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Back in December, I attended oral argument in Decker v. Northwest Environmental Defense Center, a Clean Water Act case that I did not know much about. At the time, I noted that the Chief Justice smacked down the government lawyer for the EPA’s decision to change their policy mere days before the argument. Also, the attorneys for the logging interest begged the Court not to send the case back to the 9th Circuit (I sat next to the attorney’s sister), while the environmentalists begged the Court to DIG the case.

Today we have an opinion in this case. Justice Kenendy writing for the Court found that the recent amendments do not make the case moot. Applying Auer deference, the Court finds that the EPA’s interpretation is reasonable.

The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997).

Justice Scalia had an important concurrence on Auer deference.

I do not join Part III. The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough.

To Scalia, Auer is nothing more than Chevron deference for regulations:

The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains

Wow, Nino is schmalzing it up with citations to Holmes & Marbury v. Madison & Montesquieu & Blackstone & Federalist 81!?

As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). . . . But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison . . . “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws . . . Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543–544 (J. Cooke ed. 1961)

For all these reasons, Nino would not defer to an agencies interpretation of its own rules.

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot jus- tify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

…

Because the fairest reading of the agency’s rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.

Au Revoir Auer.

Chief Justice Roberts, joined by Justice Alito, disagreed with Scalia’s opinion, and said this was not the right time to revisit Auer.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Not even the Professors want to revisit Auer!

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11–338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 223–224 (1997) (declining to decide question that received only “scant argumentation”). Out of 22 amicus briefs, only two—filed by dueling groups of law professors—addressed the issue on the merits.

And Roberts tells “the bar” that Auer and Seminale Rock is in doubt.

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent

Scalia, Roberts, and Alito are not down for Auer.

Here is an early report from CNBC. I will try to find the opinion. Michael Bloomberg can’t even satisfy the rational basis test!?

Update: From WSJ:

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” New York Supreme Court Judge Milton Tingling decided Monday.

The regulations are “fraught with arbitrary and capricious consequences,” the judge wrote. “The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole….the loopholes in this rule effectively defeat the stated purpose of the rule.”

Update 2: Courtesy of WSJ, here is a link to the opinion.

It is a pretty dry opinion, but the crux of it seems to be that since the law was not created by the elected branches, but rather some sort of administrative agencies, the law is invalid.

And here is why the law violates the rational basis test:

 

And it gets better. The judge refers to Bloomberg’s plan as an “Administrative Leviathan” and “eviscerates” separation of powers.

Federal question jurisdiction makes me bizarrely excited. Here is a quick run-down of Gunn v. Minton.

First, I should note that the Court highlighted the dissenting positions of Justices Guzman and Medina, both graduates of the South Texas College of Law, and Justice Don Willettt, a friend of this blog.

Justice Guzman, joined by Justices Medina and Willett, dissented. The dissenting justices would have held that the federal issue was neither substantial nor disputed, and that maintaining the proper balance of responsibility between state and federal courts precluded relegating state legal malpractice claims to federal court.

These judges got it right. Here is the issue as framed by the Chief:

As relevant here, Congress has authorized the federal district courts to exercise original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331, and, more particularly, over “any civil action arising under any Act of Congress relating to patents,” §1338(a). Adhering to the demands of “[l]inguistic consistency,” we have interpreted the phrase “arising under” in both sections identically, applying our §1331 and §1338(a) precedents interchangeably. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 808–809 (1988). For cases falling within the patent-specific arising under jurisdiction of §1338(a), however, Congress has not only provided for federal jurisdiction but also eliminated state jurisdiction, decreeing that “[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents.” §1338(a) (2006 ed., Supp. V).

I still wonder how depriving state courts of federal jurisdiction is constitutional (see lots of posts here).

To determine whether jurisdiction was proper in the Texas courts, therefore, we must determine whether it would have been proper in a federal district court—whether, that is, the case “aris[es] under any Act of Congress relating to patents.”

Roberts lays out the  two ways “a case can “aris[e] under” federal law.” First, American Well Works’ “Creates the cause of action” test. That was Holmes.

Minton’s original patent infringement suit against NASD and NASDAQ, for example, arose under federal law in this manner because it was authorized by 35 U. S. C. §§271, 281.

But the other avenue for arising under in claims that “Find its origin in state” law is quite murky.

But even where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies. Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006). In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first

Roberts turns to Grable, a case that was decided while I was taking CivPro.

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? Grable, 545 U. S., at 314. That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

So here we get a clarification of Grable:

Applying Grable’s inquiry here, it is clear that Minton’s legal malpractice claim does not arise under federal patent law. Indeed, for the reasons we discuss, we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of §1338(a). Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.

Got that? The “unlikely to have the sort of significance for the federal system” is the newest addition to the “arising under” morass.

The Court also opens up the “significance” analysis to look at the federal system as a whole, rather than the particular issues before the Court.

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Curiously, only one citation to Merrell Dow and Smith v. Kansas City Title & Trust (in which Holmes dissented). In contrast, Grable cited Merrell Dow 23 times. I reckon that Stevens opinion is on the wane.

A second illustration of the sort of substantiality we require comes from Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), which Grable described as “[t]he classic example” of a state claim arising under federal law. 545 U. S., at 312. In Smith, the plaintiff argued that the defendant bank could not purchase certain bonds issued by the Federal Government because the Government had acted unconstitutionally in issuing them. 255 U. S., at 198. We held that the case arose under federal law, because the “decision depends upon the determination” of “the constitutional validity of an act of Congress which is directly drawn in question.” Id., at 201. Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government “securities were issued under an unconstitutional law, and hence of no validity.” Ibid.; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 814, n. 12 (1986).

Roberts also has an interesting discussion of how state courts should consider patent cases–hint, check with what federal courts have done/would do.

Nor will allowing state courts to resolve these cases undermine “the development of a uniform body of [patent] law.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989). Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit. See 28 U. S. C. §§1338(a), 1295(a)(1). In resolving the nonhypothetical patent questions those cases present, the federal courts are of course not bound by state court case-within-a-case patent rulings. See Tafflin v. Levitt, 493 U. S. 455, 465 (1990). In any event, the state court case-within-a-case inquiry asks what would have happened in the prior federal proceeding if a particular argument had been made. In answering that question, state courts can be expected to hew closely to the pertinent federal precedents. It is those precedents, after all, that would have applied had the argument been made. Cf. ibid. (“State courts adjudicating civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law”). As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit. If the question arises frequently, it will soon be resolved within the federal system, laying to rest any contrary state court precedent; if it does not arise frequently, it is unlikely to implicate substantial federal interests. The present case is “poles apart from Grable,” in which a state court’s resolution of the federal question “would be controlling in numerous other cases.”

Roberts concludes by saying that the state court’s resolution of the patents will not be binding precedent–they are only used for that one case.

As we recognized a century ago, “[t]he Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U. S. 473, 478 (1912). In this case, although the state courts must answer a question of patent law to resolve Minton’s legal malpractice claim, their answer will have no broader effects. It will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” Grable, supra, at 313. Section 1338(a) does not deprive the state courts of subject matter jurisdiction.

The Court 8-0, per Justice Ginsburg, held that “Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”

One threshold question Steve raised is why the 5th Amendment applies to “private property” owned by the state, as the Takings Clause states “[N]or shall private property be taken for public use, without just compensation.” I think there is an easy answer, and an answer deeper in the thickets. The easy answer is that property owned by the state is private, in the sense that it is not abandoned land left in the commons. States own lots of land, which they can use for parks or other purposes, but it is still private, at least with respect to several sticks in the bundle. To some extent, they can exclude people (for example, by charging a fee to enter a park). They can alienate it (sell it to a private developer). Etc.

But, I think the deeper, more interesting issue is when you are talking about dual sovereigns–when the federal government is trying to take property of the state. In some respects, the state is acting like a private party would, at the mercy of the superior sovereign. Are there any cases about whether state governments could take federal property?

Anyway, back to the case. I shall read on.

This case considers when a temporary taking, such as temporary flooding, becomes “permanently continued.” Of course, temporary takings are looked at under Penn Central.

Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking . . .  the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a per- manent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.

The Court continued its pattern of noting the nebulousness of regulatory takings (a topic that I found quite difficult to teach for that reason, thank you very much Justices). This is a pretty good summary, that I would share with my Property II students, but their exam was last night. Oh well. Good timing RBG.

We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area. True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim.

After streaming through the Court’s precedents on flooding, RBG fluidly summarized:

Ever since, we have rejected the argument that govern-ment action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” . . . Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.

RBG narrowly construed a precedent, from the dawn of the regulatory takings era (not too long after Penn Coal), to counter the government’s position.

We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti. That case, we note, was decided in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.

Just for good measure, she cites John Marshall’s line in Cohens v. Virginia about dicta.

We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

Also, RBG adds her own canon of statutory interpretation: Read On. (not sure if Garner and Scalia got this in their tome):

The Government also asserts that the Court in Loretto interpreted Sanguinetti the same way the Federal Circuit did in this case. That assertion bears careful inspection. A section of the Court’s opinion in Loretto discussing permanent physical occupations parenthetically quotes Sanguinetti’s statement that flooding is a taking if it constitutes an “actual, permanent invasion of the land.” 458 U. S., at 428. But the first rule of case law as well as statutory interpretation is: Read on. Later in the Loretto opinion, the Court clarified that it scarcely intended to adopt a “flooding-is-different” rule by the obscure means of quoting parenthetically a fragment from a 1924 opinion. The Court distinguished permanent physical occupations from temporary invasions of property, expressly including flooding cases, and said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.”

But then, RBG throws some cold water on the flooding argument.

To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course in- cumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions

RBG also douses some of the “prophetic” fears of expanding what constitutes a regulatory taking.

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby, and today’s modest decision augurs no deluge [JB: Awesome pun!] of takings liability.

RBG notes that the government raised an argument, essentially, for the first time at oral arguments. The Court would not consider it.

At oral argument, the Government tendered a different justification for the Federal Circuit’s judgment, one not aired in the courts below, and barely hinted at in the brief the Government filed in this Court: Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United States 26–27. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we express no opinion on the proposed upstream/downstream distinction and confine our opinion to the issue explored and decided by the Federal Circuit.

Chief Justice Roberts could not be reached for comments.

Also, the Court does not address the implications of Arkansas riparian law:

1 Arkansas water law is barely discussed in the parties’ briefs, see Brief for United States 43, but has been urged at length in a brief amicus curiae filed by Professors of Law Teaching in the Property Law and Water Rights Fields.

A scholars brief that was cited when the merit briefs ignored an issue!

So here’s the holding:

We rule today, simply and only, that governmentinduced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.

The Second Circuit in Kachalsky v. Cacace upheld New York’s gun licensing law, including the discretionary policy for granting concealed-carry permits.

In doing so, the Court parted with Judge Kavanaugh’s dissenting view in Heller II, Judge Elrod, and “academics,” held that the traditional tiers of scrutiny to apply to the Second Amendment.

 A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “[u]nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.

Good thing the Second Amendment doesn’t have an Anti-Injunction Act!

Anyway, the 2nd Circuit’s analysis concedes that the 2nd Amendment has “some application” outside the home.

What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. What we do not know is the 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. This vast “terra incognita” has troubled courts 20 since Heller was decided. United States v. Masciandaro, 638 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). Although the Supreme Court’s cases applying the 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court’s analysis suggests, as Justice Stevens’s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very different context of the public possession of firearms. 10 6 7 Our analysis proceeds on this assumption.

The Court has an interesting, and frank discussion about the role that history plays in this analysis.

It seems apparent to us that unlike the situation in 2 Heller where “[f]ew laws in the history of our Nation have 3 come close” to D.C.’s total ban on usable handguns in the 4 home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins. 15 5 Heller, 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or 10 the Second Amendment. . . .

Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: Can New York limit handgun licenses to those 21 demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. Analogizing New York’s 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits.

In other words, the court acknowledge that the history is “highly ambiguous,” and does not speak directly to the question before the court.

The court also has an interesting discussion of what I’ve called equality of rights–treating the amendments in a similar fashion.

Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper cause requirement. 16 12 They see the nature of the rights 13 guaranteed by each amendment as identical in kind. One has 14 a right to speak and a right to bear arms. Thus, just as 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. We are hesitant to 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. Indeed, no court has done so.

The court decides not to import these terms. Why? It would “Result in the erosion of hard-won First Amendment rights.” In other words, the Second Amendment is different from all other rights (see The Constitutionality of Social Cost that poses just that question):

But it 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. Endorsing 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. As discussed throughout, there are 1 salient differences between the state’s ability to regulate 2 each of these rights.

The court goes on to talk about the fact that this is a bad vehicle, but let’s pause to address this. This is the clearest statement I’ve seen by a court saying that  applying First Amendment doctrine to Second Amendment would dilute the First Amendment’s power. This argument must be premised on the fact that the Second Amendment is a second-class right.

The court finds that “heightened scrutiny” is not automatically triggered here  because the law in question is not a complete ban.

Here, some form of heightened 2 scrutiny would be appropriate. New York’s proper cause 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. And unlike Decastro, there are no alternative 6 options for obtaining a license to carry a handgun. 7

We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the “core” 10 protection of the Second Amendment is the “right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home.” Heller, 554 U.S. at 634-35. Although we 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the “core” Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the “core” protection of self-defense in the home 18 makes eminent sense in this context and is in line with the approach taken by our sister circuits.

Perhaps the coolest part of this opinion, is that in the discussion of the importance of the home, it cites the Third Amendment. Kudos CA2:

That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.

Because the 2nd Amendment permits “latitude,” it passes “intermediate scrutiny.”

We believe state regulation of the use of firearms in 8 public was “enshrined with[in] the scope” of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, “the state enjoys a 11 fair degree of latitude” to regulate the use and possession 12 of firearms in public. The Second Amendment does not 13 foreclose regulatory measures to a degree that would result 14 in “handcuffing lawmakers’ ability to prevent armed mayhem 15 in public places.” Masciandaro, 638 F.3d at 471 (internal 16 quotation marks omitted). 17

Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. The proper cause requirement 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest.

…

Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York’s interests in public 18 safety and crime prevention. It is not, as Plaintiffs 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. This 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive 2 alternative. But, as explained above, New York’s law need 3 only be substantially related to the state’s important 4 public safety interest. A perfect fit between the means and 5 the governmental objective is not required. Here, instead 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety.

The court also addressed the link between guns and danger.

To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. Plaintiffs’ Reply Br. 18 at 37-38. We also recognize that many violent crimes occur 19 without any warning to the victims. But New York also 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature’s job, not ours, to weigh conflicting 3 evidence and make policy judgments. Indeed, assessing the 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make.

And, in an epic citation contrast, the majority counters Heller with NIFB!

To be sure, “the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table.” 11 Heller, 554 U.S. at 636. But there is also a “general 12 reticence to invalidate the acts of [our] elected leaders.” 13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). “‘Proper respect for a coordinate branch of 15 government’ requires that we strike down [legislation] only 16 if ‘the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated.’” Id. (quoting United 18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of 19 the history and tradition of firearm regulation does not 20 “clearly demonstrate[]” that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. I

This is a really well-reasoned opinion. Let’s see what SCOTUS does with it.

P.S. The Second Circuit should stop putting line numbers in slip opinions. It is absolutely worthless in the digital age, and it makes copying from opinions very difficult.