I've been giving this a lot of thought in the last few months.
I think this is correct in that the court likely will issue a very limited decision. The New York will lose the judgement, but it's the opinion, not the judgement, that sets the stage for what happens next.
I've been thinking about this a lot. I would be very, very surprised to see a 6-3 opinion that clearly describes how the Second Amendment applies outside the home and tells lower court exactly how to evaluated 2A claims. We'll get closer than we are now, but not all the way. But when it comes to Massachusetts and the other 'may issue' states, we'll have to take the ruling and attack each state's statutory scheme individually.
As far as training goes, nothing will change. Challenging a training requirement like the one in Massachusetts is a non-starter unless that requirement imposes and 'undue burden' (stealing from Casey). Similarly, I don't think licensing schemes per se are vulnerable to challenge unless they are clearly deployed in an effort block the exercise of the right. If you look at what restrictions on voting SCOTUS is willing to tolerate, it's hard to see them get worked about licensing unless a licensing authority is openly and deliberately blocking or delaying applicants.
(Queue the 'Knuckle Dragger supports licensing and training' trolls. That's not what I said, I just don't think those things can be successfully challenged).
Thomas, Alito, and probably Gorsuch would like to come down hard and spell it out in great detail. We don't know enough about Kavanaugh and Barrett yet. They're probably in for the judgement, but maybe not for the kind of opinion that Thomas or Alito would like to write. The want to go in the same direction, they're just not in the same kind of hurry. Roberts is probably in the same boat. He'll be in the majority for sure if for no other reason than to control who write the opinion.
I can easily see the possibility for a fractured judgement where you have four justices forming a plurality, two concurring arguing that they'd go further (or not as far depending on how the six breakdown). However, I don't think there are five justices that want to be in the business of doing all the work on the Second Amendment. They want the lower courts to do it. I would not be surprised if they issued a judgement for the petitioners and remanded the case with some broad statement about how the exercise of a fundamental right cannot be dependent upon some subjective, non-statutory judgement about what is or is not a 'proper purpose' or 'good cause'. That adds a few more years while NY and CA2 try to figure out how to confine the right within those corners.
And if that's the case, you might even see Kagan in the majority. This last term has had some interesting lineups. Kagan has sharp elbows and has been beating the stare decisis drum pretty loudly. I would not be shocked if she issued a 'I don't agree with Heller, but it's the law now' kind of concurrence. I actually think she's the smartest one on the court.
You're making the mistake of thinking of SCOTUS as an 'it' when it's really a 'they'. In that respect they're a microcosm of the federal government. People think the government is an 'it' that functions according to a consistent, well-harmonized set of principles and laws. It's not. The government is a collection of departments, bureaus, offices, etc. that are frequently at odds with one another.
First off, what a well written and educated response! Thank you for taking the time to post it!
I agree with most of what you said. You are correct it’s not the judgment that is as critical as what is said and written in the Opinion. NY will most definitely loose the judgement, or the case wouldn’t have been granted a hearing.
I also agree, they narrowed the question to be answered. So the opinion written, by whoever ends up writing it, will of course be narrow and IMHO will state That Bearing Arms outside of the home as being protected by the 2A. Just like it was stated in the Heller case. However, they will go on more then likely to state that certain limits can apply, and will only state that using subjective means such as “good cause” to limit a persons capability to carry outside the home as unconstitutional. I would be surprised to be honest, if they even delineate the difference between concealed and unconcealed carry of a firearm, or even mention the difference at all. Which of course will leave lower courts to figure it out for themselves. This has happened at least on 4 separate cases at state level. Louisiana, Kentucky, Alabama and if my memory is correct Tennessee. Louisiana since that case has had Permitless open-carry. Crazy since their Gov. Just vetoed a constitutional carry bill.
It is more then obvious where Justice Thomas stands on the issue, considering the numerous dissents he has written on the numerous 2A cases denied cert during his Tenure. Including what he wrote in the NJ dissent of a very similar case as the NY one. Justice Gorsuch joined in the dissent on denial of that NJ case as well. Justice Barret had not yet joined the court yet. So your correct, we don’t have much of clue on how she would have written a dissent on that case, or if she would have even joined Thomas and Gorsuch. One interesting thing though is Justice Barret is a gun owner. So she will at least vote in our favor. It will be interesting to see which Of the two groups you describe she will fall into. (The 4 or the 2).
I like you, also believe that Roberts will fall in line and make it a 6-3 vote simply so he can control who writes the opinion and what the opinion is limited too. I would be extremely surprised Thomas, or Barrett writes the Opinion. IMHO it will probably end up being written by either Justice Alito or Justice Kavanaugh. That’s my guess. I doubt the other 5 would agree to letting Justice Roberts write the Opinion.
Interesting thought you had there about Justice Kagan that I have not considered before. She doesn’t fully agree with Heller. But there are a lot of judges who obviously dont as well as numerous legal scholars. It will be interesting to see if your correct and she follows at least in part some of what Heller says. She might agree that there is a 2A right to bear arms outside the home, but will probably dissent on the degree a government can limit that right through licensing/permitting schemes Issued in the majority opinion.
I also believe Justice Thomas will be one of the two that concurs on parts of the majority opinion, but will issue a dissent on the failure to address other 2A issues, one such as levels of scrutiny, or even on not issuing a stricter majority opinion. Justice Barret though has already been known to issue at least one harsh 2A dissent in a lower court ruling she was a part of. I believe that had to do with non-violent felons having the right to own a gun. I think the specific case dealt with someone convicted of a Tax crime.
Your also right about the “government” influences at that level between the different Branches. We have had conservative control of SCOTUS for quite a long time, and no 2A cases have been heard in 10+ years. Even last June 10 cases were denied cert. There has been some political pulling obviously. What you said about casesprobably being denied for fear of how Justice Roberts would lean has been mentioned by quite a few times by legal scholars, both liberal and conservative.
It is obvious that many are jumping on the bandwagon though. This is the first 2A case that has had so many Amicus Curiae filed in support. 43 so far!
