New York City Thwarts the Second Amendment Revolution

But Brett Kavanaugh is itching to expand the right to bear arms ASAP.

The John Jovino gun shop storefront.
John Jovino gun shop, the oldest gun retailer in New York City, in Manhattan’s Little Italy in April 2013. Emmanuel Dunand/AFP via Getty Images

New York City’s strenuous effort to stop the Supreme Court from expanding the Second Amendment succeeded on Monday when six justices dismissed a challenge to the city’s former gun law. Gun safety advocates deemed the decision a victory, but it is, in reality, a reprieve—one that won’t last long. Four conservative justices announced their intention to broaden the right to bear arms as soon as possible, resuming the Second Amendment revolution the court began in 2008. The only real question now is whether Chief Justice John Roberts is ready to join their crusade.

Monday’s ruling in New York State Rifle and Pistol Association v. New York decides almost nothing. The case began as an attack on New York City’s restrictive firearm laws, which limited residents’ ability to transport handguns outside the home. Residents could apply for a “carry license,” which authorizes concealed-carry throughout the city, but law enforcement had discretion to deny their request. New Yorkers could also request a “premises license,” which generally required them to keep their gun at home. At the start of this litigation, residents with a premises license could only transport their gun to a shooting range within city limits. (There are seven, at least one in each borough.) The plaintiffs in NYSRPA demanded the right to take their guns outside New York City, to other shooting ranges, competitions, and second homes.

In 2018, the 2nd U.S. Circuit Court of Appeals upheld New York City’s law. The court declared that the Supreme Court’s Second Amendment decisions, D.C. v. Heller and McDonald v. Chicago, protect “the core right” of “self-defense in the home.” (There is ample evidence that the Supreme Court misunderstood the historical evidence in creating this “core right,” but leave that aside.) Because residents remained free to keep handguns in their homes, and the city had good reasons to keep them off the streets, the court upheld New York City’s law.

The Supreme Court then agreed to review the 2nd Circuit’s decision. City and state lawmakers feared that SCOTUS would not only strike down the law at issue but also use the case to supercharge the Second Amendment, putting countless other gun safety laws in jeopardy. So New York City repealed the measure, replacing it with a more lenient regulation that let residents with premises licenses take their guns outside city limits. Then the New York Legislature barred the city from reviving the old law.

These actions created a problem for SCOTUS. The Constitution allows federal courts to hear only live disputes, not “moot” cases where the plaintiffs already got what they wanted. Here, the plaintiffs demanded that New York City stop enforcing its old gun law. The city complied. So where’s the dispute?

The plaintiffs tried to manufacture new issues to keep their case alive. They argued that the city’s replacement law is also unconstitutional, and that they deserved damages for suffering under the old law. There are two more unstated reasons why the plaintiffs badly wanted SCOTUS to decide this case. First, they only get attorneys’ fees if they actually prevail in court, and representation from legal luminaries like Paul Clement doesn’t come cheap. Second, they hoped the court would use this case to broaden the scope of the Second Amendment, paving the way for a constitutional right to concealed carry.

By a 6–3 vote, the Supreme Court rejected the plaintiffs’ arguments on Monday in a two-page decision. The majority explained that, if the plaintiffs believe New York City’s replacement law is unconstitutional, they can go back to the lower courts and make their case. And although the plaintiffs now ask for damages, they made no such demand in their initial lawsuit. So they have to ask the lower courts for permission to add a damages claim.

That ruling handed a narrow win to gun safety activists, but it may be the shortest-lived triumph in Supreme Court history. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented in an opinion laying out his plans to expand the Second Amendment in a future case. Justice Brett Kavanaugh joined the majority but wrote separately to note that he agrees with Alito’s “general analysis” of the right to bear arms. Kavanaugh also wrote that he shares Alito’s “concern” that lower courts “may not be properly applying Heller and McDonald.” The court, Kavanaugh concluded, “should address that issue soon, perhaps in one of the several Second Amendment cases” currently sitting on the court’s doorstep.

There are at least a dozen gun rights cases pending before the Supreme Court. Several ask whether states can ban assault weapons or strictly limit concealed carry. The gun lobby has long sought to establish a constitutional right to purchase assault weapons and carry a concealed firearm in public places. While sitting on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh made it very clear that he will fight for these rights. He argued that courts should only uphold “gun regulations that are longstanding” and invalidate any restrictions that are not “sufficiently rooted in text, history, and tradition.” Applying this test, Kavanaugh wrote (in dissent) that the District of Columbia’s assault weapons ban is unconstitutional.

Alito, Thomas, and Gorsuch are also palpably eager to knock down lifesaving gun laws. In his NYSRPA dissent, Alito wrote that firearms regulations that did not exist in “the founding era” are likely unconstitutional today. Unless a gun law was “in force around the time of the adoption of the Second Amendment” in 1791, it’s probably invalid. “History provides no support for a restriction of this type,” he insisted, chastising the 2nd Circuit for upholding New York City’s now-dead restriction. “We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts,” Alito concluded. “If that is true, there is cause for concern.”

All four justices, in other words, want to wipe away any gun laws that depart from practices in 1791, when the Second Amendment was ratified. Under their approach, states could not ban large-capacity magazines or AR-15s because these weapons did not exist 229 years ago. It does not matter that large-capacity magazine bans demonstrably limit casualties in mass shootings. Nor does it matter that federal courts may literally enable massacres by blocking such bans. The federal judiciary has a responsibility to safeguard Americans’ access to weapons of war, even if it facilitates mass murder in the process.

Roberts’ decision to dismiss NYSRPA, and his refusal to join Kavanaugh’s concurrence, suggests that he may not be prepared to obliterate the nation’s gun safety laws. But the chief justice may also have simply wanted to defuse a bomb in a term already filled with blockbusters that will conclude months before the 2020 election. If so, he can now pick a better vehicle and, along with his four conservative colleagues, empower lower courts to sweep away the nation’s gun control regime. As Donald Trump’s judicial appointees have demonstrated, no gun law will be safe: Even modest limitations on interstate gun transfers are suspect in the eyes of Second Amendment extremists.

It’s tough to tell whether Roberts will go along with this dramatic expansion of the Second Amendment. He appears less enthusiastic than his fellow conservatives about gun rights, possibly because he recognizes that these cases put the court in a dangerous position. As the conservative Judge J. Harvie Wilkinson wrote in 2017, telling Americans “in the wake of so many mass shootings” that “all they can do is stand by and watch as federal courts design their destiny” would “deliver a body blow to democracy.” If the Supreme Court prevents Americans from protecting themselves against guns, more people will die. We will have to wait a little longer to learn whether Roberts thinks the right to bear arms outweighs everybody else’s right not to get shot.

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