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.
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-Stephen L. Sulzer