Law & Government

Can Senseless Gun Regulations Be Constitutional? 

Under New York's rules, licensed pistol and revolver owners were not allowed to leave home with their handguns unless they were traveling to or from a shooting range.


New York City's uniquely onerous restrictions on transporting guns were so hard to justify that the city stopped trying. Instead, it rewrote the rules after the Supreme Court agreed to hear a challenge to their constitutionality in New York State Rifle & Pistol Association v. City of New York. The justices should drop the case, the city said, because it was now moot.

Despite the dubiousness of New York's regulations, the city successfully defended them for five years, obtaining favorable rulings from a federal judge and the U.S. Court of Appeals for the 2nd Circuit.

Under New York's rules, licensed pistol and revolver owners were not allowed to leave home with their handguns, even if they were unloaded and stored in a locked container, unless they were traveling to or from one of seven gun ranges in the city. If a New Yorker wanted to practice at a range, participate in a competition, or defend himself at a second home outside the five boroughs, the only legal option was to buy (or rent) additional handguns.

"What public safety or any other reasonable end is served by saying you have to have two guns instead of one?" wondered Justice Ruth Bader Ginsburg, no one's idea of a Second Amendment fanatic, during oral argument in December. She noted that "one of those guns has to be maintained in a place that is often unoccupied and that therefore [is] more vulnerable to theft." New York's lawyer was stumped.

Justice Samuel Alito asked if New Yorkers are "less safe" now that the city has loosened its restrictions. "No, I don't think so," the city's attorney replied. "We made a judgment…that it was consistent with public safety to repeal the prior rule." In that case, Alito wondered, "what possible justification could there have been for the old rule, which you have abandoned?"

As the gun owners who challenged New York's transport ban noted, the city claimed that "the mere presence of a handgun—even unloaded, secured in a pistol case, separated from its ammunition, and stowed in the trunk of the car—might pose a public-safety risk in 'road rage' or other 'stressful' situations." That implausible scenario was enough to persuade the 2nd Circuit, which said the city's concerns outweighed the plaintiffs' "trivial" interest in using their guns for self-defense outside the city or in honing the skills required for that constitutionally protected purpose.

Assuming the Supreme Court does not decide the case is moot, it offers an opportunity to correct such disdain for the right to keep and bear arms, which lower courts routinely treat as a minor hindrance that can be overcome by the slightest excuse.