There are two important, related dates relevant to the Second Amendment in November.
On November 3rd, the nine Supreme Court justices will hear oral argument in NYSRPA v. Bruen.
November 30th begins my 11th year of litigation in a Federal lawsuit that seeks to enjoin the enforcement of California’s bans on openly carrying loaded and unloaded handguns, rifles, and shotguns for the purpose of lawful self-defense.
The opinion published by the justices in NYSRPA v. Bruen may affect my California Open Carry lawsuit given that my lawsuit is on hold pending a Supreme Court decision on the Young v. Hawaii cert petition which in turn appears to be on hold pending the opinion published by the Supreme Court in NYSRPA v. Bruen.
However, A significant problem with NYSRPA v. Bruen is that the question presented to the Court to decide in NYSRPA v. Bruen is far narrower than the question proposed by the NRA lawyers in their cert petition.
On April 26, 2021, at least four justices granted the NYSRPA cert petition but at least five justices rewrote the question presented by the NYSRPA.
The question presented in the NYSRPA cert petition was whether or not there is a right to carry a handgun in public. The justices rejected that facial challenge to New York’s “proper cause” requirement for a concealed carry license.
NYSRPA v. Bruen 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?
More precisely, the question should read “unrestricted” concealed-carry licenses because both of the petitioners have restricted concealed-carry licenses.
Nevertheless, the question presented is quite narrow which strongly suggests that Chief Justice Roberts was one of the justices who voted to rewrite the question presented.
However, my California Open Carry lawsuit is just that. A pure Open Carry lawsuit.
If the NYSRPA v. Bruen opinion is limited to the very narrow concealed carry question the justices rewrote then it might not have an effect on my lawsuit.
Chief Justice Roberts has made no secret about the fact that he prefers that the Supreme Court publish very narrow opinions with as many of the justices as possible joining in the majority opinion.
And if not join in the opinion then at least file a concurrence.
Neither of the NYSRPA petitioners had challenged the New York City ban on the Open Carry of all firearms or the New York State ban on the Open Carry of handguns.
New York State does not ban the Open Carry of most rifles and shotguns.
Given the procedural posture of the case, I doubt there was much or any opposition by any of the justices to the rewrite of the question presented. The rewrite by the justices of the question presented to the Court for them to decide merely reflects the actual case before the Court.
Keep the following firmly planted in your mind when you listen to the oral argument in NYSRPA v. Bruen. The NYSRPA plaintiffs never sought to openly carry a handgun or a rifle or a shotgun in public, or anywhere, or for any reason. The NYSRPA plaintiffs sought only to carry a handgun concealed, in public, via an unrestricted concealed carry license.
A lot of folks don’t think there is a difference between the question the NYSRPA presented in the cert petition and the question the justices wrote for them to decide, but the justices certainly think there is a very substantial difference between the two questions.
If you are one of those people who don’t think there is a difference between whether or not the Second Amendment protects the right to carry a handgun in public and the question of whether or not the denial of the two applications for concealed carry licenses violated the Second Amendment then ask yourself this, “If the justices didn’t think there is a substantial difference between the two questions then why did they rewrite the question presented to the Court, and why did they limit the question to concealed carry, and why did the justices further limit the question presented to just the two petitioners?”
Limiting the question presented turned the original lawsuit from a facial challenge to New York’s “proper cause” requirement to an as-applied to the two petitioners’ challenge to the proper cause requirement.
Changing the question presented from a facial question to an as-applied challenge strongly suggests that at least five of the justices firmly believe that the proper cause requirement for the concealed carry licenses is constitutional.
An as-applied question is a two-edged sword.
On one hand, if a law is generally constitutional but unconstitutional as applied to you given your circumstances then you can win. However, if your circumstances are not significantly different than most other people then you lose, even if the law is unconstitutional as it applies to someone else.
Had either of the two petitioners presented some set of facts as to why the denial of their applications violated the Second Amendment then the rewrite of the question presented by and to the justices would have been a gift.
Because the justices did not rewrite the question presented to generally ask whether or not the denial of concealed carry licenses for self-defense violated the Second Amendment, that is a very strong indication that at least five of the justices believe that general prohibitions on concealed carry are constitutional, and that any “right” to concealed carry would be under very narrow circumstances, such as travelers while actually on a journey, which many 19th-century prohibitions on concealed carry made an exception for.
“Many” but not all.
Some 19th-century states did not provide any exceptions to their bans on concealed carry. Some banned not just concealed carry under all circumstances but banned the mere possession of concealable weapons, including concealable firearms, such as handguns.
Once the justices rewrote the question presented and granted the cert petition based on the narrow question presented, the justices created an obstacle that prevents the Supreme Court from answering any broader question, such as whether or not there is a right to carry a concealed handgun in public under some other set of circumstances from those presented by the two petitioners, and certainly is an obstacle to deciding whether or not there is a right to generally carry a handgun in public, concealed or openly.
That obstacle is the Supreme Court rulebook.
The Conservative justices are sticklers for following the rules.
Two of the Supreme Court Rules, Rules 24 and 14, limit the scope of the opinion of the court to the question presented to the court, for the justices to decide.
The Liberals on the Court are more than happy to disregard the Rules in order to arrive at an outcome they want, but it is safe to say that they are going to stick to the rules in this case.
The Supreme Court currently consists of nine justices.
Justices Breyer, Kagan and Sotomayor are the three “liberals.”
For the record, I don’t like using the term “liberal.”
Liberal has a very different meaning today than it did when I was a teenager because since before I was born, leftists began referring to themselves as “liberals” because calling oneself a socialist or communist was political suicide. Over time, “liberal” and “leftist” have become synonymous.
The same thing has happened to the term “conservative.”
When President Reagan was elected in 1980, nearly every RINO started to refer to himself as a conservative. That included his RINO vice-President, George H.W. Bush.
After three back-to-back Democrat defeats by self-described liberal Democrats in their run for President, a nationally unknown, self-described “conservative” Democrat” by the name of Bill Clinton crawled out from under a rock in Arkansas.
Today, both terms, liberal and Republican, and both political parties, Democrat and Republican, are controlled by leftists.
Unfortunately, voters today are even dumber than their parents and grandparents. The words liberal and conservative have lost all meaning.
But since Justices Thomas and Alito are from a time before Clinton when conservationism was defined by President Reagan, I will refer to them as Conservative justices.
Take note that the three liberal justices plus the two conservative justices add up to five justices. I will explain why this is important later.
Chief Justice Roberts favors narrow, consensus opinions with as many of the justices as possible on board to the opinion. Although Chief Justice Roberts leans to the Conservative side, he is more than happy to lean to the left if that means the opinion published in a case is a narrow opinion.
Justices Gorsuch, Kavanaugh, and Barrett simply have not been on the Court long enough to predict where they are going to land on an issue, including the issue of concealed carry.
Justice Kavanaugh has said that prohibitions on concealed carry do not violate the Second Amendment. He said that in a dissent he wrote as a judge on the District of Columbia circuit court of appeals and he repeated that in his confirmation hearing to be a Justice of the Supreme Court.
In his corner, Justice Kavanaugh did say that perhaps the justices should grant a Second Amendment cert petition.
But Justice Kavanaugh never did dissent to the denial of any Second Amendment cert petition, so there’s that as well.
Justice Gorsuch has joined in a dissent to the denial of a Second Amendment cert petition.
However, Justice Gorsuch said nothing when all of the other Second Amendment cert petitions were denied in 2020. And there have been a lot of Second Amendment cert petitions denied since he became a justice.
Justice Barrett, in all of the opinions she took part in as a circuit court judge on the 7th circuit court of appeals, took a position on the Second Amendment in just one case, and it was a dissent.
And it was the wrong position.
During her confirmation, she said she is another Justice Scalia. If this is true then she will vote to uphold New York’s proper cause requirement for a concealed carry license because Justice Scalia wrote in Section III of the Heller opinion that prohibitions on concealed carry do not violate the Second Amendment.
Justice Barrett has never filed a dissent to the denial of a Second Amendment cert petition.
There have been a lot of cert petitions denied while Justice Barrett has been a justice.
Justice Alito wrote the majority opinion in McDonald v. City of Chicago in which he held that the Second Amendment right defined in the Heller opinion applies to all states via the 14th Amendment. In response to a dissent by Justice Stevens to the majority opinion Justice Alito wrote in McDonald v. City of Chicago, Justice Alito reaffirmed the Section III limitations from the Heller opinion.
Section III of the Heller opinion began by saying that prohibitions on concealed carry do not violate the Second Amendment,
Justice Sotomayor has said that there is no individual right to keep and bear arms. She said the individual right to bear arms is something the justices made up.
Justice Kagan has never taken a public position on the Second Amendment.
But she is an avid hunter.
Hunters and competitive target shooters have been the worst opponents of the right to keep and bear arms for the purpose of self-defense for well over a hundred years.
I see no reason why she will be any different.
But we can hope.
Remember when I asked you to take a note that the three liberal justices plus the two conservative justices add up to five justices?
That is important because if the two conservative justices cannot find three other justices who can agree on whatever else could be decided in the case, the two conservative justices can simply align themselves with the three liberal justices to issue a very narrow opinion that simply answers the question presented and leave it at that. Chief Justice Roberts would undoubtedly join with the five justices in a very narrow opinion, leaving the three new justices to decide what to do.
The opinion of the other three justices and fifty cents won’t buy a cup of coffee. Not even if the three justices could agree.
Here’s a fun fact about the Supreme Court opinion, District of Columbia v. Heller.
The five-justice majority opinion held that the Second Amendment right is not unlimited and gave prohibitions on concealed carry as its first example of constitutional restrictions on the right. This was followed by laws prohibiting the possession of firearms by felons and the mentally ill.
Along with this, Section III of the Heller opinion said that the right to keep and bear arms does not extend to certain “sensitive places” like schools and government buildings, and the Second Amendment does not protect “dangerous and unusual” weapons. Whatever they might be.
Section III also said that the Heller opinion does not implicate laws regulating the commercial sale of arms.
Here is another fun fact.
There were two dissents to District of Columbia v. Heller.
All four justices in the two dissents agreed with all of the exceptions to the Second Amendment right the five justices in the majority listed in Section III of the Heller opinion. In particular, they agreed with the majority that prohibitions on concealed carry are constitutional. Their only criticism was that Justice Scalia did not explain why prohibitions on concealed carry along with the other limitations on the Second Amendment right were constitutional.
Justice Scalia responded to the dissenting justices by saying there would be time enough to expound on the historical justifications in the future when and if a case should come before it.
In subsequent opinions, Justice Alito said he would have upheld a Federal law that made the mere possession of a short barrel shotgun by a prohibited person a “violent felony.” One of the reasons he gave was because a short barrel shotgun is concealable. He said it can be hidden beneath the seat of a motor vehicle or beneath one’s clothing. In a later opinion, Justice Alito reminded folks that Section III of the Heller opinion is not “dicta.” He said, Section II is part of the explicit holding of the Heller and McDonald opinions.
Justice Thomas would later write that prohibitions on concealed carry do not violate the Second Amendment. Which is what the Heller and McDonald opinions had already held.
In the oral argument to District of Columbia v. Heller, Chief Justice Roberts said that concealed carry was not a right.
In the oral argument for McDonald v. City of Chicago, Justice Scalia could not remember if he had mentioned concealed carry in the opinion he wrote in District of Columbia v. Heller.
Chief Justice Roberts reminded him that he had.
So, let’s line up the justices, in order of seniority, as to where they have said they stand.
Chief Justice Roberts, Associate Justices Thomas, Breyer, Alito, Sotomayor, and Kavanaugh have all said that concealed carry is not a right.
That’s six justices. All that is needed for New York to win on the very narrow question presented, or for that matter on any question the Court chooses to decide, is five justices. And all five justices do not have to join in the opinion.
For example, in McDonald v. City of Chicago, four justices joined in the majority opinion written by Justice Alito. Justice Thomas wrote an opinion concurring with the four justices in the minority.
That added up to five justices.
The NRA lawyers submitted the NYSRPA’s principal brief on the merits on July 13th, 2021.
Not only did the NRA fail to make the case that the denial of the petitioners’ applications for concealed carry licenses violated the Second Amendment as the Second Amendment applies to the two petitioners. The NRA did not even try to make the case that there is a right for someone, under some set of circumstances, or any set of circumstances, to carry a concealed weapon.
That did not surprise me.
If there were a legal case to be made for unrestricted concealed carry licenses then someone would have made that case sometime between 1791 when the Second Amendment was enacted, and July 13th, 2021, when the NRA lawyers filed their brief on the merits in NYSRPA v. Bruen.
Instead, the NRA lawyers argued in support of the question they had proposed in their cert petition, namely that there is a right to carry a handgun in public, the question the justices rejected in favor of the question they rewrote.
Once the NRA brief on the merits was filed, New York State had won.
The only thing New York had to do was to argue that there is no unrestricted right to carry a loaded, handgun, concealed in public, and then sit down and shut up. But instead of doing that, the New York lawyers took a very high dive into a very deep rabbit hole when they submitted their answering brief on the merits on September 14th.
The New York lawyers had one simple job but they blew it.
All they had to do was to limit their brief on the merits to the very narrow concealed carry question presented to the court. A competent lawyer knows when to shut up and sit down. This makes the New York lawyers grossly incompetent.
All the New York lawyers had to do was to make the case that the denial of the two petitioners’ applications for unrestricted concealed carry licenses did not violate the Second Amendment. That wasn’t hard to do given that the NRA lawyers did not make the case that it did, and the Supreme Court had already held twice that the 19th-century prohibitions on concealed carry do not violate the Second Amendment.
Instead, the New York State lawyers broadened the case to include Open Carry and broadened the case to include the question as to where the Second Amendment applies outside of the home. New York argued in its brief on the merits that although the Second Amendment does apply outside the home, the right to carry handguns, rifles, and shotguns does not extend to places where one is likely to encounter other people. Places such as cities.
And, oh, by the way, the State argued that there is no criminal penalty attached to violating the restrictions placed on concealed carry licenses.
The State of New York does not have a law prohibiting the carrying of most rifles and shotguns. New York does have a law that makes it a crime to possess a handgun in public unless one has a license to carry a handgun concealed. New York does not seem to have a law that makes the Open Carry of a handgun a crime per se. At least I can’t find one and none is mentioned by the parties in their briefs.
If the New York lawyers are to be believed then someone who has even a restricted concealed carry license can carry a handgun openly or concealed in public, including New York City, and not be subject to criminal penalties so long as he does not possess that handgun in a place where it is illegal to possess a handgun.
That kind of makes sense because the “concealed carry” licenses provide for the carrying of a loaded concealed handgun while target shooting and hunting. If you are target shooting or hunting with a handgun then at some point the handgun will cease to be concealed.
This isn’t to say that a video of someone attempting to shoot his handgun at a firing range without removing it from its place of concealment wouldn’t be endlessly entertaining.
So what are the justices going to do now that both sides went bat-shit crazy?
One thing the justices could do is to Dismiss the case as Improvidently Granted. This is known as a DIG. It isn’t as if there would be a shortage of handgun carry cases. There is today, pending before the Court the handgun carry cert petition in Young v. Hawaii.
Procedurally, Young v. Hawaii is limited to the denial of a permit to openly carry a handgun in public. Although the holding of the en banc panel from that 9th circuit court of appeals case held that there is no right to carry small, concealable arms, openly or concealed, Mr. Young’s attorney had procedurally defaulted on his claim that the denial of Mr. Young’s concealed carry permit also violated the Second Amendment.
Okay, the justices are unlikely to be champing at the bit to have an oral argument in Young v. Hawaii.
And if there are five justices who can find a way out of the rabbit hole the parties in NYSRA v.Bruen dragged them into, then it would simply be easier to GVR Young v. Hawaii. A GVR is when a cert petition is Granted, the opinion of the lower court Vacated, and the case Remanded back to the lower court from whence it came.
And right behind Young v. Hawaii, is my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al.
And right behind my lawsuit is the NRA’s latest California concealed carry lawsuit, Flanagan v. Bonta.
The most likely scenario is that the Supreme Court will limit its opinion in NYSRPA v. Bruen to the question presented in the case.
You remember NYSRPA v. Bruen, has a narrow, limited, as-applied, concealed carry question the justices rewrote and granted cert to decide.
If the New York proper cause requirement for a concealed carry license is upheld then the justices don’t have to adopt a framework for deciding Second Amendment lawsuits that challenge laws restricting the right to bear arms. But there really was no reason to grant the cert petition if they weren’t going to tell the lower courts how they are to decide Second Amendment challenges, at least how to decide Second Amendment challenges to laws that restrict carrying firearms for the purpose of self-defense.
At least four of the justices must have thought that five justices could agree on a methodology to decide this type of constitutional challenge.
Or maybe they just hoped so.
But we will find out by the time the justices go on Summer break next June.
Notwithstanding SCOTUS Rules 24 and 14 that limit the scope of the justices’ opinions to the question granted, the justices can but don’t have to issue an opinion that decides the methodology to use as broadly or as narrowly as they want to.
Or not at all.
Hopefully, it will be a methodology that decides in the affirmative as to whether or not the right to bear arms extends to populated places, such as New York City, and in the affirmative as to whether its citation to Nunn v. Georgia in the Heller opinion, which the Heller opinion said perfectly captured the meaning of the right to keep and bear arms, meant what it said when it said that it is unconstitutional to ban the carrying of handguns in public even if the carrying of long guns is not prohibited. And most importantly, in the affirmative as to whether or not Heller’s citation to State v. Chandler, that Open Carry is the right guaranteed by the Constitution and likewise perfectly captures the meaning of the right to keep and bear arms shall not be infringed.
The Heller opinion said that the 19th-century Chandler opinion likewise perfectly captured the meaning of the right to keep and bear arms. The Chandler opinion held that Open Carry is the right guaranteed by the Constitution, and it held that prohibitions on concealed carry do not violate the Constitution.
The Nunn opinion had held that the Georgia law that prohibited the carrying of handguns other than for very large pistols was unconstitutional as applied to the Open Carry of handguns, regardless of the size of the pistol, but constitutional as it applied to the concealed carry of handguns.
If that is the door at least five justices eventually choose then the State of New York will be handed a Pyrrhic victory.
The Supreme Court will hold in NYSRPA v. Bruen that the proper cause requirement for carrying a handgun concealed does not violate the Second Amendment but in as far as the respondents prohibit the Open Carry of firearms, that is in violation of the Second Amendment.
That is my favorite outcome, albeit unlikely for the reasons I gave.
Note that although New York said that there is no criminal penalty attached to carrying a licensed handgun in violation of the restrictions placed on the license, New York can still revoke the license. That makes it less likely that the case will be dismissed as moot.
Unfortunately, there are many pinheads out there who say that the justices will say that it is constitutional to ban Open Carry in favor of concealed carry.
None of them can make the legal argument that the Framers of the Second or Fourteenth Amendment thought that concealed carry was a right protected by the Second Amendment.
The NRA lawyers for the NYSRPA did not make that legal argument.
However, the NRA lawyers did make a pretty extensive case in their brief on the merits that prohibitions on concealed carry do not violate the Second Amendment but prohibitions on Open Carry do violate the Second Amendment.
There are a couple of people who say that it is impossible to make an originalist case for concealed carry. They argue instead that views on concealed carry have changed today compared to what it had always been. They say that historically public opinion was that only people who carry weapons concealed are cowards, criminals, and assassins. These few folks argue that the Constitution is a living document that should change with the times. They argue that because most Americans no longer care about morality, concealed carry should be held to be a right protected by the Second Amendment.
If the Constitution is a document that a majority of justices are free to rewrite based on what they think “The People” want, or should have, then the justices, and inferior court judges, are free to erase the Second Amendment from the Bill of Rights as well as erase every other right protected by the Federal Constitution.
They should read the Young v. Hawaii en banc opinion out of the 9th circuit court of appeals.
Seven of the eleven judges on the Young v. Hawaii en banc panel relied heavily on its interpretation of an English law enacted in 1328 that prohibited men wearing armor from riding through towns and villages on horseback for the purpose of terrorizing people.
And then they said that because English and American law from both before and after the 1328 Statute of Northampton required men to bear arms, even to church, that meant that the government has the power to ban the carrying of arms, everywhere.
In my Amicus brief in support of neither party that was filed in Peruta v. San Diego in April of 2015, I cited the English Edict of Expulsion from 1290 AD.
The edict expelled all Jews from England.
The Expulsion lasted for 350 years.
I also pointed out several other English laws from Medieval England which forbade traveling at night, which dictated what foods one was allowed to eat that was based on one’s social class and another law that dictated what one must wear based on his social class.
None of the Amici in NYSRPA v. Bruen mentioned the 1290 Edict of Expulsion.
None of the Amici pointed out in NYSRPA v. Bruen that individual rights did not exist in 1328 when the Statute of Northampton was enacted.
There are many other Medieval laws I could have cited, not forgetting that in Medieval England, the king owned all of the lands.
Landholders were not landowners.
Land was entrusted to people by the king, and the king could entrust that land to someone else whenever he wanted and for no reason.
Because he was the king.
The king could also have anyone executed, or exiled, or otherwise deprived of life, liberty, and property without due process of law.
Because he was the king.
Why is that important?
The Statute of Northampton prohibited men in armor from riding through fairs, markets. In the oral argument to District of Columbia v. Heller, Chief Justice Roberts revealed that he did not know that the word “market” in 1328 did not mean the same thing it means today, and apparently neither did his four clerks who did his legal research. Two years later, in the McDonald v. Chicago oral argument, Justice Scalia could not remember whether or not he had mentioned concealed carry in his opinion, District of Columbia v. Heller.
NYSRPA v. Bruen is just one of 70 or 80 cases SCOTUS will decide this term.
If justices don’t reread the Heller, McDonald, and Caetano opinions before deciding what the NYSRPA v. Bruen opinion is going to say, and if they don’t do their homework then the justices could say in the opinion that prohibitions on bearing arms in markets are constitutional.
And any other place they want to exclude from the Second Amendment right.
If people don’t like the right to openly carry arms for the purpose of lawful self-defense then they could repeal the Second Amendment but, as the Heller opinion pointed out, the right to openly carry arms, in case of confrontation, for the purpose of lawful self-defense does not depend upon the existence of the Second Amendment.
The Open Carry right is a preexisting right that does not depend upon the Constitution or any act of Congress or act of a state legislature or local government ordinance.
Repeal the Second Amendment and the Open Carry right remains because it is one of those individual, fundamental rights that exist independent of government.
Government neither bestows that right on The People nor can it take the right away, not even by enacting a Constitutional Amendment that says there is no right to keep and bear arms.
Tragically, on November 3rd, 2021, two sides, and the Biden Administration, who all claim that the right to openly bear arms for the purpose of lawful self-defense can be banned, will be arguing before nine justices of the United States Supreme Court about what the Second Amendment protects.
We can only hope that the justices read the Heller and McDonald opinions and hope that their clerks are knowledgeable about Medieval England should the 1328 Statute of Northampton play a significant part in the opinion that is published in NYSRPA v. Bruen.
That’s all for this preview. I will follow up after the NYSRPA v. Bruen oral argument is over.