PUBLISHED:November 15, 2021

Duke Law Podcast: Firearms Law center unpacks SCOTUS hearing on NYSRPA v Bruen

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The Duke Center for Firearms Law examines oral arguments in New York State Rifle and Pistol Association, Inc. v. Bruen, and what to expect from a conservative majority Supreme Court.

In this episode of the Duke Law Podcast, two of the most highly cited scholars on New York State Rifle & Pistol Association, Inc. v. Bruen – Duke Law's Joseph Blocher, the Lanty L. Smith ’67 Professor of Law, and Darrell A. H. Miller, the Melvin G. Shimm Professor of Law – unpack what happened and what’s at stake with the U.S. Supreme Court’s November 3 hearing of its first major gun rights case since 2008.

Duke Law Lecturing Fellow Jacob Charles, executive director of the Duke Center for Firearms Law, hosts this episode with the Center’s faculty co-directors discussing a wide array of related topics including what the headline-making hearing revealed about the justices’ positions on gun rights and the Second Amendment; the “text, history, and tradition” framework; “shall issue” versus “may issue;” sensitive places doctrine; and localism.

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Excerpts

Blocher on Supreme Court and gun permit requirements:

"I do want to emphasize...I don't get the sense that there's an appetite on this court to to do away with permit requirements, entirely. So, I think the real question is going to be ‘What does it take to make a permit requirement constitutional?’ and maybe that means you’ve got to do away with or limit the discretion of local licensing officials. Maybe it means nationwide shall-issue and states are going to kind of play around with what factors go into the shall-issue regime."

Miller on Justices' positions on NYSRPA v Bruen:

"[Associate Justice Brett] Kavanaugh's already on the record saying he thinks that a 'text, history and tradition-only’ approach is the only legitimate one, and I think [Associate Justice Neil] Gorsuch seems to have signed onto that. I think [Associate Justice Amy Coney] Barrett was a little more guarded on that issue, in terms of the reasons why it might be unconstitutional. In terms of thinking about an outcome and what a majority looks like, they might end up all converging on something that would be very [District of Columbia v. Heller]-like, which is to say under any theory, under any methodology, this is unconstitutional, in some sort of categorical way. And that would be great, I suppose, for the petitioners here; not so great for lower courts and legislatures that have been looking for more clear guidance on what is and is not constitutional."

Miller on sensitive places doctrine:

"As [Prof. Blocher] and I have both written, a 'sensitive place' isn't necessarily just about safety. There might be other kinds of concerns about public participation, politics, elections, religious worship, other kinds of things that might make a place sensitive that has nothing to do with actual physical safety and has more to do with, as Joseph [Blocher] has said, the sort of health of the body politic."

Blocher on clarifying the right at stake in NYSRPA v Bruen:

"One additional level of generality game that I saw going on was defining what exactly is the right that the petitioners are asserting here, because from their perspective and from the perspective of some of the sympathetic justices, it seemed to be we're just deciding a right to carry in public–full stop, period. This is a case about the right to bear, that has to mean something, it has to extend outside the home. And justices like Chief Justice John G. Roberts, Jr., had this in a few of his questions. If you take that as your starting point, then you start to ask, ‘Well, how is it that New York can place conditions on that?’ Why would we allow there to be conditions on the exercise of a fundamental constitutional right? One of the moments in the oral argument I was most impressed by is [Acting Solicitor General] Brian Fletcher...[when] he answered ‘No, that's assuming the conclusion. What this case is about is a right to carry in public without proper cause.’ And if you frame it that way, it's a very different unit, it's a very different animal, and requires a very different historical analysis."

Charles on the possibility of a remand in NYSRPA v Bruen:

"I think [former U.S. Solicitor General and NYSRPA attorney] Paul Clement said there are two reasons that I don't think that is necessary. One is that my two clients were denied their right and the second is that on its face it has this atypicality requirement, and I think the states tried to push back and said there's not an atypicality requirement. There's a particularized requirement. You have to show that you have some particular need to carry in public defense and, to this point of evidence, it seems like if there had been a record developed and, let's say hypothetically that it showed that 95 percent of people who wanted a license got a license, that would be a different case than if it was the justices looking at licensed applications, which were routinely denied and maybe two percent of the population could get a license."