SCOTUS Grants 2nd Amendment Cert Petition – Now What?

Nine years, three months and twenty-three days after the United States Supreme Court granted the cert petition in McDonald v. The City of Chicago, the high court granted the cert petition in New York State Rifle & Pistol Association, Inc., et al., Petitioners v. City of New York, New York, et al., (NYSRPA v. NYC).

In this century, SCOTUS has thus far decided to decide just three Second Amendment cases on the merits: District of Columbia v. Heller, McDonald v. The City of Chicago, and now NYSRPA v. NYC.

As of last Friday, January 18, 2019, it looked like this case was headed for yet another denial of the cert petition with yet another justice or two filing a dissent to the denial of the cert petition. This case had been voted on in private conference by the justices three times. The McDonald v. Chicago cert petition was granted in its first conference. The first Second Amendment case, District of Columbia v. Heller, was granted after its second private conference of justices, on the very same day of the conference.

The question presented is a simple one. The ramifications of the decision are potentially far-reaching.

The Question Presented is:

“Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.”

Yes, the question presented allows the justices to strike down the New York City law without reaching the Second Amendment question because the law violates either the Commerce Clause of the Federal Constitution or the Federal right to travel but I think that unlikely. SCOTUS has granted a couple of cases these past ten years in which the Second Amendment was one of the questions presented for the court to decide. SCOTUS struck the Second Amendment from the questions to be decided and granted the cert petitions restricted to the other questions presented.

SCOTUS didn’t do that in this case, which strongly suggests that we are going to get an answer to the Second Amendment question.

The Cert Petition Has Been Granted, What Happens Next?

Now that the cert petition has been granted, we move on to what is called “The Merits Stage.” The cert petition stage is where the petitioners (NYSRPA et al) argue why its cert petition should be granted and where the respondents (NYC et al) argues why the cert petition should be denied. Now that the petition has been granted, the petitioners will file a brief arguing why they should win on the merits followed by a joint appendix, followed by a brief by the Respondents, followed by the Reply Brief of the Petitioners.

There will be an unknown number of Amicus briefs filed in support of one side or the other, SCOTUS will obtain the record of the case from the Second Circuit Court of Appeals, the case will be set for oral argument, oral argument will take place, and then we wait for SCOTUS to issue its opinion.

Theoretically, all of this could happen by the end of this current term ending in June but in all likelihood oral argument will take place in the next term which begins in October followed by a decision by the end of the next term which ends in June of 2020.

Given that New York City is the only place which prohibits its residents from transporting their handguns out of the city unless they have a rarely issued carry permit, striking down the law as a violation of the Second Amendment in, and of itself, has no ramifications as to other gun laws.

And if that were all that was going to happen then SCOTUS would not have granted the cert petition.

The primary reason SCOTUS grants a cert petition is to resolve questions of Federal law when Federal courts of appeal or state courts of last resort have come to different conclusions on the same or very similar questions. But even with these “splits,” SCOTUS routinely declines to resolve the splits and instead denies the cert petition.

The Real Question to be Answered by this Case

Rarely, SCOTUS will grant a cert petition if the case involves a Federal question of national importance. Given that this case does not present a circuit split and a simple answer to the question is not of national importance as the law applies only in New York City, the only real question of national importance is what methodology the lower courts are to use when a Second Amendment case comes before them.

Hopefully, the real question that will be answered in this case was raised by Justice Kavanaugh back in 2011 when he was a circuit judge who filed a dissent in a DC court of appeals decision upholding a ban on “assault rifles.” This is what then Judge Kavanaugh had to say:

Justice Brett Kavanaugh - cert petition.
Justice Brett Kavanaugh

“Put in simple terms, the issue with respect to what test to apply to gun bans and regulations is this: Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances, see infra Part I.B)? Or may judges re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? And if the latter, is the proper test strict scrutiny or intermediate scrutiny?

As I read Heller, the Supreme Court was not silent about the answers to those questions. Rather, the Court set forth fairly precise guidance to govern those issues going forward.

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.”

Then Circuit Judge Kavanaugh would have struck down the District of Columbia “assault rifle” ban, which should give hope for future challenges to those bans if a majority of the justices in this case explicitly state that the lower “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”

If SCOTUS makes this perfectly clear then that bodes well for those of you who have, or would like to have, so-called “assault weapons” (but not machine-guns). It would also bode well for those of us who are advocates for Open Carry.

No Concealed Carry For You

On the other hand, it would be the death knell for those who insist that they have a right to concealed carry under the Second Amendment. Even if one were to assume that the word “bear” includes carrying concealed from a purely textual analysis, concealed carry fails the “history and tradition” test as then circuit Judge Kavanaugh stated in his famous dissent to Heller II, “In disapproving D.C.’s ban on handguns, in approving a ban on machine guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right-and thus the constitutionality of gun bans and regulations-is determined by reference to text, history, and tradition.”

By the way, historically courts have differentiated “bear arms” from “carry.” To quote a hundred year old North Carolina Supreme Court decision which echoed 19th century court decisions on concealed carry, a decision which Justice Thomas cited in one of his dissents, “It is also but a reasonable regulation, and one which has been adopted in some of the states, to require that a pistol shall not be under a certain length, which if reasonable will prevent the use of pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed.”

And so in addition to failing the “history and tradition test,” one can make a good case that concealed carry and concealable firearms fail the textual test for “bear arms” as well.

And since SCOTUS has already denied a couple of concealed carry cert petitions this term it is not unreasonable to infer that the elevation of Mr. Gorsuch and Mr. Kavanaugh to justices of the Supreme Court has not changed the inclination of the court as it relates to concealed carry not being a right under the Second Amendment.

After all, the one thing all nine justices agreed on in the Heller decision is that concealed carry is not a right and can be banned.