Pros and Cons of Two Likely Outcomes From NYSRPA v. Bruen

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Supreme Court – -( After the oral arguments in New York State Rifle and Pistol Association vs. Bruen, Second Amendment supporters have to play the waiting game – it takes time for the Supreme Court to come up with their opinions. It seems likely that there will be a win for the Second Amendment, but how big that win will be is up for debate.

There are two likely scenarios for how this case gets decided: One is a  6-3 ruling, with Chief Justice John Roberts joining Associate Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas in striking down New York’s requirement to show “proper cause” to obtain a concealed carry permit. The other is 5-4, with Roberts joining Associate Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer in dissenting from the opinion to strike down New York’s discretionary-issue system.

Each of these would have pros and cons. You might wonder how either scenario would have a downside? Well, let’s go over the scenarios.

6-3 Ruling, Roberts joining ACB, Kavanaugh, Gorsuch, Alito, and Thomas

Pros: The biggest benefit to a 6-3 ruling would be the margin. It would be harder to argue that a ruling striking down New York’s discretionary issue (really a de facto non-issue in parts of the state) is radical when you have what is essentially a supermajority ruling. It also would bode well for challenges to magazine and semiauto bans, like those working up from Roger Benitez’s courtroom, while also making Heller and McDonald almost unassailable via the courts for the foreseeable future. It would also force those who wish to pack the Supreme Court to add at least four justices. This would look far more radical than merely adding two.

Cons: The biggest downside to a 6-3 win is the lack of certainty Second Amendment supporters have as to the scope of the win. Roberts has not been reliable, especially when intimidation is involved. As chief justice, he would assign the opinion if he is in the majority. We could see a narrow ruling written by Roberts himself that doesn’t advance the ball much, and which would force further litigation on the long road to the Supreme Court. There would still be cries of bloody murder from anti-Second Amendment extremists amplified by the media. He could assign it to one of the other justices, and we’d get a more sweeping opinion. Second Amendment supporters just don’t know what would be handed down.

5-4 Ruling, Roberts joining Kagan, Sotomayor, and Breyer

Pros: The biggest upside in this scenario is that Clarence Thomas would be assigning the opinion – and Thomas would likely be taking on the task of writing that opinion himself. The ruling would likely be a massive win, one that leaves lower courts little, if any, wiggle room to uphold restrictions of any sort. We could possibly even see nationwide constitutional carry and/or reciprocity. In essence, this would be a massive shift in the political and legal landscape in favor of Second Amendment supporters. It would certainly bolster Heller and McDonald, as well.

Cons: With Roberts among the dissenters, it becomes easier for anti-Second Amendment extremists and their media allies to paint the ruling as radical and extreme, and packing the Supreme Court would take on greater urgency for them – and they could ask for as few as two new justices. The 5-4 margin would also leave little room for error in the event of a retirement or death before a pro-Second Amendment president were to take office. Remember the anxiety felt after the death of Antonin Scalia? That could be a way of life for Second Amendment supporters until control of Congress and the White House is returned to pro-Second Amendment candidates.

One thing should be very clear: This case will not end our fight to protect our Second Amendment rights. No matter which outcome emerges from this case, Second Amendment supporters will need to work hard to defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels as soon as possible.

About Harold Hutchison

Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post,, and other national websites.Harold Hutchison

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