AND THE SCOPE OF THE 2ND AMMENDMENT
It has been nearly 10 years since the Supreme Court ruled that the Second Amendment right of individuals to keep and bear arms applies fully to state and local governments. When the justices return to the bench next month, they will wade into the Second Amendment fray once again, this time hearing oral argument in a challenge to New York City’s ban on transporting licensed handguns outside the city – including to shooting ranges and second homes. The ban was so restrictive that it seemed unlikely to survive Supreme Court review; the only real question seemed to be whether the justices would issue a narrow ruling that only addressed the constitutionality of the city’s ban, or whether they might instead say more about the broader right to have a gun outside the home. But now it’s not clear whether the justices will reach the merits of the case at all, because the city has ended the ban.
The plaintiffs in the case are New York City residents who have licenses to have guns at their homes and want to be able to take their guns either to shooting ranges or competitions or to second homes outside New York City, along with the New York State Rifle and Pistol Association, which describes itself as the “nation’s oldest firearms advocacy organization.” They challenged the transport ban as a violation of their Second Amendment rights, but a federal district court ruled for the city, and the U.S. Court of Appeals for the 2nd Circuit upheld that ruling. The challengers then went to the Supreme Court, which agreed to weigh in earlier this year.
The fact that the justices even agreed to take the case was noteworthy. In 2008, in District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects the right to have a gun in the home for self-defense. That decision was followed two years later by McDonald v. City of Chicago, in which the court held that the Second Amendment applies to the states. But in the years that followed, the justices turned down several requests to say more about the scope of the Second Amendment right to bear arms. In February 2018, that reluctance prompted Justice Clarence Thomas to dissent from the court’s announcement that it would not review a challenge to California’s 10-day waiting period for gun purchases. In a blistering 14-page opinion, Thomas complained that the “right to keep and bear arms is apparently this Court’s constitutional orphan.”
A few months later, Justice Brett Kavanaugh was nominated to succeed retiring Justice Anthony Kennedy. While on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh dissented from a ruling that upheld a ban on semiautomatic assault rifles and a requirement that gun owners register their firearms. Although there’s no way to know for sure, the replacement of Kennedy with Kavanaugh may have been a key factor in the court’s decision in January 2019 to take up the New York case.
Over the summer, however, the city urged the court to invalidate the 2nd Circuit’s decision and send the case back with instructions to dismiss it as moot – that is, no longer a live controversy. The city explained that, under changes to both state law and the city’s rules, the challengers can now “do exactly what they have requested in this lawsuit: transport their handguns within New York City to take them to shooting ranges and second homes outside the City.” As a result, the city stressed, it “no longer has any stake in the constitutional questions regarding the former rules.” The city’s position was bolstered by a “friend of the court” brief by Senator Sheldon Whitehouse (D-R.I.) and four other Democratic senators, who argued that the justices should refrain from ruling on the merits of the case to avoid the appearance of partisanship.
The challengers pushed back, telling the justices that even after the changes, the city’s scheme remains problematic: Under the new rules, they say, licensed gun owners may be able to leave the city with their guns, but they can’t stop for gas or coffee along the way, and they can’t take their guns to a vacation rental. Moreover, the challengers add, state law contains an exception that allows the city to bar nonresidents from bringing a gun into the city. Because the changes were so transparently made to block the Supreme Court from reviewing the rules, the challengers emphasize, it is especially important that the justices weigh in to keep the city from reinstating similar rules. Moreover, a ruling from the justices in this dispute would matter: If the Supreme Court declares the rules unconstitutional, the challengers observe, the city will not be able to impose penalties or deny licenses in the future for failing to comply with the rules in the past.
On October 7, the justices announced that they would go ahead with the oral argument – but they instructed the challengers and the city to be ready to discuss the mootness question then. That seemed to be the end of the issue until last Friday, when the federal government filed a short brief in which it agreed with the challengers that the case is not moot. The government reasoned that there is still a live controversy because the challengers could seek money damages from the city, but it rejected the challengers’ contention that the case is not moot because the rules remain problematic even after the city’s changes. The challengers’ objections to the new rules “would establish a new controversy regarding those provisions,” the government acknowledged, but they “do not establish a live controversy regarding the City’s original transport ban.” The state and the association will file their responses by Wednesday, November 20.
In their brief on the merits, the challengers point to the text of the Second Amendment. The amendment protects the right to “keep and bear” arms, they stress, which means that people should also be allowed to have guns outside the home for self-defense. The history surrounding the Second Amendment indicates that “Second Amendment rights were never understood as confined to the home.” Rather, the challengers contend, all of the justices acknowledged in Heller that one purpose of the Second Amendment was to ensure that the militia was prepared. The introductory clause of the Second Amendment – “A well-regulated Militia, being necessary to the security of a free State” – confirms that the Second Amendment applies beyond the home, because military service required members of the militia to carry their guns outside the house to get to their training grounds. Indeed, the challengers continue, the right to keep and bear arms for self-defense wouldn’t be especially useful if you couldn’t practice shooting them, and nothing in the Second Amendment suggests that it only applies to one residence per person.
The challengers reiterate that the city’s ban is an outlier, telling the justices that they are “aware of no other jurisdiction in the entire country that prohibits law-abiding individuals from taking their lawfully owned handguns outside the jurisdiction.” The ban should be struck down, they say, because it has “zero grounding” in the “text, history, and tradition” of the Second Amendment. But if the justices do not invalidate the ban on that basis, the challengers continue, the ban should still fail because it is not sufficiently targeted: The city says it is intended to promote public safety and prevent crime, but there is no evidence to show that it will actually achieve those objectives. Instead, it will mean that guns are left at home in empty houses when their owners go out of town, and that people will have to have their guns in their cars for longer periods of time to take them to shooting ranges on the other side of the city – when there may be a closer one outside the city limits.
The challengers argue that the city’s ban also violates the Constitution’s commerce clause, which bars state and local governments from regulating commerce outside their territory and from discriminating against nonresidents. The ban prohibits a gun owner from using the gun outside the city, and it channels business to shooting ranges in the city. The challengers note that the city couldn’t “limit car-owners to in-city mechanics or restrict its residents to in-city driving ranges or tennis courts. The situation is no different when it comes to licensed handguns.”
The federal government filed a “friend of the court” brief in which it agrees with the challengers that the city’s ban infringes the right to keep and bear arms. The government suggests that the justices don’t need to reach the challengers’ other arguments, but it tells them that the ban also violates the commerce clause. The government parts ways with the challengers on their argument that the ban violates the right to travel between states. The Supreme Court has made clear, the government counters, that a law violates the right to travel “only if it directly impairs interstate travel by imposing an obstacle to free movement across state borders.” By contrast, the government asserts, the city’s transport ban doesn’t “regulate travel as such”; it simply bars someone from taking his gun out of the house.
Defending the ban, the city maintains that it does not place any real burden on gun owners’ rights. The city acknowledges that the right to “keep and bear arms” may “imply the right to learn how to handle arms,” but, it maintains, that does not translate into a right to train wherever you want. Rather, the city argues, the government has always “extensively regulated” where, when and how people can train with their guns. For purposes of the Second Amendment, it isn’t important where someone practices shooting, as long as he has a chance to do so. Because there are at least seven shooting ranges in New York City, with at least one in each of the city’s five boroughs, that opportunity is available to all city gun owners. Indeed, federal and state militia generally trained only a few times per year in specific places, and training was “tightly controlled.” The challengers have not provided any evidence that there was a tradition of transporting guns, much less one of transporting guns to second homes, the city concludes.
But even if the rule did burden the challengers’ conduct, the city continues, it would still be constitutional because it is “substantially related to an important government objective” – public safety. And it does not violate the Constitution’s commerce clause, because federal firearms law specifically provides that the right to move between states with a gun hinges on whether you are allowed to have and carry a gun in the states you are traveling between. Putting that aside, only city residents with licenses can use shooting ranges in the city, which actually puts those ranges at a disadvantage. “At the very least,” the city explains, the challengers “have not shown that this regulatory system, considered overall, worked to benefit in-city ranges at the expense of those out of state.”
The justices will vote on the case within a few days after the oral argument. If they decide that the case is moot, they could theoretically dismiss it relatively quickly. But the justices clearly do not regard the question as an easy one (as evidenced by the fact that they declined to dismiss the case when the city suggested that they do so this summer), so even an opinion finding the case moot could take some time. An opinion on the merits of the case is likely to take longer still, but in any event we can expect one by the end of June.