The most important Second Amendment case in a generation was argued in November. As was covered in the TTAG post-argument analysis, the consensus was that we’ll see NYC’s “may issue” regime (and likely those of the other states that still have one) go the way of “separate but equal.”
There is also a very good chance that the Court will mandate either strict scrutiny or “text, history, and tradition” as the heightened test for evaluating anything that encumbers the right to keep and bear arms. That would be a game-changer for Second Amendment cases challenging gun control laws like “assault weapons” ban, magazine capacity limits, and more.
That initial prognostication is appearing increasingly solid. Indeed, the press and the gun control industry have read the same tea leaves, and reached the same conclusions . . . which is causing no small amount of wailing, gnashing of teeth, and rending of garments among Civilian Disarmament Industrial Complex.
Of the ten cases argued in November, NSYR&PA v. Buren is the only one that hasn’t been announced yet. All the October cases have been decided, as have most of the December ones. Based on which justices have written majority opinions for the cases argued in those months — and which have not written opinions — veteran court watchers are betting heavily that the Bruen opinion will be written by either Justice Thomas or Justice Barrett, neither of whom have written an opinion for a November-argued case.
Since April, I’ve been expecting the opinion to drop at any time – only be to be disappointed on each opinion day. While you can (and should) always watch TTAG for news of the opinion (Dan and I are keeping a very close eye on this), if you want to see it happen in real time, here’s a quick primer on SCOTUS watching.
First place you should go is the calendar on the SCOTUSBlog home page . . .
Opinion days are usually Mondays or Thursdays (occasionally other days), and are announced via the calendar one or two business days before, so check in over the weekend and on Tuesday or Wednesday. If the calendar shows an opinion day coming up, you know to tune in.
Opinions are announced at 10:00 AM (Eastern). Pre-COVID, opinions were announced in the SCOTUS courtroom, often with the judges reading their opinions from the bench (no TV cameras, of course). Today, with the court still closed to visitors, opinions are instead released electronically on the Supreme Court’s Opinions page, at the rate of one opinion every ten minutes (you need to keep refreshing the page as it doesn’t automatically update). You can download a copy of opinions from that page as well.
SCOTUSBlog runs a liveblog on opinion days, which is an easy way to watch the process unfold (as well as read the commentary of court watchers).
Opinions are announced in reverse seniority order. As such, if the first opinion is by Justice Gorsuch, it means you won’t see any that day from Barrett or Kavanaugh (they have less seniority), but any of the other justices might have one. (Look for the opinion author’s initials under the ‘J.’ column on the opinion page).
If you see an opinion by Justice Thomas, the court’s most senior member, it means that the only other opinions that could be released after it would be by another one by Thomas (though it’s very uncommon to have two opinions by the same justice released on the same day) or Chief Justice Roberts.
On the opinions page, if an opinion is announced and it has a “R-number” next to it in the left column of the chart, it means that was the last opinion to be released that day.
Right now, there are 33 remaining cases that have been argued during the term and and are awaiting decision. There will likely also be a number of opinions or orders released on “shadow docket” cases. With the current term winding down, we will likely see two opinion days per week until the Court adjourns for the summer, with probably three to five opinions announced per opinion day.
So, when will the long-awaited decision be announced? My gut is that it will come out very shortly. Apparently one of the proposition betting sites also has it coming out sooner rather than later. It’s possible that they will hold it for a “last day” dump (as I expected them to do with the Dobbs abortion decision prior to the unprecedented leak). But unless you have a contact with that supremely unethical court insider, it’s all just an educated guessing game.
The good news is that we’ll all find out sometime in the next five weeks or so, so buckle up and stay tuned.