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Greetings, Court Fans!

The Court returned today with two more decisions, including the biggest in decades: In Dobbs v. Jackson Women’s Health Organization (No. 19-1392), a majority of five justices overruled Roe and Casey, holding that the Constitution does not confer a right to abortion. On first glance, Justice Alito’s majority opinion largely tracks the draft that was leaked in May. As many predicted, Chief Justice Roberts did not join the opinion and concurred only in the Court’s judgment that the Mississippi Gestational Act at issue is constitutional. He agreed that Roe and Casey’s viability line should be discarded, but urged the “more measured course” of not deciding anything more. Justices Thomas and Kavanaugh each provided their own concurrences, with Kavanaugh stressing that the Court’s opinion does not impact other substantive due-process rights involving contraception and marriage and Thomas agreeing, but inviting litigation to challenge the entire concept of substantive due process. Justices Breyer, Sotomayor, and Kagan issued a joint dissent expressing sorrow for the Court and “the many millions of American women who have today lost a fundamental constitutional protection.”

A decision of this magnitude (and length—with the various opinions numbering 213 pages) warrants its own Update, which we’ll provide as soon as we can. But it wasn’t the only decision of the day. In Becerra v. Empire Health Foundation, for Valley Medical Hospital (No. 20-1312), a five-justice majority held that a Department of Health and Human Services’ regulation for calculating Medicare benefits was consistent with the text of the Medicare statute.

While we digest today’s decisions, we’ve got summaries of two of yesterday’s cases: New York State Rifle & Pistol Association Inc. v. Bruen (No. 28-843) and Berger v. North Carolina State Conference of the NAACP (No. 21-248).

We’ll start with New York State Rifle & Pistol Association, which was the highest profile opinion of the term before today. It concerns a New York state law limiting concealed-carry gun licenses only to those who can demonstrate “a special need for self-protection.” The Court’s six conservatives concluded that this restriction violated the Second Amendment, in the process establishing a new purely historical approach to the review of gun regulations, under which a law can be upheld only if its burdens and justifications are comparable to founding-era firearm restrictions. The Court’s three liberals unsurprisingly penned a blistering dissent. But much of the case’s impact will hinge on how lower courts interpret a short, three-page concurring opinion by Justice Kavanaugh, joined by the Chief Justice, which asserts that the majority opinion is narrower than it may appear on first glance. Only time will tell how much weight courts place on that admonition.

Forty-three states have what is called a “shall issue” gun-licensing regime, under which the government must issue gun licenses to applicants who meet certain objective criteria (like passing a background check). But six states and the District of Columbia have “may carry” laws, which also require applicants to establish some special need to carry a gun and entrust licensing officials with determining whether that standard is met. New York is one of them. It requires those who wish to carry a concealed pistol or resolver outside their home or place of business for purposes of self-defense (as opposed to more limited purposes, like hunting or target shooting) to convince a licensing official that “proper cause exists” for the issuance of such a license. No statute defines “proper cause,” but various New York court decisions have held it is met only when an applicant shows a “special need for self-protection distinguishable from that of the general community.” According to the majority, this “special need” standard is not easily met, making New York one of the most difficult states to obtain a concealed carry license. When New York officials denied two members of the New York State Rifle and Pistol Association this sort of license, the association sued, alleging that New York’s regulatory regime violates the Second Amendment. Relying on Second Circuit precedent, both the district court and the Second Circuit upheld New York’s laws, concluding that they were substantially related to an important governmental interest. The Court granted cert.

The Court reversed in a lengthy decision written by Justice Thomas and joined by the Court’s five other conservatives. He began with the Court’s decisions in District of Columbia v. Hellerand McDonald v. City of Chicago, where the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. But Heller and McDonald didn’t provide a lot of guidance about when a gun-control measure impermissibly infringes that right. Nor has any other Supreme Court decision since then. To fill that void, the federal courts of appeals have coalesced around a two-step framework. At the first step, the government may justify its regulation by showing that the challenged law regulates activity that would have fallen outside the scope of the Second Amendment’s original understanding. But if the first step is inconclusive, courts turn to step two, which asks how close the law comes to the core of the Second Amendment’s right and how severe a burden it imposes on the right. Most of those courts have seen the “core” of the Second Amendment as a right to self-defense in the home, so when a regulation burdens that right, courts have upheld a challenged law only if it survives strict scrutiny, that is, if the government proves the law is narrowly tailored to achieve a compelling governmental interest. Outside the context of self-defense at home, however, courts review challenged regulations only under intermediate scrutiny, upholding a law if the government shows it is substantially related to an important governmental interest.

Thomas rejected this two-step approach as “one step too many.” The only test consistent with Heller and McDonald, then, is a historical one, which requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” When the government fails to make that showing, the law is just unconstitutional, regardless of whether it could survive any standard of means-end scrutiny.

After justifying (at some length) this purely historical approach to applying the Second Amendment to challenged gun regulations, Thomas turned to what this approach means in practice. Sometimes, the inquiry will be straightforward. For example, if a challenged gun regulation addresses a “general societal problem that has persisted since the 18^th century,” then the lack of any 18^th century parallel to the challenged regulation is relevant evidence that it is inconsistent with the Second Amendment. So too if the societal problem at issue was addressed through “materially different means” than restrictions on firearms. But when a gun regulation addresses some new problem—one unimaginable in the founding era—courts will have to reason by analogy, asking whether the modern-day regulation is comparable (both in the burden imposed and its justification) to historical restrictions on firearms. For example, 18^th and 19^th century laws frequently prohibited carrying firearms in sensitive places, such as schools and government buildings. Present-day regulations that prohibit carrying firearms in new but analogous sensitive places thus may be permissible, so long as the burden and justification of extending the prohibition to that new category of place is comparable to historical precedent.

Having established this historical test, the majority decided that New York’s proper-cause requirement could not survive it. The petitioners whose firearm licenses were denied were law-abiding adults, who sought to carry handguns for self-defense. In the majority’s view, New York failed to show anything in the historical tradition of firearm regulation comparable to a law preventing law-abiding citizens from carrying firearms for self-defense in public places. On this score, Thomas took a narrow approach to the historical evidence, rejecting many pre-founding parallels (such as English common law) as too early and Reconstruction-era one as too late. Instead, the focus is on what the public understanding of the Second Amendment was at the time of its 1791 enactment. And looking solely at that (at great length and in great detail, we add), Thomas discerned no “historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” As a result, New York’s “proper cause” standard for publicly carrying firearms violated the Second Amendment and must be struck down.

If Thomas’s 63-page majority decision isn’t enough for you, 65 pages of dissents and concurrences follow. We’ll take them a bit out of order, beginning with Justice Breyer’s dissent, joined by Justices Sotomayor and Kagan. He began with a long discussion of the epidemic of gun violence, focusing on recent shootings (like the ones in Uvalde, Texas, or Buffalo, New York) at the front of everyone’s mind. In his view, balancing the risks of gun violence against the legitimate use of firearms inevitably requires different solutions for different places. While Heller and McDonald established an individual right to possess firearms for self-defense, the dissenters did not think the Second Amendment should be read to restrict states’ ability to balance that right against the dangers of firearms through democratic processes.

That overarching approach led Breyer to two more concrete points. First, he criticized the Court’s description of New York’s may-issue regime, arguing that in practice it is both less onerous and less unusual than the Court’s decision suggests. He would thus decline to resolve the petitioners’ challenge to New York’s laws at the pleading stage, instead remanding for an evidentiary record to be developed as to how those regulations work in practice. Second, he disagreed with the Court’s one-step approach, which rejects any means-end scrutiny in favor of a purely historical analysis. No lower court had ever adopted the one-step test in the aftermath of Heller and McDonald because (in Breyer’s view), nothing in those decision suggested it. And if that weren’t enough, the purely historical approach was “deeply impractical,” as it would force lower courts to operate as amateur historians and answer nearly impossible questions about how analogous a modern-day law regulating modern-day weapons in modern-day environments was to a law regulating muskets and hunting rifles in the mostly rural 18^th century. To demonstrate the impracticability of this enterprise, Breyer then embarked on his own (equally thorough) analysis of the historical sources, finding that the historical analogues New York pointed to were close enough to place its law within the scope of historically recognized firearms regulations. For these reasons, he would wait to review New York’s laws until there were a more developed historical record, and once there was such a record, he would not exclude means-end scrutiny from the analysis entirely, instead employing the consensus approach of the courts of appeals.

Now we can turn to the concurrences, two of which matter little but one quite a lot. Among the former, Justice Alito (writing only for himself) penned a lengthy (and very Alito-esque) response to the dissent, contending that its “real thrust” was that “guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit.” Justice Barrett, for her part, highlighted two ongoing scholarly debates among originalist scholars: one as to how post-ratification practice sheds light on the original meaning of the Constitution, and another as to whether courts should focus more on the prevailing understanding of an individual right in 1791 (when the Bill of Rights was ratified) or in 1868 (when the Fourteenth Amendment extended the Bill of Rights to the states). It wasn’t necessary for the Court to address either of those controversies in this case, but future cases may place those issues front and center.

Last of all, we come to Justice Kavanaugh and the Chief Justice. They joined the Court’s opinion. But in a three-page concurrence, Kavanaugh (joined by the Chief) underscored two “important points about the limits of the Court’s decision.” First, in their view, the Court’s decision had nothing to do with the shall-issue gun licensing approaches used by 43 states. Instead, the case was only about the may-issue regime used in New York and 5 other states (plus the District of Columbia), which rather than using objective criteria for the issuance of licenses vest licensing officials with “open-ended discretion” and require showings of “some special need apart from self-defense.” So long as states use objective criteria, they are free to continue to require licenses for carrying handguns for self-defense. Second, Kavanaugh reiterated that the “Second Amendment is neither a regulatory straightjacket nor a regulatory blank check” and that “properly interpreted,” it allows for a “variety” of gun regulations. And he quoted at lengthy from Justice Alito’s majority opinion in Heller, noting that, among other restrictions, the Amendment tolerates longstanding prohibitions on possession of firearms by the mentally ill, allows laws forbidding carrying them in sensitive places, and permits prohibitions on the “carrying of dangerous and unusual weapons.”

Is this concurrence just some shrewd PR to dull the media frenzy over a decision striking down gun regulations just a few weeks after Uvalde? Or will lower courts take it to mean that the majority’s decision should not be interpreted as broadly as some of its language suggests? Either way, the case is sure to spawn a new wave of litigation challenging states’ gun laws and forcing federal courts to decide just how to apply the decision’s historically focused approach to other contexts. 

Our second case for now, Berger,is the last of this term’s trilogy of intervention cases, addressing whether a particular state official (or set of state officials) can intervene to defend a challenged law after the official ordinarily charged with defending the law declines to do so. This time, the relevant officials were North Carolina legislative leaders, who wanted to jump in and defend the state’s recently enacted voter ID law because they thought the state’s elected Attorney General was unlikely to do so with sufficient vigor. The same eight Justices who ruled in favor of would-be intervenors in Cameron did so again here. 

After North Carolina’s voters approved a state constitutional amendment requiring voters to present a photo ID at the polls, the legislature passed an implementing statute. When North Carolina’s Democratic Governor vetoed the bill, the legislature overrode it. The NAACP immediately sued, naming as defendants the Governor and the State Board of Elections, whose members are accountable to the Governor. Ordinarily, defending the law would fall on the state’s elected Attorney General, a Democrat known to oppose photo ID laws. Believing that the defense of that statute would be too tepid in the AG’s hands, the speaker of the state house of representatives and president pro tempore of the state senate moved to intervene to defend the statute with their own counsel. Crucially, a North Carolina statute specifically authorizes these legislative leaders to do exactly this whenever a state statute or constitutional provision is under attack. Notwithstanding the statute, the district court denied the legislative leaders motion to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), concluding that the existing state defendants (represented by the AG) were adequate because they had not yet abandoned their defense of the photo ID statute. The Fourth Circuit initially reversed, but an en banc Fourth Circuit then reversed again, ruling that leaders were not entitled to intervene.

The Court agreed with the Fourth Circuit panel in a decision written by Justice Gorsuch and joined by all but Justice Sotomayor. Under Rule 24(a)(2), a party can intervene as of right when three requirements are met: (1) the motion for intervention is timely, (2) the would-be intervenor claims an interest in the subject of the action that could be impaired by the disposition of the action, and (3) the existing parties are not adequate to represent that interest. No one questioned the timeliness of the legislative leaders’ intervention motion. And there wasn’t that much of a dispute about the second prong either, because North Carolina law conferred on the intervenors the right to participate directly in litigation challenging a state statute. Gorsuch quickly batted away the existing state defendants’ suggestion that North Carolina law didn’t really give legislative leaders this authority, finding the statute pretty clear. And he dismissed the NAACP’s argument that it could essentially evade legislative leaders’ right to intervene by naming only the Governor and the State Board of Elections as defendants. Federal courts should not second-guess North Carolina’s division of responsibility when it comes to defending state laws, particularly when (as here) a diversity of voices with different perspectives may aid federal courts in deciding the disputed issues.

Most of the dispute was on the last prong, asking whether the existing defendants represented by the AG were adequate to protect legislative leaders’ interest. And here, Gorsuch rejected the lower courts’ presumption that the existing state defendants were adequate, a presumption the lower courts required the intervenors to rebut. Setting aside whether the use of a presumption like this one is ever appropriate, the majority concluded it was out of place here, where state law explicitly gave legislative leaders a separate role in defending state law. The history of the litigation only bore out the distance between the AG and the legislative leaders: Although the AG’s office had not yet abandoned the defense of the law, its legal strategy prioritized some interests (like stability and ease-of-administering elections) over others (like ensuring that the photo ID law was enforced as quickly as possible). Finally, the Court rejected the NAACP’s suggestion that allowing legislative leaders to intervene would unduly complicate the litigation, noting that it is hardly unique for civil-rights actions to involve a range of different parties with different interests and positions.

Just as in Cameron,Justice Sotomayor dissented alone. In her view, the case posed a question of federal procedure, and that question should not be determined almost entirely by state law. She also took issue with the majority’s suggestion that the North Carolina AG wasn’t adequately representing the state’s interests, simply because the proposed intervenors disagreed with some of his tactical decisions. As she pointed out, notwithstanding his personal opposition to photo ID laws, the AG was zealously defending the law, even obtaining an appellate reversal of a preliminary injunction issued by the district court. For these reasons, she would affirm the lower courts’ conclusion that the would-be intervenors’ interests were already adequately protected by the existing defendants.

That’s all for now.

Dave and Tadhg