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.