Wednesday, January 30, 2019

Gun Rights Outside the Home: Supreme Court Grants Review in NYC Unloaded Carry Case

By Will Foster

Last Tuesday the Supreme Court agreed to review the Second Circuit’s decision in New York State Rifle & Pistol Association Inc. v. City of New York, New York. The case concerns whether certain New York City restrictions on the transport of licensed, locked, and unloaded handguns violate the Constitution. The challengers’ main argument against the restrictions is rooted in their Second Amendment right to keep and bear arms. They also claim that the city policies violate the Commerce Clause and the right to travel protected by the Privileges and Immunities Clause. A three-judge panel on the Second Circuit unanimously upheld the restrictions last February, affirming the judgement of the district court below.

The Supreme Court’s announcement to review will make this the first Second Amendment case the justices have decided since 2016’s Caetano v. Massachusetts — a terse and narrow opinion (with no recorded dissents) that suggested the Second Amendment applies to stun guns.

Before Caetano, one has to go all the way back to 2010 to find another right to arms ruling in the Supreme Court. That year, in McDonald v. Chicago, the court voted 5-4 to incorporate the Second Amendment against the states. McDonald built on the landmark 2008 ruling in District of Columbia v. Heller, which held that the Second Amendment protected, at a minimum, an individual right to keep common weapons in the home and use them there for self-defense. Because Heller was such a recent decision, it is only within the last decade or so that many courts have begun to seriously entertain challenges to firearms restrictions. That’s why gun rights jurisprudence is underdeveloped compared to the extensive body of law on many other Bill of Rights provisions.

Now we come to New York State Rifle & Pistol Ass’n. Inc. The dispute here is narrow in many respects. Unlike, say, Peruta v. California (a case the court declined to hear in 2017), New York State does not concern a right to carry arms in public for self-defense. Instead, this case merely concerns whether the right to keep and bear arms includes a right to transport unloaded, lawfully-owned guns between a primary home and a second home, or between a residence and a shooting range, when that transportation crosses the New York City border.

New York law recognizes two major types of handgun licenses: premises licenses and carry licenses. Ordinary citizens of the state cannot obtain a general carry license, so a premises license is their only real option. This kind of license entitles them to possess a handgun in a designated residence or business. Beyond that, however, local authorities (who issue the licenses) have significant discretion to decide how far the licenses’ privileges extend. State law allows holders of a premises license registered to one location to use their firearms elsewhere in the state for lawful purposes, but only to the extent that the issuing locality permits them to do so.

New York City’s premises license application involves a mental health assessment, a crosscheck of the applicant’s statements on the license application, a criminal records check, and a fee. The city has chosen to allow holders of premises licenses to transport their guns to and from city shooting ranges, in addition to keeping their guns within their city residences. However, that authorization does not extend to the transport of handguns to ranges or second homes outside the city. As a result, ordinary residents of New York City are prohibited from transporting their lawfully-owned handguns to locations outside of the city — even if the guns are unloaded and locked in a case separate from their ammunition.

As far as I can tell, nothing in state law mandates this policy; it was imposed at the city’s discretion. It is apparently the only prohibition of its kind in the country. Ultimately, in my view, this case should be a slam-dunk for the challengers. Under any level of scrutiny (except perhaps rational basis review, which is clearly inappropriate), and taking existing Supreme Court precedent as a given (as both parties have), the prohibition must fall. Heller held that the Second Amendment protects a right to keep a handgun in the home for self-defense, and as the 19th century constitutional scholar Thomas Cooley explained, “To bear arms implies something more than the mere keeping; it implies learning to handle and use them in a way that makes those who keep them ready for their efficient use.” Heller makes plain that Second Amendment rights extend to both of the activities the New York State petitioners seek to engage in: self-defense within the home and honing skill at the range.

New York responds that its policy doesn’t significantly burden those interests because premises license holders with second homes outside the city are free to purchase (and get a license for) a second gun to be stored at that residence, and license holders who want to shoot at ranges outside the city are probably able to rent guns there.

This reasoning has serious holes. It seems unlikely that the Court would allow a prohibition on the transport of books to locations outside city limits because people can still buy second copies of the books near their destination. Any judge would see that as an untenable restriction on First Amendment rights. There is no reason to treat New York State any differently just because it deals with the Second Amendment rather than the First. (That is not to say there might not be some circumstances, e.g. where strong evidence exists of a danger to public safety, where disparate treatment could be appropriate.)

Essentially, the challengers assert that they would prefer to use the same handguns no matter where they are, and that out-of-city ranges (particularly those elsewhere in New York, plus those in New Jersey) may be more convenient for them than in-city ones. Their views are entitled to respect, particularly given that several national law enforcement organizations have filed a brief in the Supreme Court supporting the challengers. The brief explains why it is sensible to want to use the same handgun for all purposes, and to want to sometimes patronize firing ranges other than the seven located within New York City.

Of course, fairly evaluating a law requires us to examine not only the harms it has caused but also the government interests that it serves. But this particular restriction doesn’t seem to relate to any important government interests. The city argues that their current premises license policy is necessary because when the policy used to be more lenient – allowing transport to any shooting range in the state – it proved harder to catch people who were violating the policy. City police had a hard time figuring out whether people were lying when they said they were traveling to a range. But this argument is wholly inapt. The city has never offered anything beyond weakly supported statements and hypotheses (e.g., unloaded guns could be loaded and become dangerous in the heat of road rage incidents) to suggest that policy violations have caused or will cause actual harm to people.

As the law enforcement organizations’ brief explains, “The rationale is circular. Respondents attempt to justify the regulation by noting that people sometimes violate it. But neither Respondents’ evidence nor the Second Circuit’s opinion contains a single factual instance that any violation of the Rule has caused actual harm or injury to public safety.” Indeed, if the only problem is that people sometimes violate the policy, then the problem could be solved by making the policy more permissive. Then there would presumably be fewer violations.

Plus, any public safety justification is undermined by the fact that in every other state, owners of licensed handguns can transport their weapons throughout the state so long as they are unloaded. Federal law meanwhile permits the transportation of properly stored handguns across state lines. If this practice really poses a danger to public safety, why does no other jurisdiction besides New York City prohibit it?

The petitioners also argue that the city’s policy violates not just the Second Amendment, but also the Commerce Clause and the Privileges and Immunities Clause. As for those issues, petitioners note that “[i]f the City had banned its golfers from taking their clubs to out-of-state courses or its professional musicians from taking their instruments to out-of-state concert halls, it is hard to imagine that those restrictions on interstate commerce and travel would be tolerated.” The city concedes this point, but responds that “unlike golf clubs and musical instruments, firearms present public safety risks that the City has a legitimate interest in protecting against.” Although this is true, it’s also true that, unlike golf clubs and musical instruments, guns are explicitly protected by the constitutional text.

The city maintains that its policy has no extraterritorial effect (which would be forbidden under the modern “dormant” Commerce Clause doctrine) because it only restricts transport of firearms “within the City.” While New York is technically correct here, its argument seems rather sophistic. Sure, a resident of New York City can use their licensed gun at a range in another state …. they’re just prohibited from actually bringing the gun there. And the Supreme Court held in Healy v. Beer Institute, Inc. (1989) that “a state law that has the ‘practical effect’ of regulating commerce occurring wholly outside that State’s borders is invalid under the Commerce Clause.”

Even though the Connecticut beer statute challenged in Healy only directly regulated prices that could be charged in-state, it had the practical effect of controlling out-of-state prices. “The critical inquiry,” the court said, “is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.” Here such a practical effect plainly exists. Furthermore, Pike v. Bruce Church, Inc. (1970) confirms that even a legitimate government interest is not necessarily enough to save a statute from a dormant Commerce Clause challenge: “Where [a] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits” (emphasis added). Here, the burden is indeed “clearly excessive,” since the restriction’s public safety benefits are minimal.

The city also argues that their ban creates only “a minor restriction on travel.” Yet as the challengers point out, “‘if the City passed a regulation prohibiting its citizens from leaving their residences with an iPhone, it could not maintain with a straight face that such a statute did not infringe ‘the right of a citizen of one State to enter and to leave another State.’” (quoting Saenz v. Roe (1999)). While the city is of course correct that, as a formal matter, a ban on traveling with certain items does not prevent people from traveling without those items, such a ban can discourage travel and therefore may violate the Constitution as interpreted by the Supreme Court. The challengers explain, “There can be no doubt that the transport ban ‘deters’ travel, as petitioners have represented that they would travel out of the city and state but for this regulation.”

While a victory for the challengers seems virtually certain here, it will be interesting to see what the final vote is. As Caetano demonstrates, the court’s four more liberal justices may be willing to join an opinion that vindicates gun rights as long as the holding is sufficiently narrow. In any event, after six years of litigation, it is past time for petitioners’ rights to finally be vindicated.

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