As the country reels from mass shootings over the summer and the political branches bicker over the scope of an individual’s right to keep and bear arms, the Supreme Court will meet behind closed doors this week to consider whether or not to proceed with a case that could impact Second Amendment rights.
The case, currently scheduled for early December, is the first major Second Amendment case the court would hear since the late Justice Antonin Scalia’s landmark DC versus Heller 2008 opinion and a follow-up opinion two years later. Supporters of gun rights believe lower courts have been thumbing their noses at those opinions by upholding some restrictions, and are eager for a newly solidified 5-4 conservative majority of the court to take up the issue and rule in the coming months.
The New York City gun law regulates where licensed hand gun owners can take a locked and unloaded handgun.
When the Supreme Court agreed to take up the case, the law blocked licensed individuals from removing a handgun from the address listed on the license except to travel to nearby authorized small arms ranges or shooting clubs.
The New York State Rifle & Pistol Association and individual plaintiffs challenged the law arguing that it was too restrictive and that a New Yorker could not transport his handgun to his “second home for the core constitutional purpose of self-defense or to an upstate county to participate in a shooting competition, or even across the bridge to a neighboring city for target practice.”
The Trump administration urged the Supreme Court to overturn the law.
“New York City’s transport ban infringes the right to keep and bear arms guaranteed by the 2nd and 14th Amendments,” Solicitor General Noel Francisco argued in a friend of the court brief earlier this year.
In a twist, since the Supreme Court granted the case, the law was changed and lawyers for New York are now asking the justices to dismiss the challenge, canceling the December oral arguments.
“An intervening change in law entitling plaintiffs to everything they seek is a classic event that renders litigation moot,” the New York lawyers argue in court papers. The city changed the challenged regulation to enable licensed owners to transport their handguns to additional locations “including second homes or shooting ranges outside of city limits.”
In addition, the State of New York amended its handgun licensing statute to require localities to allow licensed gun owners to engage in such transport.
But critics of the law say that the only reason the law was amended was because supporters of gun regulations feared that the Supreme Court’s new conservative majority might use the New York law to render a broad decision cutting back on gun restrictions.
Paul Clement, representing the New York State Rifle & Pistol Association and other petitioners advised the justices that they should be wary of an attempt to change the law, after the Supreme Court agreed to hear the case.
The “new state law is itself the product of an acknowledged City-orchestrated effort to frustrate this Court’s review,” Clement wrote.
He said that the city’s actions don’t fix problems with the law.
“The revised regulations,” Clement argued, “demand continuous and uninterrupted transport (forbidding a stop at a gas station or a coffee shop en route), require written permission before a handgun can be taken to a gunsmith, and preclude transport to a summer rental house.”
Clement said there was nothing to stop the city, or another jurisdiction, from implementing a similar law.
“The City’s begrudging revisions to its restrictive transport ban reflect the City’s unwavering view that the ability to transport a licensed handgun is a matter of government-conferred privilege, rather than a constitutional right,” he wrote.
The case has prompted four Democratic senators to sign on to an unusual friend-of-the-court brief written by Sen. Sheldon Whitehouse, a Rhode Island Democrat, lashing out at those claiming the court should keep the case on the calendar.
“In an environment where a growing majority of Americans believes this Court is motivated mainly by politics rather than an adherence to the law,” the Court should remove the case from the docket, Whitehouse wrote and argued that the case was being pushed by those seeking to “openly promote their political agenda” at the Court.
Other cases in the pipeline
There are other Second Amendment challenges waiting in the wings.
In fact, a New Jersey law similar to New York’s under challenge has far more reaching implications.
“Whereas the New York case deals with an idiosyncratic law that no other state has, the New Jersey challenge concerns a type of law that is similar to laws in at least a half dozen states,” said Jacob Charles of the Duke University School of Law.
The case is brought by Thomas R. Rogers, and the Association of New Jersey Rifle & Pistol Clubs. In their petition, they argue that since the 2008 Heller opinion lower courts have split over the constitutionality of laws that “categorically bar typical, law-abiding citizens from carrying handguns outside the home for self-defense.”
They challenge the permit process for a New Jersey law that requires an individual who wishes to carry a handgun outside the home to apply to the Chief Police Officer of the municipality where he or she resides. An applicant must pass criminal and mental health background checks, and have satisfied extensive firearms safety training requirements. In addition, the individual must demonstrate that he has a “justifiable need to carry a handgun.”
Other cases involve a Massachusetts law that gives discretion to authorities on permits that critics say infringe upon an individual’s right and a California law that is being challenged by those who say it bars the acquisition of all semiautomatic handguns designed since 2013.
Charles says the cases could reveal what the new membership of the Court has to say about the Second Amendment and how far it stretches in light of calls for greater regulation.
“The court said in 2008 individuals have a right to keep a handgun in the home for self-defense,” Charles said. “Now, the next wave of cases target issues such the limits of a state’s regulatory authority over licensing and permitting schemes and regulations over certain types of weapons.”