Oral Arguments in Second Amendment Case Show Supreme Court Justices Split

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Knife Rights Foundation Weighs In on Critical 2nd Amendment Case iStock-Bill Chizek-1149364911.jpg

U.S.A.-(AmmoLand.com)- The oral arguments for the New York Rifle and Pistol Association v. Bruen were presented on November 3, 2021, to the Supreme Court of the United States.

Oral arguments do not carry much weight with the Court, generally. They allow some public interpretation of the issues the Court members are interested in. All of the arguments have already been stated in the written briefs to the Court. With those limits, the presentation to the Court and the questions asked were interesting.

The oral arguments took almost two hours. They were scheduled for 70 minutes. This showed (no surprise) this is a very important case, important to the justices and the general public, as well as to the nation. They can be listened to at this link. Transcripts of the arguments (122 pages) are available at this link.

Three people presented arguments to the Court, although questions by the justices often resembled arguments more than mere questions. The three people presenting were:

  • Paul Clement, Esquire, Washington D.C. for the Petitioners (in favor of Second Amendment rights outside the home);
  • Barbara D. Underwood, Solicitor General, NY, NY, for the Respondents (generally against a Second Amendment right outside the home); and
  • Brian H. Fletcher, Principle Deputy Solicitor General, Department of Justice, Washington, D.C. for the United States, supporting the respondents.

Paul Clement presented a well-argued and professional case for Second Amendment rights outside the home. It appeared designed to gain a moderate advance in restoring Second Amendment rights. He answered questions well.

This correspondent found Clement’s use of the words “allow” and “granted” in describing fundamental Constitutional rights to be an unnecessary ceding of fundamental principles. The rights, in Natural Law Theory, are intrinsic to the existence of humans; they are not “allowed” or “granted”.

Clement was careful to argue he was only asking for a reasonable granting of rights that most people in other states already enjoy. It appears he was not willing to argue for more, fearing he would obtain too little.

The Justices, with their questions and comments, were divided into two camps.

Justices Thomas, Alito, Kavanaugh, Gorsuch, and Barrett, seemed in favor of a straightforward, rational interpretation of the Second Amendment, with Justice John Roberts leaning that way.

Justices Kagan, Sotomayor, and Breyer seemed in favor of limiting Second Amendment rights outside the home as much as possible.  Justice Breyer was openly hostile to the historical findings in Heller.

In general, the debate mirrored the public debate over the Second Amendment, albeit in a more subtle, nuanced and scholarly manner.

Those opposed leaned heavily on the Progressive assumption more guns mean more danger, even though such danger was not shown through significant evidence.

Those in favor leaned heavily on the words of the Constitution and the facts of successful shall issue laws in 42+ other states and territories.

Solicitor General Barbara Underwood referred to as “General Underwood” in the oral arguments seemed a bit overwhelmed by the experience. Her presentation appeared a bit nervous, perhaps understandable, but unusual for presentations at this level. At about one hour and 21 minutes into the oral arguments, Justice Alito confronts General Underwood with a false presentation in the New York brief. He quoted the brief from page 23:

 But on page 23, you say that in founding-era America, legal reference guides advised local officials to “arrest all such persons as in your sight shall ride or go armed.” And this is a citation to John Haywood, A Manual of the Laws of North Carolina, 1814. So I looked at this manual, and what it actually says is “you shall arrest all such persons as in your sight shall ride or go armed offensively.” And somehow that word “offensively” got dropped — from your brief.

Justice Alito asks if Underwood thinks “offensively” is an irrelevant word. He gives Underwood plenty of room to back off, and say it was an error, they should have included the word. Instead, she doubles down. She says the word is irrelevant, her team discussed the issue, and essentially admits they deliberately misquoted the manual. It seemed a major blunder, to this correspondent.

Mr. Fletcher from the Biden Department of Justice was another matter. He showed his considerable talents for making a case smoothly and his command of the facts and the law. He made the most of a weak case with authority and sang-froid. He showed himself to be an able adversary in the Court.

He relied heavily on one statute, which was overturned by the state court in Tennessee, in 1821, and the postbellum case in Texas from 1871, which this correspondent discussed previously. Then there was a flurry of cases as states worked hard to restrict freed slaves and new immigrants. It was not persuasive to those who had read the cases; it was enough for justice to hang their hat on if they wanted to limit the reach of the Second Amendment.

Justice Roberts said it was hard to believe a fundamental Constitutional right would be consistent with a permit system.

There was considerable discussion of how an expanded definition of “sensitive places” might be used by New York if the law was struck down.

Justice Alito brought up the Sullivan law, and how the purpose may have been deliberately discriminatory to disfavored groups.

This correspondent was disappointed no one mentioned the ties of the Sullivan law to protecting organized crime through the law’s namesake,  “Big Tim Sullivan”.

Justice Alito summed up the argument from Mr. Fletcher, I believe, framed as a question:

JUSTICE ALITO: I think one more question about the major point that you’ve made this morning, which is that there are scattered statutes, local ordinances, judicial decisions from various points in the 19th century extending into the 20th century, the early 20th century with the Sullivan Law and the other laws that you mentioned, that are inconsistent with Mr. Clement’s argument. 

But what does that show about the original understanding of the right that’s protected by the Second Amendment? Would –would we be receptive to arguments like that if we were interpreting, let’s say, the First Amendment or the Confrontation Clause of the Sixth Amendment? Would we say, well, you know, you can find a lot of state laws and state court decisions from the late — from the 19th century, early 20th century, that are inconsistent with a claim that is made based on the original meaning of — of a provision of the Bill of Rights, and that shows that’s what that was understood to mean at the time?

It is the crux of the matter. Just because a few jurisdictions flagrantly violated the Second Amendment doesn’t mean the Second Amendment should not have any Constitutional force.

Oral arguments are primarily for public consumption. It is unlikely they do much to influence the Court. From these oral arguments, this correspondent predicts a 6-3 decision striking down the New York law, and requiring a Shall Issue permit system, to be enacted within, perhaps, six months or a year of the decision.

The court is likely to issue an opinion near the end of June 2022.

It will not stop all infringements on the exercise of Second Amendment rights. No one made an argument about “Shall not be infringed”. It is likely to make a large difference for millions of people in those few states where the Second Amendment is treated as a second-class Constitutional right.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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I Haz A Question

Another fine bit of reporting, Mr. Weingarten. I would dare say your articles on this case have been by far the most straightforward and informative of any source I’ve encountered. The time and effort you’ve put into this for our edification is much appreciated.


Roberts’ statement that permitting is not consistent with a constitutional right warmed my heart. On the face he suggested striking down permitting, or nationwide constitutional carry. Yeah that’s a pipe dream, but may as well pray for honest enforcement of straightforward words in BOR.


could have been government instigators there, there was over 70 in DC so ,there is a possibility Kyle shot an fbi agent who was committing crimes


Clement was not nearly aggressive enough. Nor factually correct. We the People granted certain powers and authorities to government when we created it, yet specifically restricted it from having power over our natural right to bearable arms. The gov consistently assumes authority and power we did not grant, and seeks to limit the rights we protected through the BOR. All citizens have the right to all bearable weapons they themselves deem appropriate, including full auto, and all the weapons we have developed for soldiers. The government was restricted from having a monopoly on violence or weapons, such that it could… Read more »


the second is a check on government power,senate house president court people,


We are arguing over rights, why? Last I looked, 2A is a right and not a privilege.+


For more than 40 years now, every time I hear about an argument or court case regarding the rights guaranteed by The Second Amendment, I ask this simple question: Just where in the wording of The Second Amendment is there even a remote suggestion that there is any provision for exceptions, limitations, or restrictions? Anyone?


They’re not split. They all support infringement. The only difference is to what degree.


Now that I think about it, this is probably the most important case, after Heller, that will ever be argued about gun rights before the US Supreme Court. No matter how important you think about, magazine capacity, “assault rifles”, cost of gun licenses, etc. the issue of a law-abiding citizen’s natural right to arm him/herself and use deadly force, if necessary, is all bound up in NYR&P vs Bruen. The other matters will have to wait.


Clement’s arguing for “a reasonable granting of rights that most people in other states already enjoy”, defines the plaintiffs case precisely. It’s all about “May Issue” vs “Shall Issue”. Why should residents of a handful of states, already vetted and licensed, be denied the same gun rights as their equals in the vast majority of US states?

Last edited 10 months ago by Wass

I thought Clement started out a bit weak but warmed up quickly. He missed a lot of opportunities, e.g. on sensitive areas. There is a wide array of definitions and limitations and he should have told Justice Breyer that those States which allow campus carry have not shown any proclivity to increased violence and Justice Sotomayer that if large brawls are not common in stadiums there is no reason to expect gun play if arms were allowed, and suggest to Justice Kagan that New York subways might actually become safer if arms were allowed. There were many other opportunities lost,… Read more »


Even if there is gun play in sensitive areas it will be much worse if there is no one to stop it. In the elusive search for a no-risk life the anti-self-defense people are willing to let the killers do their worst so that they will then self terminate or be put in jail. They are not the pro-active self defense type that will stop mass killings before they culminate.


John Dow

I find it repugnant that the Solicitor General of the DoJ was even in this hearing.


It is sad to think that they could call the NY law unconstitutional then allow it to remain in effect for 6 months to a year. It should be immediately rescinded with all permits approved on the spot.


when i read clements capitulate to leftists vocabulary, using allow and grant when talking about a right, i cringed and thought he might lose. but the questions asked by the justices gave me enough hope that they will finally determine that a right is a right. i am positive that they will wait until the last day to release their ruling. but a ruling at that time will probably bathe the leftists in the blood of tyrants and patriots. they will never stop attempting to negate our rights, it is in their blood, but this is a long time coming.


Until the CRBs are ousted from positions of authority in this country you can kiss the Constitution, and any God given rights we have goodbye.


SCROTUS is corrupt. All but 2.