Supreme Court's New Second Amendment Case

Opportunity to address nullification of the right to arms

|The Volokh Conspiracy |


For the first time in nearly a decade, the Supreme Court has voted to hear argument in a Second Amendment case. Although the schedule has not been set, oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York could take place this Spring. The case presents the Supreme Court with the opportunity to address an eccentric and abusive New York law, and, more broadly, to begin reining in lower court nullification of the Supreme Court's precedents in District of Columbia v. Heller and McDonald v. City of Chicago.

Legal background: Since the Sullivan Act in 1911, New Yorkers must obtain a license to own a handgun. As will be detailed below, the New York Police Department's enforcement of the Sullivan Act was abusive from the very start, and has generally remained so ever since.

Under state law, there are two types of handgun licenses: "carry" licenses and "premises" licenses. N.Y. Penal Law §§ 400.00(2)(a), (f). A carry license allows an individual to 'have and carry [a] concealed' handgun 'without regard to employment or place of possession.'" But a carry license is only granted "when proper cause exists" for the issuance of the license. Id. § 400.00(2)(f).

"Proper cause" is not defined by the Penal Law, but New York State courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense. When an applicant demonstrates proper cause to carry a handgun for target practice or hunting, the licensing officer may restrict a carry license "to the purposes that justified the issuance." New York State Rifle & Pistol Ass'n, Inc. v. City of New York, 883 F.3d 45, 52-53 (2d Cir. 2018) ("NYSRPA").

In New York City, unrestricted carry permits are issued to retired law enforcement, celebrities, and other favored persons. In contrast, the city's police department reluctantly and slowly issues ordinary citizens premises permits to keep handguns in their homes. A premises permit is limited to the premise specified on the license. According to New York City law, the firearm can be removed from that premise for only very limited reasons, such as to "transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately." 38 Rev. Code N.Y. § 5-23(a)(3). Administratively, the city's police department in 2001 declared that an "authorized" shooting range is only a range located in New York City.

Case history: The New York State Rifle and Pistol Association and three individual plaintiffs brought suit. They are represented by Kirkland & Ellis, with former Solicitor General Paul Clement as counsel of record. The plaintiffs alleged that the limitations of their premises licenses violate the Second Amendment, because the plaintiffs wanted to transport their handguns for various reasons forbidden by New York City regulations.

Specifically, one plaintiff wanted to take his handgun licensed for his residence in New York City to his second home in Hancock, New York (a town in the Catskills, near the northeast corner of Pennsylvania). Other plaintiffs want to take their handguns to out-of-city firing ranges and shooting competitions.

As the plaintiffs pointed out, the police regulation prevents a resident of Staten Island from traveling to ranges in New Jersey that are closer than any range in New York City. The regulation prohibits City residents from using their handguns for hunting in any state except New York. Residents are forbidden from taking their handguns to safety training programs or target competitions outside the City.

It is possible that at some firing ranges outside the City, a person can rent a handgun. But the necessary result is inferior training and practice. People who may need to defend themselves in a sudden emergency need to practice with the gun they will actually use. Practice and training help build muscle memory so that activities such as disengaging the safety, cocking the hammer, or racking the slide can be done instantly and correctly. Practice and training with one's own handgun provide experience with the quirks of each individual gun, such as what types of ammunition are least likely to misfeed (which can vary depending on the individual's grip strength), or how to quickly clear a jam. Likewise, in target competition or hunting, as in all sports, using one's own familiar equipment is more likely to result in success than is using rental equipment.

No jurisdiction in the United States has a law like New York City's. Everywhere else, a lawful handgun owner can transport an unloaded handgun to any target range, to a second home, to lawful hunting grounds in any state where the person has a hunting license, and so on.

The Second Circuit's decision: Like most other circuits, the Second Circuit applies a "Two-Part Test" in Second Amendment cases. Part 1 asks if the case implicates the Second Amendment right as traditionally understood. For example, if a plaintiff sued because the federal Atomic Energy Act and other federal laws prevent him from buying an ICBM and nuclear warheads from North Korea, a court would hold that the plaintiff loses under Part 1. Heller says that "dangerous and unusual" weapons are not part of the Second Amendment right; history and tradition show that ICBMs and atomic bombs have not typically been possessed by individual law-abiding citizens for lawful purposes.

Similar issues arise in the First Amendment. Is wearing a black armband, silently picketing, or creating abstract art part of "the freedom of speech"? (The Supreme Court has answered "yes" for all three.)

If the case does implicate the Second Amendment right, then the court proceeds to Part Two, where heightened scrutiny must be applied to the challenged government law or action. At all stages, the burden of proof is on the government. For details on the test, as applied rigorously in some circuits, and with hostility to the Second Amendment in some others, especially the Second Circuit, see Kopel & Greenlee, The Federal Circuits' Second Amendment Doctrines, 61 St. Louis University Law Journal 193 (2017).

At Part 1, the Second Circuit could not decide whether the NYC ban even affected the Second Amendment right. So the court proceeded to Part 2 arguendo. The tactic is common among lower courts that are opposed to the Second Amendment. By refusing to make a decision under Part 1, the court avoids creating any precedent that a given activity or arm is part of the constitutional right. Even arguendo, the Second Circuit would only hypothesize Second Amendment rights to the extent that target shooting is necessary for practicing self-defense in the home. According to the Second Circuit, gun use or practice for non-defense purposes (e.g., target competitions, hunting) has nothing to do with the Second Amendment, even arguendo. The Second Circuit thus defied the Supreme Court's McDonald precedent, which stated that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." Home defense is the most notable purpose of the Second Amendment, but not the only one.

At Part 2, the Second Circuit applied intermediate scrutiny. According to the court, prohibiting a person from taking his firearm to his second home warranted only intermediate scrutiny because he could possibly acquire a separate firearm for that second home.

As for the impairment on training, practice, and competition, intermediate scrutiny was chosen because "seven firing ranges in New York City are available to any premises license-holder." It is absurd to contend that a public indoor range in Manhattan offers training facilities comparable to the best defensive training schools elsewhere, such as Gunsite Academy in New Hampshire.

Having trivialized the harm inflicted on safety training and other legitimate gun use, the Second Circuit then looked at the government's interest. What could justify a law so extreme that not one other jurisdiction in the United States, past or present, has enacted anything like it?

The justification came entirely from an affidavit from the former Commander of the City's License Division. He opined that license holders "are just as susceptible as anyone else to stressful situations," including road rage, "crowd situations, demonstrations, [and] family disputes." Which is plainly false. The City's highly-vetted handgun owners have an exemplary record of peaceable conduct.

The affidavit also asserted that before 2001, some premises permit holders had been discovered to be transporting their guns in circumstances in which their claim to be on the way to or from a target range was implausible. Notably, the affidavit contained no data, and not one actual example of any of the above problems. The evidence-free affidavit is deconstructed in the excellent amicus brief for the Western State Sheriffs Association and other law enforcement groups. A speculative affidavit devoid of evidence was sufficient to uphold a bizarre restriction that exists nowhere else in the United States.

A century of abuse by the New York Police Department: Today's New York City government continues its long-standing practice of abusive enforcement of the state's handgun licensing law. The abuses began as soon as the legislature passed the Sullivan Act and have continued in various forms ever since.

When the Sullivan Act went into effect, NYC police commissioners took the view that citizens should not have handguns. No matter the reason a New York City applicant might give for wanting a handgun (e.g., target shooting, self-defense), the applicant would be told that the reason was not good enough. A determined applicant might make his way through the police gauntlet; even then, a person would not be allowed to possess more than one handgun. Karl T. Frederick, Pistol Law 23-26 (1964). (The book is based on a series of articles that Frederick wrote for the NRA magazine The American Rifleman in 1930-31. Frederick was a Harvard-trained corporate lawyer and an Olympic pistol shooter. To prevent the spread of laws like the Sullivan Act, Frederick wrote the model law that was adopted by the National Conference of Commissioners on Uniform State Laws–the Uniform Firearms Act. A key element of the law was no licensing or registration for gun ownership. Later, Frederick was elected NRA President. See Kopel, Background Checks for Firearms Sales and Loans: Law, History, and Policy, 53 Harvard Journal on Legislation 303 (2016).)

Eventually, the New York legislature enacted procedural reforms–such as requiring that applications to purchase a handgun must be granted or denied within six months of the application. The New York police department continued to pervert the process at every step. See, e.g.:

  • Savitch v. Lange, 114 A.D.2d 372 (2d Dept. 1985) (overturning denial of permit application in which department offered no reason for denial).
  • Federation of New York State Rifle and Pistols Clubs v. McGuire, 101 Misc.2d 104 (Sup. Ct., N.Y. Cnty. 1979) (upholding department's one-year waiting list for an appointment to submit an application for a permit).
  • Hochreich v. Codd, 68 A.D.2d 424 (1st Dept. 1979) (upholding police commissioner's decision that permitee may not buy a fourth handgun because of "insufficient need") (reversing 90 Misc.2d 455 (Sup. Ct., N.Y. Cnty. 1977)).
  • Livingston v. Codd, 93 Misc.2d 908 (Sup. Ct., N.Y. Cnty. 1978) (plaintiff had the federal "Curios and Relics" license for gun collectors; court overturned commissioner's decision that there was "no showing of need" for plaintiff to acquire more collectible guns from the federal "curios and relics" list).
  • Archibald v. Codd, 84 Misc.2d 42 (Sup. Ct., N.Y. Cnty. 1975) (after police department ignored statutory deadline, court ordered the department to decide within the coming 45 days).
  • Shapiro v. Cawley, 46 A.D.2d 633, 360 N.Y.S.2d 7 (1st Dept. 1974) (department has no authority to impose a "need" requirement for premises permits); Turner v. Codd, 85 Misc.2d 483 (Sup. Ct., N.Y. Cnty. 1975) (class action ordering department to obey Shapiro).
  • Klapper v. Codd, 78 Misc.2d 377 (Sup. Ct., N.Y. Cnty. 1974) (overturning commissioner's denial of permit on the grounds that applicant had held several jobs in the past few years).

[Citation notes: "Sup. Ct., N.Y. Cnty." is the Supreme Court of New York County–the general jurisdiction trial court for Manhattan. "1st Dept." is the Appellate Division that covers Manhattan and the Bronx. "2nd Dept." is the Appellate Division for the other New York City boroughs, plus some counties to the north. My cite form here does not conform to the Bluebook.]

More recently, the Second Circuit–while upholding a broad ban on many common rifles and magazines–struck down a state law that forbade owners of lawful 10-round magazines from loading more than 7 rounds. NYSRPA, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015). (The case is discussed in my posts here and here). Yet a similar law remains in effect in New York City. Also, using a long gun registration system introduced in 1967, the City is currently, as under Mayor Bloomberg, confiscating long guns with an ammunition capacity of more than five rounds.

In the cert. petition stage, Mayor de Blasio's attorneys argued that the case was not worthy of Supreme Court attention because the New York City law was unique. The argument was apparently not persuasive; after all, the handgun prohibitions struck down in Heller and McDonald had existed only in D.C., Chicago, and a few Chicago suburbs. More fundamentally, the right time for courts to take action against civil rights violations is before they spread and become broadly ingrained. Getting rid of Jim Crow laws would have caused much less social disruption if the Court had not allowed such laws to fester and grow for decades.

The Court itself began to recognize the problem during the Jim Crow era. After Plessy v. Ferguson (1896) and similar cases around the turn of the century, politicians in some jurisdictions competed to enact every racist law possible. Persecuting people of color was just as politically popular as persecuting gun owners is today in New York City and some other places. After a while, bigoted politicians faced a problem: having passed so many laws, they had run out of ways to persecute. So they invented something new: statutory residential segregation. For example, a Louisville, Kentucky, ordinance said that owners of homes on a white-majority block could only sell to whites, and owners on black-majority blocks could only sell to blacks. The Supreme Court unanimously struck the law, as violating the property and contract rights of buyers and sellers, and as being outside the scope of the legitimate police power. Buchanan v. Warley, 245 U.S. 60 (1916).

The time has come to the Supreme Court to put a stop to novel infringements of the Second Amendment, and to strongly tell defiant lower courts to start following Heller and McDonald, and to stop catering to anti-rights bigotry.