MEMO: Supreme Court Certiorari Grant in N.Y. State Rifle & Pistol Ass’n v. City of New York
TO Interested Parties
FROM Giffords Law Center to Prevent Gun Violence
DATE January 24, 2019
RE Supreme Court Certiorari Grant in N.Y. State Rifle & Pistol Ass’n v. City of New York
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Update 10/17/19 — After the Supreme Court granted review in this case, New York City repealed the challenged gun transport provision and asked the Court to dismiss the case as moot. While the provision at issue no longer exists, the stakes for this case remain high because, if the Court declines to dismiss the case, a broad adverse decision could place other gun safety laws at risk. The risk of such a ruling grew more serious when the Court rejected an early opportunity to dismiss NYSRPA as moot. The Court now plans to address the question of mootness, as well as the substantive Second Amendment questions at issue, at oral argument on December 2.
On January 22, the Supreme Court announced it would review a Second Amendment case brought by a state affiliate of the National Rifle Association. The NRA and individual plaintiffs filed suit in N.Y. State Rifle & Pistol Ass’n v. City of New York (NYSRPA) to challenge a unique New York City gun possession licensing law that restricts the ability of gun owners who do not have concealed carry permits to transport handguns outside of their homes. The challengers, who are seeking to take licensed guns to ranges outside New York City and to second homes in the state, claim these licensing restrictions violate the Second Amendment and other constitutional rights. The Second Circuit rejected this challenge but the Supreme Court agreed to review that decision.
I.What the Cert Grant Means
This announcement marks the first time in nearly a decade that the Court will hear argument in a Second Amendment case.Although this represents a significant development for the Court, the practical impact of a decision in NYSRPA may be limited because the justices agreed to review and issue a decision on a narrow topic: the constitutionality of a licensing law that applies only in New York City and has not been adopted anywhere else. While the licensing law at issue is unique and limited to just one city, the Supreme Court or individual justices—including Justice Brett Kavanaugh—could use a decision in NYSRPA as an opportunity to address broader topics like the proper methodology for deciding Second Amendment cases. What’s more, court watchers have anticipated that the Supreme Court is fairly likely to grant review in one or more cases addressing public concealed carry laws; the leading contenders are cases called Rogers v. Grewal and Gould v. Morgan . This could add one or more additional gun safety cases to the Court’s future docket on top of NYSRPA, positioning the Court to issue a more sweeping or impactful set of Second Amendment decisions.
It is too soon to tell whether the Court will accept another Second Amendment challenge or weigh in on anything beyond the facts of the NYSRPA case. But this development is a reminder of the importance of preserving the existing approach for deciding Second Amendment challengesthat the federal lower courts have developed and effectively applied over the last ten years. As discussed below, that approach is the key to protecting the sensible gun regulations that go hand-in-hand with responsible gun ownership, and will be an essential tool for safeguarding the recent progress many states have made toward saving lives from gun violence.
II.What’s at Stake in NYSRPA : A Second Amendment Approach that Takes Public Safety into Account
Since its pair of landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago —in which the Court held that the Constitution protects an individual right of responsible, law-abiding citizens to possess a handgun in the home for self-defense—the Supreme Court declined nearly every chance to review additional Second Amendment cases. This means the Supreme Court has not expanded on its 2008 ruling in Heller , which announced an individual Second Amendment right that is “not unlimited” and identified numerous critical gun safety regulations as constitutional. Instead of issuing new rulings, the Court allowed Second Amendment law to develop in the lower courts, most of which have taken seriously Heller ’s instruction that the Second Amendment is “not unlimited” by voting to uphold laws that protect the public without infringing constitutional rights.
To implement Heller ’s protections for individual rights as well as its clear endorsement of gun safety regulations, the federal lower courts have widely adopted a two-step analytical approach in which many laws are reviewed under “heightened scrutiny” (a method commonly used in other constitutional challenges). Generally in Second Amendment cases, the two-step approach means laws that pose some burden to gun owners, but do not inhibit core rights of self-defense, will survive heightened scrutiny—and be upheld—if the government shows the law is likely to protect public safety in ways that justify the burdens. This prevailing approach for Second Amendment cases protects both rights and public safety by evaluating the burdens and benefits of a challenged law, and judges on both sides of the aisle have used “heightened scrutiny” to uphold key gun safety measures like concealed carry and minimum age laws, and restrictions on assault weapons and large-capacity magazines.
Unfortunately, the NRA has responded to the trend of applying heightened scrutiny by advocating for a radical new Second Amendment framework under which judges cannot even consider compelling public safety justifications for gun regulations. This extreme alternative approach would treat the Second Amendment as an absolute right that is not subject to modest restrictions even if public safety demands them. While this absolutist view is currently an outlier among federal judges, groups like the NRA and their attorneys have succeeded in making it more mainstream. In recent years more judges—including some appointed by President Trump with the NRA’s approval, and others on the President’s Supreme Court short list —have advocated for striking down important gun regulations without regard to their public safety justifications.
Troublingly, the most prominent supporter of an absolutist Second Amendment approach is Justice Brett Kavanaugh, who was backed by the NRA and could have supplied the pivotal vote to review NYSRPA. Under Justice Kavanaugh’s interpretation of the Second Amendment, judges should play no role in assessing the “costs and benefits of gun regulations.” This radical view would allow judges to pick and choose which gun regulations have adequate historical support and invalidate all other laws. In advocating for this approach, Justice Kavanaugh will likely be joined by Justice Thomas, who in dissenting opinions has repeatedly criticized courts for upholding moderate gun regulations like waiting periods, and by Justice Gorsuch, who joined a dissent arguing that California’s concealed carry laws violate the Second Amendment. If this assessment of their views proves correct, at leastthree Supreme Court justices are wildly out of touch with the vast majority of federal appellate judges—and the millions of Americans who understand our Constitution is consistent with gun safety.
With this context in mind, the decision to grant review in NYSRPA means a conservative Supreme Court majority could take this case in one of two directions. One, the Court could issue a narrow ruling addressing only New York City’s law that does not disturb the “heightened scrutiny” framework the lower courts have widely followed, which would have a limited impact since New York City’s law is so unique. Two, the Court could call the heightened scrutiny framework into question and decide whether to adopt Justice Kavanaugh’s absolutist methodological approach. It remains to be seen whether the Court will decide the case narrowly or broadly, and it is too early to predict the views of Justices Roberts and Alito. But the Supreme Court’s decision to grant review in a new Second Amendment case is an important reminder of the critical need for the justices to reject Second Amendment extremism and make sure public safety concerns are not left behind when interpreting the Constitution.
III.An Opportunity to Preserve Progress
Defending heightened scrutiny before the Supreme Court is necessary to ensure that judicial approaches to Second Amendment cases reflect the values and priorities of the American people, not the slim minority who oppose meaningful gun regulations. These values are all the more important to protect given that 2018 was a year of tremendous progress for the majority of Americans who support sensible gun violence prevention efforts. Over and over again, states rejected NRA extremism and stood up for the safety of their communities, including by adopting 67 new gun safety laws following the school shooting in Parkla nd , Florida. This wave of progress created a new pressure point for the gun lobby, which saw its electoral influence reach a new low.
But in response to the post-Parkland momentum, gun lobby groups are increasingly turning to the courts in a cynical attempt to stop the gun safety gains made in statehouses and at the ballot box. In 2018, these groups filed Second Amendment lawsuits at an unprecedented rate, including cases challenging Florida’s new minimum age law, Vermont and New Jersey’s magazine restrictions, federal and state bump stock bans, and numerous local gun safety ordinances. All of these lawsuits are likely to tee up new Second Amendment issues for intermediate appellate courts and the Supreme Court in the years to come—and in each case, the framework the Supreme Court selects to review Second Amendment cases could determine the outcome.
Our nation’s recent gun violence prevention progress is therefore a reminder of what’s at stake when the Supreme Court eventually weighs in on how courts should decide Second Amendment cases. Our work is not done with the passage of a gun safety law—rather, we must ensure that the NRA doesn’t succeed in its efforts to erode public safety by advocating for an extreme judicial framework, unique to gun cases, that treats public safety as an afterthought. With the shifting balance of the federal judiciary and the addition of Justice Brett Kavanaugh to the Court, it’s clear that a new front on the fight for gun safety is opening up in the judiciary. The way forward is clear: we need to take this opportunity to stand up for a Second Amendment methodology that recognizes that gun rights and gun safety can coexist to the benefit of all Americans, not just the NRA.