Guns, Terms, and Deals

Deciding NYS Rifle & Pistol and Dobbs in the same term.

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:

1. The Court holds that Mississippi cannot prohibit 15-week abortions, and New York can deny carry licenses to law-abiding citizens.
2. The Court holds the Mississippi can prohibit 15-week abortions, and New York can deny carry licenses to law-abiding citizens.
3. The Court holds that Mississippi cannot prohibit 15-week abortions, and New York cannot deny carry licenses to law-abiding citizens.
4. 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.

Comments

[Sebastian Cremmington]

Do Republicans really believe school zones are unconstitutional?? That President George HW Bush, whose son won the governorship two years later after he signed the legislation, signed legislation that violated the 2A?? History and tradition say guns outside the home have been regularly regulated by people that hold themselves out as pro-2A!! A city like NYC can regulate the guns outside the home to such a degree the right exists in name only.

Furthermore, NYC can make it illegal to discharge a gun within a certain distance from a school…so even if someone has the right to carry it NYC could make it illegal to discharge the gun even in a case of self defense because the city could deem it reckless endangerment to discharge a gun near a school.

[Jason Cavanaugh]

"Furthermore, NYC can make it illegal to discharge a gun within a certain distance from a school…so even if someone has the right to carry it NYC could make it illegal to discharge the gun even in a case of self defense because the city could deem it reckless endangerment to discharge a gun near a school."

Indeed, someone like you could conjure up a whole host of things that NYC might attempt to make illegal - and seemingly most of your ideas are not in fact constitutional.

So while they might attempt those things, they would be struck down by the courts.

[Brett Bellmore]

"Do Republicans really believe school zones are unconstitutional??"

Absolutely. Categorically unconstitutional.

"Furthermore, NYC can make it illegal to discharge a gun within a certain distance from a school"

And analyze the positions of schools within the city, to make sure that 'certain distance' encompasses the entire city?

NYC covers 303 square miles, and has over 1,400 schools. A 'school zone' would not have to be very large for them to overlap.

The fact is, you don't get to take constitutional rights away from people by building a school near their home.

[Rev. Arthur L. Kirkland]

" The fact is, you don't get to take constitutional rights away from people by building a school near their home. "

Unqualified assertions about fact and law from chemical-addled, autistic, backwater clingers are among my favorite features of the White, male, conservative Volokh Conspiracy.

[Smith_FT_MI]

Brett is wholly correct that a Federal restriction of this type is unconstitutional. It unduly restricts the RKBA by imposing a restriction that fails to consider innumerable local conditions.

For example, my direct route to my local village - necessary for post office business, banking, shopping, and church attendance - is contiguous to a school zone; the school parking lot is less than 10' and the school building is less than 125' from the road. If I wanted to comply w/ it by not carrying in my auto despite by CPL, I would have to use the shortest alternative route that would convert an 8 mile trip into a 24 mile trip. Talk about infringement!

Brett's examples provide other illustrations. The school zone restriction thus is just one more instance of excessive Federal regulation.

[Sebastian Cremmington]

When history and tradition play a factor I can’t understand how legislation signed by a pro-2A president from Texas …whose son gets elected governor in Texas running primarily on a pro-2A platform 2 years later…how that legislation can be deemed unconstitutional for violating the 2A?? Especially when the Supreme Court had a case that specifically dealt with the legislation!?! Lopez!!

[Smith_FT_MI]

It was proposed during oral argument yesterday that one first looks to the text and if this provides the answer, then one stops. If it doesn't provide the answer, then one looks to history and tradition. The "history and tradition" here is short indeed, particularly since by the decision of SCOTUS it came to a screeching halt. Rather the Court in effect indicated it was novel and thus was not imbued with any tradition.

I of course acknowledge that the Second Amendment was never addressed by SCOTUS in Lopez. However this means that Lopez did not hold that the statute didn't violate it.

I do think though that the signing statement of Bush I, viz,
"Most egregiously, section [922(q)] inappropriately overrides legitimate State firearms laws with a new and unnecessary Federal law. The policies reflected in these provisions could legitimately be adopted by the States, but they should not be imposed upon the States by the Congress"
was appropriate and correct. In this sense the 10th Amendment might be more dispositive, as circumstances vary (as alluded to by my example in my post).

[Sebastian Cremmington]

Wow, so Bush explicitly endorsed these exact same laws just at the state level. So do you believe Bush didn’t understand incorporation doctrine? Or in the alternative do you believe Bush believed the 2A was merely a federalism provision??

So Bush clearly takes my position in that a right to bear arms outside the home exists…but a city like NYC could use school zones to make it effectively illegal to bear arms outside the home and it would stand constitutional scrutiny.

[Smith_FT_MI]

I would say that Bush I agreed that the States had the authority to enact similar laws. I also would agree that they have the right to do so. However, I don't know that he necessarily endorsed such a restriction as there may well have been other provisions in the statute that he considered important enough to avoid exercising a veto.

The State level, or better the Local level, is the more appropriate one as they can better consider unique circumstances in order to possibly provide exceptions to its application. Assuming they would exercise their discretion in doing so, then it normally should pass constitutional muster.

In your scenario if numerous school zones were established in order to service the population size and density then it would seem that this could well justify firearm restrictions; inhabitants worried about their safety and inability to defend themselves could just "pack up and move". However, I would say it would be improper to form excessive school zones as a subterfuge for justification of these restrictions.

[Brett Bellmore]

"I do think though that the signing statement of Bush "

I do, to. I think, "Then why did you sign it, you rat-bastard?"

[santamonica811]

"...Likewise, abortion restrictions are far more important to conservatives than are gun rights..."

Is this true? I mean, it might be true. Restricting a women's control over her own body (pro-choice perspective) or protecting the life of the unborn (pro-life perspective), is indeed SUPER important to conservatives, and is sometimes the one issue a conservative voter will look at. But it's my sense that guns are just as important and just as likely to appeal to a single-issue conservative voter.

But that's just a guess on my part. Had actual research been done on this...on the relative importance of guns vs abortion to conservative/Republican voters? I'd imagine that it *must* have been studied before--it would be political malpractice not to track the most important issues for a significant segment of your target audience.

[Kazinski]

It’s not true for this conservative, but I’m a liberatarian leaning conservative. However I think 15-20 weeks is reasonable, in fact it’s the law in most of Europe.

[Armchair Lawyer]

France is a good example. The law there is 12 weeks, unless there's "grave permanent injury to the physical or mental health of the pregnant woman; a risk to the life of the pregnant woman; or that the child will suffer from a particularly severe illness recognized as incurable"

[Bubba Jones]

The Texas law is structured so that SCOTUS could say it's unconstitutional to restrict abortion prior to 12 weeks, and the SB8 becomes enforceable post 12 weeks. Or 15 weeks. Or 20 weeks.

[RoninX]

I can imagine Scenario #3 with a very limited definition of sensitive places that would prevent NYC from effectively nullifying carry rights.

Imagine a SCOTUS decision that says that people must be allowed to carry guns in every public place where the government does not require every person to be searched by law enforcement officers before entry. So, the state could restrict carrying guns in courthouses, airports, and possibly schools and sports arenas, but not on public sidewalks, subways, restaurants, or college campuses.

Of course, private businesses and educational institutions would always be free to make their own rules.

That said, I think Scenario #4 is the most likely, but with a narrower decision than a complete reversal of Roe. For example, SCOTUS could rule that second trimester bans on abortion do not "unduly burden" a woman's right to an abortion, thus upholding the Mississippi law, but leaving the question open about the Texas law and other "heartbeat bills".

[Michael P]

Tangential question: What about bars? Can state or local governments prohibit possession of weapons in places that primarily serve alcohol? If generally no, can they ban people who consume alcohol in bars (and/or restaurants more broadly) from carrying weapons?

[Brett Bellmore]

How about flipping that last around: Ban consumption of alcohol by people while they are armed? Because that seems to get the order of events correct more often.

[Smith_FT_MI]

The question really isn't tangential as "gun free zones" and "sensitive places" were not only addressed in oral argument but are integral to the regimes governing the bearing issue, at least in the concealed carry context.

It might assist in considering this question, at least in the context of the comments of Michael and Brett, to refer to the following provisions of the Michigan Compiled Laws:
"(1) ... an individual licensed under this act to carry a concealed pistol... shall not carry a concealed pistol on the premises of any of the following:
...
(d) A bar or tavern licensed under the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1101 to 436.2303, where the primary source of income of the business is the sale of alcoholic liquor by the glass and consumed on the premises." MCL28.425o(1)
...
"An individual shall not carry a concealed pistol ... while he or she is under the influence of alcoholic liquor or a controlled substance or while having a bodily alcohol content prohibited under this section." MCl 28.425k(2)
The succeeding sections prescribe the sanctions of revocation or suspension depending upon the respective bodily alcohol content.

However it is also provided:
"This section does not prohibit an individual licensed under this act to carry a concealed pistol who has any bodily alcohol content from doing any of the following:
(a) Transporting that pistol in the locked trunk of his or her motor vehicle or another motor vehicle in which he or she is a passenger or, if the vehicle does not have a trunk, from transporting that pistol unloaded in a locked compartment or container that is separated from the ammunition for that pistol.
(b) Transporting that pistol on a vessel if the pistol is transported unloaded in a locked compartment or container that is separated from the ammunition for that pistol." (Emphasis supplied.) MCL 28.425k(3)

I consider these restrictions to be acceptable, even under a Strict Scrutiny standard. They also demonstrate that certain States are capable of crafting particularized requirements that are not unduly burdensome and thus do not infringe the RKBA.

[Brett Bellmore]

The states have more than a fig leaf of constitutional authority in this area, having the general police power that the federal government was deliberately denied.

My only complaint with the Michigan statute is that it really should only apply to people who are actually drinking. It's not like a bartender, for instance, is a risk for packing heat drunk, just on account of working at a bar. And I've been in bars often enough without the slightest intention of drinking; Just because a place makes half it's money selling booze doesn't mean that people don't stop to use the bathroom, and buy a coke along the way to be considered a customer. For that matter, the last funeral wake I was at was in the deceased' favorite bar, and that I was paying respects to my dead aunt didn't imply I meant to drink.

[Nisiiko]

Agreed, but I can see why they have that rule, as they don't want to have to prove someone in a bar was drinking.

[Smith_FT_MI]

Agreed, plus the fact that a hazardous situation could result, due to aggression by the drinking of the other patrons, from a firearm in the mix (even though held by a sober patron).

The answer I suppose then is to have a lockbox under the driver's seat, as I do - even though I have never bothered in this situation to frequent a non-restaurant establishment so as to have to use it.

[Brett Bellmore]

Yeah, there are all sorts of things it inconveniences the government to prove when they're prosecuting people. I weep bitter tears over it.

[Charles Nichols - CRTC]

Young v. Hawaii will become moot if Hawaii gives him his permit.

[Doug Heffernan]

In order for an outright win for conservatives to be entirely complete, scotus should also take up qualified immunity in order to strengthen it.

Many police already have scratchy trigger fingers at the current rate of public carry. When the rate of public carry increases, the police need to be confident that they can blow away people who put them in fear for their lives because such people might be carrying. The confidence of police would be increased with surety that no ruinous civil suit could be possible.

Like Roe, qualified immunity, from its birth, had no grounding in the Constitution. None. Both are entirely judicially created rights.

So, if Roe is jettisoned, but qualified immunity is kept and made stronger, the outright win for conservatives would be all the more delicious.

https://apnews.com/article/police-laws-gun-politics-41ba4360548ddc25672c797cd024af98

[Krayt]

Next stop: re-outlawing contraception

[David Nieporent]

The careful reader will note that this entire post from Prof. Blackman is entirely fact free. 100%, in every respect. There is no evidence of any such "deal," no evidence Roberts (or any other justice) is considering or would ever consider any such deal. It's just JB saying, "Hey, look at me" yet again.

[Jett's Pop]

And was there really a "deal reached with the Medicaid expansion portion of Florida v. HHS and the individual mandate challenge in NFIB v. Sebelius" Between who and whom? Roberts and himself?

[John F. Carr]

To become a good writer you must write.

[Rev. Arthur L. Kirkland]

" There is no evidence of any such "deal," "

I have read more than one recent account -- including, perhaps, at least one at the Volokh Conspiracy, and at least once directly sourced to a current Supreme Court Justice -- indicating that vote-trading does not occur at the Supreme Court.

Perhaps one of the other Conspirators might help to illuminate this point?

[dwb68]

Compromise requires leverage and Roberts does not have any in NYSRPA.

[Rev. Arthur L. Kirkland]

At some point, he could advocate enlargement of the Court (joining the winning side of the argument, accelerating the improvement, and moving to the right side of history). . .

[DavidWH]

If Roberts joins the second amendment side, then he can assign writing the decision to himself to minimize its effect. What happens if the other 5 justices disagree with him?

[Longtobefree]

What the constitution says about keeping and bearing arms: Shall not be infringed.
What the constitution says about abortion:

[santamonica811]

re First Amendment: "Congress SHALL pass NO law..."

And yet, it does. All the time. Banning child porn (a good law, IMO), laws banning falsely shouting "fire!" in a crowded theater, laws banning espionage, etc etc etc. All in spite of the absolutely unambiguous "shall pass no law."

At least the 2nd Amendment has this other "militia" clause to muddy things up. Man, you must be pissed about Congress passing all these laws that attempt to stop kiddie porn, extortion, spying, etc.. I look forward to your diatribes on this outrages.

[tkamenick]

Considering that neither carrying concealed nor carrying open ACTUALLY hurts anybody in any way, I see zero reason the government should have any say in how people bear their arms.

[Rev. Arthur L. Kirkland]

Another wingnut vote for the right to carry glass vials containing anthrax, ebola, smallpox, and other dangerous materials, because, obviously and ACTUALLY, until the pathogen is released . . . no, make that until the agent causes disease or death . . . no harm occurs.

Also, drunken driving charges, prosecutions, and convictions are ridiculous and an outrage against sovereign citizenry until the moment a bumper strikes a pedestrian!

Carry on, gun nuts and other disaffected clingers.

[John F. Carr]

What makes something a sensitive place? Is it a place where you don't want people to be shot as distinguished from a place where you do want people to be shot? A place with important people like judges and politicians? I don't see what makes a college campus special. I can see that a courtroom might be special based on the combination of (1) a greater than usual attraction for violent nutjobs out for revenge, and (2) security that might protect innocent bystanders from violent nutjobs out for revenge. But if they let G. Gordon Liddy into court with a gun I think they should let me in, at least if I can prove I'm as good a shot as Alec Baldwin and have better judgment about when to pull the trigger.

[Nisiiko]

I personally don't think anything is "sensitive" to the extent that they should be allowed to prohibit carry, unless there is armed security, metal detectors and bag inspections, and one way in and one way out

[fafalone]

"Scenario #1 would be an outright win for progressives:"

I take objection to this. Moderate and neoliberal Democrats are far more supportive of gun control. Recall the phrase "If you go far enough left you get your guns back.". Progressives are quite split on this issue, but on progressive forums, support for gun rights seems to be the most popular position.

Of course, that requires acknowledging progressives aren't the monolithic reactionary caricature depicted by Fox News, and Josh can't handle that.

[Nisiiko]

Cut the crap. The Democrat Party, as a whole, is united behind gun control.

[Bubba Jones]

The open versus concealed argument is disingenuous.

California showed the way with one law that banned open carry and one law that banned concealed carry. So each one separately was constitutional.

It seems perfectly reasonable for SCOTUS to allow NY to choose whether to allow open or concealed so long as they allow one of them.

[Nisiiko]

Not to mention that they used the fact that unloaded open carry was legal as justification for their concealed carry ban, and then promptly made open carry even unloaded illegal.

[HumanEvents]

If lack of open carry would be a factor in the Hawaii case, then why wouldn't it also be a factor here? NY does not allow open carry.

[Charles Nichols - CRTC]

"I think most states, if forced to grant open-carry licenses, will suddenly realize that conceal-carry licenses are better policy." --Josh Blackman

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon." People v. Mitchell, 209 Cal. App. 4th 1364 (2012) at 1371.

In the unlikely event that SCOTUS says states get to choose between concealed and Open Carry, the California Supreme Court has already held that Article I, Section 1 of the California bill of rights protects the right to keep and bear long guns, and if one is a person prohibited from possessing handguns then the prohibited person has a limited right to bear a handgun once he, or a person he is protecting, faces serious bodily injury (or worse).

Possession of a firearm, including handguns, according to the California Supreme Court is an innocent act until one carries the handgun concealed.

The California courts have long held that under the California Constitution, concealed carry is a crime of moral turpitude.

Now, the People of California are free to amend their constitution but even a first-year law student should know that laws passed by the California legislature that conflict with the California Constitution are invalid.

And if you truly believe that the California voters are going to pass a Constitutional amendment that makes concealed carry a state constitutional right then let me remind you that drug addicts and the mentally ill are prohibited by Federal law from possessing firearms.