I am happy to admit my earlier pessimism was in error. I'm happier to report that what seemed to be just legal banter in oral argument, has actually become very significant and has forced some fallout to occur, even with the decision still pending.

During oral argument (on Nov. 3) both lawyers defending the NY law were queried by the Justices about the legal process used by the lower federal court to decide the constitutionality of this challenged law and has, since Heller, been used by many Circuit courts to decide on gun control laws.

The Circuit courts use a self-created "two-step inquiry" to apply the 2nd Amendment. Under this test those lower federal courts first determine if the challenged law burdens / implicates conduct protected by the Second Amendment. If they conclude the law does infringe on the RKBA, they proceed to the second step, deciding how severe the infringement is . . . They decide whether it is really a significant intrusion on the core right, and thus worth them worrying about.

Obviously this is an ends focused endeavor and they never fail to declare the gun control law is absolutely needed for public safety and inventing novel ways to explain why this violation of the right must be allowed.

Understandably, the two lawyers could not defend the "two-step inquiry" and in fact, the Principal Deputy Solicitor General of the USA, Brian Fletcher (representing the Biden Administration, who requested oral argument time) conceded that applying the 2nd Amendment's "text , informed by history and tradition" (as articulated years ago by Justice Thomas and explained by Kavanaugh in his dissent in Heller II) is the proper process.

This is huge because it looks like the 9th Circuit has read the tea leaves and it knows what is coming.

After those oral arguments in the NY case and that line of questioning, the losing (gun rights) party in a large capacity magazine (LCM) ban case in the 9th Circuit, made a motion to the 9th Circuit in early December to stay the enforcement of the ban on possession of hi-cap mags until they can appeal to SCOTUS; it was uncontested by California and was granted. The 9th has also suspended (held in abeyance) two assault weapon ban cases until NYSRPA is decided, and the 3rd Circuit has also held a NJ hi-cap mag ban case for the NYSRPA decision.

What we can draw from this is the lower federal courts realize the "two-step inquiry" is dead, and the cases decided using the "two-step inquiry" are at best, infirm.

It seems a forgone conclusion (by all parties), that SCOTUS, in deciding the NY case (NYSRPA) will invalidate the "circuit judge two-step" and demand "text, informed by history and tradition" be the only acceptable standard to apply the 2ndA to a challenged gun control law.

Just like the challenge to Chicago's handgun ban was already written and filed in the 7th Circuit immediately after Heller was handed down, (which subsequently became McDonald) there will be a tsunami of appeals filed in Circuits all across the nation immediately after NYSRPA is handed down (expected in June, 2022). Unlike the 7th's post Heller rehearing of the Chicago ban in 2009, (NRA v Chicago), the Circuits will have no wiggle-room to evade and ignore SCOTUS.

Understand, NYSRPA will result in a deluge of motions for rehearings in these Circuits and reversals of all these decisions sustaining gun laws, including state assault weapon (AW) and large capacity magazine (LCM) bans and safe storage laws etc., will follow quickly (there is no effective legal defense).

Note, these rehearings and reversals / invalidations of these bans will not require any appeals or acceptance and hearing by SCOTUS; it all happens in the Circuits that screwed the pooch originally -- forced to reconsider those laws using the "text, informed by history and tradition" standard, deciding those cases like they should have done since Heller and McDonald, declaring those bans invalid / unconstitutional.

June is going to be a great month!

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