Last Wednesday I had the distinct pleasure of listening to the oral arguments in NYRPA v Bruen. I use the word pleasure in a guarded context. Getting a massage can be pleasurable. Getting a deep tissue massage can hurt like hell. Somewhere on that continuum the needle moves from pleasure to pain. That point of equipoise was probably a better way of articulating what the experience was like.

For those of you unfamiliar with the case, this has been billed as the “big one” for gun rights, not just by our side, but by the anti-gun crowd as well. Both sides have valid reasons for being optimistic or terrified, respectively.

The last “major” gun rights cases to come out of the Court were the Heller / McDonald / Heller II trinity. It has been almost a decade since the Court has taken a gun rights case, and the makeup of the Court has shifted considerably during that time (putatively in our favor).

The original Heller and its progeny did establish the Second Amendment was an individual right and specifically designed to allow someone to keep and use a firearm for self-defense. Unfortunately, it did not articulate the exact Constitutional test that should be used to determine if a law or statute violates the Second Amendment. They did state that an outright ban on guns is clearly volatile, but they did not really articulate how a court should determine when a law, short of an outright ban, actually is limiting enough to fail a Constitutional validity test.

Lower courts have jumped on this and created what can best be described as an “intermediate review test” to determine if a law is Constitutional. It is actually a little bit more complicated than that: First, the court engages in a predicate analysis to determine if the law in question goes towards a core aspect of the Second Amendment. If it does, it then asks if there are longstanding traditions of regulation. (Evidently, if you violate the Constitution long enough it becomes okay). If the answer to that is no, then the court finally asks the ultimate two questions: Is there substantial state interest involved here and, if there is, does the law have a “reasonable fit” in furthering that state interest?

Compare this to the more rigorous test put to something like, say, the First Amendment: Using what is referred to as strict scrutiny, the Court does the predicate analysis to determine if a core aspect of the amendment was affected. If yes, then it asks if there is a compelling state interest and, if there is, are there no less restrictive alternatives?

Since the appellate courts have created their own intermediate test that was never proffered by the Supremes, we in the gun rights community have known it would be ultimately subject to Supreme Court review. The question was when?

A couple of years ago NYRPA got a case before the Supreme Court and the antis went nuts. They feared that a Court that was made up of four Conservatives, a flip-flopping Chief Justice, and three Liberals might result in a decision that would demand strict scrutiny be used nationwide when analyzing a gun control law. New York decided to take a poison pill and remove the underlying law in question right before the case was scheduled to go into oral arguments. This, effectively, made the case moot and the Court dismissed the case.

The NYRPA filed a new case… and now the makeup of the Court changed with the addition of Amy Coney Barrett.

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This case involves a limited question: Does the Second Amendment extend outside the home? Literally, that is it.

Two plaintiffs in upstate NY applied for CCWs and were denied. They did not satisfy the “good cause” or, as it stated in New York, “reasonable need” requirement.

In New York (as in CA) it is illegal to openly carry a firearm outside of one’s home. Thus, without a CCW, the ability to carry a loaded gun for self-defense is completely eliminated.

The only way New York could have mooted this case out was to essentially make New York “shall issue”… and doing that was a bridge too far. Thus, the case has now gone to oral arguments.

Many of my colleagues in the Second Amendment bar think this case is going to be the panacea. They believe the Court will rule that strict scrutiny MUST be used when analyzing the Constitutional validity of a statute.

I am not quite so bullish.

I think the Court is more likely to rule the Second Amendment does exist outside the home, that people need to be able to exercise their Second Amendment rights and, therefore, the following must be present in any jurisdiction:

The state must allow for some type of carry. It can be open carry and it can completely ban concealed carry. Alternatively, they can ban open carry and have some methodology for concealed carry. That could mean adopting a Constitutional Carry approach or, alternatively, still demanding concealed carry permits… but those permits must be “shall issue”.

Ultimately, this will only affect the eight remaining states of the Union that are not shall issue.

From the questioning, there was precious little time spent on Constitutional tests. It did come up, but mostly in a transitory query.

The idea of banning weapons in “sensitive locations” did seem palatable to most of the justices. They may find that certain sensitive locations can have weapon restrictions, but those must be articulable and defined, not “the whole state or city is a sensitive location”.

Ultimately, we will find out how this shakes out probably next June. Technically, a decision could be reached before that… but the Court usually saves the June dates for their more “interesting” decisions.