The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Supreme Court cases are not decided in a vacuum. In a single Term, the outcome of one decision may affect the outcome in another decision. And we know all too well that the Justices sometimes may make deals: the votes in one case may be swapped for the votes in another case. For example, the deal reached with the Medicaid expansion portion of Florida v. HHS and the individual mandate challenge in NFIB v. Sebelius.
This term presents two significant decisions on abortions and guns. The outcomes in Dobbs and NYS Rifle will invariably be decided in tandem–perhaps even on the last day of the Term. Consider four scenarios:
- The Court holds that Mississippi cannot prohibit 15-week abortions, and New York can deny carry licenses to law-abiding citizens.
- The Court holds the Mississippi can prohibit 15-week abortions, and New York can deny carry licenses to law-abiding citizens.
- The Court holds that Mississippi cannot prohibit 15-week abortions, and New York cannot deny carry licenses to law-abiding citizens.
- The Court holds that the Mississippi can prohibit 15-week abortions, and New York cannot deny carry licenses to law-abiding citizens.
Scenario #1 would be an outright win for progressives: Roe survives, and Heller is limited to the home. Mississippi cannot regulate abortion, but New York can regulate guns. This first scenario would present a tension: the Court robustly enforces the unenumerated right to abortion, but exercises restraint with respect to the Second Amendment. Of course, upholding Roe would be spun as act of judicial restraint. Yet another epicycle.
Scenario #2 would be a mixed bag: Roe is curtailed, but Heller is limited to the home. Mississippi can regulate abortion, and New York can regulate guns. This move is the sort of Robertsian compromise we have come to expect. The right gets something (power to regulate abortion) and the left gets something (power to regulate guns). But I doubt the left would take this deal. Abortion rights are far more important to progressives than gun control laws are to conservatives. I think if given the deal, most liberals would gladly require blue states to issue heavily-restricted carry permits, if it meant that red states could not prohibit abortions. Likewise, abortion restrictions are far more important to conservatives than are gun rights. I think if given the deal, most conservatives would gladly let blue states regulate guns if it meant that red states could prohibit abortions. The Firearms Policy Coalition should be commended for filing its principled amicus brief, but those views are outliers on the right. Liberals would much more prefer the deal in the third scenario.
Scenario #3 would be a different mixed bag: Roe survives, but Heller is extended. Mississippi cannot regulate abortion, and New York cannot regulate guns. This move is another Robertsian compromise. The left gets something (abortion rights) and the right gets something (gun rights). But what the right receives will be nominal. New York will still make it functionally impossible to carry a firearm. Virtually every location will be deemed a "sensitive place." Good luck carrying on NYU's purple-flagged campus in Greenwich Village. Scenario #3 is a bad deal for conservatives. If Heller is limited to the home, the conservative legal movement will grouse, but if Roe is upheld by a 6-3 vote, there will be a foundational shift in our movement.
Scenario #4 would be an outright win for conservatives: Roe is curtailed, but Heller is extended. Mississippi can regulate abortion, and New York cannot regulate guns. With a 6-3 conservative Court, Scenario #4 would be a slam dunk. But I am doubtful conservatives get both victories.
After listening to oral argument today, I don't have a strong sense of where the Court will go. Heller was easy because there was an absolute prohibition. New York's discretionary regime is much tougher to assess in its entirety. Further complicating the issue is history: an open-carry right is far easier to defend than a conceal-carry right. Indeed, Justice Kagan already tipped her hand that the history in favor of open carry is stronger.
JUSTICE KAGAN: I mean, the history seems very clear to me that it's sort of like the exact opposite of how we think about it now, in other words, that there are lots of places that wanted people to display their arms as a matter of transparency, and what they prohibited was the concealed carry. So I'm thinking, like, if you look to the history, you end up with a completely different set of rules from the ones that you're suggesting with respect to concealed versus open.
I think the most likely outcome is the Court punts: the Second Amendment protects some type of right to bear arms outside the home, but due to uncertainties about New York's regime, a remand is warranted. At that point, the Court can wash its hands of actually deciding if the New York regime is valid. And, in the interim, New York can continue to enforce its gun regime for the foreseeable future. Maybe in two or three years, the Court takes up the case again. Or it simply denies cert.
After listening today to arguments, I wonder if a ban on open carry would present an alternate vehicle. Hawaii v. Young, which presents that question, is on deck. It was distributed for conference on 9/27/21. The Court could still grant it, and argue it in March. (I flagged this possibility last April). I think most states, if forced to grant open-carry licenses, will suddenly realize that conceal-carry licenses are better policy.