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Supreme Court Update

Supreme Court Update

Supreme Court Update


In our January 8, 2019 blog post LOOK OUT BELOW, we pointed out the split in the circuit courts of appeal regarding the constitutionality of state law restraints on public carry of firearms.  These cases arose in the context of “good reason” permitting schemes which have been adopted in a number of anti-gun states to prohibit all but a select few citizens from carrying in public. In deciding these cases, the circuit courts have split on the extent to which the Second Amendment protects the right to carry firearms outside the home.  Some circuits have correctly recognized the right to carry in public as a core right that stands on an equal footing with the right to self-defense in the home, and other circuits have reached the constitutionally erroneous conclusion that carry in public is not protected by the Second Amendment. Such a split in the circuits typically leads the Supreme Court to hear a case which will address the constitutional issues and resolve the split.  We suggested in our January 8, 2019 blog post that it was high time for the Court to declare that good cause permitting schemes are unconstitutional and restore the Second Amendment’s protection for public carry of firearms.

It came as no surprise that on January 22, 2019, the Court granted certiorari in a Second Amendment case, ending nearly three years of silence regarding the scope of the Second Amendment – since Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), a decision upending a Massachusetts ban on stun guns.  The Court granted cert in New York State Rifle & Pistol Association v. City of New York, No. 18-280 (hereinafter “NYSRPA”), a case from the Second Circuit Court of Appeals challenging New York City’s restrictions on transporting a licensed, unloaded, cased-for-transport handgun to a home or shooting range located outside the city limits.  The State of New York prohibits its residents from possessing a handgun without a license. The City of New York offers several kinds of licenses, the pertinent ones being: (i) a “premises license,” which allows holders to possess handguns only in their homes or en route to one of seven shooting ranges within the city; and (ii) “carry and special handgun licenses,” which permit persons who make a sufficient showing of proper cause to carry a handgun on their person.  Under the terms of a premises license, the City prohibits its residents from transporting a handgun to anyplace outside city limits, even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home or to a shooting range located outside the city.

The Court’s selection of NYSRPA is a bit odd, because the case focuses on New York City’s unique (and perverse) premises license transport restrictions, and does not directly involve New York City’s “carry and special handgun license” scheme.  However, the Supreme Court routinely looks at the constitutionality of these kinds of laws in the full context of the entire regulatory scheme affecting the citizens’ Second Amendment rights. New York City’s licensing scheme denies carry and special handgun licenses unless the applicant makes a showing of “proper cause,” a standard which the average citizen typically cannot meet.  In addition, the question presented to the Court (i.e., the constitutionality of the City’s transport ban) does turn (at least in part) on whether the City may prohibit citizens from carrying firearms on their person outside the home.  All of this should bring into play the constitutionality of not just New York City’s premises license scheme, but also its carry and special handgun license scheme which – like the “good reason” licensing schemes adopted in many other anti-gun states – prohibits the average citizen from carrying handguns outside the home.  

Thus, NYSRPA does appear to present the Supreme Court with an opportunity to speak to the full scope of the right to keep and bear arms, including the core rights of all citizens to keep firearms at home and to carry firearms on one’s person outside the home.  At least one Friend of the Court (Amicus) Brief filed by 17 states’ attorneys’ general has cogently and directly raised that issue with the Court. In the unlikely event that the Court declines to address the core right to carry on one’s person outside the home, the Court will still need to address that fundamental question in a case that squarely and directly challenges good reason permitting schemes.

We will provide additional coverage of the NYSRPA case when the Supreme Court issues its decision later this year.

Stay Tuned…

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Thank you,

-Stephen L. Sulzer

Founder, NFLI

Stephen L. Sulzer
Mr. Sulzer has been practicing law in Washington, D.C., for 40 years and has been a partner at some of the city’s most prominent national law firms, including Steptoe & Johnson and, most recently, California-based Manatt, Phelps & Phillips. In fall 2013, Mr. Sulzer broke away from Big Law to found his own law firm, and after much planning and preparation, expanded his practice to encompass firearms-related matters. He is particularly focused on criminal and civil defense work for clients who have had to use firearms in self-defense. He has also expanded into matters involving federal and state firearms regulation, as well as Second Amendment-based litigation. Mr. Sulzer has an AV Preeminent Peer and Judicial Rating from Martindale Hubbell, the highest rating given by Martindale-Hubbell for legal skills and professional ethics. Mr. Sulzer is pleased to have been selected as a referral attorney for both the United States Concealed Carry Association and the Armed Citizens Legal Defense Network. Mr. Sulzer has developed a two-part training course entitled “The Legal Use of Firearms for Self-Defense in Virginia – When the Defensive Use of Firearms Is Permissible and How to Win the Legal Battle That Will Follow.” For the past five years, Mr. Sulzer has taught the course regularly in northern Virginia at the Nation’s Gun Show in Chantilly and Fredericksburg (through Historic Arms Corp.’s Firearms Training Store), at Silver Eagle Group in Ashburn; at Fairfax Rod & Gun Club in Manassas; and at The Gun Dude in Falls Church. The course has received enthusiastic reviews from the northern Virginia shooting community and has become the gold standard for those who carry concealed or rely on firearms for home security and self-defense. Mr. Sulzer is now offering the course live online through the National Firearms Law Institute. He is also developing an online version of the course covering the law of self-defense in several mid-atlantic and southeastern states and will ultimately cover the law in all 50 states and the District of Columbia. Mr. Sulzer has also expanded NFLI’s course offerings with a new course on Virginia’s 2020 gun control legislation and a short course on insurance coverage and other programs available to protect your finances if you are involved in a self-defense incident. Mr. Sulzer has been active in the shooting sports dating back to the mid-1990s, when he began shooting service rifles in competition against the Marine Corps Rifle Teams and the Army Marksmanship Unit. He began his competitive shooting career with the M1A and transitioned to the AR-15 in 2000. He competed in three position “across the course” iron sight matches at distances of 200, 300, and 600 yards, and has also competed at 1,000 yards. When Mr. Sulzer retired from competition in 2005, he was shooting Master level scores. He still shoots handguns (particularly M-1911s) avidly, has held a Virginia Concealed Carry Permit since the late 1990s, and is an NRA-certified pistol instructor.
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