The Supreme Court Will Hear the First Major Second Amendment Case in Nearly a Decade

On Tuesday, the Supreme Court granted certiorari in a case challenging the constitutionality of New York City's regulations that restrict the carrying of firearms outside the home. The New York Times and Wall Street Journal have more reporting on the background of the case. From the New York Times:

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October. 

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment.

The case is New York State Rifle & Pistol Association, Inc. v. City of New York, and the petitioners challenging New York's rule are an organization and several individual gun owners. The Second Circuit opinion that is being appealed is here.

New York Penal Law section 400.00(2)(a) and (f) provide for "premises" licenses and "carry" licenses for handguns. New York City's Rule regarding premises licenses states:

(a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately. (38 RCNY § 5-01(a)

This rule contains a number of restrictions, including that handguns be transported unloaded in a locked container, that ammunition be carried separately, and that handguns may be transported to "authorized" shooting ranges. The City acknowledges that there are seven authorized ranges in New York City. Holders of premises licenses are restricted from transporting firearms to shooting ranges outside of the city or to second homes, even if they are within the city (as this destination is not "an authorized small arms range/shooting club."

The Court has refused to take up Second Amendment cases since its 2010 ruling in McDonald v. City of Chicago in which it held that the Second Amendment's protections apply to the states. The Court had previously held in its 2008 ruling in District of Columbia v. Heller that the Second Amendment creates an individual right and that its core protection was of the possession of firearms for self-defense in the home. Since then, lower courts have applied a variety of approaches to the Second Amendment, as many of the cases they have confronted have involved rules or restrictions affecting the possession or carrying of firearms outside of the home. Noting Heller's statement limiting the core possession to self-defense in the home, and also noting language stating that the case should not cast doubt on other, "longstanding" restrictions on firearms, lower courts have typically restricted the scope of the Second Amendment. The Supreme Court has consistently refused to review these decisions -- including cases involving the carrying of firearms.

This is now likely to change, as there are now four conservative justices with expansive views of Second Amendment protections. These four justices create a block of four votes required to grant review of lower courts' decisions.

Justice Thomas, in particular, has consistently dissented from the Court's prior refusals to take up Second Amendment cases. He has been joined in these prior dissents by Justice Gorsuch (in this case involving California's restrictions on the carrying of firearms). Justice Alito likely shares Thomas's views, as reflected in his concurring-in-the-judgment opinion in Caetano v. Massachusetts, in which Alito (joined by Thomas) criticized the reasoning of the lower court opinion and argued that the Second Amendment's protection encompasses the possession of weapons commonly used today for self-defense. (As an aside, commentators will likely point to Alito's 1996 dissent from a case upholding a ban on machine guns, but that dissent is not particularly useful, as his analysis focuses on the Commerce Clause of the Constitution, and not on the Second Amendment). Justice Kavanaugh is likely to join Thomas, Gorsuch, and Alito in seeking a broad ruling on Second Amendment protections, as he has previously ruled that prohibitions on semi-automatic firearms are unconstitutional. (See page 46 of this opinion for the start of Kavanaugh's dissenting opinion while he was still on the DC Circuit).

Some commentators argue that the Supreme Court will likely overturn the Second Circuit's opinion and broaden the scope of Second Amendment protections. Mark Joseph Stern argues this in this Slate article and Garrett Epps makes a similar point over at The Atlantic. Both articles have exaggerated titles (Stern's claims that the Court will make all states' laws like Texas' laws and Epps' title raises the notion of "Supersizing" the Second Amendment). But the tone of each article suggests that these goofy titles are likely the choice of editors rather than the authors.

Stern writes:

The case thus marks an effort to inch the Supreme Court toward establishing a right to public carry without forcing the justices to tear down hundreds of laws in a single, sweeping ruling. For a decade, gun advocates have been stymied by the language in Heller and McDonald expressly limiting the Second Amendment to firearms “in the home.” The conservative justices, however, will probably use New York State Rifle to blur that line.

 And Epps notes:

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down. 

“The impact of this case could be huge,” [Law Professor Adam] Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Like Stern and Epps, I think that it's likely that the Court will overturn the Second Circuit opinion and strike down the New York City rule. The question then becomes how broad the Court's opinion will be. The New York City rule has several levels on which the justices may rule. A narrow ruling would overturn the rule based on its destination restriction, which prohibits premises license holders from taking their handguns anywhere other than an authorized shooting range. A broader ruling could strike down the law because it prohibits these license holders from carrying the handguns in a locked container separate from the ammunition. Such a broad ruling may be complicated by New York's alternate permit schemes -- which include concealed carry permits -- but there may be ways around this, such as a ruling striking down the locked container portion of the requirement only, while leaving the separate ammunition component intact.

There is also the question of how a broad determination of the Second Amendment's protection can make its way into the opinion. My first instinct, from looking at the layout of the Court and -- in particular -- Chief Justice Roberts's likely goal to avoid large changes in the law, is that there will likely be a majority opinion of Roberts, Alito, Gorsuch, Thomas, and Kavanaugh that overturns the law for its destination restriction, and a concurring opinion of the latter four justices that argues that the locked-case / no ammunition restriction is also impermissible.

A less-likely alternative is that Roberts will author an opinion that includes dicta that lays the foundation for a broader Second Amendment protection scheme. This would be similar to the paragraph in the Heller opinion that stated that "longstanding" restrictions on firearms (such as restrictions of criminals' possession of guns and prohibiting firearms in government buildings) were not cast into doubt by the opinion -- a paragraph that was reportedly added to gain Justice Kennedy's vote -- and which formed the basis of many restrictive lower court opinions in subsequent years. I think that an approach with language that leans in the opposite direction and calls for more Second Amendment protections is unlikely, as the most conservative justices will still join in the narrower majority opinion even if they write their own concurrence.

However the outcome may look in the end, it is likely that the Court will overrule the lower decision and, in doing so, hold that the Second Amendment provides at least some level of protection to the carrying of firearms beyond the home. However narrow the opinion is framed, this opinion would significantly broaden the scope of Second Amendment protections, and would likely lead to much more successful litigation against states and localities with strict restrictions on the carrying of firearms.

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