Some Curiosities In SCOTUS's New Carry Case

We covered the Supreme Court’s decision to grant cert in a case challenging New York’s concealed carry licensing laws on yesterday’s Bearing Arms’ Cam & Co, speaking with the New York State Rifle & Pistol Association’s Tom King. There’s so much to talk about, however, that we’re spending some more time on the case on today’s program, where I’m joined by the Heritage Foundation’s Amy Swearer to discuss some of the more curious aspects of the Court’s decision.

For one thing, what took the Court so long? NYSPRA v. Corlett was re-listed and re-heard in conference for several weeks, which is not exactly unusual, but still indicates that there were some unresolved issues among the nine justices. Swearer says that one possibility is that the more conservative wing of the Court may have been trying to win over one or more of the progressive justices like Elena Kagan, which might also explain another mystery surrounding the Supreme Court’s announcement.

When SCOTUS granted cert, it noted that the question it would try to answer differs slightly from the original question posed by the plaintiffs.

The Court says it will decide “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment,” as opposed to the plaintiff’s question: “whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

Of course, the Court also squarely rejected New York’s proposed question, which was “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.”

We don’t know exactly why the Court tweaked the language of the question, but Swearer pointed to this piece by law professor Josh Blackman at Reason that goes through some of the possibilities. Blackman’s conclusion?

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.”

In an addendum, Blackman noted that the original question posed by the plaintiffs in Heller was also changed by the Court when it granted cert, so it may be that we’re all reading a little too much into this.

Still, Swearer says she understands why many Second Amendment supporters are skeptical that the Supreme Court is going to deliver the kind of judicial smackdown to New York that we’re hoping to see. It’s been 13 years since the Heller decision was handed down, and since then the Court has generally shied away from even hearing a challenge to a state or federal gun control law. The addition of Justice Amy Coney Barrett to the bench may have changed the calculus in terms of accepting cases, but we’re going to have to wait to see what kind of impact she and other fairly new justices like Brett Kavanaugh and Neil Gorsuch will have on the actual opinion.

In the meantime, more Second Amendment challenges are pending before the Supreme Court, including a case taking on the state of New Jersey’s ban on ammunition magazines that can hold more than ten rounds that was just filed yesterday. If there really are at least five justices who are serious about curtailing the abuses of the right to keep and bear arms that we’ve seen in the 13 years since Heller, this case would be an ideal vehicle to re-iterate the Court’s previous instruction that arms that are in common use for a variety of lawful purposes are protected by the Second Amendment. Like Blackman, I’m glad that the Court has granted cert in the New York carry case, but I know there’s a lot more work for the Court to do to secure our Second Amendment rights.

Aug 03, 2021 9:30 PM ET
Aug 03, 2021 4:30 PM ET