Justice Scalia read an excerpt of his opinion in District of Columbia v. Heller from the bench when he announced the opinion in District of Columbia v. Heller.
The part of the Heller opinion he read was from the beginning of Section III that began with saying that prohibitions on concealed carry do not violate the Second Amendment.
Although the majority opinion was 5-4, all four justices in the two dissents said they agreed with the five justices in the majority that concealed carry is not a right, and can be banned.
Justice Alito, who wrote the majority/plurality opinion in McDonald v. City of Chicago responded to one of the dissents by saying that nothing in his opinion changed the limitations on the Second Amendment right that Justice Scalia wrote in Section III of the Heller opinion.
The only justice in the 13 years since the Heller opinion was published who has ever said anything about Section III of the Heller opinion was in a dissent by Justice Thomas who referred to the Second Amendment not applying in schools and government buildings as dicta from the Heller opinion.
Justice Thomas did not say that the dicta was meaningless but he did say that it is a limited restriction because people can simply choose not to enter a school or government building while bearing arms.
Given all of that,
New York was handed a win on a silver platter in NYSRPA v. Bruen when the justices rewrote the questions presented in the case to one question, and limited the question to concealed carry, and limited the question further to whether or not the denial of the two petitioners applications for [unrestricted] concealed carry licenses violated the Second Amendment.
All New York had to do to win was to limit their brief on the merits to the very simple question the justices rewrote from the question presented by the NYSRPA cert petition that asked whether or not the Second Amendment protects a right to carry a handgun in public.
The question the justices rewrote is even narrower than the counterstatement of the question presented in New York’s brief in opposition to granting the cert petition.
New York’s counterstatement presented the question as to whether or not there is a right to carry a handgun concealed in public.
New York’s win was all but guaranteed because the NYSRPA lawyers never answered the question presented by the justices for the justices in this case in their brief on the merits.
Not only did the NRA lawyers NOT argue that the denial of the two petitioners’ applications for concealed carry licenses violated the Second Amendment, but the NRA lawyers also did not argue that there is a right for anyone to carry a concealed handgun in public, under any circumstances or for any reason.
Instead, the NRA lawyers argued in their brief on the merits that the Second Amendment protects the right to carry a handgun in public, which was the question they presented in their cert petition that was rejected by the justices.
Justices Alito and Thomas do not join in majority opinions where the majority answers a question not presented to the court.
Add their two votes to the votes of Justices Breyer, Kagan, and Sotomayor, and you have five votes in favor of the proper cause requirement for a concealed carry permit.
Add to that the vote of Justice Kavanaugh who said in his dissent to Heller 2 as a circuit judge, and in his confirmation hearing to be a justice of the Supreme Court that according to the Heller opinion concealed carry is not a right and can be banned.
Since neither of the sides in NYSRPA v. Bruen have asked the justices to overrule Section III of District of Columbia v. Heller, that was all that was needed for New York to not only win but for New York to have the six votes required for a per curiam opinion.
A per curiam opinion likely without a dissent.
To win, New York never had to argue whether or not the Second Amendment applies outside of the home.
But the New York lawyers went beyond the narrow question presented and did exactly that.
New York argued in its brief on the merits that the Second Amendment does extend to public places, but only to remote, unpopulated rural places where one is unlikely to encounter another human being.
A reason why Justices Thomas and Alito do not join in majority opinions that answer questions not presented to the justices is because they believe that it is improper for the justices to answer a question that was not briefed by the two sides in the dispute.
That is no longer an obstacle for the justices.
New York chose to argue in its brief that although the Second Amendment applies in public, it does not apply to cities or to any place where one is likely to encounter other people.
New York could still win, and likely will as to the proper cause requirement for a concealed carry license.
But New York may discover that by going beyond the question presented and arguing that the Second Amendment does apply to public places but does not apply to places where there are people and therefore the state is free to restrict the carrying of firearms except where the State of New York permits, the justices now get to weigh in on where outside of the home the right to keep and bear arms applies.
If the justices want to that is.
The justices could still simply answer the narrow question presented, and leave it at that.
Chief Justice Roberts is in favor of limiting opinions of the Court to narrow questions and he was no doubt one of the justices who decided to rewrite the original question presented by the NYSRPA to a very narrow question that applied only to the two petitioners who were denied unrestricted concealed carry licenses.
If Chief Justice Roberts sticks to his guns, as it were, I have little doubt that Justices Breyer, Kagan, and Sotomayor will align with the Chief Justice and simply hold that the proper cause requirement for a concealed carry license does not violate the Second Amendment.
That’s four justices and only five justices are necessary for one side to win.
It is just as likely that Justices Thomas, Alito, and Gorsuch will answer the broader question as to whether or not the Second Amendment is limited to rural, unpopulated places where one is unlikely to encounter another person as New York contends, or whether or not there is a right to carry a handgun in cities and other places where there are people.
That leaves the decision as to whether or not to answer the very narrow question the justices rewrote or to answer the broader question presented in the cert petition to Justices Kavanaugh and Barrett.
Another inexplicable error made by New York was to argue in the alternative that Intermediate Scrutiny applies and New York’s proper cause requirement for a license to carry a handgun concealed satisfies Intermediate Scrutiny.
This is baffling to me because in the District of Columbia v. Heller oral argument the Chief Justice was dismissive of the tiers of scrutiny, which includes intermediate scrutiny.
The Chief Justice referred to the tiers of scrutiny as accumulated baggage and he saw no reason why Second Amendment jurisprudence should be burdened with them.
Chief Justice Roberts expressed a simple methodology in deciding Second Amendment cases.
His methodology was to define the Second Amendment right and then apply that right to the challenged law.
If the challenged law conflicts with
the Second Amendment right as defined by the Supreme Court then the challenged law is unconstitutional.
It should come as no surprise to anyone who can read and who has read the Heller opinion to realize that is exactly what the 5 to 4 majority opinion did.
And the four justices in the majority criticized the majority for doing exactly that.
Justice Breyer, in his four justice dissent, wrote that the tiers of scrutiny are invariably the same thing as judicial interest balancing and that judges should be allowed to engage in judicial interest balancing when it comes to Second Amendment challenges.
Although Justice Scalia disagreed that they are the same thing, the majority of justices explicitly rejected judicial interest balancing.
In short, what was an open and shut case in favor of New York is now anybody’s guess as to what the justices are going to decide in their published opinion.
An opinion we will have by the end of next June.
We will get some idea where the individual justices stand based on the questions they pose in the oral argument on November 3rd.
It may surprise you to learn that the justices do not discuss cases except in two very limited circumstances.
The first time the justices discuss a case is when they ask questions of the lawyers for the two sides in an oral argument.
To quote Justice Kagan, “Everybody knows we really don’t care what the lawyer is going to say.” The questions we ask are directed at our fellow justices.
The only other time the case is discussed, and the only time in which the case is discussed to any degree, is at the end of the week when the justices meet in a private conference to vote on the outcome of the cases argued that week, and where the senior judge in the majority decides who will write the majority opinion.
Justice Kagan has likewise expressed her frustration at this court procedure but procedure is the lifeblood of most judges.
The procedure has not changed.
Justice Stevens, who was one of the four dissenting justices in the Heller and McDonald opinions said the only time he could remember ever lobbying a justice was in the Heller case. He said he lobbied Justices Kennedy and Thomas to include Section III in the Heller opinion.
Justice Thomas refused but Justice Kennedy agreed to his request. And since Justice Kennedy’s vote was required for a five-justice majority, we have today Section III of the Heller opinion.
A section that neither of the parties in NYSRPA v. Bruen has asked the court to overrule or revisit.
Justice Ginsburg said that the place to convince a justice in the majority to change his vote is in the writing of a dissent.
She said it is rare for a justice to change his vote based on a dissent but she succeeded in persuading Justice Scalia to change his vote in a case based on the dissent she wrote.
Justice Kagan said her methodology in getting her fellow justices to side with her is by not arguing how she would decide a case, but by making an argument her fellow justices on the right would make in support of her position.
Justice Kagan is one smart justice regardless of what you may think of her views.
Finally, there are two more possibilities.
The least likely of the two is that the Supreme Court simply remands the case back to the lower court for a do-over. That is an alternative that New York argued for in its brief on the merits.
The other possibility is more likely and that is a fragmented, multi-part opinion in which there is neither a majority nor a plurality of justices joining in the opinion.
For a recent example, look at Masterpiece Cake v. Colorado.
Although Masterpiece Cake technically won in a 7 to 2 opinion, the seven judges could not agree on the opinion.
Justice Kagan filed a concurring opinion, joined by Justice Breyer.
Justice Gorsuch also filed a concurring opinion, joined by Justice Alito.
Justice Thomas filed an opinion concurring in part and concurring in the judgment and was joined by Justice Gorsuch.
Masterpiece Cake won this time but Colorado is still free to enforce its law.
Including against Masterpiece Cake.
I have a postscript:
Someone once emailed me pointing out that violating the restrictions placed on the New York concealed carry license is not punishable as a crime under New York law.
I did not think that New York would bring that up in its brief on the merits, but it did.
The reason I did not think New York would bring it up is because New York, unlike California, does not have an explicit ban on the Open Carry of handguns.
Unless foreclosed by a state court interpretation of New York law that makes it a crime to openly carry a handgun even if one has a concealed carry permit, that leaves open the possibility that someone who has a concealed carry permit can openly carry a handgun in New York.
The lawyers for New York who wrote the brief on the merits wrote some really dumb things in their brief and so this does not surprise me in the least.
That’s all for this article.
Charles Nichols
https://CaliforniaOpenCarry.com
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.
