That New York City is openly hostile to gun rights is not news. Relief may finally be coming to the citizens of the five boroughs, however – and the residents of other towns ruled by anti-gun zealots – via the Supreme Court. On Monday Dec. 2, the high court hears NY State Rifle & Pistol v. City of New York, a challenge to restrictions the Big Apple places on the few citizens lucky enough to be permitted to keep a firearm in the city. This is the first big gun-control case in over nine years at the Supreme Court and gun-rights advocates are hoping the additions of Justices Gorsuch and Kavanaugh yield a favorable result.
A Tale of Two Cities
If you want to own a legal handgun in NYC, you must first be granted a license. The two basic types are carry licenses and premises licenses. A carry license gives the holder permission to own and carry a concealed firearm on their person, wherever they go – but you can’t get a carry license. Well, you can if you’re a celebrity, a friend of or donor to the mayor or a police honcho, but that’s about it. It was always one of those things everybody knew but it was not exposed to scrutiny – until January of this year. As reported by local TV journalist Hazel Sanchez, former NYPD Lt. Paul Dean, a commander in the gun licensing unit, claimed:
“[H]igh-profile politicians, entrepreneurs, and even an actor with a prior felony conviction skated past requirements because of their generous donations to the Police Athletic League, New York City Police Foundation.”
Dean pleaded guilty to accepting bribes in exchange for gun licenses. If you’re not a celeb and you’re short on bribe money, you might be able to get a premises license, though. That’s if you’ve already paid the application fees of over $400 and passed the city’s arbitrary review. The case at the Supreme Court is based on the premises license and the fantastic restrictions placed on gun owners.
You Can’t Take It With You
If you have a premises license, you were previously permitted to keep the handgun only at your home or one of the seven approved gun ranges inside the city – or transport the weapon to or from the range, locked and unloaded. If you live in New York City and have a cabin upstate, you couldn’t legally take the firearm with you when you traveled there. You couldn’t legally take it one foot outside the city limits. As the Supreme Court summarized in its grant to hear the case:
“The City thus bans its residents from transporting a handgun to any place 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 for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.”
The restrictions in the law were so bad that not even the most strident anti-gunners thought they could pass constitutional muster. As Amy Howe of SCOTUSblog put it, “the only real question seemed to be whether the justices would issue a narrow ruling that only addressed the constitutionality of the city’s ban, or whether they might instead say more about the broader right to have a gun outside the home.” The prospect of these restrictions leading to broad recognition of gun possession rights outside the home terrified the gun grabbers – and so they rushed to stop the case the only way they knew how: They changed the law.
Going For Moot
The Supreme Court announced in January that it would add the case to its fall term (the current term). By early April, the NYPD announced the rule would change, saying, “The NYPD plans to loosen its rules around gun transportation to allow licensed owners to carry firearms to a second home or a business – instead of restricting them to shooting ranges.” That change set off another battle at the court – the battle by gun rights advocates to keep the case on the docket. After changing the law, the city petitioned the Supreme Court to drop the case, arguing that since a new rule was in effect, the case was moot and the court need not hear it.
Pro-gun advocates were not willing to go along quietly with the change, however. They have been desperate themselves for the court to take a case concerning gun rights outside the home. The Supreme Court last ruled on a gun-control case in 2010’s McDonald v. Chicago, which incorporated the Second Amendment’s protections recognized in the landmark Heller decision against state governments. That’s because it has refused to take any cases, not that none have been brought. After his fellow justices decided not to hear a challenge to California’s new gun laws last year, Justice Clarence Thomas wrote in dissent, chastising his colleagues:
“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”
Progressive Senators Threaten the Supreme Court
In an attempt to avoid a new ruling favorable to gun owners, progressives in Congress threatened the Court, in the persons of Democrat Senators Sheldon Whitehouse (RI), Mazie Hirono (HI), Richard Blumenthal (CT), Richard Durbin (IL), and New York’s own Kirsten Gillibrand. The Senators, bar Gillibrand, are all members of the Judiciary Committee, and all signed an 18-page screed as brief to threaten the justices’ power through court-packing. The piece attacked Kavanaugh’s nomination, the groups that supported it, and conservative legal groups generally. The conclusion, however, was nothing short of threatening:
“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
Perhaps the Supreme Court will rule in an entirely different direction. It took the case to ask if the law “is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.” The court may rule without a new line drawn in Second Amendment jurisprudence or it may find that the case is moot after all and not even issue a ruling. Justice Kavanaugh’s nomination was widely championed by the NRA, as the progressive Congress members’ brief discusses at length. Will his replacement of Justice Kennedy make the difference and see the court finally address the rights recognized in the Heller and McDonald cases? We will find out by summer, when the ruling is issued.
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Read more from Scott D. Cosenza.
