Second Amendment

An Alternative Answer in NYSRPA

[This discussion from Joseph Blocher and Reva Siegel is cross-posted from Oral Argument 2.0]

New York State Rifle & Pistol Association Inc. v. City of New York

No. 18-280 – Argued December 2, 2019

At Issue

Whether a New York City rule banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.

Advocates

  • Paul D. Clement, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
  • Richard P. Dearing, for the respondent

Background and Case Commentary

In New York Rifle & Pistol Association, Richard Dearing—arguing for the government—faced an unusual challenge: Defending the constitutionality of a gun regulation that had already been repealed and replaced by a state statute. That development almost certainly rendered the case moot, and indeed three-quarters of the oral argument focused on the question of mootness.

But some of the Justices also wanted to discuss the constitutionality of the repealed regulation and the scope of Heller’s protections outside the home—and related merits questions we address here. The repealed regulation would have effectively prevented residents of New York from transporting their weapons out of the city, for example to a shooting range or a second home. This was seemingly a unique and relatively recent rule—not the kind of “longstanding” restriction approved as “presumptively lawful” in Heller. Moreover, while the Second Circuit had, in a divided opinion, found that the regulation satisfied intermediate scrutiny, the City could offer little evidence for its effectiveness in preventing gun crime. These merits issues, lurking in the “background” of the case, have received less attention to date.

Dearing, who was making his first-ever Supreme Court oral argument (against veterans Paul Clement and Jeff Wall), did a superb job arguing that the case is moot. But the posture of the dispute made it difficult for Dearing to defend the merits of the now-repealed law or address the government’s compelling interest in regulating guns.

Justice Alito had an exchange with Dearing (at pp. 52-53 of the transcript) in which Dearing, in hindsight, might have more clearly and emphatically defended the government’s authority to adopt the now-repealed law.

The Justice asked “Mr. Dearing, are the – are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” Dearing responded, “We – we no, I don’t think so.” Justice Alito pressed the point: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” Dearing replied that the prior rule made it easier for law enforcement to verify whether a person transporting a gun in public had a license to do so.

But then the Justice asked another follow-up—the question we address below, whether “The Second Amendment permits the imposition of a restriction that has no public safety benefit”—and Dearing yielded the premise of the question. With respect, as our proposed answer highlights, we think that Dearing could have stood his ground and defended the state’s prerogative to enact a law that might produce a “public safety benefit”—even if those benefits cannot be empirically validated.

To be clear, Dearing was focused on addressing the case’s mootness, not defending its prerogative to adopt the now-repealed regulation, and as we have observed, given the posture of the case, rolling out a more expansive account of the state interest would have been hard to do at oral argument. (With the benefit of time and space, we do so in a separate blog post here.)

That said, it does seem critical to assert that government has compelling interests in regulating guns in ways that cannot always be validated empirically, both because government needs the discretion and flexibility to respond to local circumstances and emergency conditions and because government needs to regulate in ways that preserve public confidence and trust.

New York State Rifle & Pistol Association Inc. v. City of New York on Oyezhttps://www.oyez.org/cases/2019/18-280

Key Questions from Oral Argument

Justice Alito (45:12): So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?

Reva Siegel and Joseph Blocher: Your honor, two quick points on the concept of “public safety benefit.” First, new forms of gun regulation—like new forms of gun technology—won’t come with a deep empirical record one way or the other. But that fact should not prevent government from trying to address a problem in new ways. We need the states and local governments as laboratories of experimentation attempting to fashion locally appropriate solutions to complex problems of gun violence. Heller doesn’t limit those laboratories to repeating only those experiments they have tried before, nor should the government have to face the impossible burden of proving that a new law will certainly save lives.

Second, even when government lacks data showing that a particular gun law saves lives, the law might still provide an important benefit. The public harms of gun violence reach far beyond crime and injury, and the government’s interest is correspondingly broad as well. This Court has repeatedly recognized—including in strict scrutiny First Amendment cases like Williams-Yulee—that the state has an important and even compelling interest in promoting the public’s confidence and sense of security in institutions like courts and schools. The Court should similarly recognize the importance of such interests in the Second Amendment context.

Gunpowder, Plague, and Tradition

In 1720, writer and self-designated medical expert Joseph Browne published his A Practical Treatise of the Plague, in which he extolled the benefits of the “firing of Guns, especially Cannon” to “purify” an atmosphere laden with pestilence.  In recommending this approach, Browne had significant company.  It appears that igniting gunpowder had been the folk medicine of soldiers, sailors, and city-dwellers for decades, if not centuries.  Stephen Bradwell, a seventeenth century English physician, in addition to dispensing sound public health advice like keeping the streets clean, and avoiding throngs, recommended launching fireworks and firing guns in the public streets so that the gunpowder would “dry” the air.  Daniel Defoe, in his Journal of the Plague Year (1722) also writes of the common practice of sanitizing dwellings by burning gunpowder. (Defoe includes the story of one poor man who used so much that he destroyed his house.)

For the Founding Fathers (for whom the germ theory of disease was by no means universally accepted), the idea of shooting cannon and firing guns to cleanse the air of “miasma” may have seemed reasonable – no matter how risible it is today.  The technique’s widespread acceptance as good practice in the 1700s may not be a problem for medicine, but it does present a problem for law.

Three Questions about the Second Amendment and the Temporary Closure of Gun Stores

The closure of “non-essential” businesses in response to the spread of Covid-19 raises a host of difficult legal questions. Among those questions, of course, are some involving right to keep and bear arms. Put simply: Does the Second Amendment permit gun stores be temporarily closed?

Some advocates and commentators have suggested that this is an easy question with a straightforward answer—temporarily closing gun stores is a per se unconstitutional infringement of the right to keep and bear arms, tantamount to a “suspension” of the Second Amendment (or perhaps a “ban”). But that kind of categorical conclusion belies the genuinely complex and interesting constitutional questions that such closures raise. Consider at least three.

Guns in Emergencies: The Disaster Recovery Personal Protection Act

Earlier this week, I wrote about Second Amendment concerns that arise with emergency declarations that shut down non-essential businesses, including, in some states, gun stores. Showing how quickly these issues are moving, in the past few days there have already been changes in states and localities that have excluded guns from the list of essential businesses. For example, even after winning the lawsuit that kept gun stores shuttered, Pennsylvania modified its closure order: “Firearms dealers may now sell their wares by individual appointment during limited hours as long as they comply with social distancing guidelines and take other measures to protect employees and customers from the coronavirus.” In Los Angeles County, the sheriff declared that gun stores “are nonessential businesses and will have to close their doors amid coronavirus restrictions.” But just hours later, the county attorney concluded that such businesses are essential, presumably halting enforcement of the sheriff’s declaration.

It’s fair to say there’s confusion on the ground as state and local resources, including law enforcement resources, are stretched thin and public officials scramble for the best way to protect the public amidst a global crisis. New Jersey, as of this writing, is still defending its exclusion of gun stores as essential business. In my own backyard, the Wake County Sheriff’s Office has said it will “suspend pistol and concealed-carry permit applications until April 30 as demand surges amid the coronavirus outbreak.”

The rest of this post will focus on a different issue that arises in emergencies—orders that directly regulate firearm possession or carrying.

Emergency Declarations, Gun Dealers, and the Second Amendment

The recent spate of emergency declarations across the country has raised some difficult Second Amendment questions. In some states, governors have required all “non-essential” or “non-life sustaining” businesses to close up altogether or to at least close the inside of the store to customers (while still permitting, e.g., curbside pick-up). These laws can raise constitutional concerns when applied to gun stores. Of course, the government’s interest is at its zenith in emergency situations, and the state’s broad police powers can alter the calculus that gets applied in calmer times. For example, individuals have a constitutional right to peaceably assemble in groups of more than ten people, but when public health requires keeping such groups smaller for a temporary period of time, does the First Amendment still bar such an order? We could similarly ask whether the Second Amendment poses a hurdle to temporary measures to protect the public health in times of emergencies by shutting down gun stores.

SCOTUS Gun Watch – Week of 3/23/20

The Court released five opinions today, including one per curiam. But no news yet on NYSRPA and no new cert grants in other Second Amendment cases. The Court’s activity level suggests that things aren’t slowing down at 1 First Street for the coronavirus. I suspect we’ll be hearing something on these cases soon, but that’s been my (as yet wrong) prediction for the last few months.

Scholarship Highlight: New Articles Call for Re-Examining Second Amendment Issues

A few new pieces of legal scholarship were published recently and have just have popped up on Westlaw, including from frequent guest blogger Dru Stevenson and the Center’s own Joseph Blocher. The articles address important questions at the heart of debates over the Second Amendment. (Two of the articles, Stevenson and Kelly, I could only find available on Westlaw, so the links lead there rather than to a PDF.) Check them out below!

Michigan Legalizes Marijuana, Loses Its “Permanent Brady Permit” Status With ATF

In twenty-two states, ATF allows licensed firearm dealers (FFL’s) to accept a state concealed carry license or permit (in Michigan, the terminology is Concealed Pistol License, or CPL) in lieu of a federal background check, because those states have concealed carry permit requirements at least as stringent as the federal background check requirements (see the ATF Permanent Brady Permit Chart, so-named because the state’s permit or license program fulfills the requirements of the federal Brady Law background checks for firearm purchases on an ongoing basis). In practice, this means that permit/license holders in these states can skip the NICS background check when purchasing firearms from a licensed gun dealer, whether online, in-store, or at a gun show, even though normally required for the dealer to do the background check.  Note the caveat that an individual’s permit or license must be less than five years old, so in states that issue “lifetime” permits or licenses (Indiana, Louisiana, Missouri, and Tennessee), the permit/license holder will have to renew it every five years in order to skip the NICS background check when purchasing a firearm from an FFL.

SCOTUS Gun Watch – Week of 3/16/20

With the COVID-19 pandemic sweeping the globe, even the Supreme Court has been hit. It has announced postponement of the next oral argument sitting, suggesting we may see some delays. The Court says it will still hold its scheduled conference this Friday and will still release orders next Monday. We’ll see if any news on gun cases comes out of the high court while we await a (hopeful) return to normalcy. In the meantime, no new updates on the Court’s gun docket, though one case I highlighted last week may be a candidate for a future cert petition.

As readers know, this weekly post highlights cases at the Supreme Court, but I also want to take an opportunity to highlight two resources I use to help keep track of the lower court litigation over firearm rights: the Gun Case Tracker by an extremely knowledgeable gun-rights advocate I know only as Rob (who tweets at @2Aupdates) and the Second Amendment Courtwatch by the Giffords Law Center to Prevent Gun Violence. Both resources provide very helpful information and updates about the status of important lower court challenges.

Litigation Highlight: Ninth Circuit Upholds Lifetime Ban on Firearm Possession for Man Involuntarily Committed to a Mental Institution Twenty Years Ago

In an opinion issued this past Wednesday, the Ninth Circuit in Mai v. United States rejected an as-applied challenge to 18 U.S.C. § 922(g)(4), which prohibits firearm possession for anyone who “has been committed to any mental institution.” The ATF interprets the provision to cover only those who have been involuntarily committed, but the statutory bar applies to those individuals for life (absent some exceptions). In Mai, the Ninth Circuit joined the Third Circuit in rejecting the Second Amendment challenge, splitting with the Sixth Circuit, which is the only federal court of appeals to have found the statute unconstitutional as applied to a particular case.