Argument: December 2, 2019
Petitioner Brief: New York State Rifle & Pistol Association, Inc., et al
Respondent Briefs: City of New York, et al
Court below: United States Court of Appeals, Second Circuit
Supreme Court wants a piece of the NYC gun rights case
Up until a couple of months ago, New York City laws prevented licensed gun owners from traveling outside the City with their handguns. A handgun owner who only had a “premises” license only could travel with the gun to one of several authorized shooting ranges in the City. The City allowed a few limited exceptions for taking the gun elsewhere, like to a gunsmith or to hunt just outside of the City, but the licensee would have to get written permission from the Police Department. Generally, though, the laws made clear that handguns are for self-defense in the home, and traveling with the gun is only for training at designated places within the City.
NYC had reasons for doing this. For safety, of course. As NYC tells the Supreme Court, the City is the most populous and by far the most dense city in the country. The public transportation system is crowded: any route touches “sensitive places such as schools, daycare centers, government buildings, playgrounds, and places of worship.” In short, we do it it to keep guns from causing harm to all of the people out and about.
Several gun owners in NYC, along with the New York State Rifle and Pistol Association, sued the City arguing the law violates the Second Amendment right to “keep and bear arms.” The gun owners in the case want to be able to take their guns to other locations of legal gun use, such as shooting ranges outside of the City. One of the plaintiffs owns a second home outside of the City and wants to be able to take his gun there too. The NYC law — at least before July of this year — prohibited that.
The lower courts sided with NYC, ruling the restrictions were valid. They did not violate the Second Amendment. Then, in January 2019, the Supreme Court agreed to hear the case for its term starting in October 2019.
Shortly after the Supreme Court accepted the case for review, NYC changed the regulations at issue. The City was probably worried about the makeup of the Court: that the case would give the conservative Justices a chance to broaden Second Amendment rights. So while the case awaited argument, the City changed its laws to allow gun owners to travel with their handguns to shooting ranges and second homes outside of the City.
Courts aren’t supposed to take irrelevant cases. Courts don’t just hypothesize on what the law should be. Rather, they take live disputes and grant resolutions. Once NYC changed its laws to allow the plaintiffs’ requested conduct, the case is arguable not necessary anymore. It’s not a “live case or controversy.” That’s NYC’s view. After changing its laws, NYC requested that the Supreme Court rule the case “moot,” or irrelevant.
The Court refused to do so. The Justices want the parties to provide arguments both on the issue of “mootness” and on the Constitutional arguments. The Court will address mootness first because if the case it moot, the Court won’t be addressing the Constitutional arguments at all.
When a case develops a change in circumstances such that a court is no longer useful in resolving the controversy, the case is moot. One prototypical case: a college applicant argues a university discriminated against him in rejecting his application, but after the case started, the university grants the student admission and the student is about to graduate by the time the court will be addressing it. That case is moot because the student already got what he wanted.
This case looks like a prototypical case. NYC already gave the plaintiffs what they wanted, so what role can the Court play now?
The plaintiffs the Court is still needed. Ok, they say, NYC changed the law to quickly resolve certain limited situations (traveling to gun ranges and second homes outside the City), but what if I want to make a stop along the way? Maybe I need to fill up my car, or pick up a sandwich. The new NYC law would still make it illegal for me to make stops like that while carrying my handgun. The Court needs to step in and grant me a real right to travel with my gun.
Moreover (and this is a well-recognized exception to mootness), NYC only voluntarily changed the law to resolve the Supreme Court case. It could very well go back and make the same law again. The Supreme Court needs to make a real ruling clarifying that the City can’t make a law like that.
NYC continues to characterize the case as the prototypical case of mootness. The plaintiffs got what they wanted; case over.
Only if the Court sides with the gun owners on mootness may the Justices address the potential Second Amendment violation of the now-old NYC laws.
The Second Amendment
The Supreme Court has made one thing clear: The government cannot strongly restrict someone’s right to keep a gun at home and to use it for self-defense. That’s in the “core” of the Second Amendment, the Court concluded in D.C. v. Heller (2008). D.C. v. Heller invalidated a law requiring guns to be in a nonfunctional state in the home. The same decision invalidated a law placing “complete” bans on handgun ownership because handguns are the preferred type of gun for self-defense. Self-defense is clearly within the core of the Second Amendment right to “keep and bear arms.”
What about the right to travel with your gun? The 2008 Supreme Court decision didn’t give too much instruction to lower courts about how to decide other gun regulations, but federal courts around the country have pulled together a framework.
Text, history and tradition
Federal courts look to the text, history, and tradition of the Second Amendment as a primary step in characterizing how strictly to scrutinize a challenged gun regulation. If a regulation places limits on a “core” Second Amendment right, then a court will apply “strict scrutiny,” and if a regulation places non-“core” limits on a Second Amendment right, a court generally will apply “intermediate scrutiny.” Strict scrutiny is code for: the law will be invalidated. Intermediate scrutiny means it depends on the importance of the government interest and how narrowly the challenged regulation has targeted the government interest.
The first step for the parties, then, is to argue that the NYC restrictions on traveling with a gun restrict either a super important (“core”) Second Amendment right (gun owners’ argument), or a Second Amendment right that governments may regulate within reason (NYC’s argument).
The gun owners’ argument
The gun owners say: No way; this regulation cannot square with the Second Amendment. The right to travel outside the city with our guns, especially to second homes and other gun ranges, is critical to the Second Amendment. It’s “core.” The Second Amendment, first of all, says we have the right to “keep and bear arms.” Bearing is taking with me. I want to bear my gun to other places where I will use it for self-protection, and we all know that self-protection is in the heart of the Second Amendment (D.C. v. Heller).
The gun owners argue the Second Amendment clearly cannot be merely a premises-based right that only applies to one location (e.g. a home). The history and tradition of gun rights in the country shows traveling with arms is inherent to the Second Amendment. Especially traveling to train to properly use the gun.
The historical record is likewise replete with sources confirming that the right to keep and bear arms “implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.” Indeed, as far back as 1541, Englishmen were entitled “to use and shoot the same, at a butt or bank of Earth … whereby they and every one of them, by the exercise thereof … may the better aid and assist to the defence of this Realm, when need shall require.” As the Crown recognized, possessing arms alone was not enough; those keeping them needed to have some level of familiarity with their use.
[F]ew things would more obviously frustrate the exercise of the right to self-defense, the people’s interest in a well regulated militia, and public safety, than to entitle the people to keep and bear arms but then deprive them of the means to hone their safe and effective use.
Look, NYC says, in the entire history of the country, there have always been rules on where people can engage in gun training. It’s never been absolute. “Surely, for example, gun owners are not entitled to set up their own shooting ranges in Central Park or Times Square.”
In sixteenth-century England, for example, Parliament responded to a spate of violent crime by restricting residents of cities, boroughs, and market towns to discharging firearms only in defense of their homes or at specific locations designated for target practice.
From the colonial period onward, localities and states exercised the same authority. Some localities, like eighteenth-century Boston and New York City, limited target practice to specific locations for public-safety reasons. . . . Others, like antebellum Tennessee and Ohio, precluded training within any town or in other area where it might endanger public safety.
After offering several more examples, the City concludes:
There is thus overwhelming historical evidence that there has never been a right to train wherever one wishes, and that governments have instead had extensive authority to regulate the location and manner of training.
NYC also challenges the gun owners’ textual argument. The City says, when the Second Amendment gives the right to “keep and bear arms,” the right to “bear” the arm applies to its real goal: for confrontation. Training is not the inherent goal for the Second Amendment; it’s a “supportive” role. Gun owners have the right to train insofar as training requires them to be able to use their guns well in confrontation. Gun bearing for training is not “core” to the Second Amendment. As long as our laws don’t meaningfully impair plaintiffs’ right to train, they are reasonable.
NYC argues that its former laws don’t too harshly restrain gun owners’ ability to train. In other words, NYC argues the gun ranges in the City are able to accommodate the number of gun owners, and the City argues the ranges and opportunities to train in the City certainly are adequate, despite the regulation.
If NYC convinces the court that the right to travel is not a “core” Second Amendment right, its former regulations probably will still need to pass “intermediate scrutiny.” That means the regulations must be justified by an “important” governmental interest and the regulations must be “substantially related” to that interest.
To satisfy that standard, NYC will have to show that the travel restrictions aren’t overly broad so that they restrain conduct that is not necessary to achieve the city’s safety goals. NYC argues that the former regulations function to address the danger of handguns in public, as opposed to in the home. The City explains that policing handgun carry is substantially more difficult if destinations outside the City are permitted (i.e. harder to track plausible travel routes).
The Supreme Court may address two additional constitutional arguments put forth by the gun owners: that the gun travel restriction violates their right to interstate travel (guaranteed by the Commerce Clause) and that the gun travel restriction violates a more general “right to travel” (implicit in the Constitution).
Supreme Court docket
The Justices will address the mootness issue in a conference on October 1, 2019. If the case is not dismissed as a result of mootness, the Court will hear arguments on December 2, 2019.
Useful overview on the Second Amendment: Congressional Research Service, Post-Heller Second Amendment Jurisprudence (March 2019).