Oral Arguments on the NYR&PA Second Amendment Case at the Supreme Court Nov 3, 2021

The oral arguments for the New York Rifle and Pistol Association v. Bruen were presented on November 3, 2021 to the Supreme Court of the United States. 

Oral arguments do not carry much weight with the Court, generally. They allow some public interpretation of the issues the Court members are interested in. All of the arguments have already been stated in the written briefs to the Court. With those limits, the presentation to the Court and the questions asked were interesting.

The oral arguments took almost two hours. They were scheduled for 70 minutes. This showed (no surprise) this is a very important case, important to the justices and the general public, as well as to the nation.

They can be listened to at this link. 

Transcripts of the arguments (122 pages) are available at this link.

Three people presented arguments to the Court, although questions by the justices often resembled arguments more than mere questions. The three people presenting were:

Paul Clement, Esquire, Washington D.C. for the Petitioners (in favor of Second Amendment rights outside the home);

Barbara D. Underwood, Solicitor General, NY, NY, for the Respondents (generally against a Second Amendment right outside the home); and

Brian H. Fletcher, Principle Deputy Solicitor General, Department of Justice, Washington, D.C. for the United States, supporting the respondents.

Paul Clement presented a well argued and professional case for Second Amendment rights outside the home. It appeared designed to gain a moderate advance in restoring Second Amendment rights. He answered questions well. 

This correspondent found Clements use of the words "allow" and "granted" in describing fundamental Constitutional rights to be an unnecessary ceding of fundamental principles. The rights, in Natural Law Theory, are intrinsic to the existence of humans; they are not "allowed" or "granted".

Clement was careful to argue he was only asking for a reasonable granting of rights that most people in other states already enjoy. It appears he was not willing to argue for more, fearing he would obtain too little.

The Justices, with their questions and comments were divided into two camps. 

Justices Thomas, Alito, Kavanauh, Gorsuch, and Barrett, seemed in favor of a straightforward, rational interpretation of the Second Amendment, with Justice John Roberts leaning that way.

Justices Kagan, Sotomeyer, and Breyer seemed in favor of limiting Second Amendment rights outside the home as much as possible.  Justice Breyer was openly hostile to the historical findings in Heller.

In general, the debate mirrored the public debate over the Second Amendment, albeit in a more subtle, nuanced and scholarly manner. 

Those opposed leaned heavily on the Progressive assumption more guns mean more danger, even though such danger was not shown in significant evidence.

Those in favor leaned heavily on the words of the Constitution and the facts of successful shall issue laws in 42+ other states and territories. 

Solicitor General Barbara Underwood, referred to as "General Underwood" in the oral arguments seemed a bit overwhelmed by the experience. Her presentation appeared  a bit nervous, perhaps understandable, but unusual for presentations at this level. At about one hour and 21 minutes into the oral arguments, Justice Alito confronts General Underwood with a false presentation in the New York brief. He quoted the brief from page 23: 

 But on page 23, you say that in founding-era America, legal reference guides advised local officials to "arrest all such persons as in your sight shall ride or go armed." And this is a citation to John Haywood, A Manual of the Laws of North Carolina, 1814. So I looked at this manual, and what it actually says is "you shall arrest all such persons as in your sight shall ride or go armed offensively." And somehow that word "offensively" got dropped -- from your brief.

Justice Alito asks if Underwood thinks "offensively" is an irrelevant word. He gives Underwood plenty of room to back off, and say it was an error, they should have included the word. Instead, she doubles down. She says the word is irrelevant, her team discussed the issue, and essentially admits they deliberately misquoted the manual. It seemed a major blunder, to this correspondent.

Mr. Fletcher from the Biden Department of Justice, was another matter. He showed his considerable talents for making a case smoothly and his command of the facts and the law. He made the most of a weak case with authority and  sang-froid. He showed himself to be an able adversary in the Court. 

He relied heavily on  one statute, which was overturned by the state court in Tennessee, in 1821, and the post bellum case in Texas from 1871, which this correspondent discussed previously. Then there were a flurry of cases as states worked hard to restrict freed slaves and new immigrants. It was not persuasive to those who had read the cases; it was enough for a justice to hang their hat on if they wanted to limit the reach of the Second Amendment.

Justice Roberts said it was hard to believe a fundamental Constitutional right would be consistent with a permit system. 

There was considerable discussion of how an expanded definition of "sensitive places" might be used by New York if the law was struck down.

Justice Alito brought up the Sullivan law, and how the purpose may have been deliberately discriminatory to disfavored groups.

This correspondent was disappointed no one mentioned the ties of the Sullivan law to protecting organized crime through the law's namesake,  "Big Tim Sullivan".

Justice Alito summed up the argument from Mr. Fletcher, I believe, framed as a question:

JUSTICE ALITO: I think one more question about the major point that you've made this morning, which is that there are scattered statutes, local ordinances, judicial decisions from various points in the 19th century extending into the 20th century, the early 20th century with the Sullivan Law and the other laws that you mentioned, that are inconsistent with Mr. Clement's argument. 

But what does that show about the original understanding of the right that's protected by the Second Amendment? Would --would we be receptive to arguments like that if we were interpreting, let's say, the First Amendment or the Confrontation Clause of the Sixth Amendment? Would we say, well, you know, you can find a lot of state laws and state court decisions from the late -- from the 19th century, early 20th century, that are inconsistent with a claim that is made based on the original meaning of -- of a provision of the Bill of Rights, and that shows that's what that was understood to mean at the time?

It is the crux of the matter. Just because a few jurisdictions flagrantly violated the Second Amendment doesn't mean the Second Amendment should not have any Constitutional force.

Oral arguments are primarily for public consumption. It is unlikely they do much to influence the Court. From these oral arguments, this correspondent predicts a 6-3 decision striking down the New York law, and requiring a Shall Issue permit system, to be enacted within, perhaps, six months or a year of the decision. 

The court is likely to issue an opinion near the end of June, 2022.

It will not stop all infringements on the exercise of Second Amendment rights. No one made an argument about "Shall not be infringed". It is likely to make a large difference for millions of people in those few states where the Second Amendment is treated as a second class Constitutional right.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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