On January 22, 2019, the United States Supreme Court granted certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York, marking the first time since 2010 that the Court would weigh in on the Second Amendment.Over the past decade, New York City for the most part has issued only “premises licenses” for handguns, which provide that owners may only possess handguns in their homes or en route to one of seven shooting ranges within the city.The Plaintiffs in New York State Rifle challenge the City’s restrictions, which effectively prevent handgun owners from bringing their guns outside the city or to a second home, as violating the Second Amendment and the Commerce Clause.
The District Court and Second Circuit ruled for the City and held that the City’s restrictions do not violate the Second Amendment.But now, with the case at the Supreme Court’s doorstep, the City has seemingly retreated by removing the contested portions of its rules, perhaps to get the case dismissed on mootness grounds.This begs the question: why would the City choose not to fight the case on the merits? The answer may lie in the new composition of the Supreme Court and its perceived motivation to expand individualized Second Amendment rights. The City may fear that, should it fight the case on the merits, it would risk a broad adverse ruling that could affect not just New York City, but the entire country.
Recent Second Amendment Jurisprudence
The Second Amendment to the U.S. Constitution reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In recent decades, the rancorous divide over the true meaning of the Amendment reached a fever pitch. Does it protect individual gun ownership? Or does it merely protect the right to participate in a militia? In its 2008 landmark decision District of Columbia v. Heller, the Supreme Court settled the question, holding that the Second Amendment protects an individual right to keep and bear arms, unconnected with participation in a militia.Specifically, the Heller Court found that Washington, D.C.’s outright ban on the possession of usable handguns violated the Second Amendment, as the Amendment protects the right to keep handguns in the home for self-defense.The Heller Court rejected the use of “intermediate scrutiny,” or any level of scrutiny which would balance government interests in controlling guns against such a right.In 2010, the Supreme Court applied the Second Amendment (as interpreted in Heller) to States and localities in McDonald v. City of Chicago.But while Heller and McDonald made clear that the Second Amendment protects the keeping of handguns in the home, where the need for self defense is “most acute,”it left open the question of where else the need for self defense is sufficiently acute so as to be protected by the Amendment.
In spite of numerous opportunities in the past decade, the Supreme Court has chosen not to answer the questions unaddressed by Heller and McDonald, such as whether the Amendment protects the public carrying of firearms.That may well have been a function of the Court’s composition during that period. Heller and McDonald were each 5-4 decisions, with former Justice Anthony Kennedy apparently serving as the pivotal swing vote in Heller and rebuffing the dissent’s insistence that the Second Amendment merely protects militia service and not personal gun ownership.According to former Justice John Paul Stevens (who wrote the main dissent in Heller), Kennedy leveraged his swing-vote status in Heller to force the majority to limit the holding to apply only to handgun possession in the home and to “not be taken to cast doubt” on other types of gun control regulations. Viewed another way, Heller may have represented the outer limits of the Second Amendment for Kennedy. In the past decade, other Supreme Court Justices with a more expansive view of individualized Second Amendment rights may have hesitated to grant certiorari on gun cases because they could not rely on Kennedy to venture with them beyond the boundaries of Heller and McDonald.Given that the balance of the Supreme Court over the past decade has remained relatively constant, such reluctance in that time period makes sense, at least to an outside observer.
The Short-Term Future of Second Amendment Jurisprudence
How the Supreme Court will treat the Second Amendment moving forward is subject only to speculation, at least by outsiders. While the Court lost Justice Antonin Scalia, who wrote the Heller opinion, in 2016, he was replaced in 2017 with Justice Neil Gorsuch, who believes that the Second Amendment protects not just the right to possess handguns in the home, but outside the home as well.In the years following Heller and McDonald, splits emerged in the Circuit Courts, with some Courts finding that Heller protected an individual right to publicly carry a handgun,other Courts findings that it did not,and others still finding that it protects “open carry,” but not “concealed carry.”While the Supreme Court in 2017 denied certiorari in Peruta v. County of San Diego, where the Ninth Circuit had found concealed carry to be outside the scope of the Second Amendment,Justices Thomas and Gorsuch agitated for the Court to hear such cases and codify an individual right to publicly carry firearms. Perhaps they felt the winds blowing in a new direction and sensed that they could dislodge the Court from its state of inertia.
As of July 2018, Justice Kennedy is no longer on the Supreme Court. His replacement, Justice Brett Kavanaugh, does not appear to be a “swing vote” on defining individual gun rights under the Second Amendment. While Kavanaugh has not to date announced a stance on the public carrying of firearms, he appears to have to have already interpreted Heller’s protections broadly. In Heller II, Kavanaugh argued in dissent that Heller I should be read not just to protect the right to possess usable handguns in the home, but to invalidate bans on semiautomatic rifles as well.
Justice Samuel Alito may also represent a potential vote to expand Heller and recognize public carry rights. Alito wrote the opinion in McDonald, in which he cautioned against treating the Second Amendment as a “second-class right.”It’s worth noting that Justice Thomas has employed similar “second-class right” language in arguing for the recognition of a public-carry right.It may also be instructive that Alito has seemingly construed Heller in broad terms. Concurring in Caetano v. Massachusetts, Alito stated that Heller covered the possession of stun guns, in addition to handguns, in the home.
Chief Justice John Roberts, by default, could play the role of swing vote in a potential expansion of Heller to cover public carrying. While Roberts voted in the majority in Heller and McDonald, there is scant evidence to define his stance on public-carry rights. However, according to FiveThirtyEight.com, Roberts has been the pivotal vote alongside the likes of Justices Ginsburg, Breyer, Sotomayor, and Kaganonly a tiny fraction of the time.Still, even if Roberts were to cast a pivotal vote to recognize public carrying rights, he could potentially leverage his role to serve as the “brakeman” and compel a narrower and more limited holding.
Aside from the slippery task of speculating on which way judges might vote in future decisions, one breadcrumb in Heller stands out for its potential impact on future public carry jurisprudence. While Justice Ginsburg dissented in Heller, Justice Scalia, writing for the Heller majority, quoted Ginsburg’s prior dissent in Muscarello v. United States to show that the word “‘bear’” in the Second Amendment means to “‘carry’” a firearm “‘upon the person… [to be] ready for offensive or defensive action in a case of conflict with another person.’” While it’s unclear how much weight this bit of judicial judo held within the confines of Helleritself, it is not hard to imagine it being deployed again to support a public-carry right. Indeed, several Circuit Courts have already found the word “bear” in the Second Amendment to have exactly such a distinct meaning from “keep,” and struck down laws which banned public carry.
Gun Rights and Regulations in New York City
If the Supreme Court, as it is currently composed, is predisposed to resolve the aforementioned Circuit splits and determine whether the Second Amendment protects the public carry of firearms, then New York State Rifle may represent the perfect stepping stone to reach that destination. This is in part because the case presents some of the most limited, benign, and sympathetic possession of firearms outside the home. If the Court were to recognize the right of handgun owners to take their guns outside of New York City and to second homes, it is not hard to envision the Court later ruling that the Second Amendment protects at least some right to public carry. But if the Supreme Court were to rule for the City on the merits in New York State Rifle, the Court could be foreclosed from recognizing public carry rights.
While a ruling for the plaintiffs in New York State Rifle would likely represent only a minor erosion of gun restrictions in New York City (an erosion which the City has already voluntarily undertaken itself), it could foreshadow a more seismic change in the nature of gun possession in the City, as well as in other places which currently restrict public carry. Today, New York State allows concealed carry (but not open carry) handgun licenses to be issued to applicants that show “proper cause” that they have a “special need for self-protection distinguishable from that the general community or of persons engaged in the same profession.”The Second Circuit has upheld the constitutionality of New York’s gun licensing laws and related criminal penalties for unlicensed possession, holding that Heller did not protect public carry.The D.C. and Seventh Circuits, on the other hand, have struck down similar “proper cause” requirements for concealed carry licenses, particularly when open carry is prohibited in the jurisdiction.Those Circuit Courts found that the Second Amendment protects the right to some type of public carry, whether it be open, concealed, or both, and rejected the use of any balancing scrutiny tier.The D.C. Circuit reasoned that “proper cause” requirements unduly discriminate against commonly situated members of the general public, who have a need for and right to self-defense.As a result, licensed concealed carry is now legal in D.C. and Illinois (with no proper cause requirements), while open carry is illegal.
Technically, the Supreme Court could deliver an extremely broad holding in New York State Rifle and recognize a public carry right in that case. But that seems like a radical and remote possibility, in part because the Court usually prefers smaller steps to giant leaps. The Supreme Court will likely have numerous opportunities in the next few years to decide on public carry rights. For example, the Ninth Circuit’s panel decision in Young v. Hawaii, which had recognized a right to open carry, will be reheard en banc later this year.Theoretically, that forthcoming en banc decision could tee up the case for the Supreme Court’s review in the 2020-21 term.
But even if the Supreme Court were to recognize a right to public carry, Heller would still likely retain some limitations on its nature. As the Heller Court wrote, the decision “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” or prohibitions on “dangerous and unusual weapons.”Still, New York City has already seemingly retreated from the regulations at issue in New York State Rifle, perhaps because they expect this Supreme Court to side against them.
Moreover, at least some gun rights groups now appear especially eager to get cases to the Supreme Court. Referring to the rehearing of Young v. Hawaii, Alan Beck, a lawyer for the plaintiff, told Reuters, “the composition of the Supreme Court has changed, and it means the Ninth Circuit will have to be very careful in evaluating the merits of Mr. Young’s case.” He added, “[m]y client has made it clear he wants to keep fighting as long as it takes.” For any New Yorker interested in or concerned about the role of gun rights and regulations in New York and other areas that restrict public carry, these developments are worth monitoring.
Written By: Matt Stupp | Law Clerk
See Richard Wolf, New York City limits on transporting guns eased in effort to get Supreme Court challenge dismissed, USA Today, Jun. 21, 2019, https://www.usatoday.com/story/news/politics/2019/06/21/gun-rights-new-york-city-eases-rules-
See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), cert. denied569 U.S. 918; Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), cert. denied571 U.S. 952; Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016), cert. denied 137 S.Ct. 1995.
See Adam Liptak, ‘It’s a Long Story’: Justice John Paul Stevens, 98, Is Publishing a Memoir, N.Y.Times, Nov. 26, 2018, https://www.nytimes.com/2018/11/26/us/politics/john-paul-stevens-memoir.html.
See Heller v. District of Columbia, 670 F.3d 1244, 1269 (2011) (Kavanaugh, J., dissenting). The Heller I Court held that outright bans on handguns were unconstitutional, though it did not explicitly state that bans on semiautomatic handguns were invalid. Kavanaugh, however, interpreted Heller I to protect the in-home possession of not just semiautomatic handguns, but semiautomatic rifles as well, since handguns (most of which are now semiautomatic) and rifles have not historically or traditionally been banned. Id. at 1270.
Ginsburg and Breyer dissented in Heller. SeeHellerat 636. Sotomayor and Kagan were not yet on the Court. Ginsburg, Breyer, and Sotomayor dissented in McDonald. See McDonaldat 912. Kagan was not yet on the Court.
See Oliver Roeder, John Roberts Has Cast A Pivotal Liberal Vote Only 5 Times, FiveThirtyEight, Jul. 5, 2018, https://fivethirtyeight.com/features/john-roberts-has-cast-a-pivotal-liberal-vote-only-5-times/.
Jonathan Stempel, U.S. appeals court to revisit open carrying of guns, Reuters, Feb. 8, 2019, https://www.reuters.com/article/us-usa-guns-court/u-s-appeals-court-to-revisit-open-carrying-of-guns-idUSKCN1PX2A9.