Courthouse Steps Oral Argument: New York State Rifle and Pistol Association v. Bruen

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, December 13, we discuss the Supreme Court's oral argument in New York State Rifle and Pistol v. Bruen. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have an excellent panel, moderated by Professor Nelson Lund, who I'll introduce very briefly. Professor Lund is a professor of law at George Mason University's Antonin Scalia School of Law. And he's also a member of The Federalist Society Civil Rights Practice Group Executive Committee. We're very pleased he can moderate this afternoon.

 

      After our speakers give opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen and we will handle questions as we can towards the end of the program.

 

      With that, thank you for being with us today. Nelson, the floor is yours.

 

Nelson Lund:  Thank you Evelyn. We're here today to discuss New York State Rifle and Pistol Association v. Bruen, which involves a challenge to New York's regulations restricting the right to carry a weapon in public. Oral argument in the case took place on November 3. And we have two distinguished scholars here today to talk about the case.

 

      Adam Winkler is the Connell Professor of Law at UCLA. Among his many publications is Gunfight: The Battle over the Right to Bear Arms in America, which was published in 2011. I had the pleasure of working with Adam on a piece for the National Constitution Center's interactive Constitution. For that project, we first wrote an essay summarizing the points on which we agreed about the interpretation of the Second Amendment. We then each wrote a short summary of the points on which we disagreed with each other.

 

      Our other speaker is my colleague Robert Leider. Since coming to Scalia Law in 2018, Robert has written a number of very interesting articles and book chapters, some of which are on the Second Amendment and related issues. He and I jointly filed an amicus brief in the Bruen case, which was based on Robert's scholarship.

 

      Now, I'm going to begin today with a very brief summary of the background to the case. Adam, and then Robert, will talk for about ten minutes each about what we learned or didn't learn from the oral argument, and what the implications of the Court's decision might be. Then we'll have a discussion. And I hope there will be time left for a few questions from the audience.

 

      The first case to rule on the constitutionality of a gun control statute was the District of Columbia v. Heller in 2008. The challenged law involved a ban on civilian possession of handguns. The Court held that there is an individual right to a handgun in the home for self-defense. And the case contained some dicta approving various other forms of gun control.

 

      Then, two years later, in 2010, McDonald v. City of Chicago incorporated the Second Amendment against the states under the doctrine of substantive due process. Then we had about ten years of lower courts upholding almost every law that was challenged, usually invoking dicta from Heller, or using intermediate scrutiny. Several of these cases upheld statutes resembling the one at issue in Bruen, but there were two exceptions.

 

      The D.C. Circuit invalidated a law similar to the law at issue in Bruen, which required civilians to show a special particularized need to carry a concealed weapon for self-defense. The Seventh Circuit invalidated an even broader ban on carrying weapons in public for self-defense at all. In both cases, the government decided not to seek review in the Supreme Court.

 

      That brings us to the Bruen case, and to Adam Winkler. Adam?

 

Adam Winkler:  Well, thank you very much, Nelson. And thanks to Robert and to Evelyn and The Federalist Society for having me, and for hosting this webinar on this, obviously, very, very important case.

 

      Let me start with what I think would be a point of agreement between Robert and myself, which is that the New York law at issue in NYSRPA v. Bruen will be invalidated by the Supreme Court. Based on the oral argument, there appeared to be six solid votes to say that the Second Amendment guarantees a right to carry guns on the street for self-protection.

 

      For years, the Court has refused to rule on concealed carry, as Nelson mentions. And this, despite the fact that several justices have been complaining ⸺ in dissents from the denial of cert and elsewhere ⸺ that the Second Amendment is being treated like a second-class right. Simply, basically, the idea is that the lower courts have been upholding too many gun-control laws. And we've seen that point of view articulated by Justice Thomas, Justice Alito, Justice Gorsuch. But, even after Justice Gorsuch's appointment, there didn't seem to be enough votes on the Supreme Court to go beyond Heller.

 

      Well, what has changed? Well, one thing that's changed is there is a circuit split. But that can't be the reason why the courts jumped into this. There was a circuit split, even when Gorsuch was appointed. And that didn't lead to the Court taking this case, the case on concealed carry. What's changed is the personnel on the Court. There have been three new appointees to the Court: all chosen, in part, because of their anticipated rulings on issues like guns and abortion.

     

      And so, while Justices Breyer and Barrett are out doing public events trying to convince us that the law is not just politics, we all know that politics is leading, quite directly, to a constitutional revolution across a host of domains, from gun rights to abortion, from union rights to religious freedom.

 

      Now, the Court, in the NYSRPA v. Bruen oral argument, seemed to be leaning towards reliance on what it terms "text, history, and tradition," to decide this case. The text provides, arguably, the best basis for saying there is a right to carry firearms. The Second Amendment refers to a right to keep and bear arms, which seems like two different rights. A right to keep arms ⸺ to have them ⸺ and a right to bear them. That is, to carry them. In the Heller case, Justice Scalia's opinion said that "bear arms" means the right to carry in case of confrontation, unrelated to any militia service.

 

      And, while I personally think Heller reached the right result, we do know that since Heller was decided, there's a lot more historical evidence about the meaning of "bear arms" in the founding era. And, frankly, it just doesn't support Justice Scalia's argument. We have, for instance, corpus linguistics databases of early English-language texts from the founding era. BYU, for instance, has a corpus of founding-era American English that includes over 130 million words from a range of sources, dating from 1760 to 1799. Well, what these corpus linguistics, these databases, show, is that "bear arms" is used almost exclusively in a military context in the founding era.

 

      According to one study, 93 percent of all references to "bear arms" in the founding era was in a military context. Only 4 percent were in a non-military context. You couple that with, one, the text of the Second Amendment, that clearly refers to militia service. And, two, the fact that ⸺ in none of the ratification debates ⸺ there is not a single statement in any of the ratification debates about a person bearing arms for personal protection against a criminal. Not one.

 

      The debate in the ratification debates was all about the militias. Occasionally, there was references to ⸺ as in Pennsylvania ⸺ defense of the state and themselves, the people themselves. But the people themselves was always referred to in a communal purpose, a communal way, not an individual carrying a firearm in case of confrontation by a criminal. In fact, it's quite amazing. If we were to have a constitutional ratification today about the Second Amendment, there would be extensive discussion about personal protection, protecting your liberty against criminals. That's not how people understood firearms, primarily, in the founding era.

 

      Firearms were primarily offensive weapons, because the nature of the technology was that it was a bad idea to store a loaded firearm in your home. In fact, some places, like Boston, prohibited you from doing so because gun powder was highly explosive. And, even if you had a firearm for your home for personal protection, if someone's coming in the window, it would take you over a minute to load that firearm. And you'd only get one shot, through a firearm that was not rifled, and, thus, probably was inaccurate. You just didn't use firearms for self-defense the way we would use them today.

 

      And, indeed, if we look beyond text, and to history and tradition, we find, at best, weak and ambiguous support for a right to carry outside of militia service. Tennessee, in 1821, passed a law saying you can't carry concealed firearms at all. Texas, in 1871, said you'd have to show a need to be able to carry a firearm. West Virginia and Alabama had need-based laws, too. And, by the way, those laws were only defenses. They weren't permitting systems. You would have to go to trial, if you were carrying a firearm, and rely on a jury to determine that you had an immediate need to be armed.

 

      The challengers in this case cite a couple of cases that invalidated bans on concealed carry, including Bliss v. Commonwealth in Kentucky of 1822; Nunn v. State, in Georgia, in 1846. But there are at least 26 cases, over the past 150 years, that go the other way, and that uphold bans or extensive restrictions on concealed carry.

 

      Moreover, there's a long tradition of restrictions on concealed carry, including nearly 100 years of concealed carry permitting on the basis of a showing of special need. Now, in fairness, today such laws are pretty rare. At least 40 states have revised their concealed carry laws to eliminate the need requirement since the 1980s. In my opinion ⸺ despite the justices' professed commitment to text, history, and tradition ⸺ the ruling that comes in NYSRPA v. Bruen will, instead, reflect a living Constitution, the evolving understanding of the Second Amendment and the right to carry concealed that has shaped American law over the last 40 years, and is about to find its final crowning achievement in the Supreme Court.

 

      So what is next? Well, some people think that this case is the end of the battle over concealed carry in the United States. But I would suggest that we're likely to see states fight vigorously to prevent concealed carry, much as they have done in the abortion space, and try to fight against the Supreme Court's rulings. And the oral argument, I think, made clear where those battles will take place -- over what counts as a sensitive place.

 

      Heller said that the Second Amendment does not prohibit government from adopting laws that restrict guns or prohibit them from sensitive places, such as schools and government buildings. And, in the oral argument, several justices asked about whether a right to carry would extend to potential sensitive places, like the New York City subway system, to Times Square on New Year's Eve, to college campuses. And even Yankee Stadium got a shout out in the oral argument.

 

      My prediction is that places like New York and places like California are likely to very broadly define sensitive places, to make it extremely hard or unattractive to carry a firearm, even if you have a permit. You might be able to get a concealed carry permit, but it's going to be very burdensome to actually carry the firearm, due to restrictions on sensitive places. This is going to lead to a lot of litigation. And it's very hard to imagine how the Court will be able to define what counts as a sensitive place with any kind of clarity.

 

      Is it a place where people crowd together? Well, I'm not sure that all government buildings meet that standard. And don't we need to defend ourselves where the other people are? Is it a place that has its own security? Well, but that means that schools and government buildings are not all covered. I work. I'm Zooming to you now from UCLA Law School, both a school and a government building. And we have no security here on campus, nothing that stops anyone from walking onto campus with a firearm.

 

      Justice Kagan asked Paul Clement, who is representing the challengers, if he had answers to these questions, and gave him a laundry list of potential sensitive places. What was so remarkable about the oral argument is that Clement had no answer. And he said, "I just don't know how those questions are going to cash out." So we had an advocate telling the Court, "Allow guns everywhere. But I'm not going to provide any clear answers on where, what remaining limits or boundaries to that right."

 

      In any ordinary circumstance, we'd say, "What is the limiting principle?" And Clement would have had to say, "I don't have one." And, presumably, the Court would be hostile to that argument because of it. But, if the Court thought that viability in the context of abortion was an unmanageable standard, just wait until the wave of cases over sensitive places.

 

      Just one final note in closing. Let me say, let's all hope the Court firmly rejects another argument that Paul Clement made in the oral argument about the historical pedigree of gun laws. When applying history and tradition, Paul Clement said, "We should only look to gun laws on the books in 1871 or before, when the Fourteenth Amendment was formally ratified."

 

      Well, is that really the case? Back then, no state barred felons from possessing firearms. No state barred the mentally ill from possessing firearms. No state barred domestic abusers from possessing firearms. And no state barred guns from sensitive places. Ironically, among the few gun laws on the books before 1871, were bans on concealed carry. And the Supreme Court, in the name of history and tradition, is about to strike those down.

 

Nelson Lund:  Okay. Thank you, Adam. Robert?

 

Robert Leider:  All right. Thank you, Nelson. And thank you, Adam. And there are parts where I'm going to vigorously disagree with Adam. But there are parts where I wholeheartedly agree with him as well.

 

      So I want to start off by talking a bit about the New York Sullivan law, and how extreme the law actually is. So New York generally prohibits individuals from possessing firearms, except pursuant to a license. And then, it issues civilians one of two kinds of license: either a premises license, which is valid for a home or place of business; or a carry license, which is without regard to employment or place of possession.

 

      Now, both licenses require good moral character. But a carry license additionally requires proper cause. Now, contrary to popular belief, New York does not ban individuals from carrying handguns openly. Any method of carry, either openly or concealed, requires a license.

 

      Now, what is proper cause? Proper cause is left to the near-complete discretion of the licensing official. And I hate to be a legal realist about it, but proper cause is whatever the licensing official says it is. So, in most New York jurisdictions, sporting uses such as target shooting and hunting definitely qualify as proper cause. But New York courts have also held that when licenses are issued for sporting reasons, the licensing authorities may restrict the license to that purpose. And, strangely, these administrative regulations have no legal effect. They're basically a conditional threat. If you carry a gun outside the reason for which I've given you this license, then I'm going to revoke it.

 

      Now, what about self-defense? In most of the rural counties, these licenses are available to anyone who is of good moral character. Most will issue them on what's often called a shall-issue basis, without any special-need requirement. But most of the urban jurisdictions do. In these jurisdictions, a person must demonstrate a special need for self-protection, distinguishable from that of the general community or of persons who are engaged in the same profession. So it's not enough to be in a high-risk profession, like a taxi driver, who has among the most dangerous jobs when you measure it by risk of work-related homicide and assault. You have to be a taxi driver who has a higher risk than other taxi drivers.

 

      And, in practice, the proper cause standard for self-defense varies very widely. Some jurisdictions may issue it to business owners who deal in cash. Others effectively restrict licenses only to very high-cash businesses, or to people with documented death threats. And there are three things that make New York's law particularly extreme.

 

      First, getting a license for a non-business reason is tricky. You have to have a serious enough threat to your life that you can convince the licensing official to issue the license. But the threat can't be so imminent and so acute that you can't wait the over six months that it takes a licensing official in New York to process the license. So you're sort of stuck in a Catch-22.

 

      Second, judicial review in New York is practically non-existent. New York courts have all but ignored Heller. Licensing officials have broad discretion to issue a license, so they can deny it for any good cause. And, even after Heller, a court will review whether the licensing official has a rational basis to deny a license. So, licensing officials can basically do what they want, subject to the most minimal judicial review. And this has been an issue that did come up during oral argument.

 

      Third is that New York almost completely bans non-residents from possessing handguns. If you don't live or work in New York, you can't get a license. And if you can't get a license, you can't carry a handgun in New York in any location, rural or urban, for any reason, except for some limited organized competitions.

 

      And so, with this background in mind, let me talk about what this case is really about. The question in this case is whether a state can generally ban most of its citizens from carrying firearms in public for self-defense by restricting self-defense licenses only to those who have demonstrated an individual particularized need to carry a firearm. And, despite some attempts at obfuscation, this case is not about any of the following. It's not about whether law enforcement officers can exercise some discretion about an individual's suitability before licensing a person to carry a gun in public. It's not about whether the state can prohibit firearms in sensitive areas or any other narrowly-defined public place.

 

      It's not about whether the state may more rigorously regulate public carry in urban versus rural areas. And it's not about whether a state may prohibit the carrying of concealed weapons when it leaves individuals free to bear arms openly. And it's not necessarily about the precise standard of review for Second Amendment claims, although the Court might shed some light on that question when it decides this case.

 

      All right. So, from that background, let me talk a little bit about oral argument in the case. So, much of the oral argument focused on how the Court should review Second Amendment claims -- particularly, how a text, history, and tradition test would apply. Now, I do agree with Adam, that ⸺ when it comes to the right to carry arms in public ⸺ the text, history, and tradition test is more complicated than it was in Heller.

 

      When we look at the issue in Heller ⸺ which is whether an individual had any right at all to keep arms in the home if he was not enrolled in an organized militia ⸺ I think there's virtually no evidence that the framers conditioned the Second Amendment right on that. Now, if you look at Justice Stevens' dissent in Heller, for example, it results from confusion and equivocation about the militia, which he treats as a state army, rather than as a civilian or citizens' army.

 

      But the history of public carry is more mixed. And there are some historical facts that provide superficial support for New York's view. You have the statute of Northampton, which was passed in 1328, which restricted going armed in fairs, marketplaces, before the justices, and elsewhere. There was some common law power of justices of the peace to require those going armed to post sureties to keep the peace. And, after the Civil War, many states embarked on an effort to restrict the carrying of handguns, whether openly or concealed.

 

      Now, most of the total bans on carry were struck down in part. But a few survived, with Texas having probably the most extreme regulation of any jurisdiction that was upheld by a court.

 

      But, with that said, there are a lot of facts that ⸺ once you get past the superficial level ⸺ do support the petitioners quite heavily. So, first of all, at the time of the framing, there was virtually no regulation of public carry, as such. So, whatever the Statute of Northampton might have meant in England in 1328, by the 1700s, the offense was largely in desuetude. And it was, at most, when it was rarely applied, it was only applied to those who carried arms in a manner that would naturally lead to a breach of the peace. But the offense itself was almost completely unenforced throughout most of American history.

 

      In America, as Adam alluded to, the major efforts to restrict public carry begin in the South. And they begin in the early 19th century, with laws that are designed to restrict the carrying of concealed weapons. And, from here, what we see is a liquidation of the constitutional right. So I agree with Adam, that if you look just at what the framers said in 1791, they say very little about individual -- they say nothing about individual self-defense against crime. Virtually all the discussion took place around the organization of military power, and dividing it among the federal government, the state government, and the people as a whole.

 

      But, if you look at what the First Amendment meant in 1791, no one talked about sports pages, and whether sports reporters would be -- whether that kind of reporting would be covered. They were obviously focused on political discourse. So I don't think you can infer from exactly what the debates were, all of the limits of the substantive rights. I think the framers expected, as with other constitutional provisions, that their meaning would be liquidated as time went on.

 

      And when you look at how it liquidated in America during the 19th century, most of the laws against carrying concealed weapons were upheld because they were considered regulations, not prohibitions, of the right to bear arms. And Adam's scholarship notes this with some detail. But this is important, because most state supreme courts recognize a general common law right, which was codified in the Second Amendment and state Constitutions to carry arms in public.

 

      So I will close by saying that, in the argument itself, three things stood out to me. First, there was very little discussion at oral argument about the statute of Northampton, or about the surety laws that about ten jurisdictions adopted, which required those who carried guns to post sureties, except when the guns were needed for self-defense. Debates about these laws were featured prominently in the briefs, but the oral argument barely scratched the surface.

 

      Second, there was a lot of debate about how you implement a text, history, and tradition test. If the petitioners prevail, there's a whole bunch of questions that are going to be raised. Does it mean, for example, that individuals only have a right to bear arms openly? Or can the legislature choose among open or concealed carry? And how do courts determine what locations legislature may ban from public carry entirely?

 

      And, here, I do agree with Adam. But I thought Paul Clement's answers were at his weakest when he ducked some of the questions regarding bars and universities. And the history here is probably less favorable than gun owners want. As Adam's research has shown, most state courts have upheld extensive regulation on public carry. But, the key is, as long as they're not a general ban. And that's what separates those cases from the New York case here. The New York case is much more extreme.

 

      And, finally, there's the question of the level of specificity or generality with which the Court examines historical precedents. And you could hear, for example, the liberal justices on the Court, examine the precedents at a high level of generality, and say, "Well, the history is mixed." And they're just going to defer to the legislature. The conservatives started with the idea that the text of the amendment enshrines the right to bear arms, and they wanted to understand how the precedents would explain the limits and exceptions of that.

 

      And I think here, a lot of the 19th century cases will be helpful. The right to carry arms is unlike some of the other gun-control questions we have today about machine guns or felons, which have no historical analogue. Here, we do have a robust American law on the right to carry arms.

 

      So, in conclusion, I guess my predictions for the case -- always dangerous. One, I agree with Adam, the petitioners are going to win in some form. I think the decision will be more originalist than the dissent. But it will be less originalist than a purist would want.

 

      Second, there are several ways I think this case could go sideways, including a consensus remand for more fact-finding, or an effort to narrow the extreme discretion in New York's law. And some of these could be a very [inaudible 00:26:46] victory for gun owners.

 

      And, finally, I totally agree with Adam that any decision in this case is not going to radically change the right to bear arms in public. States that do not want to allow public carry have many ways to take counter-measures against the court's decision. And they will effectively narrow the right to something that is unusable, or it will basically be restricted ⸺ maybe, at most ⸺ to somebody's vehicle.

 

Nelson Lund:  Okay. Thank you, Robert. I have a couple of questions. But I want to, first, give Adam a chance to respond to anything Robert said, or add anything to what you said earlier, Adam?

 

Adam Winkler:  Well, I would just say, look, I mostly agree with Robert, just as he mostly agrees with me. I think we find a lot of areas of common sense or common overlap about what happened in the Supreme Court, and a lot about the history and tradition of the right to keep and bear arms.

 

      One thing that I found kind of interesting is that Robert mentions the principle of liquidation. And this is something that Robert's written about, and other scholars. Will Baude and others have talked about liquidation as a way of defining constitutional meaning. That is to say that if something might be ambiguous at the time of the founding ⸺ or at the time that an amendment is ratified ⸺ that, over time, the people, through deliberation, can sort out and come to a conclusion as to what the right answer or right interpretation or scope of that right is, and that that liquidated meaning should carry some weight.

 

      Well, it's interesting to think of the right to carry concealed firearms, starting in -- we saw restrictions on concealed carry go back all the way to the 1800s. I'll disagree with Robert on one issue. He says that states that upheld restrictions on concealed carry all allowed open carry as an alternative.

 

      There's a grand total of three cases in American history that have made that distinction, prior to the Heller case. And there's dozens -- literally dozens of cases where they uphold bans on concealed carry, including in states that did not allow open carry at all. So I don't think that's ever been a real principle that is liquidated in that same sense.

 

      What has been liquidated is that you don't have a right to carry a firearm, absent special need. In the 1920s, virtually every state in the nation adopted laws restricting -- requiring -- restricting concealed carry and requiring a special need. Those laws were on the books consistently until just the last couple decades when the NRA has made ⸺ and its gun rights allies have made ⸺ a very big and pointed political push to change the law.

 

      Well, I'm sorry. If it's liquidated in 1920 and 1930 to say that there's a public need ⸺ that you can require a public need ⸺ we can't re-liquidate it, can we, in the 1980s, through modern politics? If so, I would suggest that liquidation doesn't really get us very far on the constitutional meaning.

 

Nelson Lund:  Robert?

 

Robert Leider:  I just disagree with the historical facts here. I think, first of all, there was a powerful liquidation, much more than three cases, if you look at State v. Reed, in Alabama, if you look at Aymette and Andrews in Tennessee, Fife in Arkansas. You see it in Idaho in In re Brinkley. And it's true both before and after the Civil War. In case after case, attempts at total bans are invalidated.

 

      Now, Louisiana drew the distinction in State v. Baez, and a couple other cases. So I don't agree with Adam that it's somehow restricted to three cases. It's in almost every decision, except Texas' decisions, beginning after the Civil War. And, except in West Virginia, which their court held that handguns were not among the arms protected by the Second Amendment. So, when you get to states that recognize handguns as protected arms, there's virtually no support for the idea that a total ban, as opposed to just a ban on concealed carry, is permissible.

 

      Second, on the special need requirement, I also disagree with Adam that this comes about the 1920s. It doesn't. It's actually a product of the 1960s. So in the 1920s, you do have a move from the National Commission on Uniform State Laws to pass the Uniform Firearms Act, which came from previous proposals of the Revolver Association to have this sort of special need requirement.

 

      But the requirement only applied to guns that were carried in a vehicle or concealed on or about the person. And the theory was that it only applied to concealed weapons, and that weapons carried in a vehicle were concealed. And, even if you put it on the dashboard, for example, most people from the outside couldn't see it. This is true through much of the country. Pennsylvania, New Jersey ⸺ some of the states that today have the strictest laws ⸺ these laws did not apply to open carry until the 1960s.

 

      So, California, too. California has a proper cause requirement and has had it since the early 20th century. But it was not until the Black Panthers marched on the California capitol in the 1960s that California went ahead and banned all loaded public carry in incorporated areas. So these general bans are actually products of the 1960s and later. They are not products of the 1920s. And they come about well after most state supreme courts have recognized that individuals have at least some right to bear arms in public.

 

Nelson Lund:  Well, I'm shocked to find that two lawyers disagree about what prior cases have said. And, if we had sufficient time here, maybe we could come to an agreement. But I suspect that that disagreement between the two of you is going to have to be settled in writing, rather than orally. So, unless one of you really wants to keep going on that one, I suggest that we leave that for further discussion in a more precise form than we can do orally.

 

      I want to let either of you, at any point, add anything you want to what you said before. But I had a couple of questions that I'd like to ask, get both of your views on. I was struck, after Heller ⸺ with all of its rhetoric about text, history, and tradition, and its denunciation of Justice Breyer's interest-balancing approach, and his dissenting opinion ⸺ that every single circuit court pretty quickly coalesced around the use of the tiers of scrutiny approach. And an overwhelming, I think, majority of cases were decided, other than the ones that relied on dicta and Heller -- used intermediate scrutiny and upheld the laws. It just seemed to be a very rapid and solid consensus among the circuit courts.

 

      And then, when we get to this -- now, there have been some dissents, including, perhaps, most prominently, then-judge Brett Kavanaugh in the D.C. Circuit wrote a dissenting opinion saying, "Well, no. Heller forbids the use of the tiers of scrutiny or intermediate scrutiny." And then, when we get to this case, all of the litigants, I think ⸺ both sides, and the United States ⸺ all seemed to assume that the Court was going to decide this case on the basis of text, history, and tradition, contrary to what all of the circuit courts have been doing for ten years.

 

      They threw in, as a secondary argument to their response, if the Court uses tiers of scrutiny. But they seem to have read the Supreme Court's hints in Heller the same way that then-judge Kavanaugh did when he was on the D.C. Circuit. And I wonder if either of you have any comments on the significance of this discrepancy between what the circuit courts did and what all the litigants now seem to think the Supreme Court wanted them to do. Either one of you have anything to suggest about that?

 

Adam Winkler:  I'm happy to jump in, or to defer to Robert on this. So, first of all, I slightly disagree with your premise. It's a big piece of New York's briefs, arguing for intermediate scrutiny. There were a lot of amicus briefs that were coordinated and organized to argue for the adoption of the kind of intermediate scrutiny that the lower courts have adopted. At the same time, I think everyone recognizes that text, history, and tradition is a far more likely tool that the Court's -- or methodology, that the Court's going to use to solve this problem.

 

      I don't think it has much to do with Heller, as much as it has to do with the personnel on the Court. The personnel has changed, and the personnel has changed in a way to add Gorsuch and Kavanaugh and Barrett -- all people who have a strong history of focusing on text, history, and tradition types of ways of approaching constitutional issues.

 

      So I think it was really just a strategic matter. Look, if you're not going to win on intermediate scrutiny, I think progressives are going to the Supreme Court now, and have to argue text, history, and tradition. And if they don't, they're going to be sorry. Because they're not going to win in this current Supreme Court.

 

      So I think that is -- probably explains what's happened, with regards to the advocates. I do think it will be really interesting to see. I mean, you can see from the debate between Robert and I. Who knows what this history really stands for, at the end of the day? Historians generally seem to be opposed to the strong-gun-rights view of American history that we see put forward by the petitioners and others, and amici, in this case. So we're not going to defer to the historians, who seem to want to put context and understand a larger historical background. And so we're really just going to be debating about a history that is really very ambiguous and has competing threads that go in different directions.

 

      I think if anyone wants to look at how troublesome text, history, and tradition could be, just look at Justice Kavanaugh's dissenting opinion in the Heller II case, which was the lower court opinion that Nelson mentioned. In that case, he says we have to look to text, history, and tradition. And he says, in that case ⸺ which deals with a ban on certain semi-automatic military-style rifles ⸺ that there's no history and tradition of bans on all semiautomatic weapons.

 

      Well, why is that the right question? There were some early bans on semiautomatic weapons adopted in some cities, and whatnot. But the slippage that he makes from, well, can we ban a particular kind of weapon that happens to be semiautomatic, to whether we've ever banned all semiautomatics, including guns that are not banned by this particular law, just shows how slippery the level of generality move is in this history and tradition. And why history and tradition -- while we look to it as a source to provide more certainty and more clarity and to limit judicial activism, it's going to turn out to do nothing of the sort. And we'll just allow justices to embed their own biases in the law, in the disguise of text, history, and tradition.

 

Nelson Lund:  Now, Robert?

 

Robert Leider:  I'd like to disagree with a lot of what Adam has said here. So, first of all, as a preliminary matter, I don't think we should care one bit about what the historians think. The historians are not engaged in a legal project. They are engaged in looking at the social and economic and political context with which we're doing law. But they're not interested in law as its own artificial system, to try to figure out what the law was, and how it's put together. So I think deferring to historians that are engaged in a fundamentally different academic enterprise is a serious mistake.

 

      In terms of using history, I think three things matter here. First of all, for the right to carry guns in public, we have law here. And that's important. There are a lot of issues, like whether you can ban felons from having guns. You can't go back and look at 1789 or 1791 and draw any inferences from that. But when it comes to the right to carry guns, we have had a century of liquidation. And so the Court is not writing on a blank slate.

 

      Second, I think the Court has gone in this direction because there's enormous frustration with some people, and probably some of the justices, with what the lower courts have done to narrow the Second Amendment. Judges at the court of appeals who have been opposed to gun rights have been enormously successful at narrowing the right. Whether you talk about intermediate scrutiny or strict scrutiny, public safety will always be an important or a compelling governmental interest. So there's no way to get around it. And so the question always becomes one of narrow tailoring.

 

      And the judges have been willing to accept virtually all gun laws that are not total bans on everyone having a gun in every circumstance, which I think has prompted a lot of the blowback from Second Amendment advocates saying, "Hey, wait a minute. You're not taking this right seriously." And I think, if oral argument is any indication, some of the justices have heard that. And they realize that if they don't tweak the test somehow, that they're going to have to either let the lower courts narrow the right from below, as Richard Wright would say, or they're going to have to engage in some kind of supervisory error correction, like what they do with the Ninth Circuit in habeas.

 

      And so, when you -- there was one point in the argument where Paul Clement suggested strict scrutiny. And Justice Kavanaugh said, "Wait a minute. Do you really want to go down this path? Even strict scrutiny is a form of balancing. And that hasn't gone so well for you in the past." And so, I think the effort to move away from the tiers of scrutiny is an effort to allow lower courts to engage in policy decisions through free-floating balancing analysis.

 

      Finally, I do think history can elucidate a lot about the right. Purpose matters. I think part of the debate over the Second Amendment is a debate about purpose. And I think, a lot of times, conservatives and textualists have been allergic to talking about purpose because they're too stuck in kind of 20th century thinking that purpose can override the text. And you don't want a kind of purpose analysis like this.

 

      But when you look at when a law that is designed to remediate a prior state of affairs, what the scope of that law is, one of the things you look at is the mischief to which the law is directed. And so, I do think history is important in orienting the Second Amendment debate by looking at the particular mischiefs that the Second Amendment was designed to prevent. And then, to extrapolate from there, from the history that's there, into a modern analysis. And I think if you do it that way, it doesn't become the kind of free political analysis that Adam fears is about to happen.

 

Nelson Lund:  Adam, did you want to come back at all?

 

Adam Winkler:  Well, I would just say that if we follow Robert's advice and look at the mischief that the Amendment was designed to prevent, well, he already admitted there is no discussion that it was designed to prevent the government from stopping people from using firearms for self-defense against criminals, and in the event of confrontation. That's just not the way they understood the right to bear arms back in the day. It was militia-based. If we want to look at the purpose, well, the reason why we have a Second Amendment is because of Article I.

 

      Article I gave the federal government the power to organize, arm, discipline, and otherwise call out and control the state militias. That was a problem in the view of many at the time of the Constitution. And that was the specific reason the Second Amendment was added to the Constitution. That was -- the issue that was to be avoided was federal overreach that disarmed state militias in the name of tyranny.

 

      So, if we look at those, I think we probably have to then reconsider Heller. I don't think we need to reconsider Heller. I don't find it problematic that we have a living Constitution, or that judges engage in this kind of interest-balancing. I think they do so anyway. They just use history and tradition to hide the fact.

 

Nelson Lund:  Anything quick, Robert?

 

Robert Leider:  I think the history that he just gave is totally wrong. I don't have the time to go through all the errors in reasoning. It's not aimed to states having their own armies. But I think when you look at the mischief, you don't just look at the narrow debates that they had during the state ratifying convention. You have to look at everything that the amendment was designed to remedy. Like I said, I don't think today we would say the First Amendment allows the government to have content-based censorship on the sports pages, just because the framers never talked about sports when they were codifying the amendment. So I think the analysis is a little bit broader than that. And let me end it there, because otherwise there's a lot more to it that I think -- I don't want to get sidetracked.

 

Nelson Lund:  Once again, I'm shocked that two lawyers read history differently. But probably there's better forums to really finish thrashing this out.

 

      I had one other question that's kind of a follow-up, or connected with my first question, which has to do with the views expressed by Kavanaugh and Barrett at the oral argument. Kavanaugh, not surprisingly, kind of attacked the whole tiers of scrutiny approach to adjudication under the Second Amendment, even going so far as to specifically cite an amicus brief that supported his position on the D.C. Circuit. And he thinks everybody should accept that now. So he was very clear ⸺ pretty clear as you can be, I think ⸺ that he's sticking to the position that he took in the D.C. Circuit, which is that tiers of scrutiny are out. No balancing, no means-end analysis. All text, history, and tradition.

 

      But then, Justice Barrett, later in the oral argument, started asking about analogies to the First Amendment. And here's a place where I think I might disagree a little bit, Adam, with something you said earlier. She wrote a dissent when she was on the Seventh Circuit, which was mostly -- mostly about text, history and tradition. But when she got to the actual issue in the case, she used heightened scrutiny. She didn't make a big advertisement about it. But that's what she did. She went and used a means-end analysis.

 

      And, of course, there's a really important Seventh Circuit decision by her colleague, Diane Sykes, that really pushes the analogy with First Amendment jurisprudence pretty hard. And I kind of suspected, when I read the Barrett dissent, that she was kind of following the lead of Sykes, which essentially was, well, we use text, history, and tradition to get as far as it will take us. But when it runs out, then you have to switch to means-end scrutiny.

 

      So I kind of read Barrett as kind of implicitly suggesting she was kind of sticking to that position. And that came in the oral argument after Kavanaugh had denounced the tiers of scrutiny. So I wonder if either of you have any views on whether this disagreement between Barrett and Kavanaugh could indicate that there's going to be a disagreement within the majority that everybody expects to come out in favor of invalidating this law, and put us in a position like we were in after Heller, of having almost no guidance to the lower courts about what is a sensitive place and be not surprised if there's going to be any guidance on that after Clement's performance at the oral argument.

 

      But in a lot of the other questions that are obviously going to be open, is the court likely to just kind of do what it kind of did in Heller? Issue a very narrow holding, and then a lot of language that could mean a lot of different things, but no agreement on what standards are going to apply? Either of you?

 

Robert Leider:  I suspect it will do just that. I didn't see five or six votes to coalesce around an analytical method to evaluate Second Amendment claims. And you have a lot of narrow options on the table here. And I suspect that the chief justice, particularly, will try to narrow the opinion where he can. He was more favorable to the Second Amendment position than I thought he was going to be because of some of the press coverage. But that might be a strategic position on his end, to keep control of the opinion and the drafting assignment. And so I doubt there will be five votes to coalesce around a particular tradition.

 

      I think it would get messy if they tried. Text, history and tradition will work well here, because we do have two centuries of law on the right to carry arms. It will not work well when you start looking at bans on felons or laws against machine guns. And, in fact, it might work contrary to laws. If you take the military-related purposes of the Second Amendment seriously, maybe the ban on machine guns does need to fall. So, I think a text, history, and tradition is going to run out on them very quickly. And, for that reason, I am not expecting them to announce any sort of rigorous analytical method that has the sanction of the Court.

 

Nelson Lund:  Adam?

 

Adam Winkler:  Yeah. I agree with that. I do think that -- and I think it's an issue we're going to see, I think, in a number of areas of constitutional law in the coming years. But, because there's a conservative supermajority on the Supreme Court, we're going to start to see fissures between different factions of the conservative majority on how they want to approach some of these issues. So we'll get a law like New York's law struck down. But I wouldn't be shocked at all if there is no majority opinion that covers everything, that a majority opinion is only about the judgment, and maybe about a couple of maybe some of the text, history and tradition, as Robert suggests. And then they split up.

 

      Because I don't imagine that Thomas or Gorsuch or Kavanaugh are going to sign on to an opinion that says strict scrutiny comes in at any point, or intermediate scrutiny comes in at any point. I think they've taken a very strong position against that, against relying on standards of review, that it's just judicial policy-making. So I don't see them agreeing to that view that was articulated by Justice Barrett might be supported, too, by the Chief Justice.

 

      So I wouldn't be surprised at all if what we get in this case is very much like the Heller case -- a narrow decision that strikes down New York's law, but doesn't really answer too many of the other questions that need to be answered. And, if so, I think the Court will be doing us a disservice, in the same way that I think that Heller was a disservice -- not in its basic ruling, which I thought reached the right result, but in failing to offer more guidance to the lower courts about what is allowed and what is not allowed.

 

      And there is something to be said about the Court just letting sort of the common law constitutionalism sort of take its course and decide case after case. But I wouldn't be surprised at all if this ended up being a narrow victory for the petitioners with some kind of split decision over what to do about some of the hard issues that are to come in the future.

 

Nelson Lund:  Okay. We have a few minutes left. Evelyn, are there questioners in the queue that you can unmute their mics for? If Evelyn can't hear me, Robert and Adam, do you -- can you -- oh, there she is. Can you hear me, Evelyn?

 

Evelyn Hildebrand:  Yes, I can. I think -- were you asking for Tom Palmer to be able to ask a question?

 

Nelson Lund:  No. I was asking whether you have people in the queue to ask questions.

 

Evelyn Hildebrand:  Oh. I see. Okay. We do have Mr. Palmer in the audience has raised his hand. So I can give him --

 

Mr. Palmer:  Can you hear me?

 

Evelyn Hildebrand:  -- the floor. Yes. Okay. So, he is now able to speak. And go ahead with your question.

 

Mr. Palmer:  Okay. Thank you. Thank you for --

 

Nelson Lund:  -- Sorry. This is not aimed at Mr. Palmer. But, before anybody asks a question, I want to kind of caution everybody in the queue to please ask a question and let our guests hear the speakers make the speeches. Go ahead, Mr. Palmer.

 

Mr. Palmer:  Absolutely. And I am not the Tom Palmer that defended the Second Amendment before the Supreme Court. I'm a different one. I'm a layman, as you'll see by this question. Is there, generally, an agreement that there is more likely that there's a right to carry open than there is a right to carry concealed? I just have never understood whether there's sort of consensus on both sides on that.

 

Robert Leider:  I think that was the consensus in the 19th century. One of the things that's interesting about the oral argument in Bruen is it doesn't seem -- the justices don't seem interested in adopting that consensus. That consensus is now being reconstructed to mean that you have to allow some avenue for carry, whether it's openly or concealed. And the legislature can pick that. And I suspect that's what the Court will hold here. But, if you look at the 19th century decisions, they don't say that. They say that there is something particularly pernicious about concealed carry.

 

      And if you go as late as the Supreme Court in 1897 in Robertson v. Baldwin, the Court analogizes concealed weapons to defamation and the First Amendment. So I think, one of the questions, as Justice Kagan said, is we have the history, but the question is, how do we operationalize the history for today? And, even among the petitioner side, there is not a desire to take the history just straight. There's a sense in which they want to convert it to modern times. But one of the things I think they would prefer get converted to modern times is the option for the legislature to allow concealed weapons, because of the fact that open carry is socially undesirable in most urban areas.

 

Mr. Palmer:  So, do the opponents of gun rights generally dislike concealed more than they like open? More than they dislike open?

 

Robert Leider:  I think opponents of gun rights don't like carry in any form. I think they would particularly not like people openly displaying their weapons. But the irony of the situation is if they're interested in maximally restricting the right, one of the things they could do is to ban concealed carry, force people to allow open carry, and then allow social pressure to take care of the rest. And if you look at what actually happened during the 19th century, that was largely it, that a lot of the bans on concealed carry were intended to broadly discourage any public carry.

 

      But since legislatures didn't think they had the constitutional authority to enact a complete ban, what they said is, "Look. We'll force people to carry openly, and social pressure will take care of the rest." And, open carry, even in the 19th century, was not common outside of frontier areas. So, I think, when you look at what D.C. did, D.C. did not go that route. It decided that it just didn't want to tolerate the possibility that people would carry arms openly. And so D.C. is now challenging jurisdiction. But I think that's one thing that could go either way.

 

Nelson Lund:  Adam?

 

Adam Winkler:  Yeah. I think I'm in agreement with Robert on that. I think I agree with him. And I wrote an op-ed in the LA Times some years ago, when this issue was bubbling up, saying, maybe, if California wants to really reduce the number of guns on city streets but it has to allow some kind of carry, maybe open carry is what they should adopt. I don't think that's going to happen, because I think ⸺ especially among the gun-safety advocates who don't really know anything about guns ⸺ the mere fact of seeing a gun is going to freak them out.

 

      And so I don't think that -- there may be a better argument that open carry is constitutionally protected than concealed carry. There certainly have been fewer restrictions on open carry, than there have been on concealed carry, over the course of American history. So if you're going to look at history and tradition, then that would certainly be something that you might go to. But debate currently is certainly focused on concealed carry.

 

Mr. Palmer:  So I gather you're saying the opponents of gun rights are divided on that subject. They don't all agree.

 

Adam Winkler:  I think they probably all are opposed to open carry, as well as concealed carry. Open carry is just less of an issue for the most part, in part because the gun-rights advocates aren't looking to -- they're not filing cases asking for the Court to recognize a right to openly carry. Not too many of them, anyway. There's always a case out there, but -- so the threat seems to be concealed carry, not open carry, in their minds.

 

Nelson Lund:  Evelyn, do we have time for one more question, or not?

 

Evelyn Hildebrand:  I think we have time for a final question with very brief answers. Maybe I'll go to the Q&A. And I apologize. I know we have a lot of questions in the queue, but we're not going to be able to get to them.

 

      I don't know if either of you see a question that looks like a particularly quick answer. Maybe, can someone say more about the mischief that the Fourteenth Amendment is aimed at regarding bearing arms, including concealed handguns and self-protection?

 

Nelson Lund:  That sounds like a question for Robert.

 

Evelyn Hildebrand:  Is that one that's also a quick answer?

 

Robert Leider:  I think that one of the principle things that the Fourteenth Amendment was aimed at was the failure of state governments to provide equal protection under the laws, where protection didn't mean substantive equality. Protection literally meant protection, that the executive would enforce the laws. And so, when you tie that back to the bearing of arms, I think the bearing of arms was extremely important for the framers of the Fourteenth Amendment, because private self-defense was a way in which individuals could fill the gap when state officers failed to enforce the laws and, thereby, allowed violence against minorities in the population.

 

Nelson Lund:  Adam?

 

Adam Winkler:  You know, you have time for one more question. What you time have time for is a bunch of law professor answers, because they take way too long.

 

Nelson Lund:  Okay. Evelyn, do you want to close us out?

 

Evelyn Hildebrand:  Yes. On that note, I would like to close this out. Thank you very much to our experts for your commentary, your expertise, on this subject. Thank you to our moderator. Thank you very much to our participants. I do apologize. We weren't able to get to all of the questions. But I think we could probably go for another hour, and that's the amount of time that we had today. So thank you very much for your attention, and sending in your questions. We welcome listener feedback ⸺ I apologize ⸺ by email, at [email protected]. So send in your comments to that email address. And, in the meantime, until next time, we are adjourned. Thank you very much.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.