The decision in NYSRPA v. Bruen has now been made.
Unfortunately, the only ones who know what that decision is are the Justices and their clerks. And they aren’t talking.
Until the opinion is published, we can only speculate about what it might say.
The range of possibilities is from nothing, which is to say the case could be dismissed as improvidently granted, to whatever the majority of justices want the opinion to say.
One very real possibility is that the proper cause requirement for a concealed carry permit does not violate the Second Amendment.
In oral argument, Justices Kagan and Sotomayor reminded their fellow justices that the Court’s opinion in District of Columbia v. Heller said that prohibitions on concealed carry do not violate the Second Amendment.
Chief Justice Roberts said the Heller opinion decides this case. If that is true then his vote added to Justices Breyer, Kagan and Sotomayor makes four justices and only one more vote is needed to uphold the New York state proper cause requirement for a concealed carry permit.
One very real possibility is that the Justices don’t extend the Second Amendment outside of the home.
Another possibility is “Constitutional Avoidance.”
For some unknown reason, judges seem to think that they are obligated to avoid constitutional questions if they can.
One aspect of the proper cause requirement for a concealed carry license in New York State is that there are no objective standards when it comes to issuing a license.
The issuing officer has the unbridled discretion in what constitutes proper cause.
There isn’t even a written policy created by some legislative body that establishes guidelines for issuing licenses.
That is reason enough for even the liberal justices to say that the petitioners’ due process rights were violated, and if they can get two other justices to go along with them then the justices can avoid answering the Second Amendment question.
It is unlikely that the Second Amendment question presented to the Court will be avoided but it is a possibility.
Assuming that there are not five justices who would avoid the question then this is the question SCOTUS will be deciding in NYSRPA v. Bruen.
Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
The following is NOT the question #SCOTUS will be deciding in NYSRPA v. Bruen.
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
Oral argument in NYSRPA v. Bruen took place on Wednesday, November 3rd. On Friday, November 5th, the nine justices met in private conference to discuss the case, and vote on its outcome.
The case has been decided and the decision assigned to a justice to write the majority opinion.
But we won’t know what the decision was or what the opinion says until it is published.
If Chief Justice Roberts was in the majority then he will assign the writing of the majority opinion to another of the justices in the majority or he can write the opinion himself.
If Chief Justice Roberts is in the minority then the senior-most judge in the majority will assign the opinion to a justice or write the opinion himself. Justice Breyer is the senior justice on the liberal side of the bench.
It is very rare but a justice can switch sides between the time the decision is made and assigned to the justice who will write the majority opinion and the time the opinion is published.
If it is a 5 to 4 opinion then the decision on who will write the opinion lands in the lap of the senior-most justice in what is now the new majority.
The time for oral argument was allotted as follows: 35 minutes for the NYSRPA petitioners, 20 minutes for the New York State respondents, and 15 minutes for the Acting Solicitor General.
That adds up to one hour and 10 minutes. Oral argument ran long. It ran for one hour and fifty-seven minutes.
NYSRPA v. Bruen was supposed to be a very simple case.
Remember, the justices rewrote the question presented by the petitioners from “Whether the SecondFortun Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense. to “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
Most people don’t think there is a difference between the two questions. If there were no difference then the justices would not have rewritten the question presented to the Court for it to decide.
Supreme Court Rules 24 and 14 limit the scope of the opinion to the question presented. The Conservative justices are sticklers for sticking to those rules and have criticized their fellow liberal justices for answering a different question than the one that was presented.
And so whatever else the justices might say in their opinion, it is as certain as one can be that they will answer the limited concealed carry question they rewrote.
The late Justice Scalia once filed a partial concurrence and partial dissent to a case. He said that he concurred with the opinion in order to provide the five-vote majority, but he also dissented in order to criticize the four justices for violating the rules by not limiting the scope of the opinion to the question presented.
I am not aware of any justice on the current court who has ever done that.
In the past, the liberal justices simply ignored the criticism of the conservative justices for answering a question that was not presented, and the conservative justices don’t answer different questions than the one presented to the Court to decide.
We will have to wait to see whether or not the opinion, in this case, is limited to the rewritten question presented to the Court.
Instead of answering the question presented to the Court, the NRA lawyers filed its brief on the merits that argued in support of the question it had originally presented in its cert petition.
Which was a question the justices rejected and substituted with their own.
By the NRA doing this the NRA, for all intents and purposes, handed victory to the State of New York by defaulting on the question, and it raised the possibility that the justices would dismiss the case as improvidently granted.
But then New York did something even more inexplicable than the NRA.
Instead of limiting its brief on the merits to the concealed carry question presented to the Court, the New York lawyers took a very high dive into a very deep rabbit hole by answering a different question from the one presented to the Court.
And to add one more Mad Hatter to the rabbit hole, the Biden Administration filed an Amicus brief and asked to participate in oral argument. Its request was granted.
Oral argument was interesting if for no other reason than it gave us the opportunity to hear what the justices who were not on the bench when the Heller or McDonald opinions were argued and decided had to say about the Second Amendment.
Justice Kagan, who was not a justice when Heller and McDonald were argued and decided, did ask questions in NYSRPA v. New York City but they were mostly procedural questions.
Justice Gorsuch had already indicated that he is a supporter of the Second Amendment.
This is the first Second Amendment case for Kavanaugh and Barrett as justices.
Justice Barrett in her confirmation hearing promoted herself as another Justice Scalia.
But in the NYSRPA v. Bruen oral argument, she asked two worrisome questions that Justice Scalia would never have asked because the answer was obvious to him.
One of Justice Barrett’s questions wasn’t so much a question as a statement that Times Square on New Year’s Eve is a sensitive place and therefore not a place protected by the Second Amendment.
Another of Justice Barrett’s questions was just as worrisome. Justice Barrett asked the New York Solicitor General if the justices were bound by the Heller opinion.
Fortunately, Chief Justice Roberts near the end of the oral argument said there was no need to revisit the Heller opinion.
So Chief Justice Roberts cancels out Justice Barret if she is inclined to overrule the Heller opinion.
And if what Justice Barret said in oral argument truly reflects a weak-kneed support of the Second Amendment then she won’t be writing the majority opinion if there are five justices who are strong supporters of the Second Amendment.
Justice Kavanaugh revealed that he is a textualist, not an originalist. Justice Kavanaugh also revealed that he believes the right to bear arms is a right bestowed by the government.
A right that comes from the government is a right the government can take away.
Justice Scalia was not an originalist, he was a textualist. Justice Scalia wrote the opinion in District of Columbia v. Heller.
Justice Kavanaugh said that a permit can be required, which is both worrisome and telling given that the NYSRPA did not and is not challenging any requirement that one have a permit. The only thing the NYSRPA is challenging is the applications of the New York State “proper cause” requirement for being issued a permit to carry a handgun concealed.
Fortunately, Chief Justice Roberts opposes a permit requirement when an enumerated right is involved.
In District of Columbia v. Heller, the Court invited Alan Gura to challenge the District of Columbia permit requirement but Gura refused. And so the majority opinion in Heller said that it was not going to address the licensing requirement when it could have said that the government cannot condition the Second Amendment right on a government-issued permission slip.
Given that the NYSRPA does not challenge the license requirement in this case, it is likely, but not certain that the opinion, in this case, will likewise say that it does not address the requirement to first have a license.
Before the oral argument took place, I predicted that Justice Kagan, being a clever justice, would point out that the Heller opinion had already held that prohibitions on concealed carry do not violate the Second Amendment. Which she did. I also predicted that Justices Sotomayor and Breyer would also hammer the other justices on that point.
Justice Sotomayor weighed in but all we got from Justice Breyer was a remark that he voted against the Heller opinion, along with a lot of gnashing of teeth and wailing.
Justice Kagan did note that according to the Heller opinion, Open Carry is the Second Amendment right even though she doesn’t like Open Carry and suspects that most people, or at least most New Yorkers don’t like it either.
Justice Thomas’ questions were puzzling. If he hadn’t been a justice strongly in support of the Second Amendment since, and including, the Heller opinion, I would be very worried.
Justice Thomas sounded very tired during the oral argument. I’ll chalk it up to that.
On the whole, the justices were debating a case that was not before them.
The justices were debating a challenge to the New York city licensing scheme, which was not before them.
If the two NYSRPA petitioners win and get their unrestricted concealed carry licenses they still will not be allowed to carry any firearm in Times Square, or in a New York subway, or anywhere in New York City.
Indeed, the NRA lawyer half-jokingly said that he can wave subways as a place where his clients seek to carry a handgun presumably because there is no subway in the state outside of New York City.
Unsurprisingly, the NRA lawyer, Paul Clement, once again argued that Open Carry can be banned in favor of concealed carry.
Justice Kagan asked him to explain why?
The reason the NRA lawyer gave was that modern views have changed.
And because modern views have changed then states can ban what has always been the right protected by the Second Amendment — Open Carry — in favor of something which has never been a right protected by the Second Amendment — concealed carry.
Millions of gun-owning morons applaud that but because they are morons they have not considered the ramifications of subjecting fundamental, individual rights to popular opinion.
If popular opinion is what decides what the Second Amendment means then New York, and California, and every other state and the Federal government is free to ban the possession of handguns as well as the possession, use, and carrying of all firearms.
And ban the mere possession of all arms for that matter.
Given that New York State does not ban the Open Carry of most rifles and shotguns, and nobody is challenging or defending New York City’s ban on all Open Carry, or even challenging the license requirement that handguns be carried concealed, there is no live case or controversy involving Open Carry, and without a live case or controversy, the justices do not have jurisdiction to decide the constitutionality of a law not challenged.
But that doesn’t mean that they can’t otherwise give their reasoning in support of their position and to the extent that their position casts any doubt on the Second Amendment right to Open Carry defined in the Heller opinion, the lower Federal and state court judges will use it as an excuse to eviscerate the Second Amendment right.
I don’t know what the majority of justices will say in the opinion but one thing seems pretty clear, at least seven of the justices recognize that there is a right to bear arms in public for the purpose of self-defense and if they say so in their opinion in this case then I win my California Open Carry lawsuit.
If the justices say that Open Carry can be banned in favor of concealed carry, that would not necessary doom my California Open Carry lawsuit because it is an undisputed fact in my lawsuit that concealed carry substantially burdens my ability to defend myself even if I lived in a jurisdiction that issued concealed carry licenses and even if I had a concealed carry permit.
Given that self-defense is the core of the Second Amendment right and given that the State of California does not dispute that concealed carry licenses substantially burdens my core right of self-defense, and given that the State of California by its own admission did not submit any defense of California’s Open Carry bans then procedurally. I don’t see how the state wins without the three-judge panel assigned to my lawsuit making something up.
But I don’t think that will happen. It will take the vote of five justices in order to overrule the holding of the Heller and McDonald opinions that Open Carry is the right guaranteed by the Constitution and to overrule the holding of the Heller and McDonald opinions that prohibitions on concealed carry are constitutional.
Ironically, Justice Breyer is not going to write or join in an opinion that says Open Carry can be banned in favor of concealed carry. And without Justice Breyer’s vote, I don’t count five justices who would vote to overrule the Heller and McDonald opinions.
But I could be wrong. I did not count five votes in favor of Dick Heller winning his case or five votes in favor of applying the Second Amendment to the States. Justice Scalia was the surprise vote, and the fifth vote needed to those narrow 5 to 4 victories for the Second Amendment.
My California Open Carry lawsuit was filed on November 30th, 2011.
As of today, my lawsuit is still pending before the 9th circuit court of appeals and is on hold pending the Supreme Court decision on whether or not to grant the cert petition in Young v. Hawaii, which in turn appears to be on hold pending the publication of the opinion in NYSRPA v. Bruen.
You should know, but just in case you don’t, my lawsuit (Charles Nichols v. Gavin Newsom et al) has priority over the NRA/CRPA concealed carry lawsuit (Flanagan v. Bonta).
There will be a decision in my case before there is a decision in Flanagan v. Bonta.
If I win then the NRA/CRPA loses its concealed carry case even if the Supreme Court in NYSRPA v. Bruen publishes an opinion in favor of NYSRPA.
All I need to win my lawsuit is for SCOTUS to say that the right to keep and bear arms extends outside the doors to my home.
Contrary to what you might have heard, my lawsuit is not stayed, but it is being held pending the SCOTUS decision on whether or not to grant the Young v. Hawaii cert petition.
There is a three-judge panel assigned to my case, and I have already fully briefed and argued my case before the three-judge panel.
Flanagan v. Bonta does not even have a three-judge panel assigned to the case and won’t until approximately 14 weeks before oral argument is calendared to take place.
If the Young v. Hawaii cert petition is granted and argued on the merits then it is pretty much guaranteed that my lawsuit will be put on hold until SCOTUS issues its decision in that case which in turn means that the NRA/CRPA concealed carry lawsuit will likewise have to wait for both the decision in Young v. Hawaii and for the three-judge panel opinion in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al.
For there to be oral argument in Young v. Hawaii this term, which ends in June of 2022, its cert petition will have to be granted by early January if SCOTUS follows the normal briefing schedule.
But as we have recently seen, SCOTUS is free to expedite briefing and oral argument.
That said, the most likely outcome is that SCOTUS will either simply reverse the opinion of the 9th circuit court of appeals and remand the Young v. Hawaii case, or SCOTUS will deny the cert petition.
Regardless of what happens next with the Young v. Hawaii case, the ball lands in my court next.
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