The New York State Rifle & Pistol Association (NYSRPA) filed its brief in its Supreme Court case against the City of New York Tuesday afternoon and it invites the court to rule broadly and expand slap down district and appellate courts who have been committing legal contortions to do all that they're able to to read "keep and bear" arms out of the 2nd Amendment.
To get a sense of the underlying legal hurdles to exercising their 2nd Amendment rights that New York City residents must undergo just to get a firearm that they can keep only in their home, you're encouraged to read our extensive guide on the process. Despite only receiving an A- from Gabby Giffords' gun control group for its gun laws, the process for legally purchasing a gun is the most time-consuming and expensive in the nation.
More than a homebound right
Paul D. Clement, the lead attorney for the NYSRPA, notes that New York City's gun-licensing regime is unchanged since the Supreme Court's rulings in Heller and McDonald. Despite those two rulings directly implicating the City's licensing regime, they have declined to make any changes until their rules came under Supreme Court scrutiny. [Note that throughout this post, I have removed internal cites from the quotes to enhance the readability.]
The City’s premises-only license and accompanying transport ban are flatly irreconcilable with the Second Amendment. The City’s regime is unabashedly based on the notion that the Second Amendment is a homebound right that does not extend beyond the premises. Indeed, the City would not concede that its policy even implicates the Second Amendment because its restrictions apply only outside the home.
This is really the first hint that the lawyers for the NYSRPA aren't just interested in allowing New York City residents to move their firearms in locked containers from New York City to a second home upstate or to a range or marksmanship competition in New Jersey. They're going to make the case that some form of carry is implicated by the 2nd Amendment as well.
Strict scrutiny is the proper standard
As many gun control advocates have feared, the NYSRPA makes the case that the proper level of scrutiny for any laws implicating the 2nd Amendment—like those for other enumerated rights like freedom of speech or freedom of the press—is strict scrutiny.
If means-end scrutiny has a role to play in Second Amendment cases, this Court should clarify that strict scrutiny applies and that the various stratagems the Second Circuit employed to dilute the right are fundamentally incompatible with the proper analysis of government infringements of a fundamental right.
A little factual background on the current rules
The NYSRPA makes an important point about the City's gun control regime: It prices many people out of exercising their 2nd Amendment rights. The $340 fee, the repeated time needed off of work to appear in person before city functionaries are just the tip of the iceberg when it comes to the cost and availability of practicing your 2nd Amendment rights.
As for the “authorized ranges” restriction, there are a grand total of seven target-shooting ranges, exclusive of police or military ranges, in all of New York City—the largest city in America, with a population of 8.5 million people. Most of those ranges are clubs that are open only to members, which may require payment of a fee. City residents thus have only exceedingly limited and costly options to ensure that they obtain and maintain proficiency in the use of their firearms—something that law enforcement instructors and officials uniformly urge as essential to the safe and effective exercise of the right to keep and bear arms for self-defense.
Ripping into the 2nd Circuit
Let's be clear, the 2nd Circuit decision upholding the city's regulatory scheme was such garbage that when the Supreme Court said they were going to take a look at this case, the city decided to cave and started the rulemaking process to remove the transport restrictions to second homes and in-city ranges.
The city's brief in response isn't due until August 5, but don't expect the lawyers for the City of New York to depend on the 2nd Circuit's ruling. Instead, it will likely be an effort to limit the Supreme Court's potential reach on the the meaning to bear arms to locked containers with the ammunition carried separately and the level of scrutiny for gun control laws to something less than strict scrutiny.
Like many lower courts, when analyzing Second Amendment challenges, the Second Circuit employs a two-part test under which it first asks whether the challenged law “impinges upon conduct protected by the Second Amendment.” If the answer is yes, then the court “next determine[s],” and finally “appl[ies,] the appropriate level of scrutiny.” Applying that test, the Second Circuit first declined to decide whether the transport ban even implicates the Second Amendment. It instead assumed for the sake of argument that the answer is yes. The court then expressed skepticism that any level of heightened scrutiny should apply, and it definitively ruled out strict scrutiny because the transport ban purportedly “impose[s] at most trivial limitations on the ability of law-abiding citizens to possess and use firearms for self-defense.” But the court ultimately “assume[d], arguendo,” that intermediate, rather than rational-basis, scrutiny should apply.
Assuming without deciding that intermediate scrutiny would apply, the court concluded that the transport ban would pass muster. The court identified the City’s interest as protecting public safety and concluded that the City had presented sufficient “evidence supporting its contention” that the regulation protects that interest. The sole evidence on which the court relied was an affidavit from the former commander of the state licensing division hypothesizing, without any evidentiary support, that transporting an unloaded handgun, locked in a container separate from its ammunition, may pose a public-safety risk in “road rage” or other “stressful” situations. The court did not explain how requiring city residents to spend more time transporting their handguns to inconvenient in-city ranges could plausibly further any claimed interest in reducing the in-city transport of unloaded, locked-up handguns. Instead, it simply declared that the ban “makes a contribution to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposes on Second Amendment interests.”
The NYRSPA makes it clear that the 2nd Circuit's entire exercise of identifying the appropriate level of scrutiny and then applying it was really just sophistry of the most transparent sort—an effort to reach a predetermined outcome.
The fact that the Second Circuit upheld the policy while purporting to apply heightened scrutiny underscores all that is wrong with means-end scrutiny in the lower courts. This Court’s teaching is clear that when it comes to fundamental rights, strict scrutiny applies. And whether the scrutiny is strict or intermediate, the hallmark of heightened scrutiny is that it is the government’s burden to demonstrate narrow tailoring. The Second Circuit evaded that fundamental requirement by positing that there is some “core” of the Second Amendment (essentially guaranteeing that rights deemed non-core will be under-protected), and that the challenger must show that the core was substantially burdened, by which it means effectively banned (shifting the burden and guaranteeing that serious restrictions short of bans are permitted). None of that is remotely consistent with this Court’s cases. If means-end scrutiny has a role to play in Second Amendment cases, then this Court must make clear that courts may not apply heightened scrutiny in name only.
2nd Amendment is not confined to the home
The City of New York (grudgingly) and the 2nd Circuit argue that the 2nd Amendment's core is for the defense of the home and that outside of your home the right can be curtailed or eviscerated.
By its own telling, the transport ban is inextricably linked to the restrictive conditions of the premises license and is designed to help law enforcement “monitor and enforce the limited circumstances under which premises licensees can possess a handgun in public.” In other words, the ban ensures that a premises license is strictly limited to the premises, and that people remove their handguns from their homes only under the exceedingly “limited circumstances” that the City deems appropriate. The City’s regime thus rests on the premise that the right protected by the Second Amendment is a homebound right, and that any ability to keep and bear firearms beyond the curtilage is a matter of government grace. That view is incompatible with the text of the Second Amendment and with the history and traditions that inform the scope of the right it protects.
And here's where the NYSRPA begins to invite the Supreme Court to give direction to the lower courts on what bear means in the 2nd Amendment.
The text of the Constitution thus confirms that the Second Amendment is not a homebound right, strictly limited to the premises. Instead, people have not just the right to possess firearms on their premises, but the right to transport arms outside the home for lawful use beyond the premises and the right to bear arms outside the home “for the core lawful purpose of self-defense.”
The original Heller decision specifically struck down Washington, D.C.'s requirement that firearms in the home be stored disassembled and ammunition stored separately. The court then noted that a disassembled firearm cannot be used for self-defense when seconds count. By linking the 2nd Amendment right to "bear" arms for self-defense outside the home, the NYSRPA is inviting the court to rule on some sort of right to carry, whether open or concealed. The core purpose of self-defense cannot be satisfied by a firearm carried in a locked container with ammunition stored separately.
Taken together, text, history, and tradition confirm that the right to keep and bear arms is not confined to the premises. To the contrary, the Second Amendment protects a right to carry arms outside the home, and at a minimum to transport them to other places where they may be lawfully used. Those places undoubtedly include second residences and places where individuals would hone their ability to safely and effectively use them. [emphasis added]
Is the city's regulation a narrowly tailored fit?
The obvious answer is "no," but lets allow Clement to rip this to shreds.
[T]he City’s policy could not survive any meaningful form of heightened scrutiny, whether strict or intermediate. Under both strict and intermediate scrutiny, a court must assess both the strength of the government’s interest and “the fit between the stated governmental objective and the means selected to achieve that objective.” And even under intermediate scrutiny, the government must prove that its law is “narrowly tailored to serve a significant governmental interest.” In other words, the question is not just whether the means advance the government’s stated end, but whether they do so in a way that “avoid[s] unnecessary abridgement” of constitutional rights. And both strict and intermediate scrutiny “place the burden of establishing the required fit”—which is to say the burden of proving narrow tailoring—“squarely upon the government.”
According to the City, the ban furthers public safety because it better enables the City to ensure that individuals remove their handguns from their homes only under “the limited circumstances” of the City’s choosing. As explained, however, the right to keep and bear arms is not confined to the home. Thus, even if the City could demonstrate that confining handguns to the home furthers public safety, it could not enact laws with the objective of furthering that end, because that is a policy choice that “the enshrinement of” the right to keep and bear arms “necessarily takes … off the table.” The City cannot justify the transport ban on the ground that it aids the City’s efforts to achieve a policy preference that is directly contrary to the views of the framers who enshrined a right to keep and bear arms in the Second Amendment without ever suggesting that the right is enjoyed on the premises and nowhere else.
The problems with the narrow tailoring of the City’s approach hardly end there. In scrutinizing the fit between the City’s stated ends and its chosen means, it is important to take stock of the broader regulatory regime. Before New York City residents may possess a handgun in the home, they must obtain a license from the City, which requires them to pass multiple background checks, satisfy City officials that the statements on their license applications are truthful, and establish that they are extraordinarily law-abiding. After obtaining that “premises license,” individuals remain precluded from carrying their handguns on their persons outside the home, either openly or concealed. Instead, individuals may remove their handguns from their homes only if they are “unloaded, in a locked container, the ammunition to be carried separately.” And on top of all that, the City imposes the additional and novel restriction that a licensee may only “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club,” thereby precluding law-abiding residents from taking their handguns to second homes, out-of-city ranges or competitions, or anywhere else inside or outside of the city or state.
“This ‘prophylaxis-upon-prophylaxis approach’ requires that [the Court] be particularly diligent in scrutinizing the law’s fit.” So does the fact that the City stands alone in taking that approach.
Clement makes much out of the fact that there is not a single other jurisdiction in the United States with similar restrictions limiting the transport of a firearm, unloaded, in a locked container, to a particular geographic region. And the explanation for that fact isn't that other jurisdictions aren't interested in pursuing legally dubious restrictions on the 2nd Amendment.
The complete absence of other jurisdictions following New York City’s lead is truly remarkable. One does not have to accept the New Yorker’s cartography to understand the outsized influence that the policy prescriptions of the Nation’s largest city can have on other jurisdictions. It would be comforting to think that the absence of comparable restrictions reflects other jurisdictions’ greater respect for Second Amendment rights, but that supposition is belied by continuing efforts to ban handguns, see Jackson v. City & Cty. of San Francisco, 746 F.3d 953, and confiscate long-legal firearms, see Guns Save Life, Inc. v. Village of Deerfield. Instead, the most logical explanation for why the City stands alone is that its policy does not meaningfully advance its stated interests. In fact, in many respects it runs directly contrary to those interests, for it ensures both the presence of unattended handguns in vacant residences and the transport of handguns across the city to inconvenient ranges when a quick trip across the Hudson would suffice.
More 2nd Circuit Bashing, because they deserve it
The NYSRPA's brief makes it clear that the 2nd Circuit did an intentionally shoddy analysis of the case, because that's the only way they could possibly uphold the New York City law.
As the Second Circuit made clear in this case, it will not apply strict scrutiny unless both requirements are satisfied—i.e., a law “substantially burdens” (i.e., effectively bans) a right at the “core” of the Second Amendment. (“Even where heightened scrutiny is triggered by a substantial burden, however, strict scrutiny may not be required if that burden ‘does not constrain the Amendment’s “core” area of protection.’”). In practice, that means that the Second Circuit will not apply strict scrutiny to any law that is not materially identical to the laws struck down in Heller and McDonald. All other laws, even if they substantially burden a fundamental right or trench near the core of the right, are subject (at most) to a version of intermediate scrutiny that approves the intrusion as long as “the defendants produce evidence that fairly supports their rationale.”
As this Court’s decision in Heller attests, laws that outright ban activity protected by the Constitution—whether at the “core” of the right or otherwise—need not be subjected to any formal scrutiny analysis because the government plainly cannot flatly prohibit what the Constitution protects.
In short, while purporting to apply the strictest of scrutiny to certain Second Amendment violations, the Second Circuit has effectively held that strict scrutiny will never apply in any case that matters.
Of course, the whole notion that the Second Amendment has a “core” and a “periphery” is misguided. The provisions of the Bill of Rights protect what they protect; they do not have cores that really matter and lukewarm peripheries that may be discounted. The Fifth Amendment, for example, does not provide “core” protection against self-incrimination and merely peripheral protection for double-jeopardy violations. In reality, the notion of “core” rights is just an artificial construct designed to dilute Second Amendment rights.
The Supreme Court for nearly a decade had refused to take a 2nd Amendment case. Lower courts took that as a signal that they could play this sort of game divvying up the plain text of the 2nd Amendment. The good news is that it looks like the Supreme Court is finally ready to clean up some of the messes it has created.
Where do the burdens lie?
The 2nd Circuit gets slammed too for flipping the burden of proof.
The problems with the Second Circuit’s test run deeper still. First, by reserving heightened scrutiny for laws that “substantially burden” Second Amendment rights, the Second Circuit impermissibly flips the burden of proof against the challenger. Under heightened scrutiny, once the challenger shows an interference with a fundamental right, the burden of proof shifts to the government to show that its law does not “burden substantially more [protected conduct] than is necessary to further the government’s legitimate interests.” The Second Circuit, by contrast, requires the challengers to prove that a law “substantially encumbers their core rights.” Making matters worse, the court then treats as “substantial” only those burdens that amount to an “explicit or functional” ban. Everything short of a functional ban is relegated to rational-basis review.
And don't forget that the burdens on those attempting to exercise their 2nd Amendment rights are not trivial.
Moreover, the burdens imposed by the City’s policy are hardly trivial. As the court itself noted, the City charges $340 for a premises license fee, (upholding City’s fee after assuming, without deciding, that it was at least subject to intermediate scrutiny), and that is on top of the hundreds of dollars in costs for a second handgun. It is hard to imagine the Second Circuit describing a special $500 charge for obtaining an abortion outside the city as an “insignificant and indirect cost” on the exercise of a fundamental right.
I can't even imagine a single court in this country that would require a woman to get a $500 license before she could have an abortion. Such a requirement would get struck down faster than you could empty a 30 magazine clip.
The 9th Circuit makes a cameo
A 9h Circuit anti-gun ruling also makes a cameo in the NYSRPA case. The case of Silvester v. Becerra which was denied certiorari when appealed to the Supreme Court and spurred a dissent from Justice Thomas calling the 2nd Amendment a 2nd class right.
Unfortunately, while the transport ban may be an outlier, the reasoning the Second Circuit employed to uphold it is not. See Silvester v. Becerra, (Thomas, J., dissenting from the denial of certiorari). Accordingly, even if the Court does not find it necessary to establish a comprehensive test for analyzing Second Amendment claims in this case, the Court should at the very least take the opportunity to admonish lower courts that when Heller ruled out rational-basis scrutiny, it likewise ruled out watered-down forms of scrutiny that systematically discount the burden on Second Amendment rights and ultimately reduce to a “judge-empowering ‘interest-balancing inquiry.’”
For those who need a reminder, the Silvester case had to do with California's mandatory 10-day waiting period. A suit had been filed seeking to invalidate the waiting/cooling-off period for those who passed the background check before the 10 days were up and had a concealed carry permit, already owned another gun according to the state's database, or have a Certificate of Eligibility.
As the Cato Institute summarized the 9th Circuit ruling:
Several California residents who already own firearms challenged the 10-day waiting period and prevailed in federal district court because the state could only assert a general interest in a “cooling off” period. The U.S. Court of Appeals for the Ninth Circuit ignored that the burden was on California to prove its case—and the state could show no evidence that the wait would have any public-safety effect when the purchaser already owns other arms. Instead, the court speculated as to what kind of harms the law might conceivably prevent, not any important interest it does actually serve.
Could the Supreme Court rule 9-0 on the merits?
While the 2nd Amendment issue makes up the bulk of the 69-page argument in the case, two other Constitutional rights are also allegedly infringed by the city's laws: Interstate commerce and the right to travel.
The city only allows premises licensees to take their guns to any of seven ranges in the City of New York. By prohibiting them from taking their guns to nearby ranges in New Jersey, for example, the city runs afoul of the Interstate Commerce clause.
The city also infringes on the the right to travel.
The transport ban accordingly forces petitioners to choose which constitutional right they would rather exercise: their right to travel or their right to keep and bear arms. If petitioners attempt to exercise both of these rights at the same time—by, say, taking their lawfully owned handguns from their residences to a firing range in Jersey City or a competition in Stamford—they run the risk of having their licenses revoked, which would completely deprive them of their Second Amendment rights. That should be the end of the inquiry, as “[i]t has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution.”
The City nonetheless has maintained (and the Second Circuit accepted) that the right to travel is not even implicated, let alone violated, here because the “Constitution protects the right to travel, not the right to travel armed.” That misses the point. A law that prohibited citizens from leaving their residences with their cell phones would deter interstate travel, even if the citizen could rent an iPhone at the terminus of his or her journey. The fact that the City grounds handguns instead of cell phones does not change the analysis, especially given that the former enjoy greater constitutional protection.
It is certainly possible that even the anti-gun liberals on the court could join in overturning New York City's restrictive law without agreeing to what gun rights activists hope is a wide-ranging ruling based on the 2nd Amendment.
Justices Sotomayor, Ginsberg, Kagan, and Breyer could certainly agree to strike down the regulation on the basis that it infringes on interstate commerce, but dissent on all of it that touches on the 2nd Amendment. That truly would be a sight to see.