NYSRPA v. Bruen: An Analysis
What to expect from SCOTUS in June
For the first time in ten years, the Supreme Court has taken up the issue of the second amendment.
They actually did so twice by granting certiorari to NYSRPA v. Beach, and then once that case was declared moot (because New York City changed the restrictions at the last minute in a Hail Mary attempt to stop the Court from issuing a decision), they granted certiorari to another 2A case, this time NYSRPA v. Bruen.
I’ve been following this case closely, and have some experience following other cases through the federal court system. I’ll provide my thoughts and analysis here (no, I’m not an attorney) and I think you’ll find a unique take on what’s going on with the 2A in the judiciary.
In this article we’re going to look at:
What is NYSRPA v. Bruen and why is it significant?
Why hasn’t SCOTUS taken another 2A case from 2010-2021?
How will the court rule on Bruen?
Text, history & tradition vs. two-step inquiry?
What is the potential outcome of this case?
Will the NYC subway shooting have any affect on the outcome of the decision?
Issue One: What is NYSRPA v. Bruen and why is it significant?
To answer this, we need a brief history of 2A litigation at the Supreme Court level.
On March 18, 2008 the Supreme Court heard D.C. v. Heller, the first examination of the second amendment since U.S. v. Miller was decided in 1939. Heller involved the plaintiff suing the District of Columbia over a law that prevented him from having a handgun in his home, in an operable state. Heller was a licensed Special Police Officer for the District of Columbia and was required to carry a handgun inside Federal buildings as part of his job, but could not keep or carry an operable handgun at home.
This case was important because it established three things:
One: Heller affirmed that the Second Amendment was an individual civil right, and was not connected in any way to service in the state militia.
Two: The Second Amendment says:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Heller addressed the keep portion of the right. As the government may not prevent the citizen from keeping a operable firearm in their home ready to use if the citizen deemed themselves in danger.
Three: Heller also used some interesting language within the decision. This language held that the government may not regulate arms that are in “common use” but may regulate arms that are deemed “unusual” and “dangerous”. This part created a vast number of problems in future cases, and threw the issue of the Second Amendment at the federal court level into chaos. We will be coming back to this problem in issue 3.
Heller was a 5-4 decision, with Justice Scalia authoring the opinion.
On June 28, 2010, the Supreme Court issued another decision on the Second Amendment, this time in a case named Chicago v. McDonald.
McDonald was another case involving a city categorically banning handguns. The plaintiff argued that since the Second Amendment was an individual right inside the District of Columbia, wasn’t it also an individual right in all 50 states?
The Supreme Court agreed with McDonald and issued a decision that enumerated the Second Amendment as an individual right in all 50 states and US territories.
Of particular note was that in the opinion, the Court expressed irritation at their belief that the government was not respecting their decision in Heller. This is where the quote “the Second Amendment is not a second class right to be treated differently than say, the Fourth Amendment” came from.
McDonald was also a 5-4 decision, with Justice Alito authoring the opinion.
In the time since 2010, the Court has had multiple opportunities to expand or clarify Heller and McDonald. Until Beach, and then Bruen the Court has declined to grant certiorari to any Second Amendment case. This happened so frequently, that Justice Thomas took it upon himself to write dissenting opinions on certiorari denial. In these dissenting opinions he expressed that he was disappointed that courts and the government were relegating the Second Amendment into a second class category.
He (with Justice Gorsuch) further expressed that:
“I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
Based on these dissenting opinions on certiorari denial (the fact that they were written is an important data point alone), and the fact that Justice Alito also expressed concern that the government was ignoring the direction of the Court in the opinion for McDonald, it was strange that the Court waited so long to take up another case, which brings us to…
Issue Two: Why hasn’t SCOTUS taken another Second Amendment case between 2010-2021?
When Justice Alito penned Heller, he needed to maintain a delicate majority in order to publish his document as the opinion of the Court.
In analyzing this, we need to understand how the Supreme Court issues opinions.
When the Court hears oral arguments for a case, the Justices will decide the case in what’s known as the Justice’s Conference. The justices cast votes that side with the plaintiff or the defendant. When you hear “minority“ and “majority” terms being thrown about in Supreme Court coverage, this vote is what they’re talking about. This meeting isn’t held weeks or months after oral arguments. The cases heard by the Court are decided only days after oral arguments. For Heller, which was heard on Tuesday, March 18, 2008; the case was decided on that Friday.
This might come as a shock, but Heller won his case three days after oral arguments!
However, that’s not the end of the story. The Court must then issue an opinion which explains the Court’s reasoning. These opinions can drastically affect law and policy in the United States.
The responsibility for authoring the opinion is delegated by the Chief Justice to himself or a Justice of his choosing. In the instance where the Chief Justice is in the minority, the most senior member of the majority will delegate the authorship of the opinion.
Once the opinion is ready, the Court goes back into Conference and votes on the opinion. This is where the author of the opinion can get into trouble if they’re too extreme in their language, and this was the tightrope that Justice Scalia had to walk in order to maintain a majority in Heller.
We know from memoirs published by Justice John Paul Stevens that Justice Anthony Kennedy was the swing vote for Heller, and that he requested language be inserted into the opinion for Heller that limited the reach of the opinion.
“Longstanding prohibitions on dangerous and unusual weapons” and “the Court’s opinion in Heller should not be taken to cast doubt on existing gun control laws” are examples. Justice Scalia had to maintain his majority, so this language was incorporated into the Heller opinion and so created a narrowly tailored opinion that addressed the issue of “keep” in one’s home - nothing more.
Justice Kennedy was a moderate when it came to Second Amendment issues, and narrowly tailored opinions that addressed one issue at a time seemed to be the coin necessary to buy his support. This was done in 2008 with Heller, and again in 2010 with McDonald.
After 2010…the Court issued nothing but certiorari denials.
I’ll strongly caution the following is speculation:
It seems that some time after 2010, something happened that drastically changed the Court’s thinking on Second Amendment issues. What was that something? I can think of only one thing;
A crime so horrific that it may have been enough to permanently alter Justice Kennedy’s thinking on Second Amendment freedom in the United States. The other Justices (Thomas, Roberts, Alito, and Scalia) did not want to risk a reversal of Heller or to risk a substantial increase in government power over the individual citizen in the name of “public safety” decided to deny certiorari to any Second Amendment case that came down the federal court pipeline until the attitude of the court changed.
I’ll remind everyone that Justice Breyer and Justice Stevens would have reversed Heller in a second if they were given the opportunity. It’s my belief that an anti-Second Amendment majority existed on the court after 2013. That majority would have included Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan.
This threat of the possible reversal of Heller and the uncertainty of how Justice Kennedy would vote as the swing vote are the primary reasons that the liberal and constitutionalist wings of the court Court denied certiorari to any Second Amendment case that came across their docket from 2010 - 2020.
Today, things are very different. That brings us to…
Issue Three: How will the court rule on Bruen?
Actually, Bruen has already been won or lost. The outcome of Bruen was decided by the Court Friday, November 5, 2021. The only question that remains is who was assigned to pen the majority opinion and what language will be in there concerning the Second Amendment?
Let’s break this down:
First, who won? It’s impossible to tell from oral arguments, but I strongly suspect that New York lost this case.
I base that on three facts:
There’s a strong Second Amendment majority on the bench right now, and I believe the initial vote cast had Justices Alito, Thomas, Gorsuch, Kavanaugh, Barrett, and Chief Justice Roberts forming the majority of 6-3.
All of the anti-gun newspapers and organizations are predicting a loss, and all the literature I’ve read from these sources are quaking with terror about how far the Supreme Court will go in restructuring restrictive gun control laws. Many believe that this opinion on Bruen alone will doom the constitutionality of magazine capacity restrictions, assault weapons bans, and red flag laws.
New York was forced to plead a very weak case - for which I have zero sympathy. New York painted themselves into this corner by aggressively defending this law instead of listening to their citizens. New York also faced a sour and irritated constitutionalist bench that did not take kindly to the defendant’s conduct in reversing restrictions on NYSRPA v. Beach in order to get the case declared moot and avoid the possibility of the Court issuing an opinion that would strike down New York’s restrictive carry policy. The Court did not take kindly to this near misconduct and New York’s attorneys faced a hostile bench - that was a grave mistake and a desperate gambit. It’s further evidence that the case was always a lost cause for New York.
Second, who did Chief Justice Roberts assign to write the opinion?
Justice Alito is an obvious choice. Justice Thomas also would have been an easy pick. However, on something of this magnitude, Chief Justice Roberts may have chosen to write the opinion himself.
Here’s where many conservative commentators caution to temper enthusiasm for this case and predict a loss for New York but one that comes in a particularly narrow opinion that recognizes the “bear” portion of the Second Amendment to include some form of carry outside the home, but also subject to reasonable restrictions (i.e. basically another Heller opinion that will not do much to change the issue). That question of reasonable must be answered in subsequent cases brought before the court.
In short these commentators tell us;
“Roberts will screw us all again (like he did with Obamacare) and nothing will change in terms of gun control. Red states will be awesome for gun rights and blue states will suck. You want gun rights? Move to Texas.”
I VEHEMENTLY disagree with any conservative commentator who holds this view - because they aren’t taking into consideration what’s necessary for the Supreme Court to issue a majority opinion. Once again, they’re manipulating emotions and stoking anger in order to generate ad revenue…because no one knows how anything works.
Let’s assume for a minute that Roberts indeed choose to write the opinion and let’s also assume that he wrote a weakly worded opinion that strikes down the issuance policy for concealed carry licenses in New York, but leaves all other issues untouched. Remember that Robert’s opinion must also survive a vote by the majority in order to become the Court’s opinion. If Roberts were to write a weak opinion that does nothing to direct the conduct of lower courts, he could lose the majority support.
In such a situation, the dissenting opinion of the three liberal justices isn’t enough to become the Court’s opinion because the votes aren’t there (3 votes, or 4 if Chief Justice Robert’s were to join them - still not a majority).
Let’s talk about concurring opinions.
Concurring opinions are opinions written by justices in the majority that agree with the decision of the Court, but not the reasoning of the majority opinion.
Concurring opinions issued alongside the majority opinion do not have the force of law and aren’t binding.
If a situation arises where the majority opinion fails to secure the votes of the majority, a concurring opinion might just become the opinion issued by the Court. This is called a plurality opinion and it’s happened before on the Supreme Court.
Here’s how this might go down:
Suppose Chief Justice Roberts chose to write the opinion and then pens a weakly worded opinion, and Justice Thomas and Justice Alito vote against it. That leaves a split of 4-2 on the majority, and a failure to secure 5 or more votes for a majority.
At the same time, Justice Alito and Justice Thomas have written a strong concurring opinion that will rule the “May issue” licensing scheme as unconstitutional, address the issue of providing direction to lower courts, and put into place language that protects the individual and severely restricts the government’s ability to use gun control as a policy option. This is enough to convince Justice Kavanaugh, Justice Gorsuch, and Justice Barrett to sign on to the concurring opinion and the strongly worded concurring opinion now becomes the majority opinion of the Court in a 5-4 decision.
I see this as a very possible outcome if Chief Justice Roberts were to write a weak opinion. Remember how Justice Scalia had to insert language that limited the reach of Heller to keep Justice Kennedy on board? If Chief Justice Roberts chose to write the opinion, he must now insert strong language to keep the majority together and prevent a plurality opinion. That’s assuming he chose to write the opinion himself - he could have chosen to avoid this mess all together and assigned the duty to Justice Alito or Justice Thomas. Both Justices are eager to expand and clarify the Second Amendment anyway, so I wouldn’t fault Chief Justice Roberts for letting them have at it.
Here’s what conservative commentators fail to see:
Even if Roberts were to write a weak opinion (and under these circumstances, I don’t think he will) - it doesn’t matter!
Do you see now what TERRIFIES the anti-gun left about this case? Do you understand why they are so anxious about the Bruen opinion?
You’re dealing with a Court that’s an altogether different animal than the one that issued Heller and McDonald - one that’s extremely hostile to the idea of gun control…and this is what keeps anti-gun leftists awake at night.
Don’t take my word for it, go read their literature. Everytown, Giffords, Violence policy center, the leftist media - they all are predicting a loss. The only question is, how bad?
Let’s answer that with the other important piece of this case…
Issue Four: Text, history & tradition vs. two-step inquiry?
It’s my suspicion that in the opinion for Bruen there will be direction given to lower courts on how they are to review Second Amendment cases. Up until now, lower courts have adopted what’s known as the two-step inquiry.
The two step inquiry has, you guessed it, two steps for determining a law’s constitutionality.
Step 1: Does the law fall within the protections of the second amendment, or in other words, does the law affect the “core” of the right? Post-Heller and pre-Buren, this meant an operable pistol or legal rifle or shotgun within the confines of one’s home.
Step 2: Bearing step 1 in mind, what’s the appropriate level of scrutiny needed for review? In practice, this meant strict scrutiny when dealing with the core of the right or intermediate scrutiny when dealing with outlier issues.
Under this two step judicial review standard, laws like trigger lock requirements or keeping guns unloaded within the home have been mostly struck down, while laws dealing with assault weapon bans and magazine capacity restrictions have been allowed to stand.
The Text, History and Tradition (THT) judicial review standard states that in order for a law to be found constitutional, the regulations must be sufficiently rooted in text, history & tradition in order for the regulation to be deemed constitutional. A prohibition on the possession of arms by convicted violent felons or prohibitions on discharging firearms in a crowded place (absent some threat to life and limb) would be examples of regulations that would survive a THT judicial review. An assault weapon ban would not.
Both of these standards of review have benefits and perils to individual rights protected by the Second Amendment.
Which one will the Court provide as their instructions to lower courts? That’s anyone’s guess, this could go either way. However, one thing I’m certain of is that some form of direction will be given to lower courts - Justice Thomas’s writings on the matter make that clear. That direction should establish firm limits on what the Supreme Court considers as permissible for judicial review.
If I had to guess I would predict the court will go with the two step standard, but instruct that strict scrutiny is the appropriate standard for dealing with any Second Amendment case. This would be the least disruptive to the way federal courts decide cases and would provide strong individual Second Amendment protection. Some commentators even argue that strict scrutiny provides even greater protections than THT.
For example, a law being reviewed under strict scrutiny must significantly advance a compelling public interest in the least restrictive way possible - an arbitrary limit on the number of rounds in a magazine or categorical bans on entire classes of firearms would not accomplish either, and the law would be struck down - at the District or Circuit Court level.
Issue Five: What is the potential outcome of this case?
There’s a lot of parts to this so I’ll hit the highlights in a list of bullet points on what I think will be affected by the Court’s opinion in Bruen:
May issue is toast as a policy option for issuing CCW licenses. Shall issue is the new standard. So long as an applicant passes a background check, the government then must issue the license.
Lower courts will be constrained with a new standard for judicial review that favors the rights of the individual over public safety considerations when it comes to 2A cases
Certain portions of Heller may be reversed as part of adopting the new standard for judicial review - namely the portions that were needed to secure Justice Kennedy’s support. This will result in a stronger opinion for Heller and imperil gun restrictions that affect “keep” and “bear” inside the home.
McDonald means that this opinion will affect all 50 states and territories
Will other gun control laws be affected? The answer is no - not quite yet. However, I think the Supreme Court is holding off on granting certiorari to two other cases until Bruen is decided:
Bianchi v. Frosh challenges Maryland’s feature based assault weapon ban (there’s also a 10 round magazine limit as part of this law, but it’s not the core issue).
ANJRPA v. Grewal challenges New Jersey’s restrictions on magazines that hold more than 10 rounds.
The Court seems to be interested in granting certiorari to one or both of these cases, especially Bianchi v. Frosh. Although the opinion in Bruen will (probably) not strike down an assault weapon ban, the court taking up Bianchi and issuing a 6-3 or 5-4 opinion striking down assault weapons bans seems extremely likely. Justices Kavanaugh, Thomas, Alito, Gorsuch, and (maybe) Barrett are interested in taking up such a case - and that’s four, possibly five votes - enough to grant certiorari.
At the same time, the new standard for judicial review when it comes to Second Amendment cases will have yet to be felt. Yes, there will be some instances of leftist circuit courts blatantly ignoring the standard, but they’ll be reversed again and again when it finally gets to the Supreme Court. All this childish grandstanding will do is hasten the inevitable: the complete annihilation of gun control as a public policy option for dealing with crime.
Heller addressed the question of “keep”. McDonald addressed the question of enumeration. Bruen will address the question of “bear” and the appropriate standard of judicial review for future Second Amendment cases. These three Supreme Court decisions will begin the restoration of Second Amendment rights for millions of Americans - roughy one quarter of the population!
Issue Six: My suggestion for the Court
I always provide constructive suggestions for policymakers and justices in my articles. The reason I do so is that I cannot know how far of a reach one of my articles may have, or who may be reading.
That being said, here’s what I would humbly suggest to the Court as the framework for an opinion.
New York’s case was weak. The government failed to show how their licensing scheme achieves a compelling public safety interest of preventing crime while doing so in the least restrictive way. Furthermore, the government’s claims that violence would increase are not grounded in reality. Forty two other states have “shall issue” licensing schemes and the data does not show any increased risk to the general civilian population once a shall issue licensing scheme is adopted.
There is also the matter of directing lower courts on the appropriate level of review for a Second Amendment case. To answer this question, I would suggest the Court maintain a two-step judicial review standard, but instruct lower courts that strict scrutiny is the appropriate level of review. This would cause the least disruption to the myriad of cases already in the court system, and is an elegant way to achieve both protection for the individual against government overreach, and at the same time providing direction to lower courts. Lower courts have been all over the map on assigning the appropriate standard for judicial review and are looking to the highest court to provide guidance. It is so given - strict scrutiny.
Lastly, there is the issue of immediate relief. For too long, many good American citizens have suffered under the threat of criminal prosecution from gun control laws. Many of these laws name mere possession as a crime worthy of many years in state or federal prison. The government has also shown time and again that it cannot be trusted as a partner in the relationship between the citizen and the government - it has even defied orders from the Supreme Court, conduct that cannot be allowed to go unchecked.
At the same time, there is a compelling public safety interest to prevent firearms from falling into the hands of people with evil intent.
How should the court strike a balance between putting an immediate stop to the abuse of the citizen by their government, and push back against the indifference to the Court’s orders by that same government, while at the same time achieving this important public safety interest?
I would suggest that the Court issue an opinion that holds:
So long as a citizen is able to pass a background check (the same as if they were purchasing a firearm), then all federal, state, and local firearm restrictions that the government imposes on the citizen, but imposes no such restriction on itself are immediately unconstitutional. This is an elegant way to accomplish five things at once:
Stop the abuse of the citizen by their government
Provide a needed and immediate restoration of rights to the citizen while achieving the public safety interest of keeping weapons out of the wrong hands
Exert power over the federal and state governments as a consequence for defiance of the Court’s orders, because this opinion would empower the citizen to exercise their Second Amendment freedom (that the government currently enjoys) and provide a shield against malicious prosecution by the government
Provide crystal clear direction to lower courts, and free up needed docket space across the entire court system because the challenges to gun control laws across all nine circuits would be instantaneously moot
This is a safe and reasonable way to resolve this issue because this opinion only touches conduct that is legal for the government, but is considered criminal conduct for the citizen.
A crazy idea? Look at it this way. Let’s assume that the government makes it illegal to possess and use a powerful narcotic (public safety interest), but then mandates that government employees take a dose of that same narcotic every day as part of doing their job. The government reserves this freedom for itself while denying it to the citizen, and threatens criminal prosecution in the event that the citizen refuse to obey the governments demands. That sounds preposterous, but the fictional scenario I just described is the state of gun control policy in the United States. The exact same conduct is considered legal for the government, but considered criminal for the citizen. And yes, this double standard we see in gun control policy is both absurd and preposterous.
This is not the foundation of a healthy, adult relationship between the “We the People” and the government. This is the foundation for a disastrously dysfunctional one.
By removing the ability of the government to impose criminal penalty on law abiding citizens for conduct that the government freely exercises, the abuse of the citizen by the government would be brought to an abrupt halt, and the relationship between the government and citizen could then have a chance for a reset - because both partners are on an equal footing.
It’s clear that the government will never respect the right of the citizen to keep and bear arms, so the court must step in between two arguing parties and put a stop to any abuse and activate a reset to the relationship that does not involve violence - As the judicial branch does across the country hundreds of times a day in divorce court.
Will the Supreme Court adopt such language? Probably not, but a man can dream...
Issue Seven: Will the NYC subway shooting have any affect on the outcome of the decision?
On April 12, 2022 a maniac shot ten people commuting to work at the Brooklyn subway station in New York City. The shooter, Frank R. James has been arrested and faces a federal terrorism charge. I cannot verify this (yet), but it’s my strong suspicion that the shooter was likely known to law enforcement, who sat on their hands and did nothing to stop this atrocity - again.
Do I think this event will affect the Supreme Court’s opinion?
New York Officials and even President Biden are advocating that the Court not strike down New York’s restrictive CCW license issuance policies. They’re all but saying, “See what happened? This will only get WORSE if you let anybody carry a gun! Reeeeeee!!”
This line of reasoning would have worked on Justice Kennedy. Some would say it might work on Chief Justice Roberts (personally I doubt it). But gun control proponents utilizing this strategy are forgetting one big thing.
The Supreme Court is a vastly different animal today than it was in 2010.
Aside: If it turns out law enforcement knew about Frank R. James and let the shooting happen anyway, that will not go unnoticed by the court…but you won’t see that in the opinion.
If anything, the NY subway shooting will harden the resolve of the five constitutionalist justices, and attempts by gun control proponents to hype the shooting up in hopes of swaying the Court will see those efforts backfire.
Like you and I the constitutionalist Justices will be thinking, “My God, that maniac walked through those defenseless people and shot them down like fish in a barrel. New York’s CCW policy prevented anyone at that station from defending themselves, and we are in a position to do something about it…and we WILL.”
If New York’s may issue policy wasn’t dead before, it sure is dead now. Any more mass shootings in locations that have “may issue” policies will only serve to harden the resolve of the five constitutionalist Justices and convince them that they’re doing the right thing.
And if it’s discovered that law enforcement knew about the shooter and did nothing to stop it by intention or inaction - the court might, just might include severe language in the opinion that returns vast freedom back to the individual citizen.
It’s also important to note that the reason Americans are set up to experience an expansive restoration of their Second Amendment rights, and leftists will at the same time experience a fatal setback to their agenda is because of the actions of one Senator:
Senator McConnell held up the confirmation of Merrick Garland until after the 2016 election - this gave us Justice Gorsuch. He pushed through Justice Kavanaugh’s confirmation despite near constant leftist attacks. He also pushed through Justice Barrett’s confirmation in an election year, and replaced a leftist icon on the bench with a constitutionalist judge.
Senator McConnell isn’t perfect, and he’s not on the right side of every issue, but he sure came through for America with the confirmation of these three Supreme Court justices…and the confirmation of 300+ pro-constitution judges to positions on the federal bench, who are now ideally placed to use the Bruen opinion to drive a stake deep into the heart of constitutionally repugnant gun control laws - and kill them dead.
If nothing else, NYSRPA v. Bruen underscores the critical importance of voting in Senate elections.
Get your phone cameras ready, folks. You’ll need it for the meme material you’ll see when the leftist wailing starts this June.
Until next time,