Making Sense of the Limited Cert Grant in NYS Rifle & Pistol Association v. Corlett

Why did the Court rewrite the question presented in this Second Amendment case?


One week ago, I lamented about Heller's sad bar mitzvah. On April 26, the Court denied review in three Second Amendment cases concerning the rights of non-violent felons. And the Court had twice relisted NYS Rifle & Pistol Association v. Corlett. At the time, I assumed the Court had denied review, and Justice Thomas was writing yet another dissent from denial of certiorari.

Once again, the shadow docket threw a curveball. This morning the Court granted cert in the case. But the Court only granted review to a limited question presented:

Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

As soon as I saw the grant, I started to scratch my head. Why did the Court rewrite the QP? Here is how Paul Clement framed the issue for the petitioners:

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

There are at least five major differences between Clement's QP and the Court's QP.

First, the Court's QP focuses on the state's decision to deny "concealed-carry licenses" to the petitioners. Clement's QP challenged the law on its face, and as applied. Is the Court's decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime? Is there some evidence that the state improperly denied licenses to these particular plaintiffs? Might there be some Due Process Clause argument? Then again, the QP references the Second Amendment, so a Due Process issue would not be squarely presented. I see this slippery change as a way for the Court to issue a very, very narrow decision that will leave the issue unsettled.

Second, the Court's QP refers to a petitioner that could file an "application." That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an "application"? Or will the Court limit relief to the named parties.  Here, the Court may be trying to avoid the associational standing issue. This issue arose in June Medical with respect to abortion providers. Of course, in the Court's standing jurisprudence, doctors who provide abortions for others would have third party standing, but organizations of people who personally exercise their Second Amendment rights would lack third party standing. Makes perfect sense.

Third, the Court's QP refers to "applications for concealed-carry licenses for self-defense." Clement's QP refers to "ordinary law-abiding citizens from carrying handguns outside the home for self-defense." The Court's question is far more narrow. It only concerns "concealed-carry licenses." Clement's petition refers to carrying a gun more broadly outside the home. By stripping the reference to "outside the home," the Court avoids resolving a thirteen-year old mystery: why exactly are "sensitive places." Also, the Court's question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment. Specifically, can New York prohibit conceal carry if it permits open carry? And by the time the case returns, there will be 17 Justices and the Court can deny review.

Fourth, Clement's QP refers to "citizens." There is no corresponding language in the Court's QP. Did Justice Sotomayor object to a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the "Right of the people" (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas's controlling (?) McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Fifth, Clement's QP refers more broadly to "ordinary law-abiding citizens." Again, there is no similar corresponding language in the Court's QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does "ordinary law-abiding" mean? Does that category include non-violent felons? The Court ducked that issue last week.

Finally, the Court did not accept New York's phrasing of the QP, which differed significantly:

Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.

Ultimately, I am conflicted about this grant. Part of me should be ebullient that the Court finally granted a real gun case. Yet, this strange rewriting of the QP has tempered my enthusiasm. I am jaded after thirteen years of being burned in Second Amendment cases. This grant may be the last time a nine-member Court decides a Second Amendment case. Any punt here will sweep Heller to what Justice Scalia called the "the dustbin of repudiated constitutional principles."

We should get a decision by June 2022. Alas, that timing will not allow Randy and me to include the case for the Fourth Edition of our casebook, which should be released by October 2021.

Finally, one of my first blog posts in September 2009 focused on the question presented in McDonald. That post, which went viral thanks to links on Volokh and Instapundit, put my blog on the map. It has been a fun run over the past thirteen years!

Update: A colleague reminds me that the Court rewrote the question presented in Heller. The District's cert petition framed the question this way:

Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

Tom Goldstein, Alan Morrison, and Walter Dellinger, among others, were on the petition.

Heller's response framed the question this way:

Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.

Alan Gura, Bob Levy, and Clark Neily represented Heller.

And the Court granted on Clement's question presented.


Update 2: An earlier version of this post stated that the Court granted the question presented in the SG's cert-stage brief. I was incorrect. The SG did not file a cert-stage brief.

I was reminded that Heller's brief in response to the cert petition suggested an alternate QP, closer to the one adopted by the Court. Here is an excerpt from Part II:

The question presented by Petitioners bears scant resemblance to the actual issues litigated in the court below. The question is not whether the District of Columbia may ban handguns "while allowing possession of rifles and shotguns," Pet. at i, any more than it is whether the District of Columbia may ban handguns while "allowing" possession of bricks, baseball bats, kitchen knives, or any other implement that can be used as a weapon. Rather, the question is whether the District of Columbia may ban all functional firearms, including handguns, without violating "the right of the people to keep and bear arms." U.S. Const., amend. II.

NEXT: S. Ct. Will Consider Whether Second Amendment Protects Right to Carry Guns Outside the Home

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  1. “Alas, that timing will not allow Randy and I to include the case for the Fourth Edition of our casebook, which should be released by October 2021.” “Randy and I . . .?” Maybe the first thing you need to do is run the book through a grammar checker.

    1. No time for proofreading with takes this hot!

      1. There’s no Nazi like a grammar Nazi.

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      2. Prof. Blackman is a modern Republican — he does not flatter or bow to the properly educated elites and their standard English. He is a man of the half-educated, illiterate conservative people.

        1. You are not just one miserable son of a bitch; you are a miserable son of a bitch with insomnia.

          1. ” You are not just one miserable son of a . . . ”

            Be careful there. Prof. Volokh (claims repeatedly that he) enforces civility standards at this blog. He could censor your words or ban your participation — he has done so before and I expect he will do it again (unless you are a conservative, in which case you may disregard this point entirely).

            Today would be the second anniversary of Prof. Volokh’s most recent (so far as I am aware, anyway) indulgence in low-grade, partisan, viewpoint-driven censorship. You don’t want to spoil that recent outbreak of liberty and principle with gratuitous vulgarity, do you, Quo Usque Tandem?

            1. Calling you a miserable son of a bitch is eminently civil compared to what you really are.

              1. I am not interested in your support or fondness. But I will have your compliance, clinger.

                1. you “will” ?
                  Mewling from an internet hero.
                  You have neither the intestinal, nor testicular fortitude to do anything but run your mouth.
                  But keep on with your febrile and infantile fantasies if it makes you feel all warm and fuzzy.

                2. Channeling you inner Overseer, I see!

                  Crack that whip! Command those slavesdeplorable peasants! Make sure they comply!

                  Even after decades of the end of slavery and Jim Crow, it’s clear that nothing has changed about the Democratic Party. They still crave the stratified aristocratic classes that the Democrats of antebellum South tried to implement and preserve, with blacks and the lowest-level whites at the bottom of the totem pole, and their betters telling them what to do.

                  Technology has changed a lot since those days, dear Reverend. Would you like a bullhorn to go with your whip? Would you like a taser and pepper spray to keep the particularly unruly deplorable peasants in line?

        2. And Artie is an NPC. I know which one I’d rather trust.

        3. Ah, yet another reminder that the Democrats have abandoned the blue-collar working men in favor of the well-educated, super-rich Elite!

          Thank you for once again highlighting the distain that modern Democrats have for the little people!

          1. ” highlighting the distain ”


    2. I can wear a t-shirt or carry a sign with a message (or no message), get an abortion, walk the public sidewalk, be secure from unreasonable searches, and or have a right to council from Coast to Coast in all 50 states districts & territories…WITHOUT A LICENSE or FEE

      I should be able to do all that & peaceably bear arms wherever I go.

  2. Please feel free to join the commentary on Prof. Volokh’s post if interested.

  3. Yes, a punt is most likely.

    I think at this point Court packing is somewhat less likely, and that if we do see Court packing, state laws concerning concealed carry will be the least of our concerns.

    1. I don’t agree. As much as I’m sure Roberts wants that, I don’t think the 5 conservatives will go along.

    2. It’s hard to imagine this being the issue to generate the outrage necessary to pack the court with.

      Most Democratic Senators are from Shall issue states, even deep Illinois and Connecticut and Washington.

      And the senators in the middle like Manchin and Sinema will not be surprised to find out that there is a right to carry in constitution.

      1. Yeah, for all their crying of “blood in the streets” this isn’t the hill they want to die on. You’ll notice in purple states that have been passing gun control in recent years like CO and VA there isn’t any real movement to repeal shall-issue concealed carry, or even put significant new restrictions on it

        Assuming SCOTUS finds for the plaintiffs and the ruling the broad enough to kill may-issue nationwide, states like CA and NY will just adjust their fees and training requirements to ensure most people still can’t get permits

  4. The rephrased question is virtually useless. First, what exactly is an “ordinary law abiding citizen?” That is not any term of art I have ever seen. What exactly makes someone “ordinary” such that it would be relevant to this question?

    The bigger issue is the use of the word prohibit. You can restrict something almost to the point of extinction and still not prohibit it.

    1. That’s from the original question. And yes, it’s obvious why the Court omitted that particular bit of retorical flourish.

    2. It was likely a reference to the fact that NY typically restricts licenses to people engaged in certain professions or wealthy and politically connected individuals. An “ordinary” person, as it pertains to the question, is someone not engaged in a favored profession or without significant wealth or political connections

    3. I would take “ordinary” to mean a person without any special reason to want a gun. In some places an unrestricted permit requires a showing that you as an individual have a need not shared by the public. That was the case in some towns under the old rules in Massachusetts; it might not be true any more.

  5. “What exactly makes someone “ordinary” such that it would be relevant to this question?”

    Is citizen an office?

  6. Maybe a silly question, but who is in a position to reword the question this way?

    Does it take agreement of the majority? Or is it within the power of the Chief justice to do on his own sayso?

    Makes a big difference in interpreting this.

    1. I think it’s obviously the justices that granted cert. There had to be four votes to grant cert, and that’s the question that got the most votes. Not that there was an opposing question, it probably went back and forth in a couple of memos.

    2. It’s at least 5 votes and very possibly may require consensus.

      1. Correction: at least 4 votes. Just like the cert grant itself.

  7. When Heller was pending, I predicted that the decision would satisfy nobody, except possibly Mr. Heller himself. I predict much the same in this case.

    1. Big difference there. There’s no middle ground. Either regular people can get permits without “special need” that is not granted, or they can’t. I don’t see how a decision could be made that satisfied neither.

      1. This.

        Also, there are only a minority of states that operate this way, so “justifiable need” or some other exception is not the rule but the exception in the majority of states in the US.

    2. There was nothing wrong with the “Heller” decision. In fact “McDonald” amplified it.

      The states just proceeded to ignore it, and no Federal Court did much to stop them. If a case went to the Supreme Court, they just refused to hear it, and confirmed the states had no worries the Federal courts would do anything to stop them.

      An early President supposedly said of one Supreme Court decision when asked about it, “Let the Supreme Court enforce it” and it was ignored after that.

      It’s like the “If the tree falls in the forest and no one hears it?” question. If no one enforces it, what force does it have?

      Ask all the folks who thought the “Beck Decision” was going to change how unions operated in politics. Then Bush 1 proceeded to ignore it, and no way was Bill Clinton going to weaken unions power. It’s over 30 years now, the “Beck Decision” is just a forgotten joke of the past.

  8. I wouldn’t read too much into the rewording.

    1. Then, why did they bother to reword it?

      Again, my question is, what’s the procedure for this sort of rewording? Who makes the call?

      Does the Court as a whole get together and vote on it? Does the Chief Justice assign this to somebody?

      It really makes a difference, because if this could be done without a vote, it’s quite plausible the majority of the Court might ignore the rewording, and decide the originally submitted question.

      1. Why reword it?

        Because deciding that yes the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment, is a rather strong ruling.

        It cuts to the heart of the matter, no?

        1. No, because the heart of the matter is whether you have a right to carry, period, outside the home.

          A ruling that, when issuing concealed carry permits for cause, self defense must be accepted as a cause, permits them to say, “Well, fine then. We’ll stop issuing permits entirely.”

        2. Also, since the question deals with the “petitioners'” application only, the Court can only decide the extremely narrow circumstances of their petition and not really address the big question.

          1. Wrong

            The Court can decide whatever it wants to decide

            At most, this imposes some limits on Amicus briefs

        3. Do you mean, whose Clerk came up with it, and why did that Justice say, yeah, that the right wording? Let’s pitch it.

      2. It’s pretty clear to me why they reworded it. They will allow the states to choose to restrict open carry if there is a right for concealed carry. I don’t see a big constitutional issue with that, it protects a meaningful right to bear arms outside the home.

        1. Then they’d better say so, or else the states will remain free to deny both versions of carry.

          1. Agreed

            But I expect they will say so

            Because I’m pretty sure of 2 things:
            1: Breyer, Kagan, Soto, and Roberts weren’t the 4 who granted cert in this case
            2: The ones who did grant cert did so because they thing they’re going to overturn the decision, and actually enforce teh 2nd Amendment

        2. So the only way to exercise your 2A right would be to pay the State for permission at that point, and that doesn’t pose an problem in your view?

          1. I think it does. But I don’t think the court will ever mandate constitutional carry, so if we have to settle for paying $100 for a permit that lasts 5 years or whatever, it’s far better than what we have now in the “may issue” states.

  9. I think you’re desperately searching for reasons to be sad, that aren’t there

    “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”

    Well, the 2nd states “the right to keep and bear arms shall not be infringed.”

    What will the Court rule?

    That the right to bear arms (which is to say: carry arms outside the home) shall not be infringed.

    A State may allow open carry, and restrict concealed carry, or a State may allow concealed carry, but restrict open carry.

    But a State must have, at the most restrictive, a “shall issue” permit process for carrying weapons in public, which is to say for “bearing arms”.

    This question lets them get to that issue. It also means that Manchin can’t vote for Court packing without clearly attacking the Second Amendment, which means Court packing is now dead until Manchin isn’t the deciding vote.

    Stop being so desperate to lose

    1. Is everyone ignoring that in Hawaii, the ninth circuit blocked both concealed carry and open carry?
      That is the case that the Supreme Court should be hearing

      1. And it will be interesting to see what the Supremes do with the appeal on that case

        IIUC, it hasn’t yet made it to SCOTUS

  10. Did people in the Founding bear arms in a concealed fashion in militia service?

    1. Well, no. That’s part of the problem with the rewording; The originally submitted question was about “carry”, the Court made it about concealed carry.

      The right isn’t concealed carry, it’s carry, period.

      1. Yeah, I would think a state could have open or concealed but it must have one of the two.

        1. That’s basically how I understand it, though I’m a bit dubious about banning open carry; Permitting you to exercise an enumerated civil liberty, but only so long as you do so secretly?

          Concealed carry reform really got going in states that were, legally, open carry, but where local authorities would hassle you if you exercised the right. For instance, in Michigan when I lived there, if you were in an anti-gun jurisdiction, they might claim you were “brandishing” the gun, or allege that you’d concealed the gun behind your arm, and charge you will illegal concealed carry.

          If you were legally carrying concealed, they wouldn’t know to hassle you, and lost most of the possible pretexts for doing so.

          1. “they might claim you were “brandishing” the gun, or allege that you’d concealed the gun behind your arm, and charge you will illegal concealed carry.”

            Yeah, that’s certainly some b.s. there.

          2. I am reminded of testimony provided in Arizona by a woman who was at a rest stop and noticed something weird concerning a truck with a running engine. She had her gun with her, and decided to keep it hidden in the folds of her skirt.

            When she was approached by a trucker with a rope and some rather scary suggestions, she pulled out the gun and told him to go away. He wasn’t happy about that, but he did as she requested.

            She explained that under Arizona law at that time, her hiding the gun in the folds of her skirt would have been considered “concealed carry”, and was illegal.

            Fast forward a few decades, and Arizona is now a Constitutional Carry State. (As is Utah, up north, but only just barely.)

          3. In Mississippi, it was even worse. Some sheriffs claimed that, as long as the holster covered ANY part of the gun, you were concealed carrying and needed a license. So the only way to carry open was to carry the gun around with a clear fishing line. Obvious BS, but that’s the kind of regime that existed in many places prior to reform.

            In principle, I think open carry and concealed should be allowed. I’m a big supporter of open carrying handguns, and a big opponent of open carrying rifles (as a policy perspective, not a constitutional one). But I could see the argument that open carry is worse, and can be prohibited, on the grounds that it allows a mass shooter or other criminal to target the person he KNOWS is carrying.

            1. How are you supposed to concealed carry a rifle?

              1. You’re not. But that’s just it. You carry a handgun (whether open or concealed) in case trouble finds you. You carry a rifle when you’re expecting trouble or actually looking for it.

                1. What if you are expecting trouble outside the home though, store owner in a riot or the like?

              2. Trench coat. Or anything with a collapsable stock can be secured under your jacket. The secret service has something like this.

                1. From what I have read the Secret Service uses the FN P90 which is a bullpup design with a solid stock.


            2. The other argument for concealed carry over open is so that robbers don’t know who is safe to target, and thus hopefully won’t attack anyone.

      2. I kind of agree, because if it’s just concealed carry they will have fees, additional background checks and training requirements.

        But where I wonder about where that breaks down is if a state only has concealed carry, doesn’t that imply universal reprocicity? It’s not a constitutional right to bear arms if you are restricted to only be able to excercise it in your own state.

        1. No, but it would mean that those states would have to grant permits to non-residents on the same conditions as they do residents. Right now, for example, Oregon and Illinois will only grant non-residents permits on very limited circumstances.

    2. In the founding era, the “militia” was all able-bodied men. It wasn’t a “service” or a particular organization.

      I don’t know how widely concealed carry was (it might depend on exactly what you mean by “concealed carry”), but open carry was certainly typical. If the decision is ‘states can prohibit concealed carry, but must allow open carry’, I’d be okay with that.

      1. Some able bodied men were exempt (like for religious reasons), so I imagine there was a list of people that were to serve in the militia.

        1. Nope

          10 U.S. Code § 246 – Militia: composition and classes

          U.S. Code

          prev | next
          (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
          (b) The classes of the militia are—
          (1) the organized militia, which consists of the National Guard and the Naval Militia; and
          (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

          1. Ah, the Dick Act. Most people aren’t familiar with it.

      2. Were women considered part of the militia and if not, then why can women keep and bear arms today?

        1. No, they are not. It’s because sexism was still cool in 1903 when the Dick Act was being discussed/argued/ratified.

        2. I do not see anything in the wording that requires someone to be in the militia to be able to exercise the right to keep and bear arms.

          Indeed, the way the 2nd Amendment is worded, it’s pretty clear that having a “well-regulated militia”, as important as it may be for securing a free State, is merely a side-effect of the right to keep and bear arms. Thus, it should follow that women can keep and bear arms today for the same reason they were able to when the Amendment was first added to the Constitution: it is a natural right, and thus women are free to exercise it.

      3. “I don’t know how widely concealed carry was…”

        Good question. I’m not aware of an authoritative answer. In the squinting at tea leaves department:

        “The pocket pistol originated in the mid-17th century as a small, concealable flintlock known as the Queen Anne pistol, the coat pistol, or the pocket pistol. This was used throughout the 18th century, evolving from a weapon reserved for the wealthy to a common sidearm in broader use as more and more manufacturers made them by the start of the 19th century.”

        Source: wikipedia

        A bit later on – late 1800’s, Sherlock Holmes/Dr Watson seemed to be slipping revolvers in their pockets pretty regularly (yes, across the pond, so not applicable if one thinks that Jolly Olde likely had looser regulation than this side).

    3. In the sixties (19- not 18-)I researched concealed carry in Virginia.
      The example given was that a pistol carried in an open holster was not concealed, but a pistol in a flapped holster (pistol not visible) was concealed.
      (And a pistol in your saddlebag on your horse was not in your possession.)

    4. I know that members of the cavalry often carried pistols in their boots.

      It would not surprise me at all that foot soldiers also did the same. Especially ones on the frontier.

      But if the SC wants to say “any State may block people from carrying concealed, but no State may ever block people from carrying military weapons openly”, I’ll take that as a win, and I expect the Left will take that as a loss

  11. I understand the trepidation given how SCOTUS has turned its back on the 2A for over a decade. However, I don’t think we need to be overly conceded.
    First, I think Clements QP “Can the state prohibit ordinary law-abiding citizens from carrying for self defense” was probably too broad. There are all sorts of different scenarios and circumstances that could apply. What about mental illness? What about someone who is legally blind? What about someone who has expressed an interest in overthrowing the government? Can they be denied if they express a desire to carry for self defense? That is a lot to chew on.

    The court, I think appropriately, narrows the question to the grounds for denial in this case rather than consider all the reasons someone may be denied. In other words, he is qualified and capable, but denied for not demonstrating a “justifiable need”.

    I think the courts wording of the QP to include “concealed carry permit” is basically signaling that the court isn’t reviewing the entire permitting scheme or isn’t getting into open vs concealed. It starts from the premise that permitting scheme is valid.

    So, this really narrows issues to
    1) does the 2A apply outside the home.
    2) if it does, may a state deny an application based on self defense.

    1. I agree. The concern I see is that the blue states may put restrictions on permits if they lose, meaning that they will grant the permits to everyone, but you’ll be very restricted in what you can do, and how much you have to pay for it, and so forth.

      The saving grace is that in the blue states, they give out permits to retired cops, rich people, and other politically connected people. If they play this kind of BS, those people will be affected, too. Hell, even LEOSA doesn’t override state carry rules, so off duty cops would be affected too.

      1. Even most Blue states are shall issue now, CA, MA, CT, DE, NJ, NY and HI are the national exceptions and of those only three really severely restrict who may have a permit although in a couple counties of CA it’s damn near impossible to get a permit

        1. CT is actually shall issue for the most part. They have other stupid rules, like a ban on “assault weapons” and >10 round magazines, however.

    2. The problem is, once you put the question of “carry” off the table, and only address what are valid conditions for concealed carry, you still leave the possibility of just ceasing to issue concealed carry permits.

      Will the Court come out and say, “Open, concealed, you MUST permit at least one of these.”? Not with that limited question.

      Which brings me back to the question I keep asking to no avail:

      WHO is empowered to reword the question? The Court as a whole, voting? Or somebody assigned by the Chief Justice? The reworded question says different things depending on which it is.

  12. “One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”?

    If artificial persons have all the other rights of natural persons, rights which are exercised by their members, then could the NYSR&PC be given the right to bear – which will be exercised by its members?

    That *is* one possibility….

  13. Do you think legal aliens have any 2nd Amendment rights? And if no should they be given certain privileges in that area via statute?

    1. No, they do not have 2nd amendment rights. It is a “right of the People”, and aliens are not members of “the People”. Arguably permanent legal residents would be, though.

      But it would make sense to permit similar rights to those legally resident in the country anyway.

      1. And it would be stupid not to. If we can’t trust a person to own and carry a gun, we shouldn’t be allowing him to immigrate and/or stay in the country in the first place.

        1. A point I make in regards to restoring the rights of felons. We’re just fooling ourselves if we think making it illegal for convicted felons to own guns actually prevents them from owning them.

          Maybe it prevents ownership by convicted felons determined to go straight, but that’s kind of pointless.

          1. The only benefit it really serves is adding an extra charge to convict him for. But you could easily do that by adding a sentencing enhancement to carrying or using a gun in a crime as a convicted felon, without making wholesale possession by the convicted felon illegal on its own.

  14. At this point, I think the only people I’m willing to deny 2nd Amendment Rights to are people in prisons and jails and asylums, people in half-way houses and some people in assisted-living centers, and minors still under parental supervision.

    There are too many ways for an evil person to commit harm if they put their minds to it — using materials easily obtained in a kitchen or a hardware store. If you’re deemed safe enough to be on the streets without adult supervision, you should be considered adult enough to be able to carry a gun.

    1. And I forgot to add: this is in no small part because anyone who is free and yet willing to break the law, is free to carry a gun, regardless of what the law says about it, as many gangsters in Chicago (where people explicitly banned from guns carry guns in a city where owning and carrying guns is de facto illegal for law-abiding and criminals alike).

    2. Yes. I’m also okay with prohibiting guns inside of secure facilities, but that doesn’t mean “a no guns” sign. It means secured doors, metal detectors, armed guards and so forth.

  15. A voter registration card should be sufficient documentation for all freedoms guaranteed by the US Constitution.

  16. I think that they reworded it to the narrowest question. Given the plaintiffs and the statute, I am not sure that they can reach any further. I would not read much more than that.

    Keep and bear in mind, pun intended, Young v Hawaii is also coming up, along with a few others.

  17. If this is the issue on which Republicans wish to check the liberal-libertarian mainstream’s resolve with respect to enlargement of the Supreme Court . . . go ahead, clingers, make our day!

    1. How many States are now Constitutional Carry? 20, or did Texas become 21st this year? It’s hard to keep track, because two or three became Constitutional Carry just this year.

      How many States are Stand Your Ground? Isn’t it 38 now?

      And of those that aren’t Constitutional Carry, how many are Shall Issue States?

      Perhaps this will be the issue that will push the country over the edge for packing the Supreme Court … but I’m not entirely sure if that’s the best way to bet.

      Of course, you’re welcome to continue to bitterly cling to your government guns, if you want; after all, how are you going to cling to your outdated government policy efforts of keeping guns out of the hands of minorities, if you can’t win battles like these?

    2. Currently there are what six or seven states that are may issue, that is what is looking unusual. Then we have 20 million people with a carry permit not including the people who live in one of the twenty Constitutional Carry, I really doubt this is going to fire up the left. Further restrictions on abortion might but not gun stuff.

      1. I will welcome enlargement of the Supreme Court, and diminution of the structural amplification of yahoo voices in our nation, regardless of the precipitate.

        1. I will welcome enlargement of the Supreme Court, and diminution of the structural amplification of yahoo voices in our nation, regardless of the precipitate.


  18. An obvious reason for the rewrite is that the new phrasing is in a more neutral, less politically grandstanding, less puffed-up tone. It’s the rough equivalent of removing puffery phrases like “even when it’s obviously grossly unfair and unjust” from a question.

    1. They went beyond that in the rewrite. I’ll agree that removing “ordinary” was appropriate.

      1. Same with law abiding. Suppose the SCOTUS decides concealed carry is a right guaranteed by the constitution. Is someone who carried concealed in NY prior to the decision without a permit “law abiding?” What if they didn’t do that but (like everyone) routinely violates various laws (speeding, changing lanes without signaling sometimes, etc? This lets them side step all that and look at the case in front of them.

  19. Remember here the question has more to do with licensing. New York and many other jurisdictions have opted to provide a permitting scheme to allow the carrying of firearms outside of the home. Although the deference the state has to regulate such a practice under a licensing scheme is going to vary depending on the nature of the right, it should be noted that in New York and other similar jurisdictions this scheme is being used to make the state de facto “no carry” with very few exceptions.

    Unfortunately if the Court does find you have a right to carry outside the home that is going to be the extent of the holding and then we will be in it for another 3-5 years of litigation before an actual permit case ends up at the Supreme Court again. Of course, maybe the states that heavily regulate the practice of carrying will try to cut off the court at the pass like what happened in IL, but my guess is given the political climate is that they will dig in for the long fight.

    1. I doubt that. Kachalsky, Woollard, Peruta, and others already held that, even if a right to carry was assumed, the state’s “no issue” laws satisfied strict scrutiny.

      Ruling that there is a right to carry outside the home really doesn’t address change anything.

      1. This is incorrect. “No Issue” as it regards to “justifiable need” fails even intermediate scrutiny. There is no way it will survive strict scrutiny if it is applied correctly.

        Although they won’t do it, the Drake decision should be overturned. It was ruled on incorrectly.

        1. Sorry, I misspoke. I meant intermediate. But they DID hold that it satisfied the two-step intermediate scrutiny because “it is the job of the legislatures to weigh the evidence.” That level of intermediate scrutiny is de facto rational basis.

          1. Actually, it would fail intermediate if it were applied correctly.

            This is an excellent brief filed for the NJ case. It does an excellent job of arguing that “justifiable need” fails intermediate scrutiny.


  20. I suspect the court decided to limit the QP because it is looking to grant cert in Young v. Hawaii. The court will likely consolidate these two cases and decide the NY case on a narrow issue. It seems Young v. Hawaii is a better candidate for the court to address the right to carry outside the home.

  21. The overarching issue is what is the appropriate Second Amendment standard of review. If they dodge that again, it is a major suck job. If they decide it (hopefully correctly, strict scrutiny), hooray.

  22. I have been following these cases closely and reading the filings in front of the courts. I can almost guarantee that the SCOTUS won’t resolve this issue, they lack the courage to do it. What they will do is instruct the lower courts to use strict scrutiny when evaluating the government’s arguments. Then they’ll send the case back to the district court to rule again on it.

    If by some act of God they actually rule that “justifiable need” is unconstitutional, it would change the laws of seven (or is it nine) states overnight. In regard to the NJ lawsuit on hold in front of the SCOTUS, it also doesn’t mean that people in NJ will be able to get a CCP the next day. NJ will put some other BS scheme in place that is wholly unconstitutional knowing that it’ll take years to get to the SCOTUS again; and in the meantime people in NJ will have no ability to protect themselves outside of their homes.

    That’s why I think the courts will say at a minimum that the 2A does apply outside of the home and that lower courts need to apply strict scrutiny to the state laws. “Justifiable need” should fail strict scrutiny (it should also fail intermedia scrutiny) but that only means states have to fix that part of the permitting process. States could still loosen this requirement and make it difficult.

    But it is refreshing to see the SCOTUS start addressing some of these longstanding and outstanding issues.

    This PDF was filed as an amicus brief to the NJ lawsuit. It’s an excellent read if you have the stomach for legal filings:

  23. Of course, in the Court’s standing jurisprudence, doctors who provide abortions for others would have third party standing, but organizations of people who personally exercise their Second Amendment rights would lack third party standing. Makes perfect sense.

    It does. Doctors’ conduct is being regulated, therefore they have standing. The conduct of a organization in support of gun rights is not being regulated.

    1. Got that backwards. In the abortion scenario, the doctors/clinics are suing to vindicate their potential patients’ rights, not their own (i.e. there is a privacy right to obtain an abortion, but there is no right to give one).

      You’re right that the doctors conduct is being regulated, but that happens all the time, and there’s no constitutional right for doctors not to be regulated.

      In the association case, the members of the groups are suing (as a group) to vindicate their own rights.

  24. The right is singular, “to keep and bear arms.” It’s an absurdity to think the natural right to self-defense limits the bearing of firearms to one’s home or property. Justice Thomas is correct in that it necessarily means something more than carrying a loaded pistol from the bedroom to the kitchen. It is also an individual right of the people unconnected with service in the state militia. These narrow questions do nothing to answer the fundamental questions regarding firearms regulation. Is it because they don’t want to admit the broad scope of a right that preexisted the Constitution?

  25. Illegals from God knows where are flooding into the country. Prisons are being emptied because of Chinese Coronavirus. Radical leftists want to eliminate policing as it now exists. Requiring bail is racist.

    Then they tell us that ordinary citizens ought to be debarred the use of arms.

    This is a recipe for disaster.

  26. Any state licensing scheme necessarily infringes the right.

  27. The real question is whether or not Justices Breyer, Kagan, and Sotomayor can find two justices to affirm the Heller and McDonald decisions that said prohibitions on concealed carry do not infringe on the Second Amendment right.

    Chief Justice Roberts is an obvious fourth vote. Justice Alito is probably the fifth vote and given that Justice Kavanaugh wrote in his dissent to Heller II and said in his confirmation hearings that concealed carry is not a right, I think there are five votes and more to uphold the New York “good cause” requirement for a concealed carry permit.

    The decision, in this case, can instruct the lower courts on how they are to decide Second Amendment questions if five justices can agree on a methodology.

    1. Well, concealed carry isn’t a right. “Carry” is the right.

      The problem all along is that the Court keeps looking at concealed carry in isolation, without looking at whether open carry is permitted.

      The let states ban open carry, because they could permit concealed carry, and let states ban concealed carry, because they could permit open carry. And never get around to ruling that they MUST permit one or the other.

      1. Brett Bellmore – When did Logic 101 and English 101 stop being required of college Freshmen?

        Concealed carry is not a right if for no other reason than all nine justices in Heller and McDonald said concealed carry is not a right.

        The problem is with these people who keep filing concealed carry lawsuits or handgun “carry” lawsuits where the plaintiffs never sought to openly carry any firearm.

        Not seeking to Open Carry and limiting their lawsuits to handguns gives judges the opportunity to draw from a deep well of case law upholding prohibitions on concealed carry and prohibitions on the mere possession of concealable arms regardless of whether or not they are carried openly or concealed.

        The only court prior to the Heller decision which even considered the hypothetical question of whether or not states can ban Open Carry in favor of concealed carry was the Reid case cited in the Heller decision.

        The Reid court held that the hypothetical case where Open Carry was banned in favor of concealed carry would result in the destruction of the right to bear arms.

        1. “Concealed carry is not a right if for no other reason than all nine justices in Heller and McDonald said concealed carry is not a right.”

          Except that the court didn’t say that. “[t]he Supreme Court explained that the right to bear arms includes concealed carry and open carry, but it suggested that a state can regulate the manner of carrying—for instance, by prohibiting concealed carry if open carry is available.”

          Concealed Carry and the Right to Bear Arms, Federalist Society Review, Volume 20

          So, one or the other or both, but not none.

          1. ThePublius – Putting aside the fact that Joseph Greenlee is a hack, what kind of moron relies on the possibly drug crazed ravings of a FedSoc lawyer when he can read the Heller opinion?

            Of course, had you read the dissents then you would have read that both dissents in Heller agreed with the majority that prohibitions on concealed carry do not infringe on the Second Amendment right.

            Even the Wrenn decision said the Heller decision shields the right to Open Carry and states may ban concealed carry.

            Fortunately, SCOTUS has now granted NYSRPA v. Corlett. Feel free to write an Amicus brief explaining to the Court why Heller and McDonald did not say what they said because Greenlee told you so.

  28. I am laughing my ass off that the Court changed the wording from “carry” to concealed carry.

    I guess I should write an Amicus brief urging the justices to reaffirm their holdings in Heller and McDonald that prohibitions on concealed carry do not infringe on the Second Amendment right in light of the text, history, and tradition of the Second Amendment.

  29. My feeling is that most everyone is overthinking this. There are 5 or 6 votes to overturn the 2nd on the limited question, and find in favor of the plaintiffs (or they would not have granted).

    Paul Clement is in private practice, so it’s his job to swing for the fences. I m skeptical that the underlying facts of the case support the broad ruling Clement requested. Still, this will be a victory for similarly situated paintiffs and basically kill may issue.

    Young v Hawaii is also up. if the court wanted to opine on open carry vs concealed carry (and I doubt that they do), they can brief a different question there.

  30. I recommend that the conservative justices race to issue a ruling. That way, they might have at least a brief period to enjoy their handiwork before Court enlargement relegates the lot of them to authoring bitter, strident, inconsequential dissents for the remainder of their terms.

    Culture wars have consequences. Thank goodness.

    1. You’re so cute

      The filibuster will not be removed before this case is decided. Because there’s no way Manchin is going to side with Court Packing, while the Court is considering actually enforcing the 2nd Amendment.

      Since he’s up for re-election in Nov 2020, it’s not going to happen after the ruling, and before the vote.

      And since the Dems are going to lose both the House and the Senate in 2022, it’s not going to happen after that, either.

      Oh, and if you want to see what a real “insurrection” looks like, let the Dems try to Pack the Court after they lose, btu before the new Congress is seated.

      So, you keep living that rich fantasy life, “Rev”

      1. He’s up for re-election Nov 2022. “Edit” sure would be nice

  31. Professor Blackman,

    You’ve claimed in multiple posts now that Congress will soon pack the Supreme Court. I bet you $100 at even odds that at no point, between now and 1PM on January 20th of 2024, will there be more than nine justices sitting on the United States Supreme Court. I’m open to pushing the date further into the future, if you think the date I’ve given is too soon.

    Professor Blackman (and only Professor Blackman), do you accept?

  32. No, I know this isn’t going to happen, but it’s still an amusing conceit

    The 5 honest members of SCOTUS go to Roberts, Soto, Kagan, and Breyer, and say “here’s your choice”:

    Option 1: 9-0, opinion by Thomas, no concurrences
    1: 2nd recognizes a Right of the People to own military weapons below the level of WMD
    2: Any regulations face strict scrutiny
    3: Every single Appeals Court decision post Heller that cleared ANY gun regulation is named in the decision, and tossed
    4: All current gun cases are all sent back to District Courts to reconsider in light of this ruling

    Option 2:
    1 – 3 are the same
    4: All “may issue” or “no issue” carry laws are immediately repealed. Those States are now “Constitutional carry” States until they pass new laws (which laws will be challenged in court, and enjoined until they’ve passed muster with the SC)
    5: No law regulating personal carry of firearms may limit both concealed and open carry. At least one must always be “shall issue”, and it can never cost more than $100, or take longer than 30 days, to get a permit

    Like I said, not going to happen. But it’s what would happen if SCOTUS actually was bound by the written US Constitution

    1. I don’t get how, from the text of the 2nd, we get this open versus concealed distinction. And I don’t like it. If I take my sports coat off in public I’m suddenly in violation of the law? Or, in another state, if I put it on? All nonsense. Bear means bear, and whether it’s under my coat or not is immaterial.

      1. Of course it’s nonsensical. It all comes out of the original determination that they damned well ARE going to infringe the right in question, and that we’re only arguing about how much, and in what manner.

        A question which has no principled answer.

      2. “Open carry” runs into issues with “carry” vs “brandishing”.

        Scalia claimed in Heller that there was a “longstanding tradition” of States regulating concealed carry (as opposed to open carry, where “that’s what the militia does!”).

        Countering this is that normies often freak out when people open carry.

        From a public safety perspective, concealed carry is good, because that means the thugs don’t know who’s carrying until it’s too late.

        Then there’s the reality that you can’t really “concealed carry” a rifle. You know, the classic militia weapon.

        So, how deep do you want the SC to go on this ruling? Shall we claim that the 2nd means States can’t have laws against brandishing a weapon?

        1. Brandishing isn’t simply open carrying. However, brandishing is a very subjective term. It can mean anything a cop or prosecutor wants it to. Taking your gun out of the holster and waving it towards someone – yes, brandishing. Turning your hip with a holster on it towards someone? Sure, if that’s what the cop or prosecutor wants to interpret as brandishing.

          On the concealed carry thing, there was a case in Massachusetts where the wind blew open the sports coat of a lawyer who was carrying, and the holster came into view of a LEO who decided to arrest the guy for brandishing a weapon. The case was zealously prosecuted. (I can’t recall the case names, etc.,, and I could have some of the details wrong. )

  33. Here’s my non-lawyer analysis of what happened here, in case anyone is still reading comments:

    Paul Clement QP:

    Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.


    Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

    SCOTUS’ QP is more specific to the case, in that it addresses what actually happened that prompted the case, rather some the more abstract underlying principle that petitioners claim was violated by what happened.

    That is, what happened was that petitioners were denied in their application for concealed-carry licenses for self-defense. Note that NYS provides for a handgun license for target shooting and hunting, and petitioners would likely have been granted these restricted licenses.

    What the SCOTUS QP does that the petitioners’ does not is firmly establish that since there is a permitting system in NYS that provides for a license to carry concealed for self defense, and that these licenses are indeed issued, NYS acknowledges that there is a right to carry concealed for self defense. SCOTUS takes that issue off the table. The question comes down to whether denying licenses to complainants violated their 2nd Amendment rights. I think SCOTUS will decided it did, and force NYS to “shall issue.”

    1. I hope you’re right

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