The Majority, Concurring, and “Controlling” Opinions in the Supreme Court’s Decision of New York State Rifle & Pistol Ass’n Inc. v. Bruen

By Michael Wein

Last week, two blockbuster United States Supreme Court decisions were issued in Bruen and Dobbs.  This Post discusses the first,  New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 2022 WL 2251305, (U.S. June 23, 2022), published last Thursday.  Bruen primarily involved whether and to what extent the Second Amendment applied to New York’s very strict requirements for qualified applicants to obtain a carry permit, for gun possession outside the home. 

The label “majority opinion” and written by the Court’s primary author may not be considered the “controlling” opinion by the other federal or state courts. As discussed and previously examined in a prior Blog Post from 2013, the “Marks Rule” from Marks v. United States, 430 U.S. 188 (1977), guides how to identify the actual holdings in a “split” decision with multiple opinions; this Post dates back to Maryland’s consideration of comparative negligence in Coleman, and described the non-obvious difficulty in simply assuming or accepting the label given to what’s listed as the “Majority” Opinion.[i]  The Blog Post noted,

This construction [in Coleman] would comport with the definition [under Marks] of what is a “majority” opinion—in particular, that any opinion that is the “broadest rule” that has a “majority” of the judges, is to be construed as the majority opinion.   The Supreme Court has shown some creativity in this regard [for example, such as]  McConnell v. FEC, 540 U.S. 93 (2003), in making fractured rulings on the constitutionality of the Bipartisan Campaign Reform Act of 2002, issued three majority opinions for the different sections of the legislation.

The Supreme Court has displayed creativity similiar to McConnell in the recent Bruen case, though unlike Coleman, it’s not on the incorrect label being given, but what’s actually the nuanced “controlling” decision on application.  Broadly speaking, there is a Majority Opinion and authorship on Bruen, by Justice Thomas, which is controlling on the Constitutional impact, but for right now, the effect is limited.   This is a bit opaque on first glance, but was also noticed by some news outlets such as the Washington Post, which wrote articles focused on the Justice Kavanaugh Concurrence, joined by Chief Justice Roberts.  

The Marks Rule still applies

Before getting to the specifics as to why Justice Kavanaugh’s Concurrence should be read closely, it’s important to note, how the Marks Rule still undoubtably applies.  This requires examination of the Supreme Court’s decision two years ago, in  Ramos v. Louisiana.  Justice Gorsuch wrote the Majority Opinion, which was separated into various “Parts” and even “sub-Parts” which were acknowledged to not have a majority decision on some of these sub-parts. 

Ramos sought to adopt under the Fourteenth Amendment, the incorporation of the “Unanimity” requirement for serious criminal convictions in the United States Constitution to the two outlier States of Louisiana and Oregon.   This was ultimately agreed and adopted by a 6-3 Supreme Court, though different reasons were given as to how and why.  However, this adoption was considered markedly easier to rationalize, by three Justices, since the Apodoca decision being examined, was instead characterized as being so fractured, in a 4-4-1 Split, there was no controlling decision.  As Justice Gorsuch wrote in “Part IV-A” at Slip. Op. at 16, joined by Justices Ginsburg and Breyer,

The dissent contends that, in saying this much, we risk defying Marks v. United States. According to Marks, when ‘a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” But notice that the dissent never actually gets around to telling us which opinion in Apodaca [406 U. S. 404 (1972)] it considers to be the narrowest and controlling one under Marks—or why. So while the dissent worries that we defy a Marks precedent, it is oddly coy about where exactly that precedent might be found.

The parties recognize what the dissent does not: Marks has nothing to do with this case. Unlike a Marks dispute where the litigants duel over which opinion represents the narrowest and controlling one, the parties before us accept that Apodaca yielded no controlling opinion at all. In particular, both sides admit that Justice Powell’s opinion cannot bind us—precisely because he relied on a dual-track rule of incorporation that an unbroken line of majority opinions before and after Apodaca has rejected.

Ramos v. Louisiana, 140 S. Ct. 1390, 1403–04 (2020) (J. Gorsuch).

However, Justice Kavanaugh’s Concurrence, differing with Justice Gorsuch on the above procedural Marks discussion, made it clear, the United States Supreme Court still respected and relied upon Marks.  This isdespite some concerns on regular application and interpretation, and refuting the notion Apodaca wasn’t precedent and a “limbo” decision undecided for 40 years.[ii]  This was despite Apodaca’s oddly fractured decision, that continued to allow Louisiana and Oregon to convict criminal defendants, without a unanimous jury verdict in support.

Our three colleagues’ next try is to argue that Apodaca is not binding because a case has no ratio decidendi when a majority does not agree on the reason for the result. Ante, at 1404, and n. 54. This argument, made in passing, constitutes an attack on the rule that the Court adopted in Marks v. United States, 430 U.S. 188 […] (1977), for determining the holding of a decision when there is no majority opinion. Under the Marks rule, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id., at 193, 97 S.Ct. 990 (internal quotation marks omitted). This rule ascribes precedential status to decisions made without majority agreement on the underlying rationale, and it is therefore squarely contrary to the argument of the three Justices who regard Apodaca as non-precedential.

The Marks rule is controversial, and two Terms ago, we granted review in a case that implicated its meaning. See Hughes v. United States, […[ 138 S.Ct. 1765 […] (2018). But we ultimately decided the case on another ground and left the Marks rule intact. As long as that rule stands, it refutes the argument that Apodaca is not binding because a majority did not agree on a common rationale.

Ramos v. Louisiana, 140 S. Ct. 1390, 1430 (2020)  (J. Kavanaugh, Concurring)

Which Opinion  is “controlling” in Bruen?

With this background, turning to the decision in Bruen, finds the Supreme Court decision requires examination of the specific wording used by the Justices’ Concurring opinion, to ascertain what is the “Controlling” decision.  Though a Ven Diagram would show these overlap significantly, the “Controlling” decision is not necessarily the “Majority” decision. There is a Majority Opinion described, with three Concurring opinions by four Justices.  The opening reads, as follows. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Going to Page 70 of the Slip Op. finds,

ALITO, concurring.

‘I join the opinion of the Court in full but add the following comments in response to the dissent.’”  [Emphasis Added]

Going to Page 82 of the Slip Op. finds,

Justice BARRETT, concurring.

‘I join the Court’s opinion in full. I write separately to highlight two methodological points that the Court does not resolve.’”  [Emphasis Added]

Here is where the Concurring Opinion by Justice Kavanaugh and Chief Justice Roberts differ from the specific descriptions by Justices Alito and Barrett.  Those Concurrences, do not limit the Majority opinion in any way.  However, Kavanaugh’s Opinion, at Pages 79-81 of the Slip Op. reads,

Justice KAVANAUGH, with whom THE CHIEF JUSTICE joins, concurring.

[…]  Applying that test, the Court correctly holds that New York’s outlier “may-issue” licensing regime for carrying handguns for self-defense violates the Second Amendment.

I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision. [Emphasis Added].

First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.  The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York.“

‘[…]

Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.”  [Emphasis Added]

Thus, applying the Marks Rule, a review of the 135 pages of decisions, there is an unlimited adoption by a total of six Justices of Justice Thomas’ Majority opinion.  Yet, with two Justices explicitly adopting as part of a three-page Concurrence, a “limit[…]” to the Majority Opinion, those three pages, appear to change the typically controlling opinion in the Majority, at least from a “practical” standpoint, to making the “controlling” decision, to be Justice Kavanaugh’s Concurrence.

 As described before in the Blog Post, “What is a Majority Opinion,” this is not necessarily what is characterized or labeled as the Majority Opinion in appellate cases, and can require a deeper dive to ascertain, the “controlling” opinion. Justice Kavanaugh’s Concurrence is not completely absent from the Majority opinion, it’s just somewhat obscured on Page 36, in the lengthy footnote 9, of the Majority Opinion. 

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit] […]

This Footnote, may have been the “price” involved, for Justice Kavanaugh and Chief Justice Roberts to agree to sign on to the rest of Justice Thomas’ Majority Opinion.  So Bruen, while quite an important decision, as of yet, does not appear to apply to affect or remove the existing regulations of the 43 states, but sought to provide an expansion of Second Amendment Rights and protections in the “outlier” States, which includes Maryland.

In fact, just before this Post went to print, the Maryland Court of Special Appeals issued a published opinion in Fooks v. State, No. 269, Sept. Term 2021, Dec. June 29, 2022 (J. Nazarian), less than a week after Bruen. Fooks stated that Justice Kavanaugh’s decision was likely controlling.  (See Fooks, Slip Op. at 11-12).

Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com. 

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[i]  The example used was the Maryland Court of Appeals’ Coleman v. Soccer Association  decision on whether comparative negligence should be judicially adopted in Maryland, and how what was indicated to be the “Majority” decision by Judge Eldridge, was more properly interpreted to be Judge Greene’s “broader” four-Judge opinion, despite that being “mislabeled” as a Concurring decision.

[ii] This circumstance differs markedly from the  4-4-1 plurality decision under the Confrontation Clause from Williams v. Illinois, 132 S. Ct. 2221 (2012).  That decision, was found recently by the Maryland Court of Appeals, to be so unworkable as precedent and Constitutional guidance after awaiting clarification from the United States Supreme Court for a decade, the Court instead decided the Confrontation issue under Maryland’s Constitution in Leidig v. Maryland, 475 Md. 181 (Dec. August 5, 2021) (J. Biran).