A reminder that the United States Supreme Court rewrote the question presented to the Court for it to decide in NYSRPA v. Bruen. The question the justices will be deciding is:
“LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE’S DENIAL OF PETITIONERS’ APPLICATIONS FOR CONCEALED-CARRY LICENSES FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.”
SCOTUS Rules 24 and 14 limit the scope of the opinion to the question presented.
However, both sides did something very unexpected. Instead of arguing the question presented to the Court, they argued the original question presented in the cert petition, which was:
“Whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense.”
The State of New York could have simply argued the concealed carry question presented to the Court and won.
Instead, New York decided to argue that the right to bear arms outside of the home does not exist where one is likely to encounter another human being.
New York State, in its answering brief, pointed out (obliquely) that if one has a license to carry a handgun concealed in public then there is no criminal penalty attached to openly carrying a handgun. The worst that can legally happen is that the license can be revoked.
New York State does not ban the Open Carry of long guns it is legal for one to possess.
And unlike the carrying of a handgun, no license is required by the State of New York to openly carry a loaded long gun.
The City of New York has its own set of laws which are not being challenged in this case.
The justices can, but are not obligated to decide the question presented in the cert petition or the even broader question as to the Second Amendment right to bear arms in public unrelated to handguns or concealed carry.
If there is any right to concealed carry beyond the limited concealed carry licenses that were denied by the two petitioners in this case then they could have won, and New York still might win.
If the denial of the petitioners’ unrestricted licenses to carry a handgun concealed in public did not violate the Second Amendment then there is a remote chance that the petitioners will win because licenses that are left up to the whim of the issuing official offends the 14th-Amendment.
However, there is no 14th-Amendment question presented to the Court in this case.
If the opinion is limited to the question the justices rewrote then NYSRPA loses.
Remember this. The NRA lawyer said that states can ban Open Carry in favor of concealed carry.
Not because the framers of the Second and Fourteenth Amendments thought that Open Carry can be banned in favor of concealed carry or even that they thought that concealed carry was a right, anywhere or under any circumstances.
The reason the New York lawyer, Paul Clement, gave is, according to him, people today are on a “different wavelength.”
As Justice Kagan correctly pointed out and pointed out even though she is obviously not a fan of Open Carry, that is not how the Supreme Court decides constitutional questions.
There is no such thing as “The Different Wavelength Doctrine of Interpreting the Constitution.”
The NRA lawyer for the NYSRPA conceded that the Framers of the Second and Fourteenth Amendments and those who voted to enact those Amendments into law did not think that concealed carry was a right protected by the Second Amendment.
Given that concession, if a majority of justices decide that there is a right to concealed carry then they will be abandoning their oath to defend the Constitution of the United States and reverting back to the days when justices did not care what the Constitution says.
The justices will be substituting their personal preferences in place of the Constitution, just as their predecessors did.
If you think that judges substituting their personal opinion for the Constitution is a good thing then you are a moron.
Turning to Young v. Hawaii.
Although the attorneys in Young v. Hawaii think that their case is about carrying a handgun openly and concealed, it is not.
Mr. Young’s attorneys procedurally defaulted on Mr. Young’s concealed carry challenge when they failed to file an en banc petition challenging the three-judge panel opinion that held concealed carry is not a right, but Open Carry is a right protected by the Second Amendment.
Mr. Young’s lead attorney, Alan Beck, again forfeited Mr. Young’s concealed carry challenge during the en banc oral argument when a member of the panel asked him point-blank if Mr. Beck is challenging the Peruta v. San Diego en banc concealed carry decision. Mr. Beck replied that he is not.
The State of Hawaii presented the following counter-statement of the question presented. The counter-statement by Hawaii more accurately reflects the procedural posture of the Young v. Hawaii cert petition and therefore the actual question presented to the justices for them to decide:
The counter-statement of the question presented is “Whether Hawaii’s restrictions on the open carrying of small, concealable arms in public are facially unconstitutional.”
Although SCOTUS is quite capable of fast-tracking cases, it has shown no interest in doing so in the Young v. Hawaii case.
Young v. Hawaii was heard in conference on September 27th of last year. Nothing has happened with the case since then.
If the Young v. Hawaii cert petition were going to be granted and argued on the merits then the cert petition would have been granted by now.
Short of a rocket docketing and briefing, Young v. Hawaii won’t be granted and argued on the merits.
The best that Mr. Young can hope for is that the opinion in NYSRPA v. Bruen is favorable and favorable enough for his cert petition to be granted, the decision of the 9th circuit court of appeals vacated, and the case remanded back to the 9th circuit court of appeals in light of the NYSRPA v. Bruen opinion.
Given the similarity between the en banc panel opinion in Young v. Hawaii and the unanimous opinion of the Massachusetts high court in Caetano v. Massachusetts, the Young v. Hawaii cert petition could be granted, reversed, and remanded via a per curiam opinion just like Caetano was.
Or the Young v. Hawaii cert petition could simply be denied.
We will know the fate of both Young v. Hawaii and NYSRPA v. Bruen sometime by the end of June.
And following the disposition of Young v. Hawaii, whichever way it goes, there will be an opinion issued by the three-judge panel assigned to my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al.
My lawsuit was Formerly stylized as Charles Nichols v. Edmund G. Brown Jr., et al. The “et al” being the California attorney general.
My lawsuit is now in its eleventh year of litigation.
I am now on my second governor as a defendant in my lawsuit. Jerry Brown was term-limited out of office, and I am on my third attorney general as a defendant in my lawsuit as well.
Why is my California Open Carry lawsuit still standing after all of this time?
Because for me to lose the 9th circuit court of appeals will have to decide that there is no right to bear any firearm, including long guns, outside the doors to one’s home that is protected by the Second Amendment.
And they will have to decide that despite the State of California’s concession that the Second Amendment does protect the right to openly carry loaded firearms beyond the curtilage of our homes in the Peruta v. San Diego concealed carry case, a case that the State of California won.
The State of California argued in my case that the Supreme Court is wrong about Open Carry being the right guaranteed by the Constitution and that my three-judge panel must conduct its own analysis and then overrule the Supreme Court.
The State of California did not cite any case by which an inferior court has the authority to override the United States Supreme Court.
And so my California Open Carry lawsuit waits for SCOTUS to decide what it is going to do with the Young v. Hawaii cert petition.
That’s all for this article.
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