Today the Supreme Court heard oral arguments in New York State Rifle and Pistol Association v. Bruen, which is expected to produce the Court’s first major Second Amendment decision in over a decade.
MSLF’s Center to Keep and Bear Arms participated in a live blog during argument, and a panel discussion held afterwards. Earlier this year, we filed an amicus brief in the case—arguing against New York’s extremely restrictive permitting scheme, which deprives ordinary citizens of any real right to bear arms outside the home. Instead, New York residents must demonstrate a “special need” for such protection—thus making a Constitutionally-protected natural right into a government-granted privilege.
Laws of this sort cannot survive an accurate reading of the relevant text, history, and tradition—the test required by the Supreme Court since the 2008 Heller decision.
After today, the question appears to be: will the Court accurately interpret the text, history, and tradition in question? Or could these elements be profoundly misconstrued, as they were by a lower court’s recent high-profile exercise in “bad originalism”?
Crucially, the state of New York—aided by the Biden Administration’s Department of Justice—is not arguing that the Second Amendment only protects a right to bear arms within the home. No such argument was heard today from New York Solicitor General Barbara Underwood, or United States Assistant Solicitor General Brian Fletcher. At least as a practical matter of strategy, gun control advocates seem to have recognized that this is a losing argument, and abandoned it.
While denying the exercise of the right to almost everyone, New York itself has acknowledged that there is a right to bear arms in public—a glaring inconsistency highlighted by Paul Clement, in his argument on behalf of NYSRPA (and a former U.S. Solicitor General in his own right).
Rather than argue the existence or non-existence of public Second Amendment protections, all sides in today’s proceeding sought to argue in some degree based on the Constitution’s text, its historical background, and post-ratification tradition. The ground of discussion has shifted toward originalism, the insistence on the Constitution’s original public meaning.
This is an encouraging development, but it does not mean that the cause of gun rights triumphs by default. Originalist concepts can be abused to the point of butchery—as when the Ninth Circuit, purporting to engage in an originalist-style analysis of history, essentially erased the right “to bear” from the Second Amendment in Young v. Hawaii. Justice Kagan once famously said “We are all originalists,” although she is not among those normally described as such.
Some “bad originalism” was certainly heard in the Supreme Court today—as when NY SG Underwood repeated the anti-gun trope that public carrying of weapons in cities was per se “offensive” in England, and therefore can be regulated in the United States today. Meanwhile, some of US Assistant SG Fletcher’s argument—while ostensibly grounded in history—seemed to boil to down to letting local authorities do whatever they would deem “reasonable.”
Even so, it was good to see the opponents of gun rights forced to argue on originalist territory. And it bodes well for the decision: after all, the state of New York probably could have argued the case very differently, but clearly felt the need to appeal to skeptical (actual) originalists among the justices.
At the end of the day, however, it seems unlikely that enough justices of this persuasion will be swayed to uphold New York’s law.
Either way, one thing is virtually certain: the Center to Keep and Bear Arms will be extremely busy after the Court’s expected decision arrives in May or June 2022.
Cody J. Wisniewski is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms and the author of an amicus curiae brief filed in NYSRPA v. Bruen.
