The Supreme Court Second Amendment Countdown Continues

Last week there were six opinions left to be published by SCOTUS from October/November. I correctly predicted that Justice Kagan would author the lone opinion published last week. That opinion was a case argued in November.

Today, we again had a lone opinion issued, this time from October. There were two likely candidates, Gorsuch and Kavanaugh, for the two remaining October opinions. I tossed a coin that predicted it would be Gorsuch writing the opinion, it was Kavanaugh instead. That leaves one October opinion remaining which means it will be assigned to Justice Gorsuch unless, like today, he is in the minority.

My crystal ball predicts the following assignments for the remaining four opinions from November and October:

Justice Kavanaugh – NYSRPA v. Bruen
Justice Barrett – US v. Vaello-Madero
Justice Thomas – Austin v. Reagan National Advertising…
Justice Gorsuch – Brown v. Davenport (October)

There are several reasons why I think Justice Kavanaugh is writing the opinion in NYSRPA v. Bruen. Today’s opinion is one of the reasons why. It is a 12-page opinion that took Justice Kavanaugh 124 days to write. Likewise, the dissent was only 12 pages long. This is Justice Kavanaugh’s first opinion published this term. As a court of appeals judge, he had a reputation for writing 100 versions of an opinion before publishing it.  All of the other justices have issued an opinion this term, most of the justices had issued two opinions before Justice Kavanaugh issued one.

Although I would like for Justice Thomas to write the opinion in NYSRPA v. Bruen, if the writing of the opinion had been assigned to him then I really don’t see him taking this long to write it. Also, the opinion in the Austin case depends upon the interpretation of an 8-1 opinion written by Justice Thomas. This makes Justice Thomas the obvious choice to be assigned to the Austin case. If Thomas was assigned to Austin then that leaves Justices Sotomayor, Kavanaugh, and Barrett as the three remaining justices as the likely candidates for writing the opinion in NYSRPA v. Bruen.

It seems likely that Justice Sotomayor was assigned the Texas case given her lone dissent to its dismissal. Justice Barrett wants firearms to be excluded from “sensitive places” of which Times Square NYC appears to be a sensitive place to her. The State of New York argued that designating “sensitive” places is an unworkable framework. Justice Kavanaugh correctly pointed out in oral argument that NYSRPA is not about sensitive places. Justice Kavanaugh said the options in NYSRPA are Open Carry, and concealed carry with a permit. Given that the “question presented” was rewritten to be a concealed carry question, Justice Thomas is almost certainly to take the position that NYSRPA is only about concealed carry.  Which is also the position that Justice Sotomayor took in the oral argument. That makes Justice Kavanaugh the most likely choice to have been the one assigned to write the opinion in NYSRPA.

But we will know who was assigned NYSRPA sooner than later.

Young v. Hawaii, the handgun Open Carry cert petition, and the magazine ban cert petition have already survived one or more conferences. That means they are assigned to a conference on relist days. The last relist conference for this term is June 16th. The last session day is June 27th, which is also the last Orders List day for this term.

Opinion issuance days can take place any weekday, including on conference days. All we can do is to keep an eye on the SCOTUS calendar and count down the days remaining in this term. According to the countdown timer on my website, there are 83 days left before the justices depart on summer vacation.

What all of that means is that unless Young v. Hawaii and the magazine ban cert petitions are going to simply be GVR’d (granted/vacated/remanded) or be denied without any of the justices writing anything in the cases, NYSRPA v. Bruen will be published sooner than later.

Meanwhile, my California Open Carry lawsuit in the 9th circuit court of appeals will remain on hold pending the disposition of the Young v. Hawaii cert petition.

Charles Nichols

California Open Carry Website