« Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?
Michael Ramsey
| Main | What Does the Constitution Mean by a State Legislature?
Mike Rappaport
»

05/03/2021

William Baude on the Supreme Court's New Second Amendment Case
Michael Ramsey

At Summary, Judgment, William Baude: Initial thoughts on the constitutional right to concealed carry in NY Rifle and Pistol Association v. Corlett, and a possible trip to Hawaii.  From the introduction: 

The Supreme Court recently granted certiorari in NY Rifle and Pistol Association v. Corlett, likely to be the first major Second Amendment case in a decade. The question presented is whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

I'm far less expert in the Second Amendment than a lot of folks writing about the case, but for Chicago's public interest auction I agreed to write about a topic of the winner's choosing, and this is what he chose.

So here's how I think about the case....

And from the core of the discussion; 

As a matter of historical practice, states had bans on concealed carry during the nineteenth century. These bans are relevant both for potential liquidation of the meaning of the Second Amendment, and more to the point, for the original meaning of the Fourteenth Amendment, which is the Amendment at issue in Corlett. Robert Leider has great work on this too.

That said, it's a harder question whether states can have those bans in a regime that also has no right to open carry. Maybe the right should still be all about the right to open carry, because maybe that was understood to be the core of the Second Amendment right. (After all, if one thinks the right is somewhat militia related, members of the militia bore arms openly, and bore arms that were hard to conceal.)

Or maybe we would give states more flexibility, saying that they can choose whether to allow open carry or concealed carry. But it does seem implausible that the state can effectively stop citizens from bearing arms outside the home.

With these questions in view, it's not clear to me that Cortlett is the best vehicle for considering these questions, compared to the recent Ninth Circuit decision from Hawaii. [ed.: referring to Young v. Hawaii, discussed here.]

In conclusion:

But it's also possible that [the Justices] will realize as they dig in to the case over the summer that it would have been wiser to grant the Hawaii case. Indeed, it's not too late. When they get a cert petition from Hawaii [ed.: meaning, from counsel for the claimant in the Hawaii case] over the summer, they might consider granting it and consolidating it with New York so that they have the option of resolving the issue in a simpler but accurate way.

At Volokh Conspiracy, Josh Blackman agrees that consolidating the cases would be a good approach.  

Without getting into the best procedure, it seems to me (particularly from an originalist perspective) that there's something awkward about considering only the concealed carry part of the public carry question.  That's especially so if -- as a number of commentators including Professors Baude and Blackman seem to think -- the originalist case for open public carry is stronger than the orignialist case for concealed public carry.