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

Perhaps the Court can consolidate the New York Case with Young v. Hawaii

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On Monday, I wrote about the Supreme Court's limited cert grant in NYS Rifle & Pistol Association v. Corlett. At the time, I wondered why the Court limited the question to "concealed-carry licenses." I speculated that the Court was setting up a punt.

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.

I was wrong about one thing. My estimate for the size of the court was way too low. In a recent article titled The Infinity War End Game of Court-Packing, we learn that a packed Court will eventually reach 39 members.

But maybe I was onto something about the possible vehicle issues. Will Baude wrote about the case at his excellent blog. And Will suggested that the case from Hawaii may be a better vehicle:

With these questions in view, it's not clear to me that Cortlett is the best vehicle for considering these questions, compared to the recent Ninth Circuit decision from Hawaii. First, I've been told that there are some ambiguities in whether New York allows or forbids those with a carry license from carrying their firearms openly. Second and relatedly, the law of restricted gun licenses in New York is quite baroque, but it might be necessary for the Court to figure it out if the right to concealed carry depends in part on the availability of the right to open-carry. Third, New York authorities issue many carry licenses to civilians, so the regime for concealed-carry licenses is not as close to a complete or near-complete ban as Hawaii. Fourth, in New York, no state law prohibits individuals from carrying rifles and shotguns (although some cities, including New York City, restrict the practice), where Hawaii restricts both.

Now the petitioner's lawyers are very very good, and it may well be that the Court has thought its way through these issues and they won't be a problem. For instance, in principle the Court could just announce the test it thinks is relevant and remand for application of that test to the details of New York law. But it's also possible that they will realize as they dig in to the case over the summer that it would have been wiser to grant the Hawaii case. Indeed, it's not too late. When they get a cert petition from Hawaii over the summer, they might consider granting it and consolidating it with New York so that they have the option of resolving the issue in a simpler but accurate way.

I like the idea of granting the Hawaii case as well. If counsel for petitioners hustle, the case could come up for the long conference. And if there is a grant by the start of the term, both cases could be argued in January or February, with a decision by June.

Imagine this outcome. The Court holds that the Second Amendment protects a right to carry a firearm outside the home. The Court also holds that there is a strong history to support the right to open carry. The Court then says the record for conceal carry is mixed. Finally, the Court holds that at a minimum, states must allow open carry. But if they ban open carry, there must be some alternative: conceal carry. Therefore, states cannot ban both open carry and conceal carry. The Court then remands both cases, without resolving the status of the New York or Hawaii laws. Then, the Aloha and Empire states have difficult choices: allow open carry, or allow conceal carry. What do you think blue states would prefer? People openly packing heat? Or people conceal carrying? If this approach goes smoothly enough, states would choose to adopt shall-issue conceal carry laws, so they can continue banning open carry. Then again, the state may simply choose to do nothing, and force the 39 member Court to halt their laws.

The lawyers for the New York and Hawaii plaintiffs have some work ahead of them.

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  1. “What do you think blue states would prefer? People openly packing heat? Or people conceal carrying?”

    What people in blue states prefer today is irrelevant compared to what the framers of the Second and Fourteenth Amendments and those who voted to enact them into law thought about concealed carry. Concealed carry was not a right protected by the Second Amendment in either 1791 or 1868 which means it is not a right today because the blue states are dominated by cowards and criminals.

    1. Wyatt, was Fred White’s killing an accident? Or did he have it coming for trying to disarm Curly Bill?

    2. The lawyer does not understand the purpose of the Second Amendment is not hunting or sports shooting. It is to kill government tyrants and invading soldiers. Today, government tyrants take the form of Democrat politicians and their tech billionaire sponsors. Guns are to visit the home of Soros, Bezos, and that Apple dude. That is what the framers had in mind.

      1. cc: @FBI

    3. Handgun owners 1791 would have carried their weapons concealed to keep the gunpowder dry during inclement weather. They also wore cloaks which would have made open carry inconvenient. Common sense says that any gun owner would keep his weapon under wraps during inclement weather. Also, nothing in the BOR Second Amendment specifies how a firearm has to be carried.
      Limiting how a firearm has to be carried would be a Second Amendment infringement which is prohibited.
      Colonial and 19th Century Americans didn’t go all freaky at the sight of a gun like liberals do today.

      1. Obviously you don’t understand that you’re replying to the ghost of Wyatt Earp. To him, concealed carry is for scoundrels, felons, and general ne’er-do-wells. “Real men show the world their firepower,” etc. You will be chastised and corrected by Wyatt Nichols in short order. (He can correct me if I’m wrong, but from his many past comments, I get the strong sense that he would prefer a court ruling that the 2A does not protect the right to carry firearms in public to a ruling that recognizes a 2A right to conceal carry.)

        Put aside the legal question, which of course is important. But does ANYONE think that in 2021, a proliferation of open carry wouldn’t cause the poll numbers that are currently against most significant gun control proposals to sharply reverse directions? I have no problem seeing people open carry. BUT, I know I’m not in the majority. Most people I know who are pro conceal carry for self defense, but who are not highly into guns and gun issues (a large demographic, especially of wives/moms and suburbanites whose support pro-2A people really need and should want), have a visceral, negative reaction seeing someone walking into the grocery store or a Best Buy with a holstered Glock or 1911 strapped on their belt outside the waistband.

        1. “But does ANYONE think that in 2021, a proliferation of open carry wouldn’t cause the poll numbers that are currently against most significant gun control proposals to sharply reverse directions?”

          At first that makes sense, but based on everything else that the judiciary has foisted upon the public – there has been an acceptance, grudgingly or not. I would think that most people who have been routinely exposed to and have handled guns are not nearly as scared of seeing them as opposed to those that have never fired a shot.

  2. Young v. Hawaii will be limited to the Open Carry of handguns. The Hawaii respondents will argue that all Mr. Young had to do was to make a showing that he was going to openly carry a handgun in lawful self-defense or in defense of property in order to be issued a permit to openly carry a handgun. After all, Hawaii will argue, we’ve issued thousands of handgun open carry permits to security guards over the years.

    And besides, the Hawaii respondents will add, Mr. Young never appealed the denial of his permit to openly carry a handgun, and he did not plead in his Complaint that it would be futile for him to appeal the denial of his license.

    1. IDK whether or not you’re being facetious. Poe’s Law, I guess.

      Hawaii has a rather detailed process for being licensed and registered as a security guard.

      1. Miles Fortis – Your comment tells the world that you have never read a brief in opposition to the granting of a cert petition.

  3. One of the unintended results of these permissive decisions will be that the felonization-of-everything will accelerate even more than it already has. States which have cities like NYC, where something like shall-issue makes no sense at all, will seek, and find, ways to criminalize the ownership of firearms without actually banning them, and re-classifying more and more less- and less- serious crimes as felonies is an obvious way to accomplish this.

    1. This is something that has occurred to me as well. GCA68 defines a “federally prohibited person” to include anyone who has been convicted of an offense punishable by a prison sentence exceeding one year, in addition to other factors. These include unlawful users of controlled substances, which at the federal level includes marijuana, now legal in many states.

      Since 1968 many such offenses’ threshold for legality have been lowered, e.g., BAC down to 0.08%, and sentences have been increased, so that many more offenses can result in becoming a federally prohibited person – forever!

      A motivated gun prohibitionist prosecutor could simply subpoena the purchase records of marijuana dispensaries and cross check with firearms ownership records and license records and tell those people they are prohibited, and to forfeit their licenses and turn in their guns.

      One of my top priorities for a Republican administration and congress is to reform GCA68 to eliminate the concept of a federally prohibited person, and for 2nd Amendment rights to be automatically restored once the sentence for an otherwise prohibiting offense has been completed.

      An example of bad faith would be for De Blasio to convince the city legislature that the maximum sentence for just about anything is a year and a day, and then just sweep known licensees: jay walking, moving violations, late payments, etc., etc.

  4. “Finally, the Court holds that at a minimum, states must allow open carry. But if they ban open carry,”

    If the Court holds that, at a minimum, states must allow open carry, isn’t the Court holding that they can’t ban open carry?

    1. Agreed.

      For many reasons I don’t buy the argument that “concealed carry can be banned if open carry is allowed.” It is a very antebellum southern reading of history. You can see this clearly when you compare state constitutional Second Amendment analogues between the colonies and the southern states. The northern states take similar language to the federal constitution while many southern states, who joined the union many years later, specifically exempt concealed carry from constitutional protections. This seems like a deliberate response and limitation that they wanted for their state. This implies that the more typical and original wording doesn’t differentiate open or conceal carry, hence necessitating a specific carve out so they can limit the general understanding of the right as it was known at the time.

  5. Prof. Blackman, your premise is wrong.

    Both states allow both open and concealed carry – a person just has to go through the process and meet certain conditions.

    The question(s) merely are if those conditions are too restrictive, too ambiguous, or too subjective.

    And no one can argue that a state can’t set conditions for possessing a weapon; they do with felony possession, age limits, and mental health status.

    I think the SC will very narrowly decide the NY case whether the denial of the request to conceal carry was legitimate or not – and only in this particular case.

    They won’t deny NY’s authority to set conditions.

    1. The thing is, we’re talking about a right here, not a privilege. Deciding that somebody can’t exercise it is a denial of the right, and so ought to rightfully require the same “conditions” that any other rights deprivation does: Conviction in a criminal trial with the right to trial by jury.

      That’s the fundamental problem right now: A large part of the judiciary are committed to NOT treating the 2nd amendment as guaranteeing a genuine right, to treating it instead as though it were a privilege.

      And that’s the problem with concealed carry licenses: Rights are precisely defined by the fact that you don’t need license, permission, to exercise them.

      1. Rights are not absolute and there will ALWAYS be limitations.

        You can ball your fists and stamp your feet and say that’s unfair but it is reality.

        The question is where to set those limitations and both fortunately and unfortunately those limitations will always be in flux based on society’s general mood.

        1. So apedad….I suppose you would not have a problem with states limiting your rights under the 4th, 5th, 6th, and 14th amendments, right? Because “unfortunately those limitations will always be in flux based on society’s general mood”.

          I get what you’re saying, but I am not comfortable as a citizen with how much a state (or Feds) can limit our enumerated rights ‘just because’. If we follow your line of reasoning, I struggle to see where it ends? What is the bright line that says, ‘this much, and no further’?

          1. Right and that’s why I said fortunately/unfortunately.

            It’s not comfortable and democracy (if healthy) shouldn’t be comfortable.

            It’s confrontational (checks and balances, confront witnesses, freedom of speech, etc.).

            But that means it’s also fluid and we will move a little to the right and a little to the left (Bush, Clinton, Bush, Obama, Trump, Biden).

            It’s all good – just uncomfortable.

            1. Thanks for the response….have yourself a great weekend, sir.

        2. That’s exactly it: I don’t need the government’s permission to ball my fists and stamp my feet, and say that’s unfair, because freedom of speech is a RIGHT.

          I don’t need the government’s permission to be a Catholic, and attend mass, because freedom of religion is a RIGHT.

          Whatever the parameters of a right, the defining characteristic of rights is that you don’t need permission to exercise them.

          Requiring a license to exercise the right to keep and bear arms is treating it as a privilege, not a right.

          You can ball your fists, and stamp your feet, and shout “Rights are not absolute!” to the heavens, and that won’t change.

          1. But you can’t use your religion to sacrifice a child.

            1. That’s right: Rights have limits, but, so long as you’re operating within those limits, you don’t need permission to exercise the right. And generally excursions from those limits are punished after the fact, not regulated before hand.

              Freedom of speech isn’t freedom to libel, but the government doesn’t get to review and pass on your speech in advance to make sure you’re not libeling.

              1. “And generally excursions from those limits are punished after the fact, not regulated before hand.”

                But the limits have to be set, i.e. regulated before hand.

                1. Right, but if “carry” is found to be part of the right, then people have to be allowed to do it without obtaining a license and paying a fee to do so, just like you don’t have to obtain a non-libelous speech license to speak. You just get punished after the fact if you’re found to have committed libel.

                  Rights and licenses don’t mix.

                  1. Sigh….

                    Rights are not absolute and there will ALWAYS be limitations.

                    1. And nothing I’m saying here denies that.

                      It’s just a question of whether the limitations are applied prospectively, by controlling all exercise to bar wrongful exercise, or retrospectively, by punishing wrongful exercise once it is identified.

                      I’m saying that “rights” demand the latter approach, only privileges get the former approach.

              2. Ape, you’re missing the point. Nobody needs permission to speak, but certain speech can be punished after the fact. Nobody should need permission to carry or use a gun, but certain uses of a gun can be punished after the fact.

            2. Planned Parenthood disagrees.

          2. I agree with Brett. If the government wants certain people to not be allowed to have a gun, then they should direct their enforcement efforts at those people, and leave the rest of us alone. In this day and age of lightning fast communication and databases, the police and other law enforcement and courts and deal with “not allowed,” rather than making all others get a license to exercise a retained right.

            1. But how do they know you’re not a felon when you wish to purchase a weapon?

              You need to be approved.

              1. How do they know you’re not a convicted forger when you wish to purchase paper?

                This is one of the reasons I think convicted felons should be restored ALL their rights on completing their sentences: Because the effort to deny them those rights while they’re out of prison gives the government an excuse to limit them for the rest of us.

                But, let’s suppose, just hypothetically, that you wanted to prevent convicted felons from legally buying guns, only without inconveniencing the law abiding. Suppose you instead thought all the inconvenience should fall on the felons. Is requiring background checks on everybody how you’d do it?

                No, you’d require the felons to be easily identifiable. Mandate that they wear a distinctive wrist band or collar until their rights were restored, with a hefty penalty for removing it.

                It’s an easy thing to do, if you don’t regard inconveniencing the law abiding gun owner as a benefit, rather than cost.

                1. “How do they know you’re not a convicted forger when you wish to purchase paper?”

                  That’s weak.

                  There’s no law saying forgers can’t have paper.

                  There is a law saying felons can’t possess weapons.

                  1. OK, fine, how do you know somebody’s not a convicted pedophile when they rent that room next to the elementary school? Is it that government background check that’s required for all rentals?

                    How, in general, do we make sure that people who are doing regular things that might be prohibited them as a term of parole or part of a criminal sentence, are not so prohibited? By requiring everybody doing anything that a felon might be ordered not to do, to be checked against a government data base? Do we check people’s papers as they leave cities, to catch anyone who might be under an order to remain in the area pending a trial?

                    No, we don’t do stupid stuff like that, for basically anything except guns, because the right to keep and bear arms is the only enumerated right in the Constitution that a substantial faction in government wants to abolish, and seizes upon every opportunity to inconvenience.

                    1. Thank you for balling your fists and stamping your feet.

                    2. Thank you for demonstrating that you don’t like there being such a thing as “rights”.

                    3. “OK, fine, how do you know somebody’s not a convicted pedophile when they rent that room next to the elementary school?”

                      Hasn’t every state now put their sex offender list on line?

                      I have problems with that, but if I were renting, I’d definitely check.

                    4. The convicted sex offender is required to inform the authorities of his place of residence. That is where the check occurs. The compliance burden is not placed on the landlord.

        3. Rights are not absolute and there will ALWAYS be limitations.

          I get that rights are utterly inconvenient to those narcissists who are always sure they have a better way that they can force others to live, but the absolute nature of rights is pretty much what makes them rights. At the point that Locke initially formalized and pondered “rights”, the question of the day was “God gives the right to rule to the king. What is the set of things that the king cannot order or compel ?” These are things so fundamental that even the orders of the king backed by God himself may be morally disregarded.

          Rights are absolute. That is really the point. From Locke’s point of view they are things a government absolutely may not do and remain legitimate. Postmodern progressives may try and set themselves in God’s seat and argue that their current self-righteous whim should be made law because they best know how to order the universe, but no amount of double talk or sarcastrian sophistry is going to change the moral calculus.

        4. Of course there are always limitations.

          It is just sad that those limitations are not squarely put on actual harms caused, and instead are placed on “might cause harm”. Consider that not a single able bodied person ISN’T capable of “might cause harm”. Where is the line? The 4th Amendment demands evidence of a crime, not evidence that someone is exercising a right.

  6. Peruda v San deigo

    wasnt part of the en banc CA9 ruling that not permitting the concealed carry was okay since Peruda could have gotten an open carry license, even though open carry license are almost never granted?

    1. Tom for equal rights – Peruta could not have obtained an Open Carry license. There are no licenses to openly carry a long gun available to the general public, and the only licenses to openly carry a handgun available to the general public can only be issued in a county with a population of fewer than 200,000 people and are only valid in the county in which they are issued.

      Peruta’s mistake was to not challenge the those restrictions on handgun Open Carry licenses and to not challenge the 1967 California statute prohibiting him from openly carrying loaded handguns, rifles, and shotguns for the purpose of lawful self-defense.

  7. 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?

    1. If you’re so sure of yourself, why are you limiting it to Josh?

      1. Professor Blackman specifically keeps claiming that court packing is imminent, even though I suspect he knows that’s untrue. Given that he is a prominent legal commentator, his irresponsibility is much more important than random internet commenters.

        1. It’s a prediction, technically it can’t be “untrue” except retrospectively.

          I think Court packing is moderately unlikely, given the Democrats’ razor sharp 50+VP majority in the Senate. But if they go to the trouble of getting rid of the filibuster, I’ll move it up to “more likely than not”.

          1. I keep thinking that they will implode. To many potential problems that they are ignoring. Too many questionable people they are hiring.

            Rachael Rollins for MA USA?

            She’s on video threatening to fabricate charges against a TV reporter (whose own camera recorded this). The woman has an anger management issue, but of all the stupid things she could have said…

            Today it comes out that she won the DA seat because of a so-called “WAKANDA initiative” that forced the other Black DA candidates to drop out.

            And this is just one USA. They’ve nominated (by my count) two flagrant antisemites and heaven only knows what else.

        2. “Irresponsibility?” Get a hold of yourself! By the way, look in the mirror: you are a random internet commenter, too.

  8. Just a nit, and maybe it’s just me, but reading Josh’s term “conceal carry” is like fingernails on the blackboard. I use the term “concealed carry,” “concealed” being an adjective. Anyone else annoyed by this?

    1. I guess my eyes just slid right over it. Until you pointed it out. If it had just been once, I’d have assumed it was a typo.

      It’s “concealed” carry, “concealed” is, however, not an adjective. It’s an adverb. Adjectives modify nouns, and carry is a verb.

      1. Ah, indeed so. Not enough coffee yet.

      2. But “carry” is not a verb the way Blackman is using it in many of his sentences. We know what part of speech a word is by looking at its role within actual sentences, clauses, and phrases, not by looking it up in a dictionary. Let’s go back to the transcript:

        “Specifically, can New York prohibit conceal carry if it permits open carry?”

        Here, “carry” in both instances is a noun, not a verb. It is functioning as the direct object of a verb: “prohibit” in the first use, “permits” in the second. “Open” and “conceal” which modify it are adjectives.

        “The Court then says the record for conceal carry [object of preposition] is mixed. Finally, the Court holds that at a minimum, states must allow open carry [direct object]. But if they ban open carry [direct object], there must be some alternative: conceal carry [predicate nominative]. Therefore, states cannot ban both open carry [direct object] and conceal carry [direct object].”

        Again, every single use of “carry” is nominal–it’s a noun. I have inserted the grammatical function in brackets.

        Let’s go on:

        “Then, the Aloha and Empire states have difficult choices: allow open carry [direct object], or allow conceal carry [direct object].”

        Now we have a change to -ing forms, but these are participial adjectives: “What do you think blue states would prefer? People openly packing heat? Or people conceal carrying [participial adjective modifying people]?”

        In this one instance, “conceal” might be analyzed as an adverb; note the parallelism with “openly.”

        1. It’s concealed carry, not conceal carry. I can’t believe you’re making such a thesis of this.

  9. ” . . . but it might be necessary for the Court to figure it out if the right to concealed carry depends in part on the availability of the right to open-carry.”

    What is necessary is for the court to decide if “shall not be infringed” means “shall not be infringed”.

    1. Alas, they’ve already decided it doesn’t, and are unlikely to revisit that decision. They’re only debating how much infringement will be permitted, with the argument being between the “completely” faction and the “just mostly” faction.

    2. Once and for all the court needs to declare that the 2A is indeed a right of the People and can not be infringed. This is why I hate the law profession. Unfortunately it is made up of very smart and unscrupulous people using disingenuous arguments to their arrive at their preferred conclusion.

  10. Once I read that you think there will be 39 SCOTUS justices I stopped reading any further.

    I can get crackpot bullshit just about anywhere. I don’t need it from a try-hard ‘law professor.’

    1. if you read further it is a 100 year prediction based off some model after starting down this slippery slope

    2. That is pretty stupid. There’s no second round of packing, there’s no tit for tat. The whole point of Court packing is to exit the normal back and forth of politics.

      You don’t pack the Court in the expectation that you might lose a future election, and somebody might do it to you. You pack the Court to clear the way for doing things that will make sure you never lose those future elections!

      It’s like trying to dissuade somebody from shooting you by saying, “You shoot me, I shoot you, you shoot me, pretty soon we’ll both be walking around with hundreds of bullets in us.” He’s just going to shoot you dead and then ask your corpse, “Feel like shooting me now? It’s your turn!”

    3. If you can’t understand that there is a bit of hyperbole and joking, especially with the allusions to the Marvel movies, I feel sorry for you.

  11. NY tries moot the case by sending the plaintiffs valid permits in 3…2…1…

  12. In a practical, real world, sense, restrictive states would welcome the opportunity to only allow open carry. They would simply allow private businesses to ban it, and trespass people who refuse to leave and charge them with a gun crime. Instant chilling effect.

    Those states don’t have the potential numbers for enough people to take the social risk of revealing being armed to friends, neighbors, or co-workers to effectively boycott the private businesses, nor force a change in the law at the ballot box. “OC only” is a dead-end for enabling actual self-defense regular carry.

    End result would be you can open carry in public outside “sensitive places,” but not at the private businesses, stores, theatres, restaurants, etc, etc you go to every day. So, no carry for people using public transport, as nowhere to secure the weapon when inside the store. If you drive, no way to defend yourself to the store, in the store, and back from the store to your car. It creates an unavoidable increased risk of accident due to repeated forced handling to secure/re-don the gun in the car prior and after return, and an inevitable increase in guns stolen from vehicles.

    Which sets aside the practical elements that a criminal cannot target you to steal what they don’t see, a concealed firearm, versus what they can, like an OC’d pistol. And all the carrier needs to do is lose perfect self-awareness for one second, the criminal has all day.

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