The Supreme Court rolled a grenade into constitutional jurisprudence and the world of public safety in 2008 when it held in Heller v. District of Columbia, 554 U.S. 570 (2008), that the Second Amendment entitles individuals to possess handguns in their homes. Eleven years later, that grenade has yet to detonate because since Heller, the court has not decided a single case about whether the Second Amendment right extends further, and the lower courts consistently have rejected attempts to expand the right.
But the Supreme Court may be preparing to pull the pin. Following on the heels of the arrival of pro-gun Justice Brett Kavanaugh, the court late last month accepted a case out of New York that threatens to curtail dramatically the ability of states and localities to regulate firearms. The case also will allow the court to address a jurisprudential issue that poses a profound dilemma for many civil libertarians: the interrelationship between the doctrine governing gun rights and the doctrine governing other provisions of the Bill of Rights, such as the First Amendment right to free speech.
A Brief Background
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In 1939 the Supreme Court in United States v. Miller, 307 U.S. 816 (1939), rejected without extensive analysis the argument that this provision conferred on individuals—as opposed to militias—the right to possess firearms in upholding a criminal defendant’s conviction under federal law.
Miller stood as the controlling Second Amendment precedent until 2008, when the court reversed itself and ruled in Heller that Second Amendment protections extended to individuals subject to federal jurisdiction, namely the District of Columbia. At issue in Heller was a complete ban on the possession of handguns in District of Columbia homes, with the Supreme Court holding the ban would be unconstitutional “under any of the standards of scrutiny that we have applied to enumerated constitutional rights.”
Two years after deciding Heller, the court vastly expanded the geographical reach of Second Amendment rights. In McDonald v. City of Chicago, 561 U.S. 742 (2010), the court held the Second Amendment extends to states and localities by virtue of the Fourteenth Amendment—in doctrinal parlance, were “incorporated” to the states. In light of that holding and the fact the Chicago ordinance banned handgun possession in the home just like the District of Columbia ordinance at issue in Heller, the court struck down the Chicago one.
As often is the case with Supreme Court decisions that first recognize constitutional rights, Heller left unanswered key questions about the scope of the individual right to possess firearms and about the doctrinal standards for courts to apply in assessing this right. Nonetheless, the aftermath of Heller has been unusual in that 11 years have lapsed without a single substantive decision from the court, thereby leaving the lower courts to construct an entirely new field of law.
The Second Circuit has been an active and representative participant in filling this void. Its seminal ruling came in 2015 in a case challenging legislation New York and Connecticut enacted following the December 2012 massacre of 20 elementary school children and six adults in Newtown, Conn. That legislation barred possession of semiautomatic assault weapons that contained at least one military-style feature—such as a grenade launcher or a silencer—and of certain types of large-capacity ammunition magazines that could be used with such weapons. In addition, New York barred those who lawfully owned large-capacity magazines from loading them with more than seven rounds of ammunition.
In New York State Rifle and Pistol Association v. Cuomo, 804 F.3d 242 (2d Cir. 2015), the Second Circuit first outlined the basic Second Amendment doctrine emerging from its own decisions and those from the other Courts of Appeals. As a threshold matter, the Second Circuit observed that the Supreme Court had made clear that the Second Amendment protected possession of only a limited category of weapons:
In Heller, the Supreme Court, based on an extensive textual and historical analysis, announced that the Second Amendment’s operative clause codified a pre-existing “individual right to possess and carry weapons.” Recognizing, however, that “the right secured by the Second Amendment is not unlimited,” Heller emphasized that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Instead, the Second Amendment protects only those weapons “‘in common use’” by citizens “for lawful purposes like self-defense.”
In those instances involving an effort to regulate or ban weapons that are in “common use” for “lawful purposes like self-defense” and thus implicating the Second Amendment, the Second Circuit drew on other Supreme Court precedent to conclude that the applicable level of scrutiny would vary depending upon the extent to which the regulation at issue burdened Second Amendment rights:
Though Heller did not specify the precise level of scrutiny applicable to firearms regulations, it rejected mere rational basis review as insufficient for the type of regulation challenged there. At the same time, this Court and our sister Circuits have suggested that heightened scrutiny is not always appropriate. In determining whether heightened scrutiny applies, we consider two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.” Laws that neither implicate the core protections of the Second Amendment nor substantially burden their exercise do not receive heightened scrutiny.
Applying these standards, the Second Circuit concluded the legislation implicated the Second Amendment because assault weapons were in common use given the huge numbers manufactured and because the court assumed without deciding that they were used for lawful purposes. The court further decided the ban on military-style assault rifles was subject not to strict scrutiny but to intermediate scrutiny because it left undisturbed the right to own non-military assault rifles. And in applying intermediate scrutiny, the court found the ban easily satisfied the standard because the states plainly had a compelling interest in public safety and crime prevention and because the ban was substantially related to that interest because “semiautomatic weapons have been understood to pose unusual risks … and are disproportionately used in crime, particularly in criminal mass shootings like the attack in Newtown.”
Beyond the significance of upholding major firearms regulation, New York State Rifle & Pistol Assoc. was important for its discussion of the intersection between Second Amendment doctrine and that governing other provisions of the Bill of Rights. Since the day the Supreme Court decided Heller, constitutional advocates have agonized over the extent to which Second Amendment challenges would be used to dilute other constitutional protections or, conversely, the extent to which well-developed protections in other areas would be used to strike down a wide range of gun-control measures. In New York State Rifle & Pistol Assoc., the Second Circuit noted that “we have historically expressed hesitance to import First Amendment principles wholesale into Second Amendment jurisprudence” and “that state regulation of the right to bear arms has always been more robust than analogous regulation of other constitutional rights.”
The New Controversy
Just as it steadfastly had rejected every post-Heller request to review Court of Appeals decisions upholding weapons-control measures, the Supreme Court rejected the request to review the Second Circuit’s ruling in New York State Rifle & Pistol Assoc. v. Cuomo. But the court’s absence from the Second Amendment debate ended last month when it agreed to review a new Second Circuit decision in a challenge brought by the same advocates behind the earlier case.
At issue in New York State Rifle & Pistol Assoc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), is a New York City restriction on the transportation of handguns by those licensed to possess them in their homes or other qualifying “premises.” Specifically, a City regulation provides that such a licensee “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” Under the rules, the only permissible ranges and shooting clubs are those located in New York City, and advocates and gun owners claim the restriction violates the Second Amendment because they are not allowed to take their handguns to ranges outside New York City and because one plaintiff is not allowed to take his handgun to a second home he owns in upstate New York.
The Second Circuit rejected both contentions. As an initial matter, it assumed without deciding that the transportation regulation implicated the Second Amendment, focusing instead on the proper level of constitutional scrutiny to apply. On that key point, the court forcefully rejected the suggestion the regulation was subject to strict scrutiny:
The restrictions complained of by the Plaintiffs here impose at most trivial limitations on the ability of law-abiding citizens to possess and use firearms for self-defense. New York has licensed the ownership and possession of firearms in their residences, where Second Amendment guarantees are at their zenith and does nothing to limit their lawful use of those weapons “in defense of hearth and home”—the “core” protection of the Second Amendment.
In rejecting the claim to strict scrutiny, the court noted the plaintiffs had access to seven gun ranges in New York City and that the plaintiff who wished to transport his handgun to his second home was entitled to obtain a license to have another gun in that home and had made no effort to get that license. Given these facts, the court held the transportation restriction did not substantially burden the plaintiffs’ “core right of self-defense in the home.”
Turning to the application of intermediate scrutiny, the Second Circuit, relying on the observation in its earlier case that “state regulation of the right to bear arms has always been more robust than analogous regulation of other constitutional rights,” imposed a relatively modest burden on the City: “So long as the defendants produce evidence that fairly supports their rationale, the laws will pass constitutional muster.” And citing evidence the City adduced about safety concerns arising from the transportation of guns and about prior problems regulating possession of guns outside city limits, the court concluded “the City has met its burden of showing a substantial fit between the regulation and the City’s interest in promoting public safety.”
The Supreme Court’s choice to review New York State Rifle & Pistol Assoc. v. City of New York is alarming on two counts. For those concerned about gun-control measures, that this case involves something as pedestrian as a ban on transporting handguns beyond the borders of New York City suggests the court may be prepared to substantially expand Second Amendment protections beyond the right to possess a handgun in the home. And the prospect the court might justify such an expansion by expressly relying on doctrine from other constitutional rights poses the threat of permanently tethering gun-control jurisprudence to long-cherished rights like the right to free speech in way that either will dilute those other rights or lead to an even greater expansion of gun rights. Given these possibilities, how the court decides New York State Rifle & Pistol Assoc. may be a pivotal moment for public safety and constitutional jurisprudence.
Christopher Dunn is the legal director of the New York Civil Liberties Union. He can be reached at firstname.lastname@example.org.