The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.