The Attorney General of New Jersey has filed a brief (100 pages!!!!) explaining why New Jersey’s de facto carry ban is actually constitutional.
(1900 words)
Introduction
The Second and Fourteenth Amendments have always coexisted comfortably with a wide range of firearms restrictions. As the record shows, States historically restricted firearms in particularly sensitive places—such as public assemblies, schools and other educational and literary gatherings, ballrooms, shows, fandangos, fairs, and taverns, parks, zoos, in transit, and more. Founding- and Reconstruction-era States likewise long required individuals to obtain consent from private property owners before carrying firearms onto their private lands. And States historically required individuals to make surety payments before carrying firearms in public, and they imposed strict liability regimes to cover the harms of firearms misuse. States have also long imposed fees relating to firearms or permits. And States have consistently sought to ensure that those who could not be trusted to carry a firearm in public will not do so—including by checking their backgrounds.
Given their historical pedigree, the provisions Plaintiffs challenge—Chapter 131’s sensitive-place restrictions, private-property provision, insurance requirement, fees, and character-reference requirement—all satisfy New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022). After all, Bruen adopted a historically-grounded test: if States originally understood that particular firearms policies were available under the Second and Fourteenth Amendments, those policies remain on the table for them today. Yet despite the considerable evidence the State provided in its opening brief, Plaintiffs cannot produce a shred of evidence that anyone anywhere saw any of these laws as unconstitutional. In sharp contrast to the evidence in both Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008), this record contains no evidence that any court, State, official, or legal commentator viewed any of these historical sensitive-place requirements as unconstitutional. Plaintiffs cite nothing to suggest that any court, State, official, or legal commentator believed individuals had a right to carry firearms on private land without the owner’s consent. Their arguments are also bereft of evidence of any challenges to the historical surety laws or to strict-liability regimes. And Plaintiffs find no decision or even constitutional debate as to historical fees and permitting processes. Instead, the record reveals “no disputes regarding the lawfulness of such prohibitions.” Bruen, 142 S.Ct. at 2133.
Because Plaintiffs cannot identify contrary evidence, they repeatedly attempt to move the goalposts that Bruen laid out. Plaintiffs repeatedly castigate the State’s historical statutes as measuring “too few” in number, even when the State found eight or even thirty historical predecessor statutes—reasoning that the fact some other States took a different policy approach suggests New Jersey’s modern laws are unconstitutional. But Plaintiffs never explain how their view coheres with our federalist system, in which “the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). Plaintiffs also diminish the State’s voluminous historical evidence as coming “too late”—even though the antebellum and Reconstruction-era evidence consistently favors the State in this case, and even though Reconstruction-era evidence particularly informs how the States understood the scope of the Fourteenth Amendment. Last, Plaintiffs insist sensitive places can only be ones with “comprehensive,” TSA-style security, but the very places that Bruen itself recognized as sensitive (like schools) could not fit the Plaintiffs’ overly-stringent and invented test.
The consequences of this debate are grave. Bruen recognized that the Constitution allows the States to address all manner of “regulatory challenges posed by firearms today.” 142 S.Ct. at 2132. So it adopted a historical and analogical test that allows States flexibility while protecting the constitutional right. Chapter 131 respects that decision, adopting only restrictions that are in line with a centuries-old historical record. Plaintiffs distort Bruen’s measured approach, seeking to impose on New Jersey “a regulatory straightjacket” that limits the State’s ability to protect residents from the scourge of firearms violence—limits that “our ancestors would never have accepted.” Id. at 2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). This Court should reject Plaintiffs’ arguments.
—ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.)
B.L.U.F. A follow on to the Hoover case regarding sentencing.
Yesterday, in Policies are not laws, we discussed how sentencing guidelines work. A short recap:
The courts use a rubric to decide the range of sentences that should be imposed. One axis is the “level” of the crime, the other is the category of criminal. Before sentencing, the court gathers all the information required to use the table. This is done by the Bureau of Prisons using local community resources.
Once the PSR is completed, the prosecutor reviews it, makes changes where required, presents it to the defense. At a hearing, the parties argue over the PSR, and then it is in the Judge’s hands.
The prosecutor will recommend a sentence based on the guidelines. The judge gives the final sentence.
The facts in this case are that Dayonta McClinton and his friend robbed a pharmacy. Afterward, the two got into a dispute and McClinton’s friend was shot and killed.
McClinton was arrested and charged with robbery and murder.
The base level for First Degree Murder is 43 points, which is for premeditated. It looks like the shooting was Second Degree Murder at 38 points.
McClinton was found not guilty of murder in a jury trial. The prosecution was not happy with this.
McClinton was found guilty of robbery. I am going to assume armed robbery. The base level for robbery is 20 with a modifier of 6 for a total of 26 points.
At 26 points, he is up for 63 through 150 months, depending on Criminal History Category. The category is based on how often he has been incarcerated and for how long. There are also modifiers for doing crime while being on probation.
My Google foo is not up to finding criminal histories. My guess is that he is a Category III with 3 to 6 points.
In our table, that gives a sentencing of 78–97 months, or 6.5 to 8 years.
That seems like a reasonable punishment for armed robbery, if the criminal did not achieve room temperature during the act.
Unfortunately for McClinton, that isn’t what happened.
Even though McClinton had been acquitted of murder, the prosecutor used the accusation/charge of murder to modify the location on the sentencing table. This could have been adjustments for the Armed Robbery, or it could be adjustments in the Criminal Category.
If McClinton is bumped up just one category, his sentencing range goes from 78–97 to 92–115. That is a maximum duration of 9 2/3 years, up from 8 years.
But let’s say that the prosecutor added 3 points to the level and bumped him that one category. That takes us to 121–151 months, 10 to 12 1/2 years.
All because he is being sentenced based on a crime he was found not guilty of committing.
The supreme court denied certiorari on the case. Some justices feel that the use of an acquitted charge is wrong. Others feel that the issue isn’t ripe because the sentencing guidelines are being reworked. And Alito took issue with what he felt was Sotomayer advocating for the sentencing committee to make the changes she wants.
It is getting bad inside my brain. A couple of articles went past my feeds talking about an arms seizure in MA and straw purchases. I started reading and immediately went to my court sources to get the actual court documents. Rather than trusting what the reporter had to say.
It is a shitty picture of some lovely old weapons. I haven’t even attempted to identify any of them.
The box of stripper clips in the foreground is nice, the pile of magazines in the sink is interesting. I would be happy to take all of those off his hands.
Public personas aside, the Augustos stand accused in both federal and state courts for amassing a stockpile of guns ranging from World War II models to semi-automatic rifles and an Uzi. The elder Augusto is not legally authorized to possess any of them due to an old criminal conviction, a lawyer in the case says.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
I’ll spare you the search, the Uzi they are referring to is a semi-auto version. There are no NFA items in the collection.
As always, the reporter is trying to induce a panic. Was this a large collection? Yes. If this was in a free state, the actual collection would not have been an issue. In MA, it is unlikely that they had registered all those firearms. Much less the magazines and ammo.
The nature and circumstances of the offense are serious, but include mitigating factors that weigh in favor of the requested below-Guidelines sentence. See 18 U.S.C. § 3553(a)(1). The offense is serious in that it enabled his father, Daniel A. Augusto, Jr., to add to his vast arsenal of hundreds of firearms, ammunition magazines, rounds of ammunition, firearms manufacturing equipment, and firearms paraphernalia. (D.3, at ¶ 5). As even the defendant conceded during his second interview with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), many of the firearms were located outside the safes throughout the house because “it honestly got to the point where there was no room in the safes, so stuff just started going everywhere.” (D.3, ¶ 12(d)). Missing citations for UKRUHGEW
English is tricky. Were there hundreds of firearms? Were there hundreds of magazines? Were there hundreds of rounds of ammunition? Or did they just lump them all together to get scary numbers? The statement made in the court filing was that there were more than a dozen semi-automatic rifles … in one of the bathrooms …Missing citations for UKRUHGEW
The state is attempting to make it sound horrible, they are attacking this man for not having all of his guns in safes.
… obsessively collected firearms to the point that they could not store them safely.Missing citations for UKRUHGEW
Right now, there are two loaded pistols and a dozen loaded rifles within feet of me that would not be considered “safely stored” in MA. If I still had the grandkid coming over, I’d store some of them differently.
Against this dangerous backdrop, two factors mitigate the defendant’s offense: first, he conducted all of his straw purchases for his father, rather than a stranger; and second, he did not benefit monetarily. Missing citations for UKRUHGEW
I didn’t know there was a “not for money” clause in the don’t buy guns for others.
… the defendant has recognized that his offenses were serious; they contributed to a highly dangerous situation inside his home; and he is better off never possessing firearms or ammunition again. Missing citations for UKRUHGEW
This man is going to lose his Second Amendment protected rights because the government is infringing on his father’s Second Amendment protected rights.
I didn’t find what the father was convicted of doing that made him a prohibited person. It is pretty obvious that he has not been doing evil in a long time.
I’m watching the §922(g) cases wind their way to the Supreme Court. I believe that the court is going to spank the government hard. In Heller, in the dicta, they indicated that §922(g) was presumed to be constitutional. They didn’t clarify that “presumed” means, “We didn’t look at it. That is a question for another day.”
There is no historical regulation nor tradition of stripping The People of their right to keep and bear arms because they are not virtuous people. That is what §922(g) does.
This is just an example of how there are intended consequences.
Of note, I’ve not seen a single story come across my feeds of a person being convicted of straw purchases that was a bad person.
Maybe that’s because they are either getting a sweetheart deal OR they are getting so stitched up that they didn’t stack the federal gun crime on top.
B.L.U.F.More of analysis of the horrid opinion offered by Judge Karin Immergut out in Oregon.
I’ve since learned that she spent most of her career, before becoming a district judge, working as a prosecutor for the government. She was actually a prosecutor for the ATF. OF course, she found a gun infringement constitutional.
It is pretty clear that the judge was picking and choosing experts, facts, and testimony to get the conclusion she wanted. This is clear from the following:
Plaintiffs offered the chart as an industry report through the testimony of Salam Fatohi, who serves as the Director of Research at the National Shooting Sports Foundation (“NSSF”). Tr. 6/6/2023 356:4–5. Although this Court received the chart in evidence, see Ex. 33 at 7, in assessing the weight and credibility to give Mr. Fatohi’s testimony, this Court notes that the NSSF is a plaintiff in this case and has been a plaintiff in several Second Amendment challenges to firearms regulations. The NSSF is a firearm and industry trade association which advocates for the firearm and ammunition industry. NSSF members have a significant financial interest in the outcome of this case.
—ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.)
The EVIL gun lobby wants this, we can’t accept their testimony. How about the fact that Everytown, Brady, and a dozen other groups all pile on when there is a Second Amendment Case? Should their testimony be discounted because they have been a plaintiff in several Second Amendment challenges? Maybe the judge should disallow Paul Clement from representing Second Amendment plaintiffs because he’s been involved with several Second Amendment challenges?
Does she really think that all these anti-gun people don’t make money from litigating? I’ve looked at some of the tax filings for some of these groups, they seem to spend significant amounts of money on the administrative and executive salaries.
Nevertheless, based on the parties’ pretrial stipulation, this Court finds that millions of Americans today own LCMs. But this Court also finds that the number of LCMs possessed by Americans is influenced to some degree by whether a firearms manufacturer sells a particular model of firearm standard with an LCM, and whether that firearm is sold standard with more than one LCM. Tr. 6/5/2023 44:16–19; 67:6–17.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
What is she talking about? That most people don’t buy extra magazines for their firearms? Technically, I guess that is true. My M1 Garand came with zero enblocs. I think I have over 50 of them now. All but a few loaded. My PC-9 came with one magazine. I’ve never even loaded it. I purchased 6 Glock magazines to feed it, and then purchased a Glock with a couple of magazines.
My first AR-15 came with two magazines. One was 5 rounds and the other 10. None of the other AR-15s came with magazines. I don’t know how many magazines I currently have. I still have one 5 round mag, and one 10 round magazine. I do have a few 20 round mags, but most of my magazines are 30 rounds.
It does not matter why The People decide to purchase extra magazines or if they just use the magazine(s) that come with their guns. They have decided that ammunition feeding devices with more than 1, 5, 7, 9, 10, or 15 rounds is what they want, those purchases are protected under the Second Amendment.
Plaintiffs offered only limited anecdotal evidence of LCMs actually being used in self-defense. Mr. Ayoob described an incident in which a law enforcement officer fired thirty-three rounds in pursuit of an armed bank robber. Tr. 5/30/2023 39:24–40:16. On cross-examination, Mr. Ayoob also testified about an incident in which two individuals fired nine and three rounds, respectively, at an armed intruder. Tr. 5/30/2023 56:16–57:14. On re-direct, Mr. Ayoob testified to two other incidents with civilians firing more than ten rounds in self-defense: two brothers who owned a jewelry store and fired between thirty and forty rounds to stop an attempted robbery, and one gun shop owner who used an M16-rifle and a sub-machine gun to stop an attempted robbery. Tr. 5/30/2023 95:15–96:13. Missing citations for FHMK3ZW8
The judge is incorrect in how she categorizes these anecdotal incidents. They are examples of people using their arms to actively defend themselves. They were using those arms for lawful purposes, such as self-defense, by possessing them. They prove The People chose these arms in common use today for lawful purposes.
Conclusion
I’m now behind the curve, here are a couple of YouTube videos that go into just how bad this opinion is.
I might come back to this, but with multiple issues with the k8s cluster resulting in a full day of ClusterFuck and then another 30 minutes of minor CF today. I have not had time to do any more wading through this swamp.
B.L.U.F. An analysis of the horrible opinion out of Oregon where the district Judge decided that arms aren’t covered under the Second Amendment and that there is a history and tradition of requiring government approval before you can exercise your Second Amendment protected rights.
This opinion is 122 pages long. This is not a complete analysis. I don’t think I can stomach that much muck.
Inserted a title and added a “more” block to take the text-wall off the front page
When I originally looked at Judge Karin Immergut, I was hoping for better from her. She was appointed by President Trump. Unfortunately, it appears that her time in liberal cesspools has corrupted her judgement. She has degrees from the University of California, Berkeley, Amherst College, and UC Berkeley School of Law. To say that she was educated in leftest incubator schools is a fair statement.
The Question
Before this Court are two core questions: (1) can the State of Oregon limit the number of bullets to ten, that a law-abiding citizen can fire without reloading; and (2) can the State of Oregon require firearm purchasers to obtain a permit, which imposes various requirements, including a completed background check, safety training, and consideration of mental health status, before purchasing a firearm. After a weeklong bench trial, this Court concludes that the answer to each of these questions is yes. Accordingly, Oregon Ballot Measure 114 is constitutional.
—ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.)
This is a horrible statement of the actual questions in the case. 1) Is banning ammunition feeding devices based on characteristics in violation of the Second Amendment protected rights? 2) Is requiring a member of The People to get state approval before they are allowed to purchase constitutional?
Even with her horrid wording, she should not have been able to find that BM114 is constitutional.
Holding
As explained below, Plaintiffs have not shown that the Second Amendment protects large-capacity magazines, defined as magazines capable of firing eleven or more rounds without reloading.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
I’ll use the words of Paul Clement et al.:
Just last year, the Supreme Court confirmed once and for all that “the Second Amendment protects the possession and use of weapons that are ‘in common use.’” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2128 (2022) (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Rather than respect that clear teaching, Rhode Island veered far in the opposite direction, banning all devices that feed ammunition into semiautomatic firearms and are “capable of holding … more than ten (10) rounds,” R.I. Gen. Laws §11-47.1-2(2), -3(b)(1)(i), even though tens of millions of Americans own hundreds of millions of those devices as integral components of the firearms they keep and bear for self-defense. Under a straightforward application of Bruen, HB6614 is profoundly out of step with our nation’s history of firearm regulation and a violation of the Second Amendment. Missing citations for MPSB5CX2
She even messes up Supreme Court dicta This Court also finds that the text of Oregon’s permit-to-purchase framework is consistent with the type of regulation that the United States Supreme Court has deemed constitutional under the Second AmendmentMissing citations for FHMK3ZW8. The Supreme Court never said that any permitting scheme is constitutional, only that shall issue states are assumed to be constitutional.
The court then went forth and said, “If you get a 2A case, look to the plain text, history and tradition to make your ruling. That means …”
We should not have been surprised because she granted Oregon Alliance for Gun Safety’s motion to intervene based on Federal Rule 24 of Civil Procedures, 24(b).
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact. Missing citations for SZWBSMHX
I believe that she is referring to 24(b)1(B) has a claim or defense that shares with the main action a common question of law or fact the Oregon Alliance for Gun Safety is an anti-gun group that uses emotional blackmail constantly. Read More
B.L.U.F. A look at the recent Affirmative Action case before the Supreme Court.
Originally, I intended to take Jackson apart with her own words. Instead, this is the Constitutionalist on the Court doing it for me. Having read Roberts’, Thomas’ and Gorsuch’s opinion and concurrence, it is pretty obvious that they are not sitting silent anymore regarding the opinions issued by the least qualified justices ever(?).
It is sad when you look to Sotomayer for the “reasonable” and “well reasoned” opinion from the left.
It has been another bumper term for conservatives at the Supreme Court. We have a couple of amazing wins, again.
I want to start with the following:
ROBERTS, C.J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199
—ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.)
This defines this court. On one side we have Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Roberts. On the other side we have Sotomayer, Kagan, Jackson. In any case of “social impact” you can be sure that the three of them will be lock-step.
The media constantly yaps about getting one of the conservative justices to join the left. It happens. I don’t like it when it happens. The conservative judges who move over that line do so because that is what the constitution says. Not because they want a particular outcome.
In the same way, we often hear about some nasty piece of legislation where the democrats are trying to get a rhino to betray us. When Joe Manchin didn’t vote lock step with the democratic machine, I had to check the temperature in hell.
Chief Justice Roberts wrote this opinion. He made no bones about his opinion of the critical thinking of Justice Jackson:
JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Attempts to minimize? That is very harsh language from one Justice to another. We see Justice Jackson attempting to lie with statistics and being called on it. If we say that there is a 25% failure rate, that sounds harsh. If we’ve only done 4 tests and only the first one failed, it is not so bad.
On the other hand, saying that 100s of people are dying at amusement parks it sounds pretty bad. Until you run the numbers and find that it 201 deaths over 20 years when amusement parks are handling millions of visitors each per park. (Busch Gardens Tampa Bay theme park averaged 4 million visitors per year from 2009-2019. It fell off during the panic.)
Jackson attempted the same thing. She claims that because 65/67 == 97.01% and 1118/1139 == 98.16% that Asian applicants are who actually have the advantage.
The importance of “The Question” is shown in footnote 2:
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself. Missing citations for QBP3BVS2
Emphasis added. The court was not asked to give their opinion on Title VI vs. the Equal Protection Clause of the Fourteenth Amendment. Because they were not asked, they leave things as they currently are. This is an important takeaway.
Just because the Supreme Court doesn’t strike something down as unconstitutional, that doesn’t mean that it is constitutional. If they aren’t asked, they aren’t supposed to give an opinion.
This is why dicta is important. It tells the inferior courts(Missing citations for 8Q2H79PQ) how to rule in cases in the same areas. The idea being that the inferior courts will “do the right thing”, follow the lead of the Supreme Court.
The Supreme Court has said that there is a right to keep and bear arms. The inferior courts should follow that lead. Unfortunately, too many of the inferior courts would prefer that there was no individual right to self-defense.
Roberts takes another pot shot:
For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach. Missing citations for QBP3BVS2
And:
JUSTICE JACKSON contends that race does not play a “determinative role for applicants” to UNC. Post, at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is simply mistaken. Missing citations for QBP3BVS2
Math says that about 700 in state applicants and 5,400 out of state applicants were determined solely based on their race.
This appears to be the gist of the dissents’ argument, as expressed by Roberts.
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310. Missing citations for QBP3BVS2
The liberals on the court believe that we have to enforce racial discrimination to combat racial discrimination. It reminds me of the often quoted line from Vietnam, “We had to destroy the village in order to save it.”
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it. Missing citations for QBP3BVS2
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
Missing citations for QBP3BVS2
For the best fun in reading this opinion, just look at the footnotes. That is where they take shots at each other. There is also a nod from Thomas back to the Bruen opinion.
According to one of the lawyers that speaks on Second Amendment rights, the policy of the courts on accepting amicus curiae from anybody is a rather recent policy change with the courts. It used to be that you had to show real reasons to be considered a friend of the court.
Of the hundreds of pages submitted to the Supreme Court in —ECF No. 108 Ronald Koons v. Attorney General New Jersey, No. 23-1900, slip op. at 1–3 (3d Cir.) most are from amicus curiae submissions. In appeals, it is the same. There are the actual pleadings by the parties, and then there are all the amicus curia submissions.
He is just one guy. He doesn’t belong to any group. His claim to fame is that he has written a number of books advocating for infringing on the Second Amendment and calling anybody and everybody who thinks that the right to “keep and bear arms” gives an individual the right to keep and bear arms an idiot or worse.
It is very uncommon to see a person or entity submit a motion for leave to file an amicus brief and then to have the court reject it. When this, ORDER re: Motion for leave to file amicus brief. John Cutonilli’s motion to file an amicus brief is DENIED. [74] showed up in Celeb Barnett v. Kwame Raoul I needed to find out why.
The first question to ask is, “Who is John Cutonilli?” A quick Google search turns up “Cutonilli v. State of Maryland”. This is a reference to a case from 2015. Read More
