Big Day in the Big Court

Nov 3, 2021

This morning, Paul D. Clement, former Solicitor General of the United States will begin formal arguments before the United States Supreme Court in the matter of Case No. 20-843, “The New York State Rifle and Pistol Association, Inc., ET AL versus Kevin P. Bruen in his official capacity as Superintendent of the New York State Police, ET AL..”.

After 35 minutes (more or less), Mr. Clement will yield to Ms. Barbara D. Underwood, Solicitor General for the State of New York.

She will attempt to refute Mr. Clement’s arguments, and convince the Justices that New York’s law on concealed carry is defensible.

Seventy minutes after they begin, we should have some indication what the individual Justices are considering.

For more than a century, this law has denied the vast majority of New York State residents their right to “keep and bear arms” anywhere outside some very narrow confines.

Will the Supremes strike the law down, or simply constrain it?

Four decades ago, I asked a senior Supreme Court reporter the same question.

“The Court” he said, “will do what the Supreme Court will do.”

That’s the process in a nutshell.

What any of us hear, see or believe from the arguments will have little bearing on the decision.

Oral arguments are the last best chance both sides have to make their case directly to the justices who will ultimately decided the matter - for all of us.

It is not an all-or-nothing battle.

Their opinion will will reflect a majority decision based on their collective interpretation of the law. It’s unlikely it will be unanimous. And some fiery dissents may accompany the opinion.

But the opinion is what matters. Ultimately, it’s all that matters. But there’s no arguing the importance of that ruling.

New York’s law is foundational to laws in other restrictive jurisdictions. If New York loses anything, they’ll be impacted. If New York’s law is ruled unconstitutional, they all lose.

That’s why the line of questioning is seen as indicative of the crucial points in the case.

To help assemble a list of key indicators, I turned to two industry friends, both of whom bring extensive first-hand experience with the Supreme Court.

Lawrence G. Keane is the National Shooting Sports Foundation’s Senior Vice President of Government & Public Affairs. He’s also a former Assistant District Attorney (New York) and is admitted in practice to the Supreme Court.

Alan Gotlieb is the founder of the Second Amendment Foundation. If you’ve followed gun rights at all, you know the SAF and its key role in landmark gun rights cases. D.C. v Heller and McDonald v Chicago are only two of their big wins. For nearly forty years, Gotlieb and his organization have been a thorn in the side of government officials who think the Second Amendment can be ignored or infringed upon at will.

Their lists aren’t terribly different, but reflect their professional perspective.

Keane, understandably, leans toward the legal guidance their ruling will establish:

  1. Confirming “keep” (as in “keep and bear arms”) means to carry on one’s person outside the home.
  2. Affirming that the burden is on the government to demonstrate why someone can’t exercise their Second Amendment rights, not place the burden on an individual to show a “special need/purpose.”
  3. Establish the proper standard for lower court reviews of Second Amendment cases/challenges. (Courts have generally adopted the rational/lowest level of scrutiny. But, Keane points out, “Heller is clear- rational basis- is too-low. Government needs to show higher scrutiny.)
  4. Confirmation that the government can still limit where you can carry (the “sensitive places” language in Heller- akin to time/place/manner restrictions in First Amendment cases)

Gotlieb looks more toward impacts on individuals:

  1. Hints about standard of review (Keane’s point #3)
  2. Questions about guns outside the home
  3. Questions about why it is constitutional to require a special need for self defense?

They’re watching the same arguments, but from two different perspectives.

For Keane, the arguments will decide how legal cases will be resolved in the future.

Attaching a burden of proof on the government for denial will require stipulated requirements for permits- considerably more difficult than a vague “show special need” requirement.

Establishing a benchmark of “scrutiny” prevents the lower courts applying different standards. Using a lower standard to interpret laws or a higher standard when challenging them has allowed the lower courts to decide cases based on their feeling toward an issue.

There are three levels of judicial review. Rational being the lowest. It’s normally applied when there are “no fundamental rights or suspect classifications at issue.” Think a prohibition against practicing dentistry without training and a license.

It’s “rational” because there’s an underlying basis for the regulation.

Intermediate scrutiny is used to test a statute’s constitutionality. To pass, a law needs to further an important government interest -and do it by limited means “substantially related to that interest.”

Strict scrutiny is the toughest standard. Under it, laws that infringe on a fundamental right or involves a suspect classification are unconstitutional.

The Supreme Court has not established a scrutiny standard for Second Amendment cases, despite the fact the right to “keep and bear arms” is an enumerated right.

The Court has declined any Second Amendment cases since making landmark decisions more than ten years ago.

That reluctance has allowed lower courts to apply varying levels of scrutiny. Consequently, decisions have been all over the legal map when it comes to interpreting gun laws.

With a newly-constituted Supreme Court and three new Associate Justices (Gorsuch, Kavanaugh, and Coney Barrett in order of seniority), it seems the Court’s open to hearing - and clarifying - murky Second Amendment questions.

Agreeing to hear a Second Amendment case is an indication that Justice Thomas’ complaint that the Second Amendment is a “disfavored right” may be coming to an end.

Ultimately, that’s why anti-gun groups are so agitated.

It’s also why pro Second Amendment groups are hopeful going into the arguments this morning.

As always, we’ll keep you posted.

— Jim Shepherd