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Will the Supreme Court Dismiss the NRA’s Concealed Carry Case as Improvidently Granted?

The National Rifle Association lawyers had one simple question to answer in its concealed carry lawsuit before the Supreme Court, NYSRPA v. Bruen (formerly NYSRPA v. Corlett). And that question is:

“Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The NRA lawyers had this one simple question to answer, but they never answered it in their brief on the merits filed on July 13th.

Nowhere in its 49-page brief on the merits did the NRA lawyers argue that the denial of the petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

For that matter, nowhere in their brief on the merits did the NRA lawyers make the argument, let alone make the case, that the denial of concealed-carry licenses, in general, violated the Second Amendment.

Surprisingly, not only did the NRA lawyers not claim that Open Carry can be banned in favor of concealed carry, they made no argument to overrule the Supreme Court’s admonition in District of Columbia v. Heller that the 19th-century prohibitions on concealed carry do not violate the Second Amendment right.

Justice Alito reaffirmed that section of the Heller decision (Section III) in McDonald v. City of Chicago.

The NRA lawyers made no real argument that prohibitions on concealed carry were upheld only because Open Carry was not prohibited.

The closest the NRA lawyers made in support of that ridiculous claim was in a single sentence at the top of page 46 of the merits brief.

The NRA lawyers said:

“The Second Circuit’s analogy to nineteenth century concealed-carry laws was equally flawed, as the court simply ignored the fact that such laws were upheld only because, unlike New York, those states still permitted carrying arms openly.”

Notwithstanding that a single sentence in a 49-page brief does not constitute a legal argument, the very first case the NRA lawyers cited in support of this feeble argument was Nunn v. State aka Nunn v. Georgia. The Heller decision said that Nunn v. Georgia and likewise State v. Chandler perfectly captured the meaning of the individual right to keep and bear arms.

The Nunn v. Georgia opinion said that concealed carry is evil. The Court held that the part of the law which prohibited the carrying of concealed weapons was valid but the part that prohibited the Open Carry of handguns conflicts with the Constitution and is therefore void.

Bizarrely, the only other case the NRA lawyers cited in support of that argument was the 1871 case Andrews v. Tennessee. Andrews is a case often cited by opponents of the Second Amendment.

Quoting from the Andrews v. Tennessee opinion:

“We hold, then, that the Act of the Legislature in question, so far as it prohibits the citizen either publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,” is constitutional. As to the pistol designated as a revolver, we hold this may or may not be such a weapon as is adapted to the usual equipment of the soldier, or the use of which may render him more efficient as such, and therefore hold this to be a matter to be settled by evidence as to what character of weapon is included in the designation “revolver.”

In short, the Andrews v. Tennessee opinion in addition to holding that the Second Amendment does not apply to the States held that it was constitutional to ban concealable handguns but not large handguns a soldier of that period in time would carry.

A significant portion of the NRA’s brief on the merits was devoted to attacking the New York law as racially motivated.

But that is not the question before the Supreme Court and the plaintiffs did not seek to overturn the New York licensing law because of its allegedly racist intent and application.

The NRA plaintiffs did not even seek to overturn New York’s licensing law.

They could have and under Supreme Court precedent they very well might have won a claim that the New York law was racially motivated and disproportionately enforced, thereby making it unconstitutional under the 14th Amendment.

But the NRA plaintiffs did not make that 14th Amendment claim in the lower courts and SCOTUS does not consider claims made for the first time to the justices.

Moreover, there is no 14th Amendment question presented to the Court.

The only question before the Supreme Court is whether or not the petitioners’ applications for concealed carry licenses for the purpose of self-defense violated the Second Amendment.

This case is strictly limited to concealed carry and the Second Amendment. That and nothing else.

Given that the NRA lawyers never answered the question presented in their 49-page brief on the merits, there is a very real possibility that this case will be dismissed by the justices as “improvidently granted.”

Dismissing a case as improvidently granted is rare.

It only takes the vote of four justices to grant a cert petition. It takes the vote of five justices to dismiss a case as improvidently granted.

NYSRPA v. Bruen (Corlett) can be dismissed as improvidently granted either before or after oral argument.

Or the case can be decided without oral argument.

I will close by pointing out that the NRA asked for two extensions of time to file its brief on the merits.

I knew that it was impossible for them to make the case that the denial of the petitioners’ applications for concealed carry licenses violated the Second Amendment, but I was curious to see how they were going to dance around the Heller and McDonald opinions that said prohibitions on concealed carry do not violate the Second Amendment right.

And as it turned out, they did not even try to dance that dance. Instead, the NRA lawyers simply argued that there is a right to carry handguns in public.

That was the question the NRA presented in their cert petition but the justices rejected that question and rewrote the question presented to one strictly limited to concealed carry.

That’s all for this video.

Until next time, thank you for watching. Please sign up for my newsletter at CaliforniaOpenCarry.com, and please subscribe to my video channel as well.

Charles Nichols is a proponent of open carry.  In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense.  Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.

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