Second Amendment

Supreme Court To Consider Whether New York City Can Keep Legal Gun Owners From Taking Guns Outside City

In first Supreme Court Second Amendment case since 2010, Court must decide whether the right applies in any meaningful sense outside the home.

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The Supreme Court has agreed for the first time since 2010 to take up a case related to the Second Amendment. That case is New York State Rifle & Pistol Association v. City of New York, which was discussed in an April 2014 Reason feature "Five Gun Rights Cases to Watch." The case has been crawling through the courts ever since.

The lawsuit challenges New York City laws that restrict—unreasonably so, to the plaintiffs—the right of licensed New York handgun owners to carry their guns outside city limits. As I wrote back in 2014, the city's law "demonstrates the picayune restrictions on a core constitutional right that localities still indulge in after Heller—even when the laws in question will reduce the safety of citizen gun ownership, in this case by making gun training and practice more difficult."

The law being challenged before the Supreme Court this term, as I wrote, "prohibits licensed handgun owners from taking guns almost anywhere outside of city limits. You cannot take your gun to your second home outside the city; you cannot take your gun to shooting practice outside the city; you can only travel with your gun within the state upon receiving a separate hunting permit. In the city, you can only take it to the shooting range…"

As the issues in the case are explained in the petition for certiorari to the Court from September 2018:

New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of selfdefense, or to a more convenient out-of-city shooting range to hone its safe and effective use. The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets.

But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City's restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.

The question presented is: Whether the City's ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Preventing a permit-holding citizen from practicing and competing in shooting proficiency, the suit argues, furthers no substantial government interest. In addition to an unreasonable restriction on the Second Amendment, the cert petition gives the Court an opportunity to shoot down the law without considering the Second Amendment at all (though one hopes the Court will not continue to avoid thinking further about the neglected Amendment): "By restricting the use of lawfully purchased handguns to in-city shooting ranges, the ban violates the Commerce Clause, for the law clearly 'deprive[s] citizens of their right to have access to the markets of other States on equal terms.' Granholm v. Heald…(2005). And the ban violates the fundamental right to travel by conditioning such travel on the forfeiture of a separate, but equally important, constitutional right."

So far, both a district court and the Second Circuit Court of Appeals have upheld New York's laws. As the cert petition sums up, "Purporting to apply 'intermediate scrutiny' but, in fact, applying something recognizable only as rational-basis review, the [district] court held that the transport ban is reasonably related to the City's interest in public safety and crime prevention" and that the transport ban is a "reasonable … time, place, and manner restriction[] on the possession and use of a firearm."

The Second Circuit also believed that the constitutional right to keep and bear arms pretty much only counts in the home, and thus these transport laws do not harm its core purpose. "Purporting to apply intermediate scrutiny," the cert petition says, the Second Circuit Court of Appeals "held that the City had carried its burden to justify the encroachment on protected Second Amendment activity. The court identified the City's interest as protecting public safety and concluded that the City had presented sufficient 'evidence supporting its contention' that the regulation protects that interest. The sole evidence on which the court relied in reaching that conclusion was a single affidavit from the former commander of the state licensing division hypothesizing, without any evidentiary support, that transporting an unloaded handgun, locked in a container separate from its ammunition, may pose a public safety risk in 'road rage' or other 'stressful' situations. The court did not explain how requiring city residents to spend more time transporting their handguns to inconvenient in-city ranges furthers the City's professed interest in reducing the in-city transport of unloaded, locked-up handguns."

The reason why the Supreme Court should disagree with the lower courts and knock down New York City's laws are summed up in the cert petition handily:

the only plausible theory under which the City's novel transport ban could be understood to further its professed public safety interest in decreasing the transport of unloaded, locked-up firearms is if the ban discourages people from transporting their handguns to shooting ranges at all. But it would be utterly irrational for the City to enact a restriction for the express purpose of making it harder for individuals to gain proficiency in the use of the handguns that the Constitution entitles them to possess.

More to the point, a restriction that is expressly designed to make it harder to exercise core Second Amendment rights cannot plausibly withstand any level of constitutional scrutiny. Courts would not countenance for one moment a prohibition on leaving 11 city limits to get an abortion—and certainly not if there were only seven locations in a city of 8.5 million people at which to obtain one. A prohibition on leaving city limits to exercise core Second Amendment rights should fare no better.

The Court has avoided the issue of whether the right enshrined in the Second Amendment and ratified by the Court in its 2008 Heller decision, and extended to the states in its 2010 McDonald decision, cover anything at all other than the bare right to have some sort of commonly owned weapon for self-defense in the home. Many Americans believe that their constitutional right to self-defense should not be canceled once they leave their domicile, and now the Court has decided it will consider the extent to which that might be true.

As always, their decision, whatever it is, will apply merely to the specific New York law at issue and won't in and of itself have power to change any other of the many existing state and local laws that restrict the ability to possess a legally owned weapon outside the home. But whatever they decide will provide guidelines that other federal courts in future such challenges would be obligated to follow, or pretend to try to.

The ScotusBLOG website has a collection of relevant filings in the case's long history.

NEXT: Rather Than Running for President, Maybe Joe Biden Should Just Launch an Apology Tour

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  1. Uhh, “no”. This should be a slam dunk.

    1. But because it has to do with the amendment in the Bill of Rights that is most widely hated by the legal community, it won’t be a slam dunk.

      Even though it should be a slam dunk if it didn’t involve the 2nd amendment; How dare a city presume to tell people who reside in it what they can do outside the city’s borders? What is this, feudal serfdom?

      1. As far as the City of New York is concerned, yes, it is a feudal serfdom.

      2. The US government extends federal law and in many cases, state law far beyond the borders of the United States. If you travel to another country to do something that is illegal where you reside, the US government reserves the right to prosecute you, convict you and punish you as if you had committed the illegal act at home.

        So why would a city law that has the same sort of reach be unjustifiable, when the feds have no problems with such a law?

        1. Because I’m a citizen of the US, I’m merely a resident of my city. People don’t stand in the same relationship to a country that they do a city, cities are mere administrative districts of states.

      3. So, NYC as Berlin? (East Berlin)

  2. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    All gun control is unconstitutional.

    I expect the Gorusch/Thomas majority to come down hard on gun control.

    1. For someone who quotes absolute phrases (“shall not be infringed”) as gospel, you do a remarkably poor job of justifying immigration control. How about showing where the federal government gets its authority to control immigration?

      Article 1, Section 8: To establish an uniform Rule of Naturalization… To declare War …

      Article 1, Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight … I have never seen this used in any context but slavery, which is the only subject the Framers dodged, kicking the can down the road 20 years. They didn’t dodge war or naturalization; why single out immigration, which was not contentious?

      14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

      9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      Don’t fall back on hand-waving about border control being too obvious to enumerate; it’s hard to think of a natural right more obvious than self-defense.

      1. The Commerce clause.

        Even if commerce wasn’t defined as:
        “DATED
        social dealings between people.
        “outside the normal commerce of civilized life”

        It would be ridiculous to say labor markets are outside the scope of commerce.

        1. The right to freedom of movement means the government cannot regulate people moving between the states, even under the commerce clause, and the interstate commerce clause has no bearing on international movement

          1. Why don’t you go refresh your recollection by reading the commerce clause, it starts with:
            “To regulate Commerce with foreign Nations…”

            Now of course the commerce clause doesn’t trump peoples rights to travel or earn a living (except in closed shop states) but if the commerce clause didn’t cover labor markets then the Department of Labor is unconstitutional.

            But Congress does have the right under the commerce clause to control immigration, and they also have the right under the Naturalization clause to say who has the right to work in the USA.

      2. Actually the framers dodged a lot of issues. Otherwise there would not have been the need for 27 amendments. Also, there is legitimate debate as to what the 14th amendment meant by subject to the jurisdiction of. The framers of this amendment appear not have considered it to apply to children born to aliens, as evidenced by their own writings and recorded testimony at the time. Furthermore, you are stretching it making this a 9th or 10th amendment issue.

        1. not a Tenth Article of Ammendment issue at all… that Second plainly states “shall not be infringed” and places no limit on who/what MIGHT be attempting to infringe, simply saying NO ONE, NOTHING, NOHOW can this right be infringed in any way by any one/thing at any time.

          This puts our right to arms in the category of “prohibited to the states”, thus denying states from meddling in the right.

          1. And I never argued differently.

      3. once more you do a cut and paste of this unrelated drivel.. true enough drivel, yet in this case, pointless.

      4. Why do you keep spamming this unrelated idiocy despite being smacked down as ignorance multiple timea?

      5. You quoted it yourself. “Establish a uniform rule of naturalization”. The government controls who can enter and who can become a citizen.

        That’s one of the primary functions of the government. If you don’t have an enforceable border, you don’t have a country.

      6. You quoted it yourself. “Establish a uniform rule of naturalization”. The government controls who can enter and who can become a citizen.

        That’s one of the primary functions of the government. If you don’t have an enforceable border, you don’t have a country.

  3. “The question presented is: Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.”

    Really? That’s the limit of your ambition – to establish a right to carry unloaded, locked guns to a home or shooting range? You’re not even trying for the right to defend your business against robbers (to cite just one example)?

    1. Baby steps. Like most rights that have been infringed, we have to take this one back one case at a time. It is a victory alone that we even got this one in front of the court. We may see some momentum, especially if RBG leaves the courts one way or another in the next two years. Why do you think so many states are rushing through questionable laws. They hope to clog up the system.

      1. I am hedging the next case will deal with either “shall issue laws” that are basically no issue, like Californias, or maybe magazine limits. The big one will be assault weapons bans and mandatory licensing/registrations.

    2. You’re not even trying for the right to defend your business against robbers

      As Hihn the Philosopher has noted, criminals carry guns to protect themselves from armed business owners. They would disarm if only law abiding folks would do so first.

      1. It never occurred to me that Hihn had such a marvelous sense of humor

    3. The hidden goal is to use strict scrutiny with all 2A issues, just as it is used for freedom of speech etc.

      1. That would be a definite win.

        1. At least better then it is today.

  4. I wonder if they will ever take up California’s law that bans ownership of handguns newer than 2013 release.

    1. I expect them to take up California’s misnamed shall issue policy first. That one is extremely questionable.

      1. I think California is a “May Issue”. In the coastal areas, that means “may issue if you donated to the mayor’s re-election”.

        1. I stand corrected.

      2. California is NOT nor has ever been SHALL ISSUE. It clearly leaves the discretion to the chief law enforcement officer of the jurisdiction of the one wishing to use his God given right to be armed. Thus the dirty head coppers in far too many counties, particularly the large and/or populous ones, simly decide unless you are someone SPESHUL no you ain’t a gonna be a carryin no heater on MY turf, so go home and be quiet.

        MOST counties in the state are happy to issue the requested Mother May I Cards to all who qualify.

        1. I admitted I misspoke. Why bother correcting me after I admitted I meant may issue?

  5. The masses in America should never be able to own guns.
    Mexico doesn’t allow their little people to own guns and just look at their results.

    1. That’s why they come here. Man, we really need that wall.

    2. In a report for a Mexican agency, a Mexican security analyst reported that Mexico had
      _ 3 million legally registered civilian-type guns in private ownership
      _ 12 million unregistered military-type guns in private ownership
      _ 40 million unregistered civilian-type guns in private ownership

      Mexico allows their people to own 3 million guns by application to the Mexican Army for permission to legally purchase, passing an extensive background check and traveling to the capital to pick up their gun.

      The result of unreasonable gun regulations in Mexico is a wide-open black market that supplies criminals and otherwise law abiding citizens alike.

      New York City prides itself on keeping legal handgun ownership at 25,000 or so in population of eight million. Past the usual cut-off line on newspaper articles about thisis the usual factoid that NYPD or ATF estimate about two million illegal handguns in NYC. New York City is very much more like Mexico on this than like the rest of the USA.

  6. I don’t see this as a 2A case. Are the good citizens of NYC citizens, or subjects?

    IMHO, the real question is “What limits can a city place on its citizens’ actions outside the city?”
    How about the state? Feds?

    1. ” Are the good citizens of NYC citizens, or subjects?”

      I like trick questions.

    2. The issue isn’t restrictions NYC placed on NYC residents outside of NYC. The prohibition/restriction at issue is on transporting legally owned guns INSIDE NYC between the owner’s home in NYC and the city limits.

      1. infringement of both the right to travel, and the right to freely associate, as well as to be armed. Triple whammy. but I’ll bet SCOTUS will leave the third of these three baseball bats in th locker and squash this stupid rule with the other two.

        1. That’s my expectation, too. But I wouldn’t mind being pleasantly surprised.

  7. Preventing a permit-holding citizen from practicing and competing in shooting proficiency, the suit argues, furthers no substantial government interest.

    The interest of incrementalism.

  8. So New York City officials want to build a wall… if you will.

    1. Careful, Old Beaner will be up your ass in a heartbeat.

  9. How is this enforceable? It’s not illegal until you cross the city line. NYC doesn’t have jurisdiction outside of the city.

    1. This is too simple.

      They cancel your possession permit. Now try crossing back into NYC.

      1. And how, exactly, is that permit being canceled?

        There is no Checkpoint Charlie that you have to pass through to get back into NYC.

        1. They’ve had monitored cameras at the Lincoln and Holland Tunnels and the GW Bridge since the 90’s to bust NJ folk buying weed in the city. Just add data from the gun registry to DMV registration records and they could cook up some real time probable cause.

        2. NYC have been using number plate readers at random, and certainly on main routes into/out of the city. They KNOW who has Mother May I Cards to possess handguns. NYC coppers have no qualms about making up stuff to pull people over…. flag all number plates of handgun owners, copper sitting on traffic watch has a car pass, numbr plate read, comes up “handgun owner”, invents “weaving” or “driving too slow” or “did not signal properly” if he does not observe something already, or simply “contact” you cuz he can. Then he can ask about what hardware you have with you in the car. IF you are found bringing in your registered handgun from outside NYC you’re toast….. and he’ll be the HeeRoe for getting one or more of those abominable handguns off the streets.

        3. Not yet.

          1. See my quip above for NYC as East Berlin.

    2. I’m guessing that it is illegal as soon as you are off a direct route to one of the shooting ranges

    3. The law in NYC is that you can only legally transport your legally owned gun between your home and designated shooting ranges INSIDE NYC. It’s illegal to transport your legally owned gun stored in your NYC residence to the NYC city limits, that kind of makes it difficult to take the gun out of NYC.

      1. And even that is only with a certain kind of permit, if you have a home defense permit you can never take the gun out of your home (and if you have the shooting range permit you can never have it loaded in your home)

        Also you have to notify the police whenever you are taking your gun to a range, what time you will be going and what route you will be taking

        1. Wow. That is some full on martial law police state shit. Am I to understand that in the entire city there are only 7 shooting ranges and new competitors are barred from entry?

          1. New ranges aren’t barred de jure, but I’m sure there are enough barriers to entry to make it not worth anyone’s effort

    4. It is enforceable when they stop you (on any of a thousand possible pretexts) and ask you where you’re going. By the same reasons that you can be guilty of bank robbery even if you don’t actually get away with any money, you’re guilty when you start to leave, whether or not you actually succeed.

      Note by the way that during your “non-custodial interview” with the officer who stops you, if you tell the truth, you’ve admitted to violating the law. If you lie, then you’re guilty of a different crime.

      1. Which is why it’s important to STFU!

        1. HTML eludes me, I suppose… https://youtu.be/uqo5RYOp4nQ

  10. In the wake of Heller such municipalities [and States like Oregon] have simply, if not cynically, become proficient in getting around the language via “intermediate scrutiny” and “rational basis review” [whereby draconian gun laws are deemed to be constitutional because “they make people ‘feel’ safer]; the point of all of this is to impose as much burden as you can, and the rationale is secondary if it is considered at all. This is what woke judges do.

    We still have 132 vacancies on the appellate [12] and district [120] courts to fill; and possibly one more on the Supreme Court.

    1. And after Kavanaugh, don’t expect the GOP, which increased seats in the Senate, to play nice. Murkowski needs to get reelected in Alaska, and she’s had tough primaries in the past. Collins… well… And Flake is gone and so is McCain. The democrats shot themselves in the fought with the last two nominations.

      1. NEVER underestimate the ability of the Republicans to snatch defeat from the jaws of victory.

        And, as to the SC, hopefully we five votes for this case without Roberts. I wouldn’t trust him to tie my shoes correctly.

        But we don’t have 5 votes, the 4 that voted against Heller and MacDonald will vote against this too.

        So Roberts better not pull an Obamacare decision out of his hat.

        1. Roberts sided with the 2A on both Heller and McDonald. I don’t think he will pull an Obamacare.

          1. If he does, I think we can safely say that the rumors he’s being blackmailed are true.

            But I could easily see him arranging for a ruling that strikes down the law on freedom of travel and dormant commerce clause grounds, and avoids the 2nd amendment issue entirely.

  11. >>>could be understood to further its professed public safety interest in decreasing…

    oh if there’s a governmental interest to further those fuckers will find it … Filburn. Jacked.

  12. But the people of NYC have spoken, via their elected municipal representatives. Shouldn’t the people of the city have the right to decide what happens on their publicly owned streets? If the people don’t want guns on the street, why can’t they enforce that preference? Are you against democracy or something?

    1. Its the same reason the people of another city or state can’t vote to re-establish slavery, or deny women the vote, or outlaw abortion. Our government’s actions are constrained by the constitution, and that includes constraints on what the people can democratically instruct their government to do

      1. Too easy.

      2. Come on, Kev. Cleary slavery makes Jeffy feel sad. And guns do, too. So no to both (despite what locals might decide)–and no to the Constitution.

      3. Our government’s actions are constrained by the constitution

        Well yes. But the Constitution does not forbid this. Once again, shouldn’t the people of the city have the right to decide what happens on their publicly owned streets?

        1. We don’t know for sure whether or not the constitution forbids this, that is the whole point of why SCOTUS has decided to hear the case.

          It seems to me like it is an infringement of the right to bear arms, as well as a violation of the freedom of movement, the court may agree or disagree

          Also keep in mind that while the letter of a law may be constitutional, if it is passed with certain motives it may yet be unconstitutional (like those “evolution is only a theory” statements that were popular in school boards a decade ago) So if it is found the motive of this law is to unfairly discourage citizens from exercising 2nd amendment rights it may be unconstitutional because of that (something akin of deprivation of rights under color of law)

          1. Thinking about it, even if you could rationalize it not violating the 2nd amendment, (And God knows that plenty of people can rationalize anything up to and including flatly banning gun ownership as being consistent with it.) it appears to be in trouble on statutory grounds.

            There’s a federal law prohibiting any state or subdivision of a state from making it illegal to transport a gun from one place where it can be lawfully possessed, to another place where it can be lawfully possessed. And there’s no end of places outside NYC where people living there could lawfully possess their firearms, since NYC can’t make it illegal to possess a gun outside its borders.

    2. the denizens of NYC are asleep at the switch. HOW MANY are even registered to vote, then what minuscule percentage of those registered actually DO?
      The earliest gun control laws were enacted by then-mayor Sullivan in NYC a long time ago. Handguns were banned….. but only selectively enforced. If you were part of Sullivan’s crowd, and found with a heater, you walked. If you were part of his opposing gangs, if you survived you were lucky. Most caught with handguns were “involved in a firefight and did not survive”. Drop guns were common, as well….

      NYC have been very intent upon nannying their residents from the beginning…

  13. What I hope SCOTUS decides here is the level of scrutiny. And clearly define it to the least restrictive means to meet a compelling government interest, without burdening the core 2nd amendment rights to keep and bear arms. Then reverse and remand it to the circuit court to redecide. Then take all the cases that are awaiting cert that used a lower standard and send them back to the circuit courts for a do over.

    1. Re Government Interests, I would think that since the function of government is to serve the people, not to rule or dictate to the people, that Government Interests need to take second place, at best, to the interests of the people, said interests lying in the direction of maintaining their rights.

  14. When will the USSC stand up on it’s hind legs and tell, in no uncertain terms, lower federal courts, and other jurisdictions the following.

    1. Strict Scrutiny shall be the only scrutiny applicable to firearms related and gun rights cases.
    2. Also, when will the USSC clearly state that The Second Amendment is alive and well, and is fully functional, and that it is is not simply a slightly interesting historical artifact, that can be ignored at will.
    3. When will the USSC, in plain English, seemingly a language not spoken by the judiciary, tell subordinate jurisdictions, cities, towns, counties and states, the same thing, that The Second Amendment in meaningful today, and is not something to be trifled with.

    It seems to me, sadly to note, that the foregoing are things given to little attention, when they are deserving of a whole hell of a lot more.

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  16. If people are stupid wnough to keep electing leftists to run their local government, they have to live with the consequences. That being said, this law is moronic and a clear violation of the 2nd amendment. The government does not get to decide how and when you are allowed to possess a legal item. There are some exceptions but telling someone they cannot take their property to another home they own or take it out of the city is insane. Of course it is NYC, sorry. Nevermind…

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  19. Every decent person should be against New York’s new law, as what this law does is expand abortion up to and AFTER birth!! Good God, as wicked as I thought abortionists were, this takes the cake. Really, NY wants to abort (murder) full grown babies AFTER BEING BORN?!!? Contraception for both males and females is both inexpensive (if not free!) and very available, so why would anyone EVER need an abortion, much less one that takes place AFTER BIRTH!!!! This is horror on a scale ever Adolph Hitler would blanch at. GOD DAMN TO HELL those who support this wicked bill.

  20. Considering how outlets like CNN are airing “stories” that have been proven to be in error or flat out lies over and over, something should be done. Look how the media attempted to destroy the Covington boys, who we now know are innocent and it was Nathan Phillips who lied about what happened. The media had no regard for the long term damage to the boys lives their reporting might cause as long as it supported their narrative and attacks on the President.

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