With ‘Outlier’ 2nd Amendment Case, Supreme Court Could Raise Bar for Gun Laws

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The New York City case gives the court a chance to tighten the standards that lower courts use to decide whether firearms regulations are constitutional.

A dispute over New York City handgun regulations that the U.S. Supreme Court will consider on Monday, marks the first time in about a decade that the court has waded into Second Amendment issues.

It’s an oddball case in a number of ways. The restrictions that sparked the court battle are not common around the U.S., and New York City and New York state rolled them back earlier this year after the Supreme Court agreed to hear the case.

Still, those with an interest in gun policy are watching closely to see how the court will proceed. 

They’re keen to see if a majority of justices will seize on the case as an opportunity to set more stringent standards for how lower courts evaluate whether firearms laws are constitutional, making it more difficult for cities and states to implement certain gun restrictions. 

“The real question is does the court adopt some big, new doctrinal framework in this kind of strange, outlier case,” said Joseph Blocher, a law professor and co-director of the Center for Firearms Law at Duke University. “That could be a really major change.”

Blocher explained that the existing framework courts use to determine whether gun laws pass constitutional muster affords states and localities a significant degree of flexibility when they craft policies—resulting in something he refers to as “firearm localism.” 

If the court, which is hearing oral arguments in the New York City case on Monday, moves to tighten up the standards for assessing Second Amendment cases, instituting more of a one size fits all framework, Blocher says that there’s a risk some of this leeway could be eroded.

But George Mocsary, a law professor at the University of Wyoming, said there’s a feeling in some quarters that the approach federal courts have been taking to scrutinize challenged gun laws in recent years has been somewhat “watered down.”

He said a tougher standard would mean that if state and local lawmakers want to enact gun regulations that hold up in court, they’ll have to be more careful about tailoring them to meet specific goals, while also having evidence to back up why they’re likely to work.

“They can't just say ‘we want to enhance public safety,’” Mocsary said.

It’s far from certain, though, that the court will go down a path that leads to any sort of dramatic outcome in the case.

New York is, in fact, arguing that its regulations have been changed in a way that provide the city’s opponents in the case with what they were seeking with their lawsuit. The case, the city contends, is “moot” and should be sent back to a lower court where it can be dismissed.

“The court could rule on it very narrowly,” said Adam Winkler, a law professor at the University of California, Los Angeles, who specializes in constitutional law and gun policy issues.

But Winkler noted that there are "clearly several justices who are chomping at the bit to articulate broad, new Second Amendment principles." One example, he said, is Justice Clarence Thomas, who has called the Second Amendment a "constitutional orphan" and a "disfavored right" in the Supreme Court.

Meanwhile, the court’s newest justice, Brett Kavanaugh, is known for a 2011 dissent he wrote in a gun case while serving on the U.S. Court of Appeals for the District of Columbia. There the court upheld semi-automatic weapon prohibitions and other gun restrictions that the District had imposed.

The New York case concerns regulations the city had in place restricting how gun owners with a particular type of handgun license could travel around the city with their firearms.

The city offers two types of handgun permits: a “premises” license, which allows people to have a handgun at their home or business, and a “carry” license that permits a person to carry a concealed handgun in public if they can prove they have a special need for the weapon.

Under the city’s prior regulations, premises license-holders were only allowed to transport their handguns to seven gun ranges within the city limits, or in some cases to gun shops.

Three individual gun owners and the New York State Rifle & Pistol Association filed a lawsuit in federal court back in 2013 over this regulation, which they have called “draconian.”

They argued—among other things—that the city’s law prevented gun owners from traveling with their weapons to second homes, or shooting ranges outside the city, amounting to an infringement on Second Amendment rights and the Constitution’s Commerce Clause

The gun owners and the association have also said there’s no evidence that transporting an unloaded handgun, locked in a separate container away from ammunition, is a safety threat.

Their arguments, however, failed to sway two lower federal courts. A district court in 2015, and the 2nd U.S. Circuit Court of Appeals last year, ruled in the city’s favor in the case.

The U.S. Supreme Court agreed to hear the case in January. After that happened, the city and New York state moved to revamp their gun regulations so that handgun owners in the city with premises licenses could travel to homes and gun ranges in other jurisdictions.

Mocsary suggested that even some supporters of the city’s old handgun law likely “saw the writing on the wall” that its strict measures were apt to face an uphill battle before the high court.

“There’s a sense out there that the only purpose behind it was to harass people who want to have guns in their homes and want to practice with them,” he said of the city's old handgun regulation. “I think the Supreme Court saw that and that’s why it accepted the case.”

In any event, the city argued in an August court brief, that the gun owners are now free to “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.”

“Changes in state and city law have rendered this case moot,” the city added.

The gun owners and the rifle and pistol association disagree. 

“The City’s begrudging revisions to its restrictive transport ban reflect the City’s unwavering view that the ability to transport a licensed handgun is a matter of government-conferred privilege, rather than a constitutional right,” they said in a court filing.

But again, the wrangling over the city’s gun laws is no longer the main attraction with this case.

“If the court agrees with the petitioners’ narrow challenge, then almost literally nothing changes,” Blocher said. 

It was about 10 years ago when the Supreme Court handed down a pair of landmark Second Amendment decisions. 

The first came in 2008 in District of Columbia v. Heller. In a 5-4 ruling, the court overturned strict handgun regulations D.C. had in place and more generally confirmed that Americans have a constitutional right to keep handguns in their homes to use for self-defense.

But the late Justice Antonin Scalia, writing for the majority in that case, did emphasize that, “like most rights, the right secured by the Second Amendment is not unlimited.”

In 2010, the court revisited the Second Amendment with McDonald v. City of Chicago. The ruling in that case more or less said that protections outlined in Heller extend not only to federal gun regulations, but also to state and local law.

"What the court did in Heller and McDonald was basically to say, ‘Yes, the Second Amendment is an individual right,’” said Robert Cottrol, a law professor at The George Washington University.

But it did not, he added, “set forth a methodology by which the lower courts would review Second Amendment challenges. So the lower courts have basically evolved their own.”

Blocher said that those who argue that courts should be using a more stringent framework to evaluate gun laws tend to say this should involve either a legal standard known as “strict scrutiny,” or some sort of test that depends on an “originalist” type of analysis, looking toward history and tradition to determine what laws should be allowed.

“If the court goes down one of those roads,” he said, "the doctrine that has developed in more than a thousand cases since Heller could potentially change radically."

Bill Lucia is a Senior Reporter for Route Fifty, and is based in Olympia, Washington.

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