Indeed. It's almost fairer to categorize this as a 5-3-1 decision. Gorsuch tricks you into nodding along with his dissent, which reads very much like a concur

Indeed. It's almost fairer to categorize this as a 5-3-1 decision. Gorsuch tricks you into nodding along with his dissent, which reads very much like a concurrence holding _Katz_ over _Smith_, etc, until bam, there's a dissent. To my reading, he's saying two things in his conclusion: * His dissent would be a concurrence if he could have found in Carpenter's favor on propertarian grounds, but Carpenter's lawyers didn't raise any 4A property arguments, so he couldn't * A finger-wag to future lawyers to please bring him some property arguments so that he can rule the way he wants to. On the whole though, I honestly think that if he didn't already know that the majority would carry the day with 5 justices, he might have been okay just offering a concurrence.