New York State Rifle & Pistol Association, Inc. v. Bruen is the long-awaited New York gun licensing decision that has been hotly debated since its filing. Especially in light of recent school shootings, that debate is likely to intensify now that the case has been decided. As many predicted, the decision, overturning the state’s statute, provides a stark split between the Court’s predominant conservatives and its liberals.

New York State made it a crime to possess a firearm without a license, whether inside or outside the home. In order to carry a firearm outside their homes, persons may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if the applicant can prove that “proper cause exists” for doing so. Writing for the Court, Justice Thomas states that, to prevail, consistent with the governing decision in District of Columbia v. Heller, 554 U.S. 570 (2008), holding that the right to bear arms is an individual right, New York State was required to show that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation.” Rejecting the analytical method utilized by some courts of appeals, Justice Thomas begins with the holding that “[i]n keeping with Heller . . . when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” He goes on to write that the New York “proper cause” requirement violates the U.S. Constitution because it only allows public-carry licenses when an applicant shows a special need for self-defense.

Like Heller, today’s opinion is a long one, and the debate is more about originalism than anything else—with the Court holding that original meaning is to be determined at the time of the writing of the Constitution and not later, for example, when the 14th Amendment was passed. Justice Kavanaugh, in what one hopes will be a helpful concurrence, notes that the rejection of the “special need” criterion for a license to carry a gun outside the home does not mean that a state cannot impose non-discriminatory licensing requirements, such as background checks, gun safety training, etc. Indeed, even Justice Thomas acknowledges that guns can be banned from special places, like polling locations.

Justice Breyer and his liberal colleagues criticize the holding as that wing of the Court did in Heller, noting that the majority ignores the plague of gun violence that we are experiencing. But, as noted, the relevant period for the majority lies in constitutional history, where the “fear” requirement imposed by the state cannot be found.

Another 6-3 split occurred in Vega v. Tekoh, in which the Court considered whether a violation of a person’s rights under Miranda v. Arizona, 384 U. S. 436 (1966), could give rise to a suit under 42 U. S. C. §1983, seeking damages for alleged violations of a person’s constitutional rights. Reversing the Ninth Circuit, the Supreme Court, per Justice Alito, holds that a violation of the Miranda rules does not provide a basis for a Section 1983 claim.

The decision is less constitutional than economic. Noting that Miranda imposed a set of prophylactic rules requiring that custodial interrogation be preceded by the warning that anyone above the age of six who has ever watched a crime show can recite, the majority holds that “[a] judicially crafted” prophylactic rule should apply “only where its benefits outweigh its costs,” and, here, where the benefits of permitting the assertion of Miranda claims under Section 1983 would be slight, the costs would be substantial, especially with respect to burdening judicial economy. Justice Kagan and her two liberal colleagues see Miranda differently—not as a matter of procedure but as defining a constitutional right.

The Chief Justice and Justice Kavanaugh join the Court’s three liberals, led by Justice Kagan in Nance v. Ward, in another ideologically split decision, this one holding that the aforementioned Section 1983, not habeas corpus, is an appropriate vehicle for a prisoner’s method-of-execution claim in a case where the prisoner proposes an alternative method of execution not authorized by the state’s death-penalty statute.

Nance, a convicted murderer, brought suit under Section 1983 to enjoin Georgia from using a lethal injection to carry out his execution, alleging that this method, the only one referenced under the state’s law, could cause him great pain. Instead, he proposed death by firing squad. The majority holds that when a prisoner seeks relief that would “necessarily imply the invalidity of his conviction or sentence,” he comes within the core of habeas corpus and must proceed that way. But that is not the case here, where the ruling that Nance sought would not have invalidated his conviction. Justice Barrett and the other dissenters believe that habeas provided the right route, and Nance, already having gone that route, should have been barred from proceeding. In the end, this case resulted in a rare victory for a death-row inmate.

Last—but not at all least—is Berger v. North Carolina State Conference of the NAACP, in which Justice Gorsuch led an eight-Justice majority (only Justice Sotomayor dissented) in holding that the leaders of the North Carolina Legislature are entitled to intervene in a lawsuit challenging the state’s law requiring that someone who seeks to vote must present photographic identification. The gravamen of the decision is the view that the fact of politically divided state governments sometimes should allow participation by multiple state officials in federal court when, as here, the legislative leaders seek to give voice to a constitutional perspective different from the party Board of Elections’ administrative concerns.

This generous application of Federal Rule of Civil Procedure 24(a)(2) seems to be the correct one, especially considering that, as the Court notes, a trial court retains discretion to limit intervention of a superfluous nature. However, given the highly contentious political current situation in many states, it is likely that we’ve not heard the last of disputes concerning intervenors seeking to be heard concerning election law disputes.

We’ve now gotten to the more divisive cases, especially the gun licensing case. More of that soon will be coming.

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