Bruen: What We’re Watching For in Oral Arguments
By Duke Center for Firearms Law on November 1, 2021
Categories: Scholarship, Second Amendment, Supreme Court
When the Supreme Court granted review in New York State Rifle & Pistol Association v. Bruen this past April, Jake wrote about the basic contours of the case and the stakes it holds for the future of gun regulation. Now that we’re on the eve of oral arguments in the case, scheduled for Wednesday, November 3, this post includes what we’ll be watching and listening for in those arguments.
To briefly recap, the case centers on the constitutionality of New York’s requirement than an individual who seeks a permit to carry a handgun concealed for self-defense show “proper cause.” The challengers argue that this requirement violates the Second Amendment because it makes their right to carry in public contingent on a discretionary showing of need beyond a generalized desire to carry for self-defense. The state supports its law with history—both the specific history of this 108-year old law and the general history of commonplace good cause requirements for public carry—and empirical evidence of contemporary costs and benefits.
Three different lawyers will argue before the Court on Wednesday morning. First, Paul Clement will argue for 35 minutes on behalf of the challengers: the state NRA affiliate and two individuals who were denied unrestricted carry licenses. Next, Barbara Underwood, the New York Solicitor General, will argue for 20 minutes defending the state’s law. Then, Brian Fletcher, the Principal Deputy Solicitor General, will argue for 15 minutes on behalf of the United States in support of the state.
Here’s what we’re going to keep our ears out for during Wednesday’s argument:
- The Trump-Appointed Justices: President Trump’s three nominees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—supplied some clues about their views on the Second Amendment’s scope in other cases. Justices Kavanaugh and Barrett both issued major decisions as circuit judges, but neither of those cases concerned laws like the one at issue here. In 2017, Justice Gorsuch joined a dissent of Justice Thomas’s that faulted the Supreme Court for declining to hear a challenge to California’s similar good cause licensing law, but that opinion did not clearly signal his views of the constitutionality of such a law. These three may not be together on every issue, but as a strongly conservative voting bloc, their questioning during the case could indicate both how they will rule and whether they will use a strict text, history and tradition approach, or a more conventional two-part framework approach. (Full disclosure: Joseph and Darrell filed an amicus brief in Bruen in support of neither party arguing that the Court should keep the two-part framework.)
- The Chief’s Methodological Leanings: Chief Justice Roberts may well be the median justice on this Court and past reporting suggested he was not eager to see the Court adopt an expansive reading of the Second Amendment. Although he may not be able to help that now, one thing we will be watching for is any hint about what he will rule on the crucial question of how lower courts should decide Second Amendment challenges. As one of the big questions in this case, the Chief’s questioning may reveal whether he is leaning toward embracing a Kavanaugh-inspired text, history, and tradition test or retaining the two-part framework uniformly adopted throughout the federal courts of appeal. Notably, in the Heller oral argument, he seemed to dismiss the tiers of scrutiny as simply “baggage” that the First Amendment picked up, and the majority opinion in that case avoided the tiers altogether.
- Alito the Former Prosecutor: Justice Alito’s law enforcement background, and generally pro-law enforcement jurisprudence, often make predicting his vote in gun cases difficult. He authored the McDonald decision incorporating the Second Amendment against the states, wrote a blistering concurrence in a 2016 case called Caetano about a Massachusetts stun gun ban, and vehemently dissented from the Court’s dismissal of NYSRPA as moot last term. But he has also dissented from the Court’s recent decisions that narrow federal gun laws—Rehaif in 2019 on § 922(g), Davis in 2019 on § 924(c), Johnson in 2015 on the Armed Career Criminal Act—often on the grounds that the Court was making it harder to prosecute people for gun crimes.
- Race and History: Arguments about the racialized history of gun rights and regulation are prevalent on both sides of Bruen. Darrell’s Washington Post op-ed this week describes and criticizes some of these arguments as being reductive and simplistic—perhaps the Justices will explore the issue a bit more on Wednesday morning. Justice Thomas, in particular, has shown an interest in the question, and devotes a substantial portion of his concurring opinion in McDonald to chronicling the historical use of gun laws to disarm Black Americans.
- Precedent and Originalism: It will be interesting to see how much the Justices feel that they can break new ground based on the briefing and new historical research, and how much they feel bound by the terms and terminology laid out in Heller. Already in the lower courts, some judges have moved away from deriving constitutional doctrine from first principles or a fresh look historical sources (one judge flatly refusing to accord historical sources that conflict with Heller any weight), and have begun to parse Justice Scalia’s language in Heller on topics like defense against “public or private” violence or prohibitions on “M-16s and the like” to answer questions about the scope or coverage of the Second Amendment.
The four clearest possible outcomes look something like the below:
- The Court strikes down the New York law and adopts text, history, and tradition;
- The Court strikes down the New York law and retains the two-part framework;
- The Court upholds the New York law and adopts text, history, and tradition; or
- The Court upholds the New York law and retains the two-part framework.
It’s also possible that those holdings result from different alliances and different opinions. Perhaps, for example, five justices think the law is unconstitutional but disagree with one another about the method under which to reach that conclusion (that, after all, is what happened in McDonald); in that case, a different alignment might include the liberal justices who presumably believe the law to be constitutional but would join with two other justices to create a majority to retain the two-part framework.
And, of course, it’s always possible that the Court reaches some other conclusion. For example, it could decide the broad question of whether there is a right to carry a gun in public, but remand to the lower court for further evidence about New York’s law and its empirical effects, since this case was decided on a motion to dismiss without any evidence introduced.
One thing is reasonably clear—the case is significant. Laws like New York’s exist in jurisdictions that encompass roughly a quarter of all Americans. That’s about 80 million people who may be affected by the ruling. And that’s just the direct effect of a decision striking down this particular type of law. If the Court adopts the text, history, and tradition test, it could radically alter the shape of gun litigation. Not only would such a decision reopen the hundreds of cases decided under the two-part framework to be relitigated again under the new standard, but it would sideline most of the empirical and social scientific evidence about the effectiveness of contemporary gun policies. And it would make historical research much more important and highlight the relative dearth of archival research about the enforcement of historical gun laws, the historical understanding of gun rights, and the relationship throughout the last two centuries of legislatures balancing public safety with individual rights.