This morning, the Supreme Court announced that it has granted cert in New York State Rifle & Pistol Association v. Corlett, the case challenging New York City’s “may issue” (read: no issue unless you are politically connected) system for granting concealed carry permits.
To paraphrase a certain cognitively diminished occupant of a prominent D.C. residence, “This is a big f***ing deal.”
Cue the hysterical shrieking from all the usual quarters in 5 . . . 4 . . . 3 . . . .
BREAKING: The Supreme Court announced it will hear an NRA-backed case to expand gun rights.
Easy access to guns does not make us safer. Every day, +300 people are shot.
We will continue to fight for Americans’ most important right: the right to live. https://t.co/ZOCzw9EgYw
— Brady | United Against Gun Violence (@bradybuzz) April 26, 2021
The Court granted cert on the issue of whether the state’s denial of petitioners’ applications for concealed carry licenses for self-defense violated the Second Amendment. Like New Jersey, Hawaii, Maryland and other “may issue” jurisdictions, the city of New York requires a showing of a particularized special need to carry a firearm. A generalized desire for self defense isn’t sufficient.
This results in a system where the average citizen has essentially no chance of ever getting a carry permit (not to mention the accompanying graft and corruption). The case is thus going to front-and-center the issue of whether the Second Amendment includes the right to “bear” arms outside the home and thus will likely squarely address the issue that will be coming in Young v. Hawaii.
More importantly, in order to decide this issue, at long last the Court will have to address the issue of what standard of review applies in Second Amendment cases. Resolution of that issue by adopting any standard stronger than the current “intermediate scrutiny” currently employed by many lower courts could open the floodgates of Second Amendment challenges to just about every gun-related restriction.
And unlike the last NYSR&PA case, I don’t see any way the city or New York state can do something to tactically moot this one to avoid the Court from ruling. There is simply no way New York politicians are going to surrender and adopt a “shall issue” system for New York City.
The Second Amendment community thought we had the votes last year on any number of cases. Unfortunately, the rumors percolating from the Court indicated that Chief Justice Roberts had gone squishy on the Second Amendment. That resulted in a return to the ideological standoff of the Kennedy years, where neither side could be sure they could “get to five” on a Second Amendment case. ‘
But with ACB replacing RGB, that calculus now appears to have shifted.
Justices Thomas, Alito, and Gorsuch appear to be locks for a strong Second Amendment decision. Based on her writings as a circuit judge, ACB appears to be as well. Kavanaugh has talked a good 2A game in the past, but there have been increasing concerns as to whether his supposed conservative views would outweigh his apparent desire to remain in good standing with the Beltway chattering classes.
In granting cert today, it would appear that the pro-2A wing of the Court is sufficiently satisfied that they can now get to five…which means Kavanaugh is likely on board. I’ll go out on a limb and say that Roberts will also wind up in the majority, but only for a purely tactical reason rather than any return to originalist sanity.
After the Court takes its preliminary vote on a case after oral arguments, if the Chief Justice is in the majority, then he gets to assign who writes the draft of the majority opinion (which almost always winds up being the Court’s opinion). If the the Chief Justice is not in the majority, that role falls to the senior-most associate justice in the majority.
Ergo, if Roberts goes squish on the NYSR&PA case, the assignment role would fall to Justice Clarence “Second Class Right” Thomas who would almost certainly take that job for himself and write a very expansive pro-Second Amendment opinion.
Even if the Chief Justice Robert doesn’t like (or may ultimately vote against) the majority in the case, he can tactically vote with the majority up front, thus being able to assign the opinion to someone who will produce an opinion that’s closer to his own. My guess is that he’d assign the opinion to Kavanaugh. If Roberts took it himself and tried to write a weak sauce opinion, there would be five votes that could reject it and join an opinion written by Thomas or Alito which would then become the Court’s opinion.
Buckle up, Buttercup. This is going to be interesting.