In January, the U.S. Supreme Court agreed to hear a Second Amendment challenge to a gun control law for the first time in nearly 10 years. The case arose from a New York City regulation that banned city residents with “premises” handgun licenses from taking their own legally-owned firearms outside Gotham for lawful purposes. The city defended the law all the way to the U.S. Court of Appeals for the Second Circuit, insisting it was essential to public safety. But ever since the Supreme Court agreed to hear the appeal of that decision, city and state officials in New York have been running scared, desperately maneuvering to convince the justices to dismiss it. Now, it seems, their reckoning may be nigh, as the high court has scheduled the case for argument on Dec. 2.
The lawsuit, New York State Rifle & Pistol Assoc., Inc. v. City of New York, offers a revealing look into the mindset of gun control extremists, and in particular, their refusal to acknowledge the Supreme Court’s precedents that recognize the right to keep and bear arms as a fundamental, individual liberty.
Indeed, over a decade after the Supreme Court made clear that handguns are a protected Second Amendment “arm” and cannot be banned, New York State still generally prohibits the mere possession of pistols and revolvers. State residents, however, may qualify for an “exception” to this ban by obtaining a license issued by the locality in which they reside. The difficulty of obtaining a license depends on where in the state a person lives.
New York City, to no one’s surprise, is the most onerous place to get a handgun license. For the “average” person (that is, for someone who is not well-connected to city officialdom or rich and famous) the only feasible choice is a “premises license.” That license allows a person to keep a handgun in his or her home or place of business. Even then, the process takes many months, multiple trips to police headquarters, and hundreds of dollars in mandatory fees. Licensing officials also have broad discretion to deny licenses, even when the applicant has no criminal convictions.
Until this court case arose, premises licensees could only transport their firearms outside their homes for narrowly circumscribed purposes, and only then, if the firearm were unloaded and in a locked container and separated from any ammunition. Licensees could visit a shooting range within the city itself, for example, but they could not leave the city with their own guns, even for lawful purposes like firearm training or competition or to take the gun to a second residence elsewhere in the state.
City officials tried to justify these restrictions by claiming they could not keep tabs on licensees who left New York City, although they had no evidence the licensees were causing problems with their handguns beyond city limits. The thinking seemed to be that unless New York City bureaucrats somehow monitored and documented every place licensees went with a handgun and what they did with it, the licensees must be doing something bad.
Courts in New York (including federal courts), do not like the Second Amendment, which emboldens the state’s anti-gun officials to pass ridiculous, overreaching, and punitive gun control laws like New York City’s travel ban. Thus, the ban survived judicial scrutiny all the way to the U.S. Court of Appeals for the Second Circuit.
But the U.S. Supreme Court has repeatedly made clear that the Second Amendment protects a fundamental, individual right to keep and bear arms – including handguns – for lawful purposes, particularly self-defense. Nevertheless, the court has since 2010 declined to hear any Second Amendment cases challenging gun control laws. In the interim, however, President Trump has appointed two new justices to the court – Neil Gorsuch and Brett Kavanaugh – with strong records of taking the Second Amendment seriously.
And so it was in January that when the plaintiffs in the New York City case asked the court to review the Second Circuit’s decision upholding New York City’s travel ban, the court agreed.
New York City initially reacted with defiance, but as the reality began to sink in that they would finally have to justify their laws against serious judicial scrutiny, they began to furiously backpedal. First, the city amended its regulations to allow the plaintiffs to take their handguns to ranges and residences outside city limits. Then state officials got into the act, passing a law to underscore that handgun licensees could transport their licensed handguns for certain permissible purposes. The city then asked the court to dismiss the case, claiming they had given the plaintiffs everything they wanted.
The plaintiffs, however, urged the court to go forward, noting that the recent laws could always be changed and that New York City handgun licensees still remained subject to the anti-gun whims of city officials. Only a clear Second Amendment ruling could protect their rights in the long term.
The court responded by scheduling a hearing in October on the question of whether the case should go forward.
In the meantime, however, five anti-gun U.S. senators stuck their noses into the matter by submitting a “friend of the court” brief in August authored by Sen. Sheldon Whitehouse (D-RI). More an unhinged political rant than a legal argument, the brief essentially accused the court of unprofessional political bias, insisted that it not hear the case, and warned that the court might need to be “restructured” to be more favorable to Democrats.
Perhaps it is a merely a coincidence that it took the court just over a month since that brief was filed to schedule a case that had been pending since January.
Nevertheless, it is not a forgone conclusion that the court will even hear the case in December, much less that it will issue a sweeping ruling on the right to keep and bear arms that will finally bring Second Amendment deniers like New York City to heel. The case could still end at the October procedural hearing without being decided on the merits.
Will the Supreme Court hear the case in December en route to a sweeping ruling on arms? It remains unclear. What is clear is the need for a lawful ruling the finally brings Second Amendment deniers like New York City to heel.
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