Posts tagged with "SCOTUS"

Supreme Court rules Puerto Ricans don’t have constitutional right to some federal benefits

April 22, 2022

Congress can exclude residents of Puerto Rico from some federal disability benefits available to those who live in the 50 states, the Supreme Court ruled on April 21, reports CNN.

The 8-1 opinion was written by Justice Brett Kavanaugh, with Justice Sonia Sotomayor dissenting.

The case concerned Supplemental Security Income that is available to those living in the 50 states who are older than 65, blind, or disabled. However, residents of Puerto Rico and other U.S. territories are excluded from receiving the funds.

“In devising tax and benefits programs, it is reasonable for Congress to take account of the general balance of benefits to and burdens on the residents of Puerto Rico,” Kavanaugh wrote. “In doing so, Congress need not conduct a dollar-to-dollar comparison of how its tax and benefits programs apply in the States as compared to the Territories, either at the individual or collective level.”

Sotomayor, whose parents were born in Puerto Rico, penned the sole dissenting opinion. “Equal treatment of citizens should not be left to the vagaries of the political process,” she said.

“Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment,” Sotomayor wrote.

The case involves Jose Luis Vaello-Madero, who was born in Puerto Rico in 1954, but lived in New York from 1985 to 2013. In 2012, he was found eligible after a stroke to receive the disability payments, which were deposited directly into his checking account.

After moving back to Puerto Rico in 2013, Vaello-Madero continued to accept the payments until the government was made aware that he was now living outside the 50 states. He was told that his benefits would be discontinued and that he owed the government $28,081 in back pay. His lawyers later sued, arguing that the exclusion of Puerto Rican residents violated the Equal Protection Clause of the Constitution’s 14th Amendment.

Hermann Ferré, a lawyer for Vaello-Madero, said the program was meant to replace “an uneven patchwork of programs” for the disabled with a “uniform standard of national support” so that poor and disabled Americans could live with dignity.

“But that guarantee is not enjoyed by all Americans,” he said, arguing the court should look at the elimination suspiciously because it excludes Puerto Ricans based on their race.

The Biden Administration had defended the exclusion, noting that most Puerto Ricans are exempt from federal taxes, so Congress could take into consideration that reduced contribution when excluding them from some disability benefits. A government lawyer stressed that it would be up to Congress to extend the benefits, and President Joe Biden has already called on Congress to do so.

“It is always appropriate for Congress to take account of the general balance of benefits and burdens associated with a particular federal program,” Deputy Solicitor General Curtis Gannon told the justices at oral arguments.

Research contact: @CNN

 

Former AG Bill Barr has spoken to January 6 Committee, chairman says

January 25, 2022

The chair of the House select committee investigating the January 6 attack on the U.S. Capitol said on Sunday, January 23, that former Attorney General Bill Barr  already has spoken with investigators—a major revelation that at least some former Trump Administration officials are cooperating with the probe into the deadly insurrection, reports HuffPost.

“To be honest with you, we’ve had conversations with the former attorney general already,” Rep. Bennie Thompson (D-Mississippi) said on CBS-TV’s’ Face the Nation. “We’ve talked to Department of Defense individuals. We are concerned that our military was part of this big lie on promoting that the election was false.”

Thompson’s remarks came amid questioning over recent reports that Trump was presented with a draft executive order that would have directed the Pentagon to seize voting machines in battleground states after he lost the 2020 election. Politico first reported last week that the document is among several records Trump’s attorneys were trying to shield from January 6 investigators.

The Supreme Court ruled this month, however, that the National Archives should turn the documents over, and the select committee said just hours later that it had already begun to receive the records.

Thompson told CBS News host Margaret Brennan that the plan was only a draft and never became operational—but said that lawmakers remained concerned about the reports and would let the public know if it found evidence of any “individual who [were] participating in trying to stop the election.”

“If you are using the military to potentially seize voting machines, even though it’s a discussion, the public needs to know. We’ve never had that before,” Thompson said Sunday.

It’s unclear what Barr discussed with the panel, or if he spoke about the draft order on voting machines, but the fact that he spoke with lawmakers is significant. Several top Trump officials have refused to do so, even as the select committee has ramped up its issuance of subpoenas.

The Washington Post reported that the committee’s conversations with Barr were “informal,” citing a committee staffer familiar with the discussions. The outlet added that lawmakers also have already interviewed Barr’s successor, Jeffrey Rosen.

Barr was closely allied with Trump throughout his tenure at the Justice Department, but he resigned in December 2020 after he refused to back up the then-president’s false claims about election fraud.

Research contact: @HuffPost

Supreme Court blocks Biden’s vaccine-or-test rule for large employers

January 17, 2022

On Thursday, January13, the U.S. Supreme Court blocked the Biden Administration from enforcing its emergency rule mandating that workers at large businesses get vaccinated or undergo regular testing for COVID-19—a major setback for the president’s national vaccination effort, reports the HuffPost.

However, the court decided to allow the administration to proceed with a vaccine mandate for health care workers at federally funded facilities.

The justices’ decision to intervene and halt one of the vaccine regulations has major public health implications amid a surge in coronavirus cases due to the omicron variant. The White House hoped the rule, issued through the Occupational Safety and Health Administration (OSHA), would protect workers against COVID-19 transmission and encourage holdouts to get vaccinated.

The justices ruled 6-3 in favor of halting OSHA’s vaccine-or-test rule, with the court’s six conservatives in the majority and the three liberals dissenting. They ruled 5-4 in favor of letting the healthcare rule proceed, with Chief Justice John Roberts and Justice Brett Kavanaugh breaking with their conservative colleagues to join the liberals.

The OSHA regulation requires that employers with at least 100 workers implement programs in which those workers show proof of vaccination or provide a negative COVID-19 test each week. The administration estimates it would cover 84 million workers, mostly in the private sector.

Enforcement of the testing provision was slated to begin on Febrary 9.

Business groups and state GOP officials filed lawsuits aimed at blocking the rule, arguing that it went beyond OSHA’s legal power and would hurt the economy by prompting workers to quit their jobs. Lower courts disagreed on whether the rule was within OSHA’s authority.

In their ruling, the majority said the opponents of the OSHA rule were likely to prevail in court, and so the justices’ decision prevents the rule from going into effect while the litigation plays out. In an opinion joined by justices Clarence Thomas and Samuel Alito, Justice Neil Gorsuch wrote that “Congress has nowhere clearly assigned so much power to OSHA” to institute such a requirement for employers.

“Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace,” Gorsuch wrote.

In their dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said the court should leave such policies to the experts. By acting “outside of its competence and without legal basis,” they argued, the court was substituting its own judgment for that of the government officials tasked with responding to a crisis.

“If OSHA’s Standard is far-reaching—applying to many millions of American workers—it no more than reflects the scope of the crisis,” the justices wrote. “The Standard responds to a workplace health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions.”

The court held a special session to hear oral arguments on the matter on January 7-—expediting the case as enforcement of the rule was about to begin. While the court’s three liberal justices seemed loath to undermine a public health regulation as COVID-19 cases were soaring, most of the conservative justices voiced skepticism of the rule, suggesting it should necessitate an act of Congress.

Alito wondered whether OSHA was trying to legally “squeeze an elephant through a mouse hole” by issuing the rule. Chief Justice John Roberts asked “why Congress doesn’t have a say in this.”

The Biden administration has argued that OSHA has the authority to issue the vaccine-or-test rule under its emergency powers, and that a crisis like the COVID-19 pandemic necessitates such a sweeping regulation.

such as hepatitis B, influenza, and measles, mumps, and rubella,” they wrote.

Biden said in a statement Thursday that the ruling upholding the health care rule “will save lives,” including those of patients, nurses and doctors. He also said he was “disappointed” that the court blocked the OSHA regulation, saying it included “common-sense life-saving requirements” for employers.

Research contact: @HuffPost

Trump asks Supreme Court to block release of his White House records to January 6 committee

December 24, 2021

Former President Donald Trump appealed to the Supreme Court on Thursday, December 23, to block the release of documents from his White House to the House committee investigating the January 6 riot at the Capitolescalating his effort to keep about 700 pages of records secret, reports CNN.

The House committee, which is charged with investigating the U.S. Capitol attack to provide recommendations for preventing such assaults in the future, seeks the documents as it explores Trump’s role in trying to overturn the election. That includes his appearance at a January 6 rally when he directed followers to go to the Capitol where lawmakers were set to certify the election results and “fight” for their county.

The documents currently are held by the National Archives.

In filings submitted to the Supreme Court on Thursday, Trump asked the justices to take up a full review of the case and he requested that while they consider his position, they put a hold on the lower court decision permitting the disclosure of his records while they consider taking up the case.

“The limited interest the Committee may have in immediately obtaining the requested records pales in comparison to President Trump’s interest in securing judicial review before he suffers irreparable harm,” Trump’s lawyers wrote in the court filings.

At issue are hundreds of documents including activity logs, schedules, speech notes and three pages of handwritten notes from then-White House Chief of Staff Mark Meadowspaperwork that could reveal goings-on inside the West Wing as Trump supporters gathered in Washington and then overran the US Capitol, disrupting the certification of the 2020 vote. The records could answer some of the most closely guarded facts of what happened between Trump and other high-level officials, including those under siege on Capitol Hill on January 6.

Trump is also seeking to keep secret a  draft proclamation honoring two police officers who died in the siege; and memos and other documents about supposed election fraud and efforts to overturn Trump’s loss of the presidency, the National Archives has said in court documents.

The fight over the documents stems from a lawsuit Trump filed against the Archives as well as the House Committee, seeking to stop the records’ disclosure. Trump is arguing that those documents should remain secret under the former President’s own assertions of executive privilege, although so far, lower courts have rejected his arguments.

Thursday’s filing with the Supreme Court marks an escalation of the dispute, in which President Joe Biden has determined that withholding the documents based on executive privilege is not in the interest of the United States.

In a letter to the National Archives in October, White House Counsel Dana A. Remus said that the President had declined to assert privilege because Congress has a “compelling need in service of its legislative functions to understand the circumstances that led to these horrific events.”

In their filings with the Supreme Court Thursday, the former President’s lawyers said that the House’s request for the Trump White House documents was “untethered from any valid legislative purpose and exceeds the authority of Congress under the Constitution and the Presidential Records Act.”

Research contact: @CNN

Supreme Court allows challenge to Texas abortion law–but leaves it in effect

December 13, 2021

On Friday, December 10, the Supreme Court allowed a challenge to a Texas abortion law that bans most abortions in the state after about six weeks of pregnancy—ruling, however, that abortion providers in the state may sue some state officials in federal court, despite the procedural hurdles imposed by the unusual structure of the law, reports The New York Times.

But the Supreme Court refused to block the law in the meantime, saying that lower courts should consider the matter.

The development was both a victory for and a disappointment to supporters of abortion rights, who had hoped that the justices would reverse course from the September 1 ruling that had allowed the law to go into effect—causing clinics in the state to curtail performing the procedure and forcing many women seeking abortions to travel out of state.

The decision in the Texas case came less than two weeks after the court heard a direct challenge to the right to abortion established in 1973 in Roe v. Wade, in a case about a Mississippi law that bans most abortions after 15 weeks. Roe prohibits states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb—or about 23 to 24 weeks into a pregnancy.

The court’s six-member conservative majority seemed prepared to uphold the Mississippi law, and several justices indicated that they would vote to overrule Roe outright. A decision in the case is not expected until late June.

The Texas law flouts Roe’s viability line by barring abortions once fetal cardiac activity can be detected, usually around six weeks.

The challenges to the Texas law focused not on the law’s constitutionality but on whether the law could be challenged in court by either abortion providers in the state or the federal government. The cases provided the court with an opportunity to revisit its earlier decision allowing the law to go into effect before the justices had grappled with its constitutionality or settled the question of how it could be challenged.

The Texas law, known as Senate Bill 8, has unusual features: It makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it, and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure or drive them to it are all potential defendants. Plaintiffs—who do not need to live in Texas, have any connection to the abortion or show any injury from it—are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The court’s earlier encounter with the law left the justices bitterly divided, with Chief Justice John G. Roberts Jr. joining the court’s three more liberal members in dissent.

The majority opinion, issued just before midnight on September 1, was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.

Research contact: @nytimes

Live at SCOTUS: Sotomayor and Kagan rebuke Texas for ban that ‘sets precedent to attack other rights’

November 2, 2021

On Monday, November 1, Supreme Court Justices Elena Kagan and Sonia Sotomayor pushed back against a Texas law that enables private citizens to enforce abortion restrictions. Both ripped the Texas abortion ban for how it would create a model for states to attack other constitutionally protected rights, CNN reports.

Sotomayor grilled Texas Solicitor General Judd Stone on Texas’ argument that Congress could step in and write legislation that would prevent states from passing such laws.

“Can I give you examples where Congress hasn’t?” Sotomayor said, ticking off decisions the Supreme Court has made on gun rights, same-sex marriage, birth control, sodomy, and other contentious issues.

What’s more, in a move that surprised many legal observers, during oral arguments in Whole Woman’s Health v. Jackson (Texas law S.B.8), Justice Brett Kavanaugh expressed concern that Second Amendment rights could also be at risk if the Texas abortion law is allowed to stand,  Raw Story reports.

Kavanaugh suggested that new laws could make gun shops liable for millions of dollars if they sell assault-style rifles.

Texas Solicitor General Judd Stone agreed that “all constitutional rights” could be curtailed in the same fashion as abortion rights if Congress allows it.

Kagan interrupted to point out that constitutional rights cannot be blocked by legislation.

“Your answer to Justice Kavanaugh, which is go ask Congress, I mean, isn’t the point of a right that you don’t have to ask Congress?” Kagan asked. “Isn’t the point of a right that it doesn’t really matter what Congress thinks or what the majority of the American people think as to that right?”

Stone insisted that state court judges are expected to “faithfully apply the Constitution.”

But Kagan was not convinced.

“Within the state court process, it may be many years from now and with a chilling effect that basically deprives people who want to exercise the [abortion] right from the opportunity to do so,” the justice explained.

The outcome is still touch and go. The court is providing live audio, as it now does in all arguments.

Research contact: @CNN

Supreme Court blocks part of New York’s eviction moratorium

August 16, 2021

On Thursday, August 12, the Supreme Court blocked part of an eviction moratorium in New York State that had been imposed in response to the coronavirus pandemic—a move the law’s supporters said might expose thousands to eviction, The New York Times reports.

“This is a very serious setback for our ability to protect tenants in the middle of a pandemic,” said State Senator Brian Kavanagh, a Democrat and one of the sponsors of the moratorium law.

Randy M. Mastro, a lawyer for the landlords who had challenged the law, told the Times that the court’s decision would permit “cases that have been stopped in their tracks by the state moratorium law to proceed so that both landlords and tenants can be heard.”

Still, the court’s order, which was unsigned, stressed that it applied only to a provision that bars the eviction of tenants who file a form saying they have suffered economic setbacks as a result of the pandemic, rather than providing evidence in court.

“This scheme violates the court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case,’” the SCOTUS majority wrote.

The order left other parts of the law intact, including a provision that instructed housing judges not to evict tenants who have been found to have suffered financial hardship.

Other challenges to eviction moratoriums, including one recently imposed by the Centers for Disease Control and Prevention, may reach the court soon. According to the Times, that federal moratorium is on precarious legal ground in light of a ruling in June in which a key justice said it could not be renewed without congressional approval.

It was not clear how many people could immediately be affected by the ruling on Thursday. More than 830,000 households in New York State, the majority of them in New York City, are behind on rent, with a total estimated debt of more than $3.2 billion, according to an analysis of census data by the National Equity Atlas, a research group associated with the University of Southern California.

Lieutenant Governor Kathy Hochul (D), who is set to become New York’s next governor in less than two weeks after Governor Andrew M. Cuomo leaves office amid a sexual harassment scandal, said in a statement that she would work with state lawmakers to “quickly address the Supreme Court’s decision and strengthen the eviction moratorium legislation.”

“No New Yorker who has been financially hit or displaced by the pandemic should be forced out of their home,” she said.

The court’s three liberal members dissented from the order. Justice Stephen G. Breyer, writing for himself and Justices Sonia Sotomayor and Elena Kagan, said the law was set to expire in a matter of weeks and was not plainly unconstitutional.

“The New York Legislature is responsible for responding to a grave and unpredictable public health crisis,” Justice Breyer wrote. “It must combat the spread of a virulent disease, mitigate the financial suffering caused by business closures and minimize the number of unnecessary evictions.”

Research contact: @nytimes

Justice Stephen Breyer says he isn’t planning to retire; he is happy as SCOTUS’s top liberal

July 16, 2021

The liberals in Congress may say that he has worn out his welcome, but  Justice Stephen Breyer still feels very much at home at SCOTUS. He has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench, he told CNN in an exclusive interview—his first public comments amid the incessant speculation of a Supreme Court vacancy.

Indeed, amid the pressures of the recently completed session and chatter over his possible retirement, Breyer, a 27-year veteran of the high court, told CNN on Wednesday, July 14, that two factors will be overriding in his decision: “Primarily, of course, health,” said Breyer, who will turn 83 in August. “Second, the court.”

Liberal advocates, law professors, and some Democratic members of Congress have tried in public statements to persuade Breyer to leave the bench. They want Democratic President Joe Biden to be able to name a younger liberal while the Senate, which has the constitutional “advice and consent” power, holds a thin Democratic majority.

Some liberals were urging Breyer to announce a departure as the justices released their final opinions the first week in July. But Breyer has shown no desire to leave the bench at this point, especially as he has obtained more power as the ranking justice on the left after the death of Ruth Bader Ginsburg last year..

When asked directly over coffee in rural New Hampshire whether he had decided when to step down, Breyer said simply, “No.”

He brushed aside questions about the timing of a decision but was willing to speak about the factors that would influence him, including regard for the court. He also elaborated on the satisfaction his leadership role on the left wing has brought.

Breyer said his new seniority in the justices’ private discussion over cases “has made a difference to me. … It is not a fight. It is not sarcasm. It is deliberation.”

During the recent session, Breyer assumed a leading role on several major cases, including to reject a third challenge to the Affordable Care Act, to bolster student speech rights, and to give Google a victory in a multibillion-dollar copyright infringement case brought by Oracle.

He also undertook a new role in internal debate, speaking sooner in the justices’ private conferences, steered by the rhythms of seniority.

When the justices meet in private to decide how to vote on cases, the nine are alone. They call these collective sessions, the “conference.” And according to longstanding tradition, Chief Justice John Roberts, speaks first, giving his thoughts about a case and casting his vote. Next comes Justice Clarence Thomas, on the court for 30 years. Breyer is now next in the order, and the first liberal to have a shot at influencing a case and any cross-ideological consensus.

“You have to figure out what you’re going to say in conference to a greater extent, to get it across simply,” Breyer said. “You have to be flexible, hear other people, and be prepared to modify your views. But that doesn’t mean (going in with) a blank mind.”

Breyer has tried to minimize the politics of a 6-3, conservative-liberal bench in these especially polarized times. A lengthy speech he gave at Harvard Law School last April has been turned into a book that will be published in September entitled, “The Authority of the Court and the Peril of Politics.”

Liberals beyond the court praise his record but, as they did of Ginsburg for years, say he should make way for a new justice, particularly while Biden has a Democratic Senate.

Unlike when Ginsburg died and the 5-4 conservative-dominated court transformed to a 6-3 bench, a new Biden appointee would not change the current ideological split.

Theoretically, the Democrats should retain their one-vote advantage through at least the 2022 November midterm elections. But activists worry about any sudden change in that margin. Their concerns arise against the backdrop of 2016, when then-Senate Majority Leader Mitch McConnell prevented any hearing of Obama’s choice of Merrick Garland to succeed Justice Antonin Scalia, and of 2020, when Ginsburg died and McConnell helped rush through Amy Coney Barrett as a successor in October— just days before President Donald Trump was voted out of office, CNN notes.

When the court rules in the familiar 6-3 conservative-liberal pattern, Breyer, as the senior member of the left, has the power to assign the opinion for that wing. He said his goal is a fair distribution of the dissents in prominent cases among himself, Kagan and the third liberal, Justice Sonia Sotomayor.

At an institution bound by rank, Breyer knows what it is like to be on the downside of the seniority order. He spent more than 11 years as the most junior justice (nearly the court record), simply by virtue of a dearth of associate-justice appointments in that period. Samuel Alito joined in January 2006, an appointee of President George W. Bush, after Bush’s choice of Roberts to be chief justice in 2005.

Ginsburg was named to the bench in 1993, the year before Breyer. Her tenure as the senior justice on the left ran for a decade, from 2010 (when Justice John Paul Stevens retired) to 2020.

Breyer’s duration is unlikely to reach a decade, but he plainly decided it would not be a single term.

Research contact: @CNN

Supreme Court spares Obamacare from GOP challenge

June 18, 2021

The U.S. Supreme Court ruled on Thursday, June 17, that the Affordable Care Act, better known as Obamacare, remains valid—rejecting a claim by a group of conservative states that a recent change to the law made it unconstitutional, NBC News reports.

By a 7-2 vote, the court said the plaintiffs did not have legal standing to sue because they did not make a strong enough showing that the law harmed them. But the decision also suggested it would be difficult for any challengers to try again on the same legal theory.

Two of former President Donald Trump’s three appointees to the court— Brett Kavanaugh and Amy Coney Barrett—joined the majority opinion, while the third, Neil Gorsuch, dissented.

In their dissent, JusticesSamuel Alito and Gorsuch said the court should have taken the case and declared it unconstitutional.

According to NBC News, the law’s challengers, 18 red states led by Texas, urged the court to rule that Obamacare’s requirement for nearly all Americans to obtain health insurance or pay an income tax penalty — known as the individual mandate — is unconstitutional. For that reason, they said, the entire law must be scrapped.

“The plaintiffs claim that without the penalty the act’s minimum essential coverage requirement is unconstitutional,” Breyer wrote for the court’s majority, adding, “They also argue that the minimum essential coverage requirement is not severable from the rest of the act,” meaning the entire law is invalid.

“We do not reach these questions of the act’s validity, however, for Texas and the other plaintiffs in this suit lack the standing necessary to raise them,” he wrote.

Republicans have long opposed the law, former President Barack Obama’s signature legislation. But more than 20 million Americans now depend on it for their health insurance, and there is broad public support for its requirement that insurance companies must cover pre-existing health conditions.

The Supreme Court first upheld the health care law in 2012. The majority opinion written by John Roberts said the individual was a legitimate exercise of Congress’s taxing authority. But in 2017, the Republican-led Congress set the tax penalty at zero.

That led the red states to argue that because the tax was effectively eliminated, the revised law could not be saved as a tax and was therefore an unconstitutional effort to require all Americans to obtain something. A federal judge in Texas agreed, and the 5th U.S. Circuit Court of Appeals in New Orleans upheld that ruling.

But 20 blue states, led by California, asked the Supreme Court to overturn those lower court decisions. They said with the tax penalty at zero, there effectively is no individual mandate, so the law is not unconstitutional. It may encourage Americans to buy insurance, but it does not require anyone to do anything, they said.

What’s more, the red states said Congress meant the healthcare law to work as an integrated whole. Prohibiting insurers from denying coverage for pre-existing conditions and allowing young people to stay longer on the policies of their parents were meant to work because of the near-universal command to buy insurance. Without the mandate, the challengers said, the law falls apart.

However, the blue states said the test for deciding whether the rest of a law can be saved if part of it is struck down is a simple one: What did Congress want? They said the answer is found in the 2017 action that set the tax at zero: Congress left the rest of the law intact.

Research contact: @NBCNews

Supreme Court to take up major Second Amendment concealed-carry handgun case

April 27, 2021

The Supreme Court announced on Monday, April 26, that it will consider a case that ultimately could determine how much protection the Second Amendment provides for carrying a gun outside the home, NBC News reports..

The case represents the first time in more than a decade that the court has agreed to take up a central issue of the gun rights debate—something it has consistently ducked since issuing a landmark ruling (5-4) in District of Columbia v. Heller in 2008 that that the Second Amendment guarantees an individual the right to possess firearms, independent of service in a state militia —and to use firearms for traditionally lawful purposes, including self-defense within the home.

The court agreed to hear a challenge to a New York state law that allows residents to carry a concealed handgun only if they can demonstrate a special need beyond a general desire for self-protection. The law “makes it virtually impossible for the ordinary law-abiding citizen” to get the necessary license, Paul Clement, a lawyer representing the challengers, said.

One of them, Robert Nash, said he wanted to carry a gun in response to a string of robberies in his neighborhood. Another, Brendan Koch, also cited a desire to carry a gun for protection. Both men said they had completed gun safety courses but were turned down when they applied for permits. They joined a lawsuit challenging the law brought by the New York State Rifle and Pistol Association.

New York bans carrying a handgun openly. The state law says anyone seeking a license to carry a concealed weapon must demonstrate “a special need for self protection distinguishable from that of the general community or of persons engaged in the same profession.”

The law is so restrictive, Clement said, that it cannot be reconciled with the Supreme Court’s “affirmation of the individual right to possess and carry weapons in case of confrontation.”

Federal courts have split on the meaning of the Second Amendment’s declaration of a right to keep “and bear” arms. New York Attorney General Letitia James urged the Supreme Court not to take up this case.

James said that, when the U.S. Court of Appeals for the 2nd Circuit upheld the state’s concealed carry law, it assumed a right to carry firearms outside the home. But the right is not unlimited and can be subject to state regulation, she said. New York’s law was a response to an increase in homicides and suicides committed with concealed firearms early in the 20th century, she told the Supreme Court in a written brief.

In late March, the U.S. Court of Appeals for the 9th Circuit upheld a Hawaii law similar to New York’s. The appeals court had ruled earlier that individuals do not have a Second Amendment right to carry concealed weapons in public. Its latest decision concluded that there is no general right to openly carry weapons in public

Justice Clarence Thomas has repeatedly criticized his colleagues for turning down similar cases in the past. “The right to keep and bear arms is apparently this Court’s constitutional orphan,” Thomas wrote in one dissent.

According to NBC News, last year, the court dismissed a challenge to another New York law that said residents with a permit to keep a gun at home could not take the weapon beyond city limits for use at a second home or a shooting range. The case was tossed out after the city repealed the law.

Justices Thomas, Samuel Alito and Neil Gorsuch said the court should have decided that case and declared the restriction unconstitutional. Another of the court’s conservatives, Justice Brett Kavanaugh, said then that the court should address the larger Second Amendment issue by taking up other challenges to gun restrictions, such as on carrying guns outside the home.

The court’s conservatives may have been reluctant to take up the gun rights issue in the past because they couldn’t be certain of finding a fifth vote in their favor. But the addition of Justice Amy Coney Barrett, providing a solid 6-3 majority, likely gave them confidence to take this latest case.

It will be argued early in the fall, during the court’s next term.

Research contact: @NBCNews