Pros and Cons of Two Likely Outcomes From NYSRPA v. Bruen

[Charlie T Waite]

Supreme Court – -(AmmoLand.com)- After the oral arguments in New York State Rifle and Pistol Association vs. Bruen, Second Amendment supporters have to play the waiting game – it takes time for the Supreme Court to come up with their opinions. It seems likely that there will be a win for the Second Amendment, but how big that win will be is up for debate.

There are two likely scenarios for how this case gets decided: One is a  6-3 ruling, with Chief Justice John Roberts joining Associate Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas in striking down New York’s requirement to show “proper cause” to obtain a concealed carry permit. The other is 5-4, with Roberts joining Associate Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer in dissenting from the opinion to strike down New York’s discretionary-issue system.

Each of these would have pros and cons. You might wonder how either scenario would have a downside? Well, let’s go over the scenarios.

6-3 Ruling, Roberts joining ACB, Kavanaugh, Gorsuch, Alito, and Thomas

Pros: The biggest benefit to a 6-3 ruling would be the margin. It would be harder to argue that a ruling striking down New York’s discretionary issue (really a de facto non-issue in parts of the state) is radical when you have what is essentially a supermajority ruling. It also would bode well for challenges to magazine and semiauto bans, like those working up from Roger Benitez’s courtroom, while also making Heller and McDonald almost unassailable via the courts for the foreseeable future. It would also force those who wish to pack the Supreme Court to add at least four justices. This would look far more radical than merely adding two.

Cons: The biggest downside to a 6-3 win is the lack of certainty Second Amendment supporters have as to the scope of the win. Roberts has not been reliable, especially when intimidation is involved. As chief justice, he would assign the opinion if he is in the majority. We could see a narrow ruling written by Roberts himself that doesn’t advance the ball much, and which would force further litigation on the long road to the Supreme Court. There would still be cries of bloody murder from anti-Second Amendment extremists amplified by the media. He could assign it to one of the other justices, and we’d get a more sweeping opinion. Second Amendment supporters just don’t know what would be handed down.

5-4 Ruling, Roberts joining Kagan, Sotomayor, and Breyer

Pros: The biggest upside in this scenario is that Clarence Thomas would be assigning the opinion – and Thomas would likely be taking on the task of writing that opinion himself. The ruling would likely be a massive win, one that leaves lower courts little, if any, wiggle room to uphold restrictions of any sort. We could possibly even see nationwide constitutional carry and/or reciprocity. In essence, this would be a massive shift in the political and legal landscape in favor of Second Amendment supporters. It would certainly bolster Heller and McDonald, as well.

Cons: With Roberts among the dissenters, it becomes easier for anti-Second Amendment extremists and their media allies to paint the ruling as radical and extreme, and packing the Supreme Court would take on greater urgency for them – and they could ask for as few as two new justices. The 5-4 margin would also leave little room for error in the event of a retirement or death before a pro-Second Amendment president were to take office. Remember the anxiety felt after the death of Antonin Scalia? That could be a way of life for Second Amendment supporters until control of Congress and the White House is returned to pro-Second Amendment candidates.

One thing should be very clear: This case will not end our fight to protect our Second Amendment rights. No matter which outcome emerges from this case, Second Amendment supporters will need to work hard to defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels as soon as possible.

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About Harold Hutchison

Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.

[JJ “Reb” Wainwright 110206]

This is a fascinating analysis. While I also believe that this case will be ruled in favor of the 2A, there is a “long game” aspect to this that is real.  Our biggest issue on the SCOTUS is the totally unreliable Justice Roberts. He cannot be depended upon to rule on the side of a strict reading of the constitution yet he will still be labeled a far right justice but the (D)s in an effort to gain support for court packing.  Double threat. 

 

mid terms are less than a year away!  We can end the packing discussion by simply winning back a couple seats in the senate. 
 

JJ 

[Dantankerous]

9-0 should be the ruling. But is is apparent not all "legal minds" understand nor appreciate the Bill of Rights and its meaning.

[Loophole LaRue, SASS #51438]

Funny how things change.

 

When I was in HS, we were taught that part of the glory of our Constitution was its flexibility and adaptability; that as we became more enlightened, we could reinterpret it to accommodate new rights.  It all sounded so glorious....until it didn't.

 

Somewhere along the road, I grew up, and realized that a flexible Constitution permitted the rights of some to be abridged at will for the benefit of others.

 

LL 

[Blackwater 53393]

4 minutes ago, Loophole LaRue, SASS #51438 said:

Funny how things change.

 

When I was in HS, we were taught that part of the glory of our Constitution was its flexibility and adaptability; that as we became more enlightened, we could reinterpret it to accommodate new rights.  It all sounded so glorious....until it didn't.

 

Somewhere along the road, I grew up, and realized that a flexible Constitution permitted the rights of some to be abridged at will for the benefit of others.

 

LL 

Funny!  I remember being told that the Bill of Rights was “cast in stone” an was considered inviolate, (not sure if that’s the proper word) not to be tampered with!!

 

A few of my teachers didn’t LIKE the idea of certain Constitutional protections being irrevocable, but they acknowledged that they were!!
 

That was in the sixties and early seventies!!  My impression is that that was the beginning of the indoctrination movement in education!  Instructors were given free reign to teach ideas and espouse things contrary to our Constitution and our national history and way of life!  These “teachers” were allowed to spew their garbage because that very same Constitution allowed them to do so!  Yet they despise and denigrate that same document!!

 

A new awakening of the public to the fact that these rights are what makes the United States a place where the PEOPLE are free and the government is restrained is sorely needed these days!!!

[Dantankerous]

If the Bill of Rights was to be flexible I am sure the Founding Fathers would have mentioned that.

[DeaconKC]

I think the word "Inalienable" was bandied around somewhere...