In 2010, the Supreme Court ruled that cities and states may not abridge “the right to possess a handgun in the home for the purpose of self-defense.” It has not heard a Second Amendment case since, leaving most lower courts to assume that the right to bear arms applies “in the home,” as the justices ruled. But on Tuesday, the court agreed to review a New York City law that limits gun owners’ ability to transport their guns outside the home. And it appears quite likely that the new conservative majority will, for the very first time, extend the Second Amendment beyond the front door and out into the streets, unleashing lower courts to strike down long-standing restrictions on the public carrying of firearms.
The case at hand, New York State Rifle & Pistol Association v. New York, is an ideal vehicle for gun-rights activists. Since 2008’s D.C. v. Heller and 2010’s McDonald v. Chicago, groups like the National Rifle Association have urged the courts to create a constitutional right to public carry. The goal is to prohibit the government from barring “concealed carry” and “open carry” of firearms, allowing most Americans to possess a gun in public, whether it’s hidden or flaunted. Results have been mixed. The U.S. Court of Appeals for the District of Columbia Circuit found a right to concealed carry outside the home. So did the 7th U.S. Circuit Court of Appeals. The 2nd U.S. Circuit Court of Appeals, by contrast, found no Second Amendment right to carry a concealed handgun in public. And the 9th U.S. Circuit Court of Appeals has split the baby, upholding limitations on concealed carry while invalidating restrictions on open carry.
Despite this circuit split, the Supreme Court has declined to take a public-carry case and resolve the matter once and for all. The main reason appeared to be Justice Anthony Kennedy, who compelled Justice Antonin Scalia to add limiting language to the Heller decision establishing an individual right to bear arms. Given Kennedy’s wobbly support of gun rights, the conservative justices avoided taking a case that might result in a 5–4 decision upholding public-carry bans. Now Kennedy is gone, replaced by Justice Brett Kavanaugh, a gun-rights enthusiast who takes a breathtakingly expansive view of the Second Amendment. With a firmly pro-gun majority in place, the conservative justices finally seem ready to supercharge Heller.
New York State Rifle may well mark their first step into the breach. The case involves a New York City measure that forbids residents from removing their firearms from their homes, unless they’re taking them to an “authorized small arms range” or “shooting club” within city limits. (There are seven such facilities, including at least one in each borough.) Several residents challenged the law’s constitutionality, arguing that the Second Amendment protects their right to carry guns to other shooting ranges, competitions, and second homes outside the city. In 2018, the Second Circuit upheld the rule, noting that it does not “substantially affect the exercise of core Second Amendment rights”—self-defense with a firearm in the home. Now the justices will evaluate that decision and, I suspect, reverse it.
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. If Americans have a constitutional right to take their guns to and from a firing range of their choice, after all, why shouldn’t they be allowed to transport them while traveling elsewhere? If the Constitution safeguards their ability to bring a firearm to and from their second home, why shouldn’t it also protect their right to carry a gun while running errands or visiting friends?
There are good answers to these questions. Right-to-carry laws, like those in Texas, appear to contribute to violent crime and increase homicide rates. Individuals carrying a weapon are more likely to escalate incidents of road rage and domestic conflicts into fatal shootings. Cities and states have a strong interest in curbing individuals’ ability to bring deadly weapons into the streets. And when New York City did allow residents to take their weapons to shooting ranges outside the city, the rule proved extremely difficult to enforce: Gun owners simply carried their weapons around and, when caught, insisted that they were heading to target practice.
So there are compelling interests bolstering the New York City law as well as public-carry bans more broadly. But these are interests that the Supreme Court seems poised to ignore. After all, Justices Clarence Thomas and Neil Gorsuch have already announced their belief that the Constitution protects concealed carry. And the conservative justices brushed off public-safety concerns in Heller, writing that the Second Amendment “takes certain policy choices off the table” when the government seeks to protect Americans from gun violence. With Kennedy replaced by a hard-liner, we may soon learn that prohibitions on the public transportation of firearms are another “policy choice” the Constitution does not permit.
Once the Second Amendment is extended beyond the home, public-carry bans generally will be the next to fall. Lower courts, now packed with pro-gun Trump nominees, will swiftly tear down restrictions on concealed and open carry. A central premise of Heller and McDonald—that the Second Amendment protects handguns “in the home”—will be cast aside. New York State Rifle will be the first shot in a coming constitutional revolution.
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