Last month, the Supreme Court declined to review a Ninth Circuit ruling that upheld Sacramento’s “may issue” concealed carry permitting process. The Ninth Circus had ruled that, that despite Heller and McDonald, there’s no right to carry concealed handguns in public in California. With Justice Kavanaugh now on the Court, gun owners had hoped for a different outcome.
But as we pointed out, there were a lot of problems with that particular case and SCOTUS is very picky in terms of what it takes for review, particularly when it deals with a hot-button subject like Second Amendment rights. TTAG reader and attorney LKB, who watches the progress of gun rights cases very closely, opined that the Court was waiting for just the right case, one that the pro-2A side judges to be ideal for re-affirming the individual right to keep and bear arms and striking another blow for the RKBA.
In his opinion, New York Rifle & Pistol Association v. City of New York is just such a case. Last week, the plaintiffs filed a brief in support of their petition for writ of certiorari. The complaint involves the City of New York’s law that prevents gun owners from transporting licensed, locked and unloaded firearms outside the city under any circumstances. They can only use their guns within the five boroughs.
Some highlights:
…(T)he City defends its extreme and novel ban on the theory that the ban makes it easier to enforce other laws that already specifically prohibit practices with which the City is really concerned. That kind of prophylaxis-on-prophylaxis is the antithesis of the meaningful tailoring required by heightened scrutiny. And it highlights that the ban is a prototypical example of a law that could survive when the collective rights view of the Second Amendment held sway but is a complete anachronism in light of Heller and McDonald. The City’s ban cannot be reconciled with a Second Amendment that protects individual rights or with any meaningful level of constitutional scrutiny. The fact that the Second Circuit upheld it while purporting to apply heightened scrutiny is thus reason enough for this Court’s review. …
New York City’s ban on transporting licensed, locked up, and unloaded handguns to any place outside the City—including a second home where petitioners would exercise their core right to possess them for self-defense, or a shooting range at which petitioners would hone their ability to exercise that right—is an extreme and irrational outlier that does not even make sense on its own terms.
Setting aside that there is absolutely no evidence that transporting an unloaded firearm, locked in a container separate from its ammunition, presents a material public safety risk, the City’s ban is not even rationally designed to reduce the incidence of such transport, as it actually forces New Yorkers to spend more time transporting their firearms through the streets of New York, rather than to more conveniently located shooting ranges just across city or state lines. And the prohibition on transporting a firearm to a second home has the bizarre result of keeping more handguns in the City, including in vacant within-city-limits residences.
That’s right. NYC’s gun owners can only use shooting ranges located within city limits. If they own a home on Long Island or in Westchester County, they can’t take their guns with them to use on a weekend trip.
As to the prohibition on transporting an unloaded and locked-up firearm to a second home, the City literally does not offer any public safety rationale at all. Instead, it merely attempts to minimize the public safety risks caused by the ban’s requirement that New Yorkers leave their handguns in vacant homes. The City hypothesizes that those affected by the ban are sufficiently law-abiding that the handguns will be completely inaccessible to decidedly less law-abiding burglars. BIO.22.
But even assuming the City is not underestimating its burglars, its confidence in the law-abiding nature of its licensees fatally undermines its administrability defense. If the City can trust handgun owners to exercise such care with their handguns at home, then surely it can trust them to responsibly transport them to shooting ranges and second homes.
So how are New Yorkers supposed to train and maintain their shooting skills?
The City attempts to minimize the burden its ban imposes by asserting that petitioners could hone their skills by renting a firearm outside the City. BIO.20. As an initial matter, there is no record evidence whatsoever to substantiate this hypothesis. But more to the point, petitioners seek to confirm the operability of, and their ability to safely and effectively use, their handguns, not someone else’s. If any of them is ever forced to defend his or her home, the fact that a different handgun maintained by someone else across the Hudson would be up to the task will be of precious little comfort.
The petitioners’ attorneys clearly aren’t above employing a little snark in their argument.
The City tries to paint its ban as in accord with federal law affirmatively protecting individuals’ rights to transport firearms in interstate commerce if they are unloaded, locked up, and not readily accessible. 18 U.S.C. §926A. According to the City, that law reflects Congress’ judgment that “only individuals with a carry license, not those who hold a premises license,” BIO.21, may be trusted to transport their firearms. But that argument is doubly problematic. Few jurisdictions have an analog to the City’s “premises” license, and most not only allow unlicensed possession in the home but also permit carrying without a license (or issue a license on a shall-issue basis).
Thus, the thrust of the federal law is to “confer[] upon all law- abiding citizens a right to transport their firearms in a safe manner in interstate commerce.” City of Camden v. Beretta U.S.A. Corp., 81 F. Supp. 2d 541, 549 (D.N.J. 2000) (emphasis added). And even the City acknowledges that those with a “premises” license can permissibly transport their handguns if they are unloaded, locked, and inaccessible while the owner is en route to an in-city range. Nothing in federal law remotely supports the City’s irrational effort to prevent licensees from employing the same safe and federally sanctioned storage conditions en route to nearby ranges or vacation homes.
And finally this:
While this Court’s tendency to clarify constitutional boundaries by reviewing and invalidating outlier statutes that transgress those boundaries is hardly limited to the Second Amendment, there is no context in which this kind of development is more essential. This Court’s effort to develop a coherent Second Amendment to guide lower courts was frustrated by the decades in which the collective-rights view of the amendment held sway.
This Court’s decisions in Heller and McDonald thus reflect the sum total of this Court’s guidance. Yet, as the petition documented, many lower courts have drained Heller and McDonald, and even the very notion of heightened scrutiny, of much of their meaning by upholding laws that regulate and tax firearms as if they were entitled to no constitutional protection. See Pet.22-24. The City dismisses these laws as unrelated to its ban, but courts have upheld such laws by applying the same basic watered-down version of heightened scrutiny that the Second Circuit applied here. Heller and McDonald began the process of developing a meaningful Second Amendment jurisprudence by invalidating outlier statutes, but they cannot be this Court’s last word.
There’s more, including an argument that New York City’s law violates the commerce clause, all in support of the petitioners’ request for Supreme Court review of the case. Again, you can read the entire brief here.
LKB tells us the case is scheduled for a January 4 conference. We should know the following Monday morning (January 7) whether they grant cert, deny the petition or re-list the case for the next conference.
Stay tuned.