Justice Barrett’s Second Amendment Slip?

Earlier today, the Associated Press published an article in which it quoted Justice Barrett as follows (purportedly regarding the upcoming opinions on the Second Amendment and abortion):

Did Justice Barrett Say This?

“Does (the decision) read like something that was purely results-driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” — Justice Barrett

justice barrett
Justice Amy Coney Barrett official portrait.

Unfortunately, I was not there, and I cannot find a recording or a transcript of Justice Barrett’s remarks at the Ronald Reagan Presidential Library. And so it might be purely hypothetical and speculative on the part of the AP reporter that Justice Barrett was predicting the outcome of the Second Amendment and abortion cases.

Concealed carriers and concealed carry wannabes are a bunch of depraved degenerates and so it should come as no surprise to anyone that they are liars and delusional as well. These bottom-dwelling scum claim that the Constitution and the Supreme Court precedents dictate that Open Carry be banned, and that concealed carry is a right protected by the Second Amendment because, in their feeble, diseased, little minds, the Second Amendment is a right to commit murder.

I would say, “Shame on the so-called gun-rights groups and their lawyers!” But the so-called gun-rights groups and their lawyers have no shame, they are evil.

The NRA Lawyer Said This

The National Rifle Association lawyer, Paul Clement, who argued the case NYSRPA v. Bruen before the Supreme Court on November 3rd of last year, did not say that the Framers of the Second and Fourteenth Amendments, and those who voted to enact those amendments into law, thought that concealed carry is a right.

The NRA attorney made an off the cuff remark that Open Carry can be banned in favor of concealed carry but when pressed by Justice Kagan (who is no fan of the Second Amendment) as to how Mr. Clement can say bans on Open Carry in favor of concealed carry are constitutional given that over 200 years of precedent have held that Open Carry is the right guaranteed by the Constitution and also held that prohibitions on concealed carry do not violate the Second Amendment.

The NRA’s lawyer, Paul Clement, gave as his justification for banning Open Carry in favor of concealed carry is that people today, especially New Yorkers, are on a different wavelength today.

There is no such thing as “The Different Wavelength Doctrine of Constitutional Interpretation.”

However, there is “judicial interest balancing” which the Supreme Court rejected in its two Second Amendment opinions that were decided on the merits, Heller and McDonald. Despite that, the lower courts have nonetheless adopted judicial interest balancing in deciding legal challenges based on the Second Amendment. That “methodology” could incorporate a type of different wavelength calculation, the “different wavelength” ultimately being how the lower court judges feel about the Second Amendment.

If Justice Barrett truly said that the Constitution and precedent will determine the outcome of NYSRPA v. Bruen then the two pre Civil War court opinions the United States Supreme Court opinion District of Columbia v. Heller cited as perfectly capturing the meaning of the individual right to keep and bear arms require that the opinion in NYSRPA v. Bruen will say that to the extent that New York law prohibits the Open Carry of handguns the law is invalid but to the extent that New York law prohibits the carrying of handguns concealed it is valid. Quoting the United States Supreme Court opinion in District of Columbia v. Heller:

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! Ibid.

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

The Constitution and Precedent

If the Constitution and precedent determine the outcome of NYSRPA v. Bruen then concealed carry is not protected by the Second Amendment.

The only way the NRA wins, and it will be a small win for the NRA, is if at least five of the justices contrive some Second Amendment right to concealed carry. If that contrived concealed carry right extends even an inch beyond where the petitioners’ concealed carry permits now allow them to carry concealed then the justices can enjoin enforcement of the “good cause” requirement for the permit.

If at least five of the justices want to go beyond the petitioners’ concealed carry permit limitations then it could enjoin enforcement of the “good cause” requirement because of the state’s unbridled discretion in issuing concealed carry permits. But this latter option is unlikely given that neither of the two petitioners was denied a concealed carry permit, and without an actual person standing before the Court complaining that his Second Amendment rights have been violated because he was denied a permit, the justices are not going to issue an injunction absent such a person.

The justices rewrote the question presented for them to decide from whether or not there is a right to carry a handgun in public to whether or not the denial of the [two] petitioners’ applications for [unrestricted] concealed carry licenses violated the Second Amendment.

If five justices agree then they can go beyond the scope of the question presented but, at a minimum, we will get an answer to the concealed carry question presented to the Court, the one the justices rewrote.