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Thoughts on NYSRPA v. Bruen

Supreme Court oral arguments are divided into "sessions" aka "sittings," each lasting two weeks and encompassing 10-12 arguments. The custom is that each Justice gets at least one opinion to write from each session. Usually, that's not difficult: yes, every Term will have two or so really controversial cases, and about 50-60 that are mundane. Odds are a Justice won't often be in the dissent on ten cases in a row.

If you plot out the cases of a session vs. who has already written an opinion from it, you can often get an idea of who is writing the opinion(s) yet to be decided.

NYSRPA was one of ten cases argued in the session beginning November 1. Of the ten cases, Gorsuch got two, and everyone else has gotten one except for Justices Thomas and Barrett. So the author will likely be one of those two. This is, of course, great news for the 2A, as the two are great stalwarts for original public understanding. As far as the reasoning to be used, Barrett is very supportive of "text, history, and tradition," and Thomas is inclined that way.

Most First Amendment cases employ balancing tests as a basis, with the test weighted by standard of review -- strict scrutiny, intermediate review, rational basis, and sometimes a few more. Assess the purported need against the right being protected. But for rights outside the 1A, "text, history and tradition" tend to prevail. Right to a jury trial, or against self-incrimination -- don't talk to us about what need there is for restricting them, discuss whether this measure fits in with their text, history and tradition. One might even say, "what part of 'shall not be infringed' do you not understand?" By that standard, with a little pushing, restrictions on concealed but not open carry might pass muster, and anything more restrictive than that is going to be very doubtful.