Month: December 2019

SCOTUS Gun Watch, Episode 8

This post-NYSRPA week saw some more action at the Court. No new grants or orders in NYSRPA—though it’s possible we may get more orders on Tuesday this week. But the Supreme Court did deny cert in two pending petitions on the chart below, one of which was surprising to me. In that case, Medina v. Barr, the challenger claimed that the felon firearm prohibition—922(g)(1)—was applied unconstitutionally in his case because his conviction was old and for a non-violent offense. The D.C. Circuit had rejected the claim. But not only had the Court rejected the claim, it rejected even the idea that typical felons could mount as-applied challenges to 922(g)(1), something several courts of appeals have permitted or assumed could be brought. What’s surprising is that the Court did not hold Medina pending its determination in NYSRPA in the same way it has apparently been holding the first six cases below. As I noted on Twitter, perhaps the Court decided something about NYSRPA in its conference last Friday that means it would make little sense to hold any new cases. We’ll likely soon see.

The new petition, in Wilson v. Cook County, challenges a local assault weapons and high-capacity magazine ban. What’s interesting about that case (beyond the substance) is that the challengers actually raise as a question presented the issue about the proper methodology for resolving Second Amendment claims.

Center Media Roundup

This past week was a whirlwind for the Center. Center leadership talked with more than a dozen media outlets about the Supreme Court’s first substantive return to the Second Amendment in nearly a decade. Here’s a roundup of the Center’s commentary this past week on NYSRPA:

Miller discusses gun case before the Supreme Court and the constitutional right to transport a gun | National Constitution Center – December 5, 2019

Blocher appears as full-hour guest discussing yesterday’s oral arguments in gun law case before the Supreme Court | WBUR’s On Point – December 3, 2019

Charles ’13: Adopting the “historical analog” test to determine the constitutionality of gun laws could severely impact the current regulatory landscape | Medill News Service – December 3, 2019

Blocher says Supreme Court’s decision in “outlier” case could constrict the freedom of localities to craft their own gun regulations | Route Fifty – December 2, 2019

Blocher: A new test for evaluating the constitutionality of gun laws could have far-reaching implications | NPR’s Weekend All Things Considered – December 2, 2019

Fate of two-step constitutionality test for gun regulations is in the hands of the Supreme Court, Blocher says | The Hill – December 2, 2019

Blocher: Second Amendment law would be transformed by a shift to evaluating the constitutionality of gun laws based on text, history, and tradition | MSNBC with Ali Velshi – December 2, 2019

Blocher scholarship: Challenges to gun restrictions post-Heller have largely failed due to weak claims, not judicial resistance | The New York Times – December 2, 2019

Study co-authored by Blocher is cited: Lower courts have rejected challenges to gun restrictions in more than 90% of post-Heller rulings | The Wall Street Journal – December 2, 2019

SCOTUS may use today’s Second Amendment case to clarify how courts should evaluate the constitutionality of gun laws, Blocher says | Agence France Presse – December 2, 2019

Miller says new conservative justices “quite likely” to grant cert to cases that would help clarify the scope and terms of the Second Amendment post-Heller; states’ carry laws at center of litigation | KPCC Public Radio (Calif) – December 2, 2019

Blocher says the stakes are “potentially huge” as Supreme Court hears challenge to NY gun restriction | USA Today – December 1, 2019

Blocher: SCOTUS should dismiss as moot the legal challenge to a New York gun ban; Court will hear case Monday | The Crime Report – November 29, 2019

The “Text, History, and Tradition” Alternative

I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.

SCOTUS Gun Watch, Episode 7

The big recent news from the Supreme Court on guns is, of course, the oral argument in NYSRPA that happened on Monday morning. We’ve had some initial analysis of that argument, and will have some more later on. For now, I’m updating the SCOTUS Gun Watch with other pending petitions and a new one. As I’ve noted before, if the Court does dismiss NYSPRA as moot, that decision makes it all the more likely that one of the petitions below will be granted.

Of interest on those, Paul Clement, who represented NYSRPA and argued on Monday, also represents the challengers in Rogers v. Grewal.

Why Regulate Guns?

[This post by Reva Siegel and Joseph Blocher was originally published on the Take Care blog on 12/2 and and is cross-posted there.]

The Supreme Court is about to hear argument in its first major Second Amendment case in nearly a decade. The regulation in New York Rifle & Pistol Association v. New York (NYSRPA), which restricted transport of guns outside the home, has been repealed and replaced with a state law that seems to render the case moot. But if the Justices do not declare the case moot, they are expected to expand protections for the right recognized in District of Columbia v. Heller in 2008. Gun advocates are urging the Court to expand Heller beyond the home and to reject the current approach to Second Amendment law in favor of more stringent doctrinal alternatives. If the Court goes down that road and mandates closer scrutiny of governments’ justifications for regulating guns, the ruling could call into question the constitutionality of mainstream laws restricting high capacity magazines or requiring permits for carrying loaded weapons in public places like Walmart.

We write to focus attention on a taken-for-granted feature of the current framework that escalates in importance as the Court applies a more stringent standard of review: the state’s interest in regulating guns. Courts generally recognize that the government has a compelling interest in preventing wrongful shootings. But mechanical recitation of this public-safety interest has blocked consideration of the different communities and the different constitutional values that public safety regulation of guns serves. If the Court mandates increased scrutiny of gun laws, demanding evidence that a law is narrowly tailored to achieve the state’s interests—without properly accounting for what those interests really are—the Court is likely to create a framework that over-protects gun rights and invalidates gun legislation that the public has legitimate interests in enacting. Only by considering the different communities protected and different values vindicated by gun laws can judges determine whether, in a given case, the government has sufficient reasons for enacting a particular restriction on gun use, and what kinds of evidence are appropriate to support the government’s case.

NYSRPA arrives at the Court after years of claims by gun rights advocates that lower courts are “nullifying” the Second Amendment or treating it as a “second class right.” There are empirical reasons to doubt this claim, but in this post we raise a different reason it misdescribes the law. In short: case law narrowly accounts for the states’ important interests in regulating and so is likely to skew analysis if the Court demands closer scrutiny and narrow tailoring. Far from relegating the Second Amendment to a “second class right,” this narrow account of state interests has put the government at a disadvantage it does not necessarily face in other areas of constitutional law.

The state interest question is an important one for the Court to address in NYSRPA. Young Americans who have mobilized against gun violence under the banner of March for Our Lives (MFOL) filed an amicus brief that advances the state interest analysis, by making visible different communities that gun laws protect and important constitutional values that gun laws vindicate. The brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence,” and paints a graphic picture of the direct and indirect costs of gun violence on young people, in an effort to “acquaint the Court with the pain and trauma that gun violence has inflicted on them, and the hope that their ability to advocate for change through the political process affords them.”

The MFOL brief recounts the stories of young Americans who have survived gun violence and turned to the political process in an effort to manage the experience. They seek to persuade others of the importance of enacting gun safety laws that would protect their families, their friends, and themselves from similar violence in the future, and that would make possible safe places to assemble and to learn. The stories in the MFOL brief show that gun laws protect many communities and promote many goods—the laws surely serve state interests beyond the prevention of specific shootings.

Guns in schools do much more than threaten individual students with injury. One recent headline reported “356 victims” over the past ten years—counting only those killed or injured in 180 school shootings during that period. But even if one focuses only on students present in those schools, the true number of students victimized by gun violence is many hundreds times higher than that. Consider the children who hid, or fled, or were marched out of school with their hands in the air, or who lost friends, or (as powerfully described in the MFOL brief) watched their friends die, or wake up with nightmares. Anyone present in a school where a shooting takes place runs a risk of suffering lifelong trauma. By one count, approaching a quarter of a million school children have experienced school violence since Columbine. Through graphic accounts by survivors, the MFOL brief makes plain that shootings reverberate through society ravaging the lives of many more people than those who are shot. Shootings tear through urban communities. They haunt families, and transform the experience of neighborhoods and schools.

The managerial language of public safety does not do justice to the reasons individuals and groups seek to enact gun safety laws.  The “young people coming of age in an era of school shootings and rampant urban gun violence” entering politics to enact gun laws are exercising constitutionally protected freedoms of many kinds as they made plain in naming their movement “March For Our Lives.” When government legislates in response, it is doing more than preventing particular deaths. It is practicing responsive local democracy that simultaneously affirms the lives and voices of a new generation of citizens, affirming the long-standing role of states as laboratories of democracy, as the MFOL brief explains, “to devise solutions to social problems that suit local needs and values.”

But there is more. Guns and gun violence impact people’s ability to enjoy the full range of their constitutionally guaranteed liberty, including the right to speak, to learn, and to peaceably assemble. For that matter, the government may have a compelling interest in legislating so as to improve public confidence in institutions like legislatures and schools—to demonstrate that these institutions can and will respond to the expressed needs of their citizenry, and promote the interest that all share in inhabiting public institutions and spaces in security and confidence and freedom from fear.

Even in First Amendment cases, the Court has recognized that the government has a legitimate interest in defending values and interests that go beyond remedying or preventing particular instances of wrongful conduct. In Roberts v. Jaycees, for example, the Court upheld a law prohibiting discrimination in public accommodations against a freedom of association challenge, noting that the law was designed to protect citizens “from a number of serious social and personal harms,” that discrimination in public accommodations “deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life,” and that the state’s interest is not limited to “assuring equal access limited to the provision of purely tangible goods and services.”  The Jaycees case is important as it recognizes that public accommodation laws promote equal opportunity for individuals and communities by affirming equality values as well as by fairly distributing access to goods and services. The discussion of state interests in the Jaycees case illuminates the state interests in enacting gun laws as well. It suggests that states enacting gun laws can vindicate individual as well as societal interests. The Court’s analysis in Jaycees further suggests that the government can do more than promote its citizens’ bare interest in survival or freedom from physical harm. Government also has valid interests in protecting forms of public participation in community life, as well as cultivating the confidence of citizens in the responsiveness, effectiveness, integrity, and safety of its institutions.

Consider also a more recent state interest analysis: Chief Justice Roberts’ majority opinion in Williams-Yulee v. Florida Bar, which rejected a First Amendment challenge to a Florida law prohibiting judicial candidates from soliciting campaign funds. The Chief Justice’s majority opinion upheld the challenged law despite applying strict scrutiny. In doing so, the Chief Justice found that the Florida law was narrowly tailored. Not only did the law further the prevention of quid pro quo corruption, but it advanced the “State’s compelling interest in preserving public confidence in the integrity of the judiciary.” Can public confidence in the safety of schools be any less compelling?

This account of the state interests that legislation may serve has important implications for the constitutionality of gun laws going forward. If the government interest in enacting gun laws is understood as an interest in public safety, and public safety is understood as an interest in deterring wrongful shootings, measurable by deaths and injuries that a law can be shown to prevent, then the constitutionality of a gun regulation will depend on an empirical showing. And while there is plenty of good empirical evidence of this kind, framing the means-ends analysis in this framework can impose a heavy, and sometimes, insurmountable, burden on the government. The difficulties may be particularly acute for novel laws designed to address novel problems, where evidence (empirical comparisons of jurisdictions with and without such laws, for example) may not always be available, especially given the well-known difficulties in funding research on gun violence. That, in turn, could lead a skeptical judge to strike down a law on the tailoring prong, even while recognizing the compelling state interest in preventing wrongful deaths.

Recognizing a broader interest means that the constitutionality of a gun law need not pivot exclusively on how many shootings it can be shown to prevent. Instead a court may allow evidence that a law contributes to public confidence and a sense of safety in other ways that might not be subject to ready empirical evaluation. The government might still bear the burden, as it always does under heightened scrutiny, but it would not be required to carry that burden using empirical studies. Again, this is how constitutional adjudication sometimes works. In abortion cases, for example, courts do not require empirical evidence of how a particular restriction furthers state interests like the respect for potential life. Or, as the Chief Justice put it in Williams-Yulee, “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.”

Too often, the gun debate is presented as if there are constitutional rights on one side (that of gun owners) and only nebulous policy “interests” on the other. But that frame misses precisely what is hard about the gun debate, and which our alternative conception of the state interest can potentially help show: Both sides feel urgently that they must do all they can to keep themselves and their children safe from gun violence. Both sides can appeal to constitutional values. As Justice Stevens recognized in McDonald, “in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.”

Gun owners regularly point to reassurance they feel in owning or carrying guns, even knowing that only a small fraction of them will ever use a gun in self-defense. As the stories in the MFOL brief powerfully demonstrate, advocates of regulation seek the same piece of mind through democratic politics. The Constitution is on both sides.

Quick Reactions from NYSRPA Oral Arguments

After reading the NYSRPA transcript and hearing the insights from numerous veteran Court watchers, I have some initial reactions to oral argument today.

First, as expected, the overwhelming majority of time during argument was spent on the question of mootness. That could have been a function of the vociferousness with which the left-leaning justices attacked the challengers’ position—with Justice Sotomayor taking an especially active role. At one point she told the challengers’ lawyer that “what you’re asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.” Justice Gorsuch and Justice Alito, on the other hand, appeared to think the case still presented a live controversy. They suggested there was controversy over the new City regulation, which permits “continuous and uninterrupted” travel to the places the challengers sought to go. Justice Kavanaugh did not ask a single question, and the Chief Justice didn’t necessarily indicate which way he was leaning. He did, however, seek assurances from the City that nothing from the old law would have any adverse consequences on petitioners.

Second, there does seem to be an appetite among some conservative justices for a rethinking of the methodology used for deciding Second Amendment cases. Justice Alito, for example, first broached the question in the second half of the argument: “what methodology should the courts use in approaching Second Amendment questions?” Counsel for the City argued that text, history, and tradition are relevant but because they do not often speak with one voice they will likely not be conclusive. Notably, the text, history, and tradition test is the one Justice Kavanaugh himself advocated when he was on the court of appeals. Under his formulation of that test,

Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.

There’s little reason to think he’s changed his mind in the intervening years since he assumed his high court seat.

We’ll have more coverage of the case this week and next as we further digest the transcript more fully. It’s also worth noting that, whatever happens with NYSRPA, there are at least half a dozen cert petitions squarely presenting Second Amendment questions waiting on action from the Court. A dismissal of NYSRPA on mootness grounds certainly makes it more likely the Supreme Court will take one of those other cases.

What to Watch: New York State Rifle & Pistol Association vs. City of New York

This morning, the Supreme Court will hear argument in NYSRPA, the Second Amendment challenge to a now-repealed New York City rule that prohibited individuals holding a premises license from taking their gun outside of the City (with limited exceptions). It is the first oral argument in a Second Amendment case since March 2, 2010. When NYSRPA granted in January, there was a debate about whether the Court took the case to strike down an outlier law—much like the ones it struck down in Heller and McDonald—or to make a broader ruling on the scope of the Second Amendment and the methodology lower courts should use moving forward. But things changed this summer when the City repealed the challenged rule; New York State, which is not a party, also changed the law so that the City could not reenact the challenged rule even if it wanted to. The debate changed from one about the breadth of the potential ruling to one about whether there would (or should) be a Second Amendment ruling at all.

In any event, here’s what I’m watching for in the arguments today:

  • How quickly the questioning turns to mootness and how focused the justices appear to be on that issue as opposed to the merits
  • Whether the justices press the Solicitor General on the theory that the mere possibility of nominal damages suffices to keep a case from mootness—and on the SG’s rejection of petitioners’ other theories for why the controversy remains live
  • Whether the justices look like they agree with the petitioners’ view that there’s something suspect about statutory changes if such changes seem designed to moot a case
  • Whether the justices appear to believe there’s a widespread problem with how lower courts are interpreting and applying Heller or whether the now repealed law (and lower court ruling) is an outlier
  • What kind of purchase the text, history, and tradition test appears to get from the justices
  • What signals we get from the new justices who were not around when Heller and McDonald were decided about their views of the scope of the Second Amendment

The 90th Anniversary of NRA’s First Guiding Legislative Policies and the Implications for NYSRPA v. City of New York

Ninety years ago today, in the December edition of American Rifleman, the National Rifle Association (NRA) published the editorial “Merry Christmas—And Gun Laws.” The editorial’s anniversary is noteworthy for two reasons.  First, its publication marked the first time that the NRA provided guidance as to the types of firearms legislation the organization would and would not endorse.  Second, the editorial highlights a key issue of dispute between the parties in this week’s Supreme Court case New York State Rifle & Pistol Association v. City of New York.