February 25, 2020

New York State Rifle & Pistol Association, Inc. v. City of New York

SECOND AMENDMENT

Does New York City’s Handgun Licensing Law, Which Allows Individuals to Possess Handguns Only in Their Homes or En Route to a Shooting Range Within the City, Violate the Second Amendment?

CASE AT A GLANCE

New York City’s handgun licensing law permits license holders to possess handguns only in their homes or en route to a shooting range within the City. As a result, license holders cannot transport their handguns to shooting ranges, shooting competitions, or even their second homes outside of the City.

Docket No. 18-280
Argument Date: December 2, 2019
From: The Second Circuit
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL

INTRODUCTION

The Supreme Court has ruled that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. But the Court has not specified the precise scope of the Second Amendment or set the standards by which the lower courts should assess the constitutionality of gun regulations. In upholding New York City’s licensing scheme, the Second Circuit applied a two-part test that now enjoys widespread use in the circuit courts. This case asks the Court to determine whether that two-part test is the correct approach to gun regulations and, if so, whether the City’s licensing scheme satisfies it.

ISSUE

Does New York City’s handgun licensing law violate the Second Amendment by prohibiting license holders from transporting their handguns to shooting ranges, shooting competitions, and their second homes outside of the City?

FACTS

Under New York City’s former handgun licensing scheme, City residents could apply for a “premises” license to possess a handgun in their home. According to City rules, individuals with premises licenses had to keep their handguns at “the premises which address is specified on the license.” But at the same time, City rules permitted premises-license holders to transport their handguns—unloaded and secured in a locked container—to one of seven authorized shooting ranges in the City or to an area designated by the New York State Fish and Wildlife Law, with permission of the Police Department. City rules did not allow premises-license holders to transport their handguns through the City to a shooting range outside of the City, and they did not allow premises-license holders to transport their handguns to a second home outside of the City.

Romolo Colantone, Jose Anthony Irizarry, and Efrain Alvarez— three City residents with premises licenses—sought to transport their handguns outside of the City to participate in shooting competitions and target practice. The City informed them that City rules “contemplate that an authorized small arms range/shooting club is one authorized by the Police Commissioner. Therefore the only permissible ranges for target practice or competitive shooting matches by NYC Premises Residence license holders are those located in New York City.”

The three then refrained from transporting their handguns outside of the City for fear of revocation of their licenses and criminal prosecution. Colantone also refrained to transport his handgun to his second home in Hancock, New York.

Colantone, Irizarry, Alvarez, and the New York City Rifle & Pistol Association sued the City, arguing that the City premises-licensing rules violated the Second Amendment, the Commerce Clause, and the fundamental right to travel. The district court ruled in favor of the City on all counts, and the United States Court of Appeals for the Second Circuit affirmed. This appeal followed.

After the Court agreed to hear the case, however, the City amended its premises-license rules to allow a license holder to transport a handgun through the City to another residence, inside or outside the City, so long as the license holder was authorized to possess the handgun at the second residence. The City also amended the rules to allow a license holder to transport a handgun to a shooting range or shooting competition outside of the City.

At the same time, New York state amended state law to allow premises-license holders to transport their handguns from one location where they may legally possess the weapon to “any other location where [they are] lawfully authorized to have and possess” such weapon, including another dwelling, shooting range, or shooting competition. The state law overrode any inconsistent state or local law.

CASE ANALYSIS

Given the late changes to the City’s premises-licensing scheme, the parties initially wrangle over mootness. The City argues that the post-certiorari changes in the law render the case moot, because the changes specifically allow the plaintiffs to do precisely what they originally sought: to transport their handguns to shooting ranges, competitions, and homes outside of the City. As a result, the City claims that there is no longer any dispute to litigate. It asks the Court simply to vacate the Second Circuit ruling and remand with instructions to dismiss the case.

The plaintiffs counter that they continue to have concrete interests in the case, notwithstanding the City’s thinly veiled effort to dodge Court review. They say that the Second Amendment question is still relevant, because the City has not abandoned its view that the Second Amendment does not protect their right to transport their handguns. They also say that the City or some other licensing authority could in the future deny a handgun license to a person who previously violated the old law, because such a violation could come up in a background check. Moreover, they contend that the City’s changes fall under the “voluntary cessation” exception to mootness. This exception allows a court to hear a case when the government strategically changes a law to deny plaintiffs their day in court, in a way that would otherwise moot a case.

As to the merits, the plaintiffs argue first that the City’s licensing scheme violates the Second Amendment. They contend, contrary to the apparent assumption behind the City’s transportation restrictions, that the text, history, and tradition behind the Second Amendment all demonstrate that the right to keep and bear arms extends outside of the home. Applying the right outside the home, they claim that the City failed to demonstrate that the transportation restrictions sufficiently served its stated interest in public safety. Indeed, the plaintiffs argue that the restrictions could only threaten public safety, because they require license holders to keep their handguns in their homes when they are away, and because they restrict license holders from honing their skills at shooting ranges and competitions outside of the City. (The plaintiffs contend that practicing shooting is also protected under the Second Amendment as a necessary means to protecting the right to keep and bear arms.)

The plaintiffs argue next that the licensing scheme violates the dormant Commerce Clause. They contend that the transportation restrictions impermissibly regulate the possession of handguns outside the City in violation of the dormant Commerce Clause. And they say that the restrictions impermissibly favor the City’s seven shooting ranges over ranges outside the City, also in violation of the dormant Commerce Clause. As in their Second Amendment arguments, the plaintiffs assert that the City has no good reason to justify these violations.

Finally, the plaintiffs argue that the licensing scheme violates the right to travel. They contend that “[t]he City could not force someone to leave her cell phone or laptop at home,” and that “[i]t has no greater power when it comes to the article necessary to exercise the right enshrined in the Second Amendment.”

The government weighs in to support the plaintiffs. As to the Second Amendment, the government focuses on the “almost-total prohibition on the transportation of arms outside the home” and argues that this “is enough to establish that the transport ban is unconstitutional.” (Emphasis added.) The government lodges claims substantially similar to the plaintiffs’ claims under the dormant Commerce Clause, but it does not agree that the licensing scheme violates the right to travel.

The City responds that the licensing scheme does not violate the Second Amendment. It asserts that the transportation restrictions do not touch upon the core right to keep and bear arms, because those restrictions still allowed the plaintiffs to hone their shooting skills (at ranges within the City) and still allowed them to keep another (separately licensed) handgun in a second home. But even if the restrictions did touch upon core Second Amendment rights, the City claims that they did not substantially burden the plaintiffs’ Second Amendment rights and that the restrictions “advanced the implementation and enforcement of the State’s handgun-licensing regime as it existed at the time.”

The City argues next that the licensing scheme does not violate the dormant Commerce Clause. It contends that the federal Firearm Owners Protection Act of 1986 authorized the City to restrict handgun transportation. In particular, the City claims that even though the Act conditioned the right to interstate transportation with firearms on whether the states of origin and destination authorized the person to “lawfully possess and carry” a firearm, it “did not grant such authorization to city residents who held premises licenses.” The Act notwithstanding, the City says that the transportation restrictions do not violate the dormant Commerce Clause, because “[t]he regime as a whole did not work to the benefit of in-city ranges at the expense of those out of state” and did not impermissibly regulate out-of-state ranges.

Finally, the City argues that the licensing scheme does not violate the right to travel. Quite simply, it says that “[t]he City’s former rule did not prevent anyone from, or penalize anyone for, leaving the State.”

SIGNIFICANCE

This is the first significant Second Amendment case that the Court has heard in a decade. It gives the Court a chance to set a long-awaited standard for Second Amendment challenges and to rule on whether the City’s former regulation meets this standard. It thus also gives the Court a chance to telegraph its approach to other gun regulations and signal whether those regulations are likely to stand.

The Court ruled in 2008 that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008). Two years later, it ruled that this right is fundamental, and therefore applies to the states  as well as the federal government. McDonald v. City of Chicago, 561 U.S. 742 (2010).

The Court in those cases noted that the Second Amendment, like other fundamental rights, is not absolute. In particular, it remarked in Heller that its ruling 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 firearms.” Beyond that, however, the Court did not specify the precise scope of the Second Amendment right or set the standards by which the courts should determine the constitutionality of firearms restrictions.

Without guidance from the Court, the circuit courts evolved a two-part test that now enjoys widespread use. Under that approach, courts ask first whether the challenged regulation impinges on conduct protected by the Second Amendment. If so, the courts next determine and apply the appropriate level of scrutiny. The courts apply a higher level of scrutiny (usually intermediate scrutiny) to regulations that come close to the core of the Second Amendment right. They apply a lower level of scrutiny (rational basis review) to regulations that neither touch on the core protections in the Second Amendment nor substantially burden their exercise.

The Court may adopt this approach, modify it, or craft a different rule entirely. Whatever the Court does, it will set the Second Amendment standard for the foreseeable future.

One last point: Given the City’s late regulatory change, there is an off chance that the Court will not address the merits and instead dismiss the case as moot. Moreover, given the dormant Commerce Clause and right-to-travel arguments, there is also an off chance that the Court could rule on the merits without addressing the Second Amendment. Both of these contingencies seem highly unlikely, however. Look for the Court to rule on the Second Amendment.

Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at sschwinn@jmls.edu or 312.386.2865.

PREVIEW of United States Supreme Court Cases 47, no. 3 (December 2, 2019): 4–7. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioners New York State Rifle & Pistol Association, Inc. (Paul D. Clement, 202.389.5000)
  • For Respondents City of New York, et al. (Richard Paul Dearing, 212.356.2500)

AMICUS BRIEFS

In Support of Petitioners New York State Rifle & Pistol Association, Inc.

  • Academics for the Second Amendment (David T. Hardy, 520.749.0241)
  • American Civil Rights Union (Kenneth Alan Klukowski, 877.730.2278)
  • Black Guns Matter (John Steven Foley, 508.754.1041)
  • Bradley Byrne and 119 Additional Members of the United States House of Representatives (Eddie Travis Ramey, 205.251.3000)
  • California Rifle & Pistol Association, Inc. (C. D. Michel, 562.216.4444)
  • Cato Institute (Ilya Shapiro, 202.842.0200)
  • Center for Constitutional Jurisprudence (Anthony Thomas Caso, 877.855.3330)
  • Commonwealth Second Amendment, Inc. (Alan Gura, 703.835.9085)
  • Firearms Policy Foundation, Firearms Policy Coalition, Calguns Foundation (Erik S. Jaffe, 202.415.7412)
  • George K. Young (Stephen Dean Stamboulieh, 601.852.3440)
  • Gun Owners of America, Inc., Gun Owners Foundation, the Heller Foundation, Tennessee Firearms Association, Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee (Robert Jeffrey Olson, 703.356.5070)
  • Judicial Watch, Inc. and Allied Educational Foundation (Chris Fedeli, 202.646.5172)
  • Liberal Gun Club (David D. Jensen, 212.380.6615)
  • Louisiana, et al. (Elizabeth Baker Murrill, 225.326.6766)
  • Madison Society Foundation, Inc. (Donald E. J. Kilmer Jr., 408.348.6068)
  • National African American Gun Association, Inc. (Stephen Porter Halbrook, 703.352.7276)
  • National Rifle Association of America, Inc. (David H. Thompson, 202.220.9600)
  • National Sheriffs Association, et al. (Dan Mark Peterson, 703.425.3741)
  • Mountain States Legal Foundation (Cristen Alice Wohlgemuth, 303.292.2021)
  • Pink Pistols (Brian Stuart Koukoutchos, 985.626.5052)
  • Professors of Second Amendment Law, et al. (David Benjamin Kopel, 303.279.6536)
  • Robert Leider (William Spencer Consovoy, 703.243.9423)
  • United States (Noel J. Francisco, Solicitor General, 202.514.2217)
  • Western States Sheriffs' Association, et al. (Dan Mark Peterson, 703.352.7276)

In Support of Respondents City of New York, et al.

  • 139 Members of the United States House of Representatives (Avi Weitzman, 212.351.2465)
  • Americans Against Gun Violence (Fred J. Hiestand, 916.448.5100)
  • Citizens Crime Commission of New York City (Harry Sandick, 212.336.2000)
  • Constitutional Law Professors (Vincent Gregory Levy, 646.837.5151)
  • Corpus Linguistics Professors and Experts (Brian Robert Matsui, 202.887.8784)
  • Everytown for Gun Safety (Deepak Gupta, 202.888.1741)
  • Former Commissioner of the New York City Police Department William J. Bratton (Roberto Jose Gonzalez, 202.223.7300)
  • March for Our Lives Action Fund (Ira M. Feinberg, 212.918.3000)
  • National Education Association (Alice Margaret O'Brien, 202.822.7035)
  • National League of Cities, United States Conference of Mayors, International Municipal Lawyers Association (Lawrence Rosenthal, 714.628.2650)
  • Neal Goldfarb (Neal Goldfarb, 202.262.7886)
  • New York, et al. (Barbara Underwood, 212.416.8020)
  • Public Health Researchers and Social Scientists (Jeffery T. Green, 202.736.8000)
  • Senator Sheldon Whitehouse, et al. (Sheldon Whitehouse, 202.224.2921)

In Support of Vacatur and Dismissal or Remand

  • Federal Courts Scholars (Michael B. Kimberly, 202.756.8901)