The conservative majority seems ready to add muscle to the Second Amendment
STRONGER GUN-CONTROL laws are a priority for the 2020 Democratic presidential candidates. All favour universal background checks and a renewal of the ban on assault weapons, which expired in 2004. Several contenders support compulsory federal licences for gun-owners and buy-back programmes, whether voluntary or mandatory. But any new laws aimed at alleviating what Joe Biden calls the “public-health epidemic” of gun violence would face a reckoning in America’s federal courts. And a new case the Supreme Court hears on December 2nd—a challenge to a New York City gun regulation that has now been rescinded—could close the door on many of these attempts to limit lethal weapons.
New York State Rifle & Pistol Association Inc. (NYSRPA) v City of New York is the case gun-rights advocates have been waiting for since 2008, when the Supreme Court first recognised an individual right to own a gun for self-defence. That decision, District of Columbia v Heller, left many questions unresolved about the Second Amendment’s “right of the people to keep and bear arms”: whether there are other “lawful purposes” to own guns, which types of weapons are protected and how far states may go in regulating them. Heller may not have provided “a state of utter certainty” for the Second Amendment, Justice Antonin Scalia wrote in Heller, but there “will be time enough to expound upon” it in future cases. Eleven years later, NYSRPA is the first opportunity the justices are entertaining.
It appears to be an odd choice. NYSRPA concerns an arcane rule that was scrapped ahead of this week’s hearing. When New York asked the justices to dismiss the case as moot, they refused. Now lawyers for the plaintiffs and city will be arguing over both the nature of the lapsed regulation and the implications of its cancellation.
The rule, which pre-dated Heller, prohibited gun owners in New York with limited “premises” licences from “transporting licenced, locked up and unloaded handguns to any place outside the city”. New Yorkers with such licences could keep a gun at home and take it, unloaded, to one of seven shooting ranges in the five boroughs of the city. But only those with “carry” licences, which are harder to procure, could take their firearm into neighbouring states or across the city line into Westchester County.
The plaintiffs—three city gun-owners and a firearms advocacy organisation founded in 1871—argue that New York’s former restriction is “antithetical to the right enshrined in the Second Amendment” and “plainly flunks” any test that courts typically employ to check whether a constitutional liberty has been violated. The rule, according to NYSRPA, was “an extreme and irrational outlier that does not even make sense on its own terms.” Keeping and bearing arms is “not a homebound right”, the organisation has told the justices in its filings, as self-defence is not limited to one’s castle and “bearing” weapons is “an activity that occurs outside the home.”
There are other problems with New York’s erstwhile rule, the plaintiffs say: it was precluded by the constitution’s Commerce Clause, which prohibits state and local governments from discriminating against businesses from other states. By limiting its residents to a handful of in-city ranges, and preventing non-residents from gaining access to them, NYSRPA writes, the city promoted “a degree of economic balkanisation that violates the Commerce Clause and related constitutional guarantees”. And, it adds, the “don’t-leave-home-with-it” rule contravened gun owners’ “constitutional right to travel”.
In response, New York has claimed its rule served the cause of public safety. Paul Clement, a frequent Supreme Court litigator arguing for the gun owners and NYSRPA, poked fun at this justification in his most recent brief. The city “has yet to come forward with a single instance”, he wrote, “in which a law-abiding, licensed firearm owner en route to out-of-city target practice or a second home actually stopped halfway through a fit of rage, removed his firearm from its locked container in the trunk of his car, removed his ammunition from the separate container in which it was locked, loaded his firearm and then put his firearm to misuse.”
Even so, New York prevailed at both the district court and the Second Circuit Court of Appeals, which found that since there is “at least one” shooting range in each of the city’s five boroughs—and “these facilities are quite substantial”—the rule imposed no genuine burden on gun-toting New Yorkers.
But a curious thing happened on the way to the Supreme Court. In July, six months after the justices agreed to consider the case, the city rescinded its transport ban and Governor Andrew Cuomo signed a bill preventing any municipality in New York state from instituting similar restrictions. New Yorkers would be permitted to take their licensed pistols and revolvers anywhere they are “lawfully authorised to have and possess” them.
The city’s gambit to render NYSRPA v City of New York moot—since, as they told the justices in August, the new legal terrain “unequivocally allows plaintiffs to do everything they ask for”—did not succeed in wiping the case off the docket for December 2nd. In October, however, the justices instructed the parties to be prepared to argue whether the case has lost its raison d’etre. This is sure to be a spirited point of contention at the hearing. New York says the Supreme Court cannot weigh in on a dispute in which the plaintiffs suffer “no ongoing injury” and in which the government has “no ongoing interest” in defending the rescinded rule. But NYSRPA insists the city’s “series of extraordinary manoeuvres” were only pursued to “frustrate” Supreme Court review and says New York could reinstate the regulation, making “mincemeat” of residents’ rights, in the future.
Why did New York retreat after two consecutive wins in federal courts? Eyeing the recently bolstered conservative majority on the Supreme Court, the city did not fancy its chances of a third victory—and worried that poking the hornet’s nest could inspire a reaction foreclosing more meaningful forms of gun control.
Justice Clarence Thomas has long called for an expansion of the individual right to own a gun for self-defence in the home, announced in Heller; the Second Amendment “is apparently this court’s constitutional orphan”, he lamented in 2018. Justice Samuel Alito has groaned that the right to bear arms is regarded as a “second-class right”, too. And Justice Brett Kavanaugh—whose predecessor, Anthony Kennedy, helped shape Heller into a milder vindication of gun rights than fellow conservatives wanted—appears to be something of a Second Amendment maximalist. He has said that banning semi-automatic rifles violates the constitution since these weapons “are in common use by law-abiding citizens”.
Justice Kavanaugh’s arrival could herald a willingness among the Supreme Court’s conservatives to expand the right to bear arms beyond the home and to chastise lower courts for failing to take gun rights seriously. The plaintiffs are encouraging such a reckoning, pointing to the Second Circuit’s treatment of the transport ban as a “vivid testament to just how radically divorced lower court Second Amendment doctrine has become from basic principles of constitutional analysis”.
The unusual degree of jockeying in advance of oral argument—which included duelling filings from Democratic and Republican senators on whether the justices should ditch the case—suggests how high the stakes are in NYSRPA v City of New York. The justices could choose this moment to strengthen gun rights and cast a cloud over many firearm regulations nationwide. Or they might demur, either by dismissing the case as moot after the hearing or by issuing a moderate ruling in the spring declaring New York’s rule unconstitutional without expanding the right to bear arms recognised in Heller.
Even so, plenty of other chances to buttress gun rights are within the court’s grasp. Discretionary licensing, a federal bar on interstate handgun sales, and bans on assault weapons and large-capacity magazines are among the five cases with pending petitions in the justices’ inboxes. The question on December 2nd, then, is not so much what the court thinks of New York’s old transport rule. The question is whether the justices are so anxious to fortify the Second Amendment that they are willing to do so through the scant remains of a case that is no longer a live controversy.