The oral argument to NYSRPA v. Bruen took place on November 3rd, 2021. As of this writing, that was 62 days ago, more or less. The 5-4 Supreme Court’s first in-depth analysis of the Second Amendment (District of Columbia v. Heller) took 100 days from oral argument to a published opinion. The second, and only other Second Amendment case the Supreme Court has decided on the merits (McDonald v. City of Chicago. also 5-4) took 118 days from oral argument to a published opinion. The Heller opinion consisted of a majority opinion and two dissents. The McDonald opinion consisted of a majority/plurality opinion two concurring opinions and two dissents.
It is possible that SCOTUS will wait until the very last day in which the justices meet in June to release the opinion but unless they simply GVR (Grant-Vacate-Remand) the two Second Amendment cases they are holding (handgun Open Carry and a magazine ban) then it is more likely that the NYSRPA v. Bruen opinion will be published before then. Regardless, the end of the current term at the end of June is less than six months away. We have waited over 13 years for SCOTUS to tell us definitively that there is a right to keep and bear arms past the doors to our home, we can wait six more months.
In my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al, the State of California argued that although Americans openly carried firearms in public both before and after 1791 (when the Second Amendment was enacted) there is no right to openly carry firearms (or any arms) because nobody openly carried firearms in 1791 (for any reason, not even to hunt) because the 1328 English Statute of Northampton prohibited it. I kid you not.
Why the Statute of Northampton did not prohibit Open Carry before or after 1791 the State of California did not say. However, the State of California did tell my three-judge panel that it should disregard the Open Carry right from the Heller opinion, conduct its own historical analysis and then conclude that the Heller opinion was wrong about Open Carry being the right guaranteed by the Constitution because, you know, the Statute of Northampton.
In the NYSRPA v. Bruen oral argument, the Biden Administration cast aside the Statute of Northampton and the State of New York all but abandoned it as an argument, and did so after Justice Gorsuch posed this question to the NRA lawyer, Paul Clement.
“JUSTICE GORSUCH: And I know you’ve had a substantial debate with your friends on the other side about the Statute of Northampton. We haven’t heard about that today, and I just wanted to give you a chance.”
In all of the 127-page transcript of the oral argument in NYSRPA v. Bruen, the Statute of Northampton was mentioned just eight times. One of the 8 was when he whose photo cannot be posted on Facebook (Chief Justice Roberts) flatly rejected the Statute of Northampton in favor of the Heller opinion. A second time was when the Biden administration lawyer said he was putting the Statute of Northampton aside. A third time was by the attorney for the State of New York who simply said that the Statute of Northampton was her starting point.
The other five times it was mentioned was by Justice Gorsuch and Paul Clement in his answer.
If I were a betting man then I would bet that there are at least five justices who think the Statute of Northampton, whatever it might have meant in 1328 England, is irrelevant to the Second Amendment right that was understood by the Framers of the Second and Fourteenth Amendments.
“CHIEF JUSTICE ROBERTS: I mean, what is the appropriate analysis? I mean, you sort of –we –we, I think, generally don’t reinvent the wheel. I mean, the first thing I would look to in answering this question is not the Statute of Northampton, it’s Heller, and Heller has gone through all this stuff.
And, obviously, in a somewhat different context, although that’s part of the debate, self-defense at home, you know, this is different, but I still think that you have to begin with –with Heller and its recognition that the Second Amendment, you know, it –it has its own limitations, but it is to be interpreted the same way you’d interpret other provisions of the Constitution.”
Justice Thomas wrote that prohibitions on concealed carry do not infringe on the Second Amendment right and that prohibitions on bearing arms in sensitive places such as schools and government buildings are a minor infringement.
Justice Thomas is not a textualist. He is an originalist. I cannot see him saying that the Second Amendment should be rewritten in order to conform to those on a “different wavelength.” Those, like the NRA and all of the other so-called gun-rights groups who would ban what has always been the right, Open Carry, for what was not a right in 1791 or 1868 (concealed carry).
Here is an originalist question Justice Thomas posed to the NRA/NYSRPA lawyer, Paul Clement.
“JUSTICE THOMAS: So if we look at the –you mentioned the founding and you mentioned post-Reconstruction. But, if we are to analyze this based upon the history or tradition, should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”
As you can tell from this next question posed to the NRA lawyer, Paul Clement, Justice Breyer is not going to side with the NYSRPA.
“JUSTICE BREYER: Yeah. Well, the difference, of course, you have a concealed weapon to go hunting. You’re out with an intent to shoot, say, a deer or a rabbit, which has its problems. But, here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed.”
The NRA lawyer, Paul Clement, argued in the NYSRPA oral argument that he should get unrestricted concealed carry permits not because the Framers of the 2nd and 14th Amendments thought that the Second Amendment protected a right to concealed carry, instead he argued that people today are on a different wavelength than they were when the Second and Fourteenth Amendments were adopted.
Justice Alito asked the Biden administration lawyer if he thought 1791 and 1868 were the relevant dates.
Keep in mind that an originalist is not going to rewrite the Second Amendment to mean that Open Carry can be banned because (New Yorkers) are on a different wavelength than the Framers of the 2nd and 14th Amendments.
“JUSTICE ALITO: Well, Heller — and — and I will stop after this — Heller cited decisions going into the 19th Century as confirmation of what it had already concluded based on text and history at or before the time of the adoption of the Second Amendment and said this is what it was understood to mean at the time and it’s further evidence that this is what this right was understood to mean because it kept being reaffirmed by decisions that came after. But I find it hard to understand how later decisions and statutes, particularly when you start to get into the late 19th Century and the early 20th Century, can be used as a substitute for evidence about what the right was understood to mean in 1791 or 1868 if you think that’s the relevant date.”
In her confirmation hearing to become an associate justice of the United States Supreme Court, Sonia Sotomayor said that the Supreme Court opinion in District of Columbia v. Heller was a binding precedent. After she was confirmed as a Justice and took her seat on the bench, she said that the individual right to keep and bear arms was something five justices of the Supreme Court simply made up. And when a new case (McDonald v. City of Chicago) came before the Court asking it to apply the Second Amendment to all states and local governments, she was one of four justices in opposition.
But that was then, this is now. The composition of the Court has changed, it’s a whole new game with mostly different players from the ones who gave us District of Columbia v. Heller. Not to mention that Justice Sotomayor has now had well over 12 years of experience playing the Supreme Court game.
That was reflected in the oral argument to NYSRPA v. Bruen when she took a page from Justice Kagan’s book in the questions she asked the NRA lawyer Paul Clement.
This excerpt from one of her questions, in particular, is truly a page from Justice Kagan’s playbook, “JUSTICE SOTOMAYOR: What it appears to me is that the history tradition of carrying weapons is that states get a lot of deference on this. And the one deference that you don’t -haven’t addressed is the question presented is what’s the law with respect to concealed weapons.”
Don’t forget, the question presented to the justices for them to decide is whether or not the denial of the two petitioners’ applications for [unrestricted] concealed carry licenses violated the Second Amendment. The question presented to the Court is not whether or not there is a right to carry a handgun, or rifle, or shotgun in public. For one thing, the State of New York does not prohibit the Open Carry of rifles and shotguns it is legal for one to possess. Technically, New York State does not ban the Open Carry of handguns either. Its prohibitions are on the possession of firearms. If you are carrying a rifle or shotgun that it is legal for you to possess then no permit is required to carry one openly in public. If one has a license to possess a handgun in public then one can carry it concealed and there is no criminal liability to carrying the handgun openly. Under New York State law, the worst that can happen is that the public handgun license can be revoked. New York has a separate law for possessing a handgun in the home that is independent of the license to possess (carry) a handgun in public.
Justice Sotomayor’s question to the NRA lawyer Paul Clement went on to say, “In 1315, the British Parliament specifically banned the carrying of concealed arms. In colonial America, at least four, if not five, states restricted concealed arms. After the Civil War, there were many, many more states, some include it in their constitution, that you can have a right to arms but not concealed. You can go to Alabama, Georgia, and Louisiana, which are now more open –are more free in granting the right to carry guns, but they prohibited through their history concealed weapons, the carrying of concealed weapons. It seems to me that if we’re looking at that history and tradition with respect to concealed arms that there is not the same requirement that there is in the home.”
Like Justice Kagan’s questioning, this question was asked for the benefit of her fellow justices who say that “text, history and tradition” is the proper method for interpreting the Constitution. After all, the Heller opinion said that prohibitions on concealed carry do not violate the Second Amendment, and the McDonald opinion which applied both the Heller opinion and the Second Amendment in full to all states and local governments reaffirmed that holding of the Heller opinion, namely that prohibitions on concealed carry do not violate the Second Amendment.
Don’t get me wrong. If the opinion goes beyond the concealed carry question presented to the justices, Justice Sotomayor is not going to all of a sudden become an advocate for the Second Amendment right to openly carry firearms. She doesn’t have to. All she needs to do is to convince four of her fellow justices to limit themselves to the question presented, which is something that Supreme Court Rules 24 and 14 already do, and convince them to stick with the “text, history, and tradition” of the Second Amendment. If she does then the State of New York wins.
The fly in that ointment is that the State of New York did not limit its briefs or limit its oral argument to the concealed carry question presented to the Court. For some inexplicable reason, New York chose to make this case about where outside of the home the Second Amendment applies. New York’s argument is that although the Second Amendment applies outside of the home, the Second Amendment does not apply to places where one is likely to encounter another human being.
The primary reason why the justices, particularly the conservative justices, do not answer a question that was not presented is because they view it to be unfair to answer a question that was not briefed or argued before them. There is no longer an obstacle for the conservative justices to go beyond the question presented, if they want to. New York went way beyond the question presented both in its briefs on the merits and in the oral argument.
What was New York thinking?
As Justice Kagan once observed, “Everybody knows we really don’t care what the lawyer is going to say…” The questions asked by a Justice are really directed at one or more of the justices on the bench.
It was Justice Scalia who recommended to Obama that he appoint Kagan not because he agreed with her but because she is smart.
In the following question, she cleverly attempted to kill two birds with one stone. In the first two paragraphs, she points out that if the Court is going to issue an opinion consistent with the Second Amendment then concealed carry loses. The question is obviously directed at Justices Thomas, Alito, Kavanaugh, and Gorsuch.
The third paragraph is the cleverest part. She questions the efficacy of using history and tradition to interpret the Second Amendment right, which is like fingers on a blackboard to an originalist or textualist who relies on the meaning of the words of the Second Amendment as they were understood by the Framers of the Second Amendment.
In short, for the NYSRPA to win, the originalists and textualists on the Court would have to throw out the very methodologies they say the Court should use to interpret the Constitution.
“JUSTICE KAGAN: How is it consistent with the history? I mean, the history seems very clear to me that it’s sort of like the exact opposite of how we think about it now.
in other words, that there are lots of places that wanted people to display their arms as a matter of transparency, and what they prohibited was the concealed carry.
So I’m thinking, like, if you look to the history, you end up with a completely different set of rules from the ones that you’re suggesting with respect to concealed versus open. And it’s a –it’s an example, I think, of –of the difficulties of looking to history, where people were operating on such different, to use your term, wavelengths.”
Justice Kavanaugh invented the term “text, history and tradition” and then posed the following question to the NRA lawyer, Paul Clement. The question reveals that Justice Kavanaugh is a “textualist” as was Justice Scalia who wrote the Heller opinion.
Once again, this poses a problem with NYSRPA winning because the “historical practice” (history and tradition) tells us that concealed carry is not a right protected by the Second Amendment.
“JUSTICE KAVANAUGH: And then, to follow up on Justice Thomas’s question and also Justice Gorsuch’s, we should focus on American law and the text of the Constitution and we don’t start the analysis in a vacuum, but we start it with the text, which you say grants a right to carry, and then historical practice can justify certain kinds of regulations, but the baseline is always the right established in the text. And there will be tough questions, as the questions –arguments revealed, about what the historical practice shows, but the default or baseline is the text, correct?”
“MR. CLEMENT: That –that –that’s absolutely right, Justice Kavanaugh.”
Justice Barrett’s questions were the most worrisome. She sounded downright disappointed when the attorney for the State of New York said that the justices are not free to reinterpret the Heller opinion. She seemed to be strongly in support of saying that places where people can be found in large numbers such as Times Square, stadiums, and subways are “sensitive places” where the Second Amendment does not apply.
Both the attorney for the State of New York and the Biden Administration said they thought a “sensitive places” scheme would be unworkable.
“JUSTICE BARRETT: Do you think that we are bound by the way that we characterized history in that opinion? You know, Mr. Clement has pointed out that in some respects the way that we treated, say, the Statute of Northampton is different from the way that you argue that we should interpret that and the follow-on, you know, statutes, and the colonies, you argue that we should understand those and some other cases differently than we did in Heller.
Are we free to do that?”
In Conclusion
We live in strange times, there is no doubt about that. But if at least five of the six justices reject the original meaning of the Second Amendment, which is the right to openly carry firearms, in case of confrontation, for the purpose of lawful self-defense, in favor of concealed carry, which the NRA/NYSRPA lawyer did not even claim was the right protected by the Second Amendment as the Second Amendment was understood in 1791 and 1868, then America will have gone through the looking glass, never to return.
And, ironically, those originalist/textualist justices would be doing something they also say that judges should not do and that is to allow states and local governments to decide what the Second Amendment means and judges to decide that the Second Amendment right to keep and bear arms is a right not really worth having.
Here is a link to the audio of the oral argument and the transcript to NYSRPA v. Bruen.
(This file is a work of a United States federal court, taken or made as part of that person’s official duties. As a work of the United States Federal Government, the file is in the public domain in the United States.)