The quote of the day is presented by Guns.com
Note that in his explainer on the importance of the New York State Rifle & Pistol Association v. New York case, Vox’s Ian Millhiser describes New York City’s ban on traveling outside of city limits with licensed firearms as a “minimal burden” on gun owners, covering conduct outside the Second Amendment’s “core.”
Because the freedom to transport a legally owned firearm outside of your home, city, or state is apparently not always justified.
That “minimal burden” is why anti-gunners are so afraid of an adverse outcome in the Supreme Court case, potentially expanding the scope of Second Amendment rights and putting an end to the RKBA being treated as a second-class right.
The Court will discuss the mootness argument next week. If they don’t dismiss the case, arguments are scheduled for December 2.
At least 10 (lower) courts apply what United States Court of Appeals for the Fifth Circuit Judge Stephen Higginson describes as a “two-step analytic framework” (to Second Amendment cases). Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review that courts typically apply in constitutional cases. “Less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”
Thus, major burdens on gun owners are especially likely to be struck down, while less consequential burdens are more likely to be upheld.
Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test — “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” While it’s unclear how Kavanaugh’s test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.
New York State Rifle, moreover, offers someone like Kavanaugh the perfect vehicle to upend the consensus framework because the (now repealed) rule at the heart of this case imposes only a minimal burden on gun owners.
New York offers two kinds of handgun licenses. A “carry” license permits gun owners to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a less permissive “premises” license permits a gun owner to “have and possess in his dwelling” a handgun. Premises license holders, however, may only bring the gun outside of their home for limited reasons, which include bringing the gun to seven specific gun ranges to practice shooting.
The plaintiffs in New York State Rifle, each of whom has a premises license, raise a very narrow challenge to this framework. As a federal appeals court explained, some of them “seek to transport their handguns to shooting ranges and competitions outside New York City.” One of them also owns two homes, and he wishes to be able to transport one gun between those two homes.
New York State Rifle, in other words, involves what Judge Higginson described as a “less onerous law” that governs “conduct outside of the Second Amendment’s ‘core.’” This isn’t a grand showdown over when and where people can carry guns — or whether they bring a gun into their own home. It’s a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.
And yet, this very smallness is what makes New York State Rifle so dangerous to the consensus framework. The rule at the heart of this case is the very sort of gun restriction that the consensus framework is likely to treat as insignificant. And that gives the Supreme Court an ideal vehicle to hold that judges should treat all gun laws with skepticism — even very minor ones.