New York City Tries to Avoid Supreme Court Review

The Supreme Court of the United States ended a nearly decade-long silence on 2nd Amendment jurisprudence earlier this year when they agreed to hear New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York. At issue is a law that prohibits New York City residents who legally possess a firearm (via a so-called "premises permit") from taking their gun outside of the five boroughs for any reason.

(For more information on what it takes to purchase a firearm in New York City, check out our Restricted States page for New York here.)

Supreme Court Asked to Put Case on Hold

On Friday, New York City sought to put a halt to the Supreme Court's review by promising to change the law at issue before the court.

I write to advise the Court of a proposed rulemaking. If adopted in accordance with established procedures, the proposed rule would render this case moot before the parties complete the merits briefing in this case. For this reason, I also write to request that the Court stay the current briefing schedule pending final action on the proposed rule.

…

Today, the New York City Police Department forwarded a Notice of Public Hearing and Opportunity to Comment on Proposed Rule to the New York City Record for publication. A copy of the notice is attached to this letter. The proposed rule would amend S 5-23(a) to allow premises licensees to transport a handgun listed on their premises license directly to and from any of the following additional locations, provided that the handgun is transported unloaded, in a locked container, with the ammunition carried separately:

• Another premises of the licensee where the licensee is authorized to have and possess a handgun;
• A small-arms range/shooting club authorized by law to operate as such, whether located within or outside New York City; and
• A shooting competition at which the licensee may possess the handgun consistent with the law applicable at the place of the competition.

If the proposed rule is adopted, it would render this case moot.

The City of New York wasn't interested in mooting this case in the prior years it spent going through the district court and appeals process where the lower courts sided with them. It certainly wouldn't have even have to make this offer to the court had Merrick Garland or a *shudder* President Hillary Clinton appointee to replace Justice Antonin Scalia was currently on the bench—the court wouldn't have agreed to hear the case in either of those situations.

It is only in the face of an almost certain smackdown from the Supreme Court that they are proposing to change a draconian gun control law. The law itself, on its face, does not even have a plausible justification for reducing gun violence or gun crime. What public benefit is gained by prohibiting someone from New York City from taking their handgun to a gun range outside the city?

The NRA-ILA Slaps Back

In response, the National Rifle Association's Institute for Legislative Action (NRA-ILA) released a statement slamming New York City's 11th hour conversion.

The City of New York clearly knows that its current restrictions on the carrying and transportation of lawfully owned firearms are unconstitutional and will fail under any standard of constitutional review, as the NRA has been saying for years. Today, it asked the U.S. Supreme Court to ignore the Constitution and allow the City to slow walk a narrow expansion of its current policy through a lengthy bureaucratic process -- the result of which, even if adopted, would still unduly infringe upon the fundamental, individual right to keep and bear arms under the Second Amendment. That is not how things work in the Supreme Court; the Court does not put its review on hold while the government embarks on a journey that at best might fix only a limited part of the constitutional defect. This is nothing more than a naked attempt by New York City to resist Supreme Court review of policies that even New York must recognize as inconsistent with the holdings in District of Columbia v. Heller and McDonald v. City of Chicago. The City of New York did not respect its citizens' Second Amendment rights before the Supreme Court granted review in this case and it will not respect them going forward. We are confident that the Court will reject New York's desperate attempt to avoid review of its blatantly unconstitutional laws.

The Bigger Picture

There is little question that the Supreme Court, reinforced with Justice Brett Kavanaugh and unlikely to be a squish on 2nd Amendment issues like his predecessor, Anthony Kennedy, will find New York City's law unconstitutional. The larger worry among gun-control advocates is that the Supreme Court will provide sorely needed direction to lower courts on what standard they should use when determining if a gun control law violates the 2nd Amendment.

Gun controllers fear "strict scrutiny."

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Strict scrutiny is often used by courts when a plaintiff sues the government for discrimination. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination.

If district and appellate courts are required to apply the strict scrutiny standard, then it is unlikely that a vast majority of gun control laws could withstand it. Almost by definition, gun control laws are not "narrowly tailored," but are instead crafted to deny 2nd Amendment rights en masse and without nuance.

Justice on Hold

The Supreme Court's decision to take the NYSRPA case is already having a ripple effect at the circuit level. The Ninth Circuit in February put a stay on its en banc consideration of Young v. Hawaii. In that case, a three judge panel of the Ninth Circuit had ruled that Hawaii must issue open-carry permits to residents because the court had earlier ruled, en banc, in Peruta that concealed carry was not protected under the 2nd Amendment.

If concealed carry is not allowed, then open carry must be allowed, the panel reasoned. Otherwise, the 2nd Amendment's right of the people to keep and bear arms would be a nullity. Direction from the Supreme Court to apply the strict scrutiny standard could make the legal contortionists at the Ninth Circuit think twice about their results-oriented jurisprudence.