In an ominous sign for potential victims of gun violence, the Supreme Court announced on Tuesday that it will hear New York State Rifle & Pistol Association Inc. v. City of New York, a challenge to New York City’s gun licensing regime.
It’s the first Second Amendment case the Supreme Court will hear since 2010, and only the second such case since 2008’s District of Columbia v. Heller, which held for the first time in American history that the Second Amendment protects an individual right to bear arms. It’s also the first Second Amendment case since Brett Kavanaugh, who penned a starkly pro-gun dissent as a lower court judge, took over from the more moderate Justice Anthony Kennedy.
And the Court’s decision to hear New York State Rifle should trouble gun violence advocates for another reason. The case involves such a minor and incidental burden on gun rights that it is unclear why the Court would pick this case as their first foray into Second Amendment litigation in nearly a decade. If the Court sides with the plaintiffs in this case, that would suggest that many gun laws must fall in this decision’s wake.
New York law requires handgun owners to obtain a license to possess such a gun, and it provides for two different kinds of licenses. A “carry” license permits individuals to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a “premises” license permits individuals to “have and possess in his dwelling” a handgun, but they can only take the gun outside of the home for limited purposes. In New York City, that includes bringing the gun to seven different firing ranges where the gun owner may practice shooting.
The individual plaintiffs in this case, each of whom have premises licenses, do not challenge this overarching regime. Instead, they raise an exceedingly narrow grievance. As the appeals court explained, each of them “seek to transport their handguns to shooting ranges and competitions outside New York City.” One of them is also wealthy enough to own two homes. Yet he objects to the fact that he must buy a second gun if he wishes to keep a firearm in each residence, rather than being permitted to transport one gun between the homes.
Yet, the fact that New York State Rifle is not a grand showdown over some massively important gun rights question should trouble supporters of gun regulation far more than if this case struck at the heart of the Second Amendment. Though the Supreme Court has not heard a Second Amendment case in nearly a decade, nearly all federal appeals courts agree on a broad framework that should apply in such cases. As ThinkProgress explained last summer,
Under this framework, “severe burdens on core Second Amendment rights” are subject to a test known as “strict scrutiny,” the most demanding test courts typically apply in constitutional cases. Meanwhile, “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are more likely to survive judicial review.
Thus, laws that impose major burdens on gun owners are especially likely to fall, while more incidental burdens will typically be upheld. And the specific burden at issue in New York State Rifle is hardly an attack on “core Second Amendment rights.”
As the United States Court of Appeals for the Second Circuit explained in its opinion upholding the New York law, the plaintiffs in this case may still keep guns in their homes. The plaintiff with two homes — who, again, is rich enough to have two homes — may buy a gun for each of them. The plaintiffs may fire their guns at local gun ranges. They may also travel to non-local gun ranges and rent or borrow a gun to fire at that range.
They also could potentially apply for carry licenses. According to the appeals court, “the Plaintiffs do not allege that they sought and were denied such permits,” and it’s not at all clear that they would be denied such a permit if they sought one.
What the plaintiffs can’t do is bring one very specific gun to a non-local range so long as they only possess a premises license. That’s hardly a deep cut at the right to bear arms.
The plaintiffs in this case are represented by a powerhouse legal team, including Paul Clement, a former Solicitor General of the United States who has since taken on a de facto role as Solicitor General of the Republican Party. Clement, who also argued the 2012 cases seeking to kill the Affordable Care Act, frequently litigates Hail Mary cases seeking to advance conservative policy goals.
True to form, Clement’s petition asking the Court to hear this case tries to paint the right to fire the same gun that a person keeps in their home at the gun range of their choice as so central to the Constitution that denying this right would be an abomination. “The City’s ill-conceived transport ban,” according to Clement and his co-counsel, “disregards any meaningful conception of the Second Amendment.”
Yet the petition soon reveals that, at least in the mind of Clement’s clients, virtually any gun law is an earth-shattering attack on a constitutional right. At one point, Clement’s petition rails against a California law that “imposes a Second Amendment tax by forcing every lawful firearms purchaser in the state to pay a $5 fee that is used to fund a police force tasked with hunting down those who unlawfully possess a firearm.”
It should go without saying that, if the Court holds that a five dollar tax on a item that costs hundreds of dollars or more is a punishing imposition on gun owners, it’s doubtful that any gun law would survive contact with the Supreme Court.
New York State Rifle in other words, is a huge case because it concerns a tiny issue. If the Supreme Court is willing to declare that even very minor burdens on gun owners violate the Constitution, then it is unclear what can still be done to prevent gun violence.