The Effect Could Go Well Beyond The Right To Carry
Why Did SCOTUS Take This Case?
There are several reasons why the justices voted to hear this case:
First, and most significant, there is a conflict between the courts of appeal on the issue of the right to carry concealed outside the home. This results in the right to carry concealed being constitutionally protected in Illinois and Washington DC, but not in the states of New York and California. Conflicts like this are the most compelling reason for the Supreme Court to accept an appeal.
Second, lower courts have been ignoring the clear guidance given to them in Heller (2008) and McDonald (2010). Hearing and deciding this case gives SCOTUS an opportunity to give further direction to the lower courts that must, of necessity, decide most cases.
Third, several justices have either voted to hear 2nd Amendment cases in recent years, or stated that the court must hear one soon, to include Justices Thomas, Alito, Gorsuch and Kavanaugh. All of these justices are known to support a personal rights view of the 2nd Amendment. It takes only four votes to hear a case – but five to win. With Amy Coney Barrett, there appears to be five solid votes favoring that all important personal rights view that may very well decide this case. Chief Justice Roberts is also a likely vote for the right to carry, given his votes in Heller and McDonald – although he has become more of a wildcard in recent years. The real wildcard is Justice Kagan – who took up shooting and hunting after joining the court and becoming close to Justice Scalia (they did a lot of shooting and hunting together before his death). She is probably a vote against the right to carry – but could surprise us all.
What Are The Possible Outcomes? What would the impact of each one be?
Before looking at the possible outcomes, we must take a look at the question before the high court. In granting the hearing in this case, they limited the issue. They stated: “The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.”
If this case came from a state that allowed open carry without a license or permit, this would be very bad news, because the court could find that allowing open carry satisfied the 2nd Amendment’s requirements. During the time that the 2A was drafted and ratified, there were in fact several cities and states that restricted concealed carry while permitting open carry, which does support, to some degree the idea that concealed carry is not protected as long as open carry is available.
However, in New York, open carry is not available – they only allowed method of carry is concealed carry with a permit – which is impossible to obtain for simple self defense. Therefore, the question is effectively, “Is there a constitutional right to carry for simple self defense?”
Possibility #1: The court finds that concealed carry is not protected by the 2nd Amendment.
In this event, 2A rights would experience a major setback. It would not bode well for other 2A cases – but Young vs. Hawaii is on it’s way to SCOTUS, and this case DOES deal exclusively with open carry. In fact, Young vs. Hawaii may be why SCOTUS narrowed the question in this case (New York State Rifle & Pistol Association v. Corlett). There is the possibility that SCOTUS could hear Young vs. Hawaii and find that open carry IS protected by the 2A.
It is important to note that a loss in this case would not affect the right to carry where it is currently allowed and protected by state laws. Many states also have 2A analogs in their state constitutions that provide additional protection.
Possibility #2: The court finds that New York’s “good cause” requirement violates the 2nd Amendment.
I believe that this is the most likely decision.
The good news: The result would effectively be immediate nationwide “shall issue”. New York, California and the rest of the solid blue states that are not currently shall issue would have to start issuing licenses to anyone who jumps through all the hoops.
The bad news: Existing permit/license requirements would remain in place, as would training requirements. In fact some states might try to increase them. The ruling probably would not address or affect reciprocity between states.
Possibility #3: The court decides the New York law is unconstitutional because any permit/license requirement is unconstitutional
This is highly unlikely but not impossible. Many briefs will point out that 20 states no longer have such requirements and exactly zero have become the “Wild West”. Sometimes SCOTUS just decides to go all in – however, in this case I would not hold my breath.
What Are The Implications Beyond The Right To Carry?
At this point, the high court has not yet addressed an issue arguably more important that any one ruling: The level of protection to be accorded the 2nd Amendment right. There are three levels. Most 2A cases have been decided using the middle level (intermediate scrutiny) – but most 2A advocates, including myself, believe that the appropriate level is the highest, or strict scrutiny.
If, in deciding this case, SCOTUS uses strict scrutiny, this would establish this high level of protection as applying to all future 2A cases. This would result in most gun control laws in the US being found to be unconstitutional.
I have addressed this issue in detail HERE.
How Will Gun Control Advocates React if the Right To Carry Is Affirmed?
This is something we all should start thinking about, because it will not be pretty. There is a very good chance that their reaction will be exactly what they threatened last time such a case was before the nation’s highest court: A push to “Fix” the Supreme Court by expanding and packing it with justices who will reverse this and many other decisions.
Even assuming that Democrats still hold the Senate majority (one death could change that), by the time this decision is handed down it will be late 2021 at the earliest – less than a year from the critical 2022 Congressional elections. Such a radical move would both be likely to fail AND cause huge losses in that election. Add this to the massive increase in support for gun rights and I think that gun control advocates will just have to get used to the right to carry.
Rev. R. Vincent Warde
4-27-2021
There are several reasons why the justices voted to hear this case:
First, and most significant, there is a conflict between the courts of appeal on the issue of the right to carry concealed outside the home. This results in the right to carry concealed being constitutionally protected in Illinois and Washington DC, but not in the states of New York and California. Conflicts like this are the most compelling reason for the Supreme Court to accept an appeal.
Second, lower courts have been ignoring the clear guidance given to them in Heller (2008) and McDonald (2010). Hearing and deciding this case gives SCOTUS an opportunity to give further direction to the lower courts that must, of necessity, decide most cases.
Third, several justices have either voted to hear 2nd Amendment cases in recent years, or stated that the court must hear one soon, to include Justices Thomas, Alito, Gorsuch and Kavanaugh. All of these justices are known to support a personal rights view of the 2nd Amendment. It takes only four votes to hear a case – but five to win. With Amy Coney Barrett, there appears to be five solid votes favoring that all important personal rights view that may very well decide this case. Chief Justice Roberts is also a likely vote for the right to carry, given his votes in Heller and McDonald – although he has become more of a wildcard in recent years. The real wildcard is Justice Kagan – who took up shooting and hunting after joining the court and becoming close to Justice Scalia (they did a lot of shooting and hunting together before his death). She is probably a vote against the right to carry – but could surprise us all.
What Are The Possible Outcomes? What would the impact of each one be?
Before looking at the possible outcomes, we must take a look at the question before the high court. In granting the hearing in this case, they limited the issue. They stated: “The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.”
If this case came from a state that allowed open carry without a license or permit, this would be very bad news, because the court could find that allowing open carry satisfied the 2nd Amendment’s requirements. During the time that the 2A was drafted and ratified, there were in fact several cities and states that restricted concealed carry while permitting open carry, which does support, to some degree the idea that concealed carry is not protected as long as open carry is available.
However, in New York, open carry is not available – they only allowed method of carry is concealed carry with a permit – which is impossible to obtain for simple self defense. Therefore, the question is effectively, “Is there a constitutional right to carry for simple self defense?”
Possibility #1: The court finds that concealed carry is not protected by the 2nd Amendment.
In this event, 2A rights would experience a major setback. It would not bode well for other 2A cases – but Young vs. Hawaii is on it’s way to SCOTUS, and this case DOES deal exclusively with open carry. In fact, Young vs. Hawaii may be why SCOTUS narrowed the question in this case (New York State Rifle & Pistol Association v. Corlett). There is the possibility that SCOTUS could hear Young vs. Hawaii and find that open carry IS protected by the 2A.
It is important to note that a loss in this case would not affect the right to carry where it is currently allowed and protected by state laws. Many states also have 2A analogs in their state constitutions that provide additional protection.
Possibility #2: The court finds that New York’s “good cause” requirement violates the 2nd Amendment.
I believe that this is the most likely decision.
The good news: The result would effectively be immediate nationwide “shall issue”. New York, California and the rest of the solid blue states that are not currently shall issue would have to start issuing licenses to anyone who jumps through all the hoops.
The bad news: Existing permit/license requirements would remain in place, as would training requirements. In fact some states might try to increase them. The ruling probably would not address or affect reciprocity between states.
Possibility #3: The court decides the New York law is unconstitutional because any permit/license requirement is unconstitutional
This is highly unlikely but not impossible. Many briefs will point out that 20 states no longer have such requirements and exactly zero have become the “Wild West”. Sometimes SCOTUS just decides to go all in – however, in this case I would not hold my breath.
What Are The Implications Beyond The Right To Carry?
At this point, the high court has not yet addressed an issue arguably more important that any one ruling: The level of protection to be accorded the 2nd Amendment right. There are three levels. Most 2A cases have been decided using the middle level (intermediate scrutiny) – but most 2A advocates, including myself, believe that the appropriate level is the highest, or strict scrutiny.
If, in deciding this case, SCOTUS uses strict scrutiny, this would establish this high level of protection as applying to all future 2A cases. This would result in most gun control laws in the US being found to be unconstitutional.
I have addressed this issue in detail HERE.
How Will Gun Control Advocates React if the Right To Carry Is Affirmed?
This is something we all should start thinking about, because it will not be pretty. There is a very good chance that their reaction will be exactly what they threatened last time such a case was before the nation’s highest court: A push to “Fix” the Supreme Court by expanding and packing it with justices who will reverse this and many other decisions.
Even assuming that Democrats still hold the Senate majority (one death could change that), by the time this decision is handed down it will be late 2021 at the earliest – less than a year from the critical 2022 Congressional elections. Such a radical move would both be likely to fail AND cause huge losses in that election. Add this to the massive increase in support for gun rights and I think that gun control advocates will just have to get used to the right to carry.
Rev. R. Vincent Warde
4-27-2021
