Sometimes, even in this hyperbolic age of partisan media madness, the most impactful events are lost on the public and obscured in legal details.
The Second Amendment case the U.S. Supreme Court has opted to hear, New York State Rifle & Pistol Association v. New York, is such a situation.
In the past few weeks, the list of “friend-of-the-court briefs” (what lawyers call “amici curiae”) attached to the case has grown substantially. Even the U.S. government has chosen to give its legal opinion to the justices.
Officially, the court will decide: “Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.”
This case likely will be heard this fall and decided next spring.The ruling may focus on a relatively narrow issue about whether the city’s law is constitutional, but it could also decide on the broader issue of whether, and to what extent, the right to have a gun extends outside the home. The court might also provide an analytical framework that lower courts can use in future Second Amendment cases. The lower courts resistance to the landmark Heller and McDonald decisions has been the biggest impediment to advancing gun rights in the courts.
The possibility that the Supreme Court justices could answerquestions like that have anti-Second Amendment-freedom groups so worried they are asking the court to please not answer the constitutional questions. In fact, in its friend-of-the-court brief, the Brady Campaign to Prevent Gun Violence even calls the entire court challenge “moot” 10 times as it argues that New York City is tweaking its gun restrictions to avoid this constitutional challenge in the first place.
That this request for review from the New York State Pistol and Rifle Association and a group of gun owners who live in New York City will be heard by the high court was actually a surprise.
It shouldn’t have been. The plaintiffs in this case are challenging New York City’s ban on transporting even licensed, unloadedand locked-up guns anywhere outside the city limits—to say a weekend home or a gun range, and even to another residence in NYC—for those who have a “premises license.” People with premises licenses can only move a handgun if they somehow obtain prior, written permission from the NYC police commissioner.
The U.S. government’s friend-of-the-court brief on this case points out this not only violates the Second Amendment, but also violates the dormant Commerce Clause. The U.S. government shows the absurdity of NYC’s laws by quoting NYC’s claim that this isn’t an unreasonable restriction because a resident could “buy, rent or borrow new guns to use at those locations.”
“The Second Amendment, however, protects a right to keep and bear arms, not just a right to rent or borrow them,” says the U.S. government.
The Bigger Questions
The NRA, in its friend-of-the-court brief, begins with the fundamental question of how our Second Amendment rights should be weighed when judging if a law is unconstitutional, as NYC’s clearly are.
“In District of Columbia v. Heller, this Court made clear that infringements on the individual right to keep and bear arms for self-defense are to be analyzed by comparing them against the Second Amendment’s text and history—not under an ‘interest-balancing inquiry’ like one of the so-called ‘tiers of scrutiny,’” says the NRA. “After all, the Second Amendment ‘is the very product of an interest balancing by the people,’ and the government—‘even the Third Branch of Government’—has no warrant to recalibrate the balance the People struck because judges conclude that a sufficiently ‘important’ or ‘compelling’ governmental interest shows that the right is not ‘really worth insisting upon.’
“In the decade since this opinion was handed down, most lower federal courts have openly flouted these instructions. They have constructed a Second Amendment jurisprudence based upon the very interest-balancing inquiry this Court rejected—an ‘intermediate scrutiny’ analysis that routinely finds Second Amendment rights outweighed by little more than the government’s say so that the rights must be eclipsed in the name of public safety.”
The NRA later says, “This approach is contrary to the text and purpose of the Second Amendment—which was enshrined in our Constitution because the People already weighed the competing interests at stake, and solemnly concluded that ‘the right of the people to keep and bear Arms, shall not be infringed.’”
In this particular case, NYC has effectively banned citizens’ Second Amendment rights since it has made it nearly impossible for law-abiding residents to utilize their constitutionally protected right to bear arms.
Reading the friend-of-the-court briefs from the anti-gun groups makes it clear they understand the absurdity and unconstitutionality of NYC’s laws, and those in many other states and cities.
The Brady Campaign, for example, is trying to sway justiceswith claims asserting that average people can’t be trusted with their rights: “Guns turn quotidian confrontations into deadly affrays, especially when carried by people who lack impulse control or are under the influence of alcohol… . Everyday annoyances at drivers in traffic quickly become murders when guns are in cars.”
The evidence, of course, shows this not to be the case as millions of Americans now carry concealed.
The U.S. government, under the Trump administration, meanwhile, reminds the court: “In District of Columbia v. Heller, this Court held that the Second Amendment protects the right of a law-abiding, responsible citizen to keep a firearm in his home for lawful purposes such as self-defense. In this case, the Court should confirm that the Second Amendment also protects the right of a law-abiding, responsible citizen to take his firearm outside his home, and to transport it to other places—such as a second home or a firing range—where he may lawfully possess that firearm. The Second Amendment guarantees both the right to ‘keep’ and the right to ‘bear’firearms.”
The U.S. government also says, “Read naturally, the right to ‘bear’ firearms includes the right to transport firearms outside the home; otherwise, the right to ‘bear’ would add nothing to the right to ‘keep.’ In addition, the right to ‘keep’ arms, on its own, implies the right to transport firearms between the home and at least some places outside the home—for instance, the place of purchase, the repair shop, and the firing range.”
Commonsense and previous Supreme Court precedents clearly show NYC—and by default some other jurisdictions—are clearly infringing on citizens’ Second Amendment rights. We’ll keep you up to date on what happens as this case goes forward.
Most-Revealing Anti-Freedom Quote of the Week
“Within a party that is plagued by differences over health care, college tuition, and even climate change, gun control is a fundamental issue where voters want change, and the Democrats can unite around it. To be sure, this is an issue that spans from grassroots activism to national politics, and even across the ideological spectrum. My fellow Democrats would be wise to bring this issue to the forefront of the 2020 campaign.”—Douglas E. Schoen wrote, in an opinion piece for The Hill. Schoen was a pollster for President Clinton. He thinks a majority of Americans want to vote their freedoms away.
Pro-Freedom Quote of the Week
“George Washington owned perhaps fifty firearms. After the Revolutionary war ended, Washington and his servant were riding on horseback from Alexandria to Mount Vernon. ‘As was then the custom, the General had holsters, with pistols in them, to his saddle.’ A ruffian and reputed murderer forbade him from passing and threatened to shoot him. Washington handed his pistol to the servant, saying, ‘If this person shoots me, do you shoot him,’ and rode on without incident.
“Our second President, John Adams, spent his youth playing games and sports, and ‘above all, in shooting, to which diversion I was addicted to a degree of ardor which I know not that I ever felt for any other business, study, or amusement.’ A biographer states: John’s zest for shooting prompted him to take his gun to school, secreting it in the entry so that the moment school let out he might dash off to the fields after crows and squirrels.” —National Sheriff’s Association in friend-of-the-court brief in the New York State Rifle & Pistol Association v. New York.
(Frank Miniter is the author of Spies in Congress—Inside the Democrats’ Covered-Up Cyber Scandal. His latest book, The Ultimate Man’s Survival Guide to the Workplace, will be out this summer.)
