good enough for federal courts, it’s good enough for the state courts too, and wants that decision overturned.
In a 6-3 non-partisan majority, SCOTUS sided with Ramos. They decided that the 6th amendment effectively ensures a guilty verdict must be unanimous, whether it be in federal or state court, doesn’t matter. That the courts should ultimately be consistent in this.
So this decision reverses SCOTUS’ previous decision in Apodaca, and therefore creates a new and contrary precedent. Doing so goes against a principle SCOTUS likes to adhere to called “stare decisis,” the idea that once the court rules on something, they set a precedent that should be consistently applied going forward.
The reason for stare decisis is that the law shouldn’t be a constantly changing thing, merely an evolving thing. That citizens shouldn’t be innocent/acquitted one day of something, but then someone else does the same thing, and is found guilty the next day. You can imagine it would leave all of us wondering whether we’re going to jail or not on an issue where the courts seem to change their mind all the time. No es bueno.
So what does all this mean? Well, it potentially means the people in jail, on a non-unanimous decision, are either going to have to be retried, since their verdicts will now be deemed a mistrial, presumably. Or, they are just probably going to go free now.
Hear oral arguments, read the ruling, and get a synopsis of the case here.
We all know that Roe v. Wade made abortion legal across the United States, but the this shit is WAY more nuanced and complicated than most know. So let’s really dig into this bitch, because it’s interesting AF.
First, Jane Roe was a fictional name used to represent an anonymous woman. She chose to remain anonymous at the time, but was later identified as Norma McCorvey. She had gotten pregnant with her third child, and wanted an abortion. The first two she had given up for adoption, but this time, she didn’t want to go through all difficult shit associated with bringing a child to term, then putting it up for adoption.
But there was a Texas law that said outside of rape and incest, unless your doctor orders an abortion to save your life, your doctor can’t perform a fucking abortion on you.
As a result, “Jane” lied and said she had been raped. But when there was no police report to corroborate the rape, they suspected she was full of shit, and denied her an abortion, leaving her with no way in Texas to get a legal abortion.
Jane Roe wasn’t the only petitioner in the case, though. There was also an anonymous couple that had gotten pregnant, and a doctor Hallford who was under indictment for performing an abortion (Presumably not the lead singer for Judas Priest, Rob Halford, although that’d be pretty fucking awesome).
They sought justice in a Texas district court citing first amendment violations (presumably arguing it was a law based on religion). But she also argued Fourth, Fifth, Ninth, and Fourteenth Amendments violations.
The Texas district court gave her a victory on 9th amendment grounds, that just because the right to an abortion isn’t enumerated in the Constitution, doesn’t mean she doesn’t have a right to do it. But also, it effectively argues a person has a right to privacy. They cited the 14th amendment as well, which guarantees rights to “all citizens born.” So if you aren’t born yet, you’ve got no rights, little fella.
But Texas only gave a declaratory relief (they clarified the law), not injunctive relief, which would have effectively intervened on Roe’s behalf so she could get her abortion.
Texas decided that despite this decision, it was going to continue prosecuting doctors for performing illegal abortions.
By the time it made it to SCOTUS, the petitioner focused on the 9th amendment and 14th amendment arguments, since that’s how they won in Texas, when pleading their case to SCOTUS.
Also, the petitioners argued that based on some of the situations that were unique to that time, the law made Roe a victim. She noted that when a woman got pregnant, some jobs forced the woman to quit, some schools compel the woman drop out, and the woman can’t get unemployment or welfare benefits if she’s pregnant.
Counsel for Roe stated,
It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.
And we feel that, because of the impact on the woman, this certainly, and as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.
Here’s where this shit starts to get interesting. The Texas law only forbade a doctor from doing the abortion. And it held a significantly lower penalty than murder. Petitioners fairly argued that this showed they weren’t considering it murder. A woman could perform her own abortion, which is dangerous as hell to her (not just the fetus), and there was no law against that shit at all. As a matter of fact, in the law, the pregnant female was considered the victim, and the doctor was the criminal.
Part of the blow dealt to Texas was that from the doctor’s perspective, the law was too vague or subjective, a term under the law referred to as “Constitutionally vague.” Meaning that a doctor could run afoul of the law, and not even know. Laws must clearly define when you are crossing the line into illegality, otherwise you have no way to know how to avoid doing so.
Imagine if the doctor performed the abortion because they said the mother’s life was in danger. But then another doctor comes in after the fact and argues that the mother wasn’t in danger, the doctor performing the abortion was a shit doctor, and thus it’s an illegal abortion. Who the hell wants to sort that shit out? And what doctor will ever perform an abortion, when they know they could be thrown in jail for it later, even if they did so in good faith?
So this shady motherfucker on the side of Wade, tried to argue the case moot, because it had been 21 months, and Roe had long since given birth, then put the baby up for adoption. Basically, this dipshit was establishing a system where a woman could never get injunctive relief, because it would take too long to get it, and actually be able to perform the abortion. This case took 21 months, but obviously, the abortion needs to happen within a few months. So the court called him out on this nonsense, and the exchange was awkward at best:
Justice Byron R. White
How do you suggest, if you’re right, what procedure would you suggest for any pregnant female in the State of Texas ever to get any judicial consideration of this constitutional claim?
Jay Floyd – Wade advocate
Your Honor, let me answer your question with a statement, if I may. I do not believe it can be done. There are situations in which, of course as the Court knows, no remedy is provided.
Now I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice. It’s like, more or less, the first three or four years of our life we don’t remember anything.
But, once a child is born, a woman no longer has a choice, and I think pregnancy may terminate that choice. That’s when
Justice Byron R. White
Maybe she makes her choice when she decides to live in Texas.
As arguments proceeded, the question was asked of the state by SCOTUS, what’s your interest here? To preserve the life of the fetus? So Wade’s attorney was all like, I don’t fucking know, sounds about right.
You’ll think I’m joking there, but he genuinely fucking said when asked what the state’s interest was,
“They recognized the humanness of the embryo, or the fetus, and they said, we have an interest in protecting fetal life.
Whether or not that was the original intent of the statute, I have no idea.”
Clearly, this motherfucker was prepared.
So then the justice was like, well then how the fuck is the woman the victim? Shouldn’t the woman and the doctor be the criminals, and the fetus be the victim?
It became clear that no compelling argument had been made, nor precedent set, to constitute a fetus being a life with equal protection under the law. As a matter of fact, this motherfucker when asked about not making the fetus the victim said,
That is correct, Your Honor. And the matter has been brought to my attention. Why not punish for murder, since you are destroying what you – or what has been said to be a human being?
I do not know, except that I will say this. As medical science progresses, maybe the law will progress along with it. Maybe at one time it could be possible, I suppose, statutes could be passed. Whether or not that would be constitutional or not, I don’t know.
I’ve eaten a bowl of alphabet soup and shit better arguments than that. No wonder that mother fucker lost. Seriously!
He was so bad, that when the case was re-argued at the suggestion of justice Harry Blackmun nearly a year later (due to the fact the court was two justices short from retirements prior to the case, and those seats having not yet been filled), Texas replaced his dumb ass as their advocate.
Anyway, back to Captain Anonymous, Jane Roe. Effectively, if the court accepted that the state’s interest was protecting a life other than the mother’s life, then the court was put into a quagmire, where they’re forced to choose between competing rights for the mother and the fetus.
Eventually SCOTUS decided 7-2 in favor of Roe. Based on the idea that they’re choosing one life over the other, they divide the pregnancy up into three trimesters, which is where the whole “trimester” term came to be.
They gave the mother sole discretion, with her doctor, to terminate in the first trimester, putting the mother’s rights to life and bodily autonomy first.
They gave deference to the mother in the second trimester to terminate if her life was at risk, removing the bodily autonomy right, allowing the state could regulate outside of that parameter. Then they gave deference to the state’s ability to protect the fetus in the third trimester. Basically they argued, the state could legislate it to say, “you’ve come this fucking far, just have the baby and put it up for adoption if you don’t want it.” But if the state didn’t pass such a law, go ahead and have the abortion.
No doubt a complicated case, as it’s not often two humans with rights, find themselves in a scenario where one’s rights interfere with another. As such, the trimester decision was pretty fucking fair, in my estimation.
Justices Rehnquist and White were the two who dissented.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action
The Logical Libertarian™ 