Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions
SCOTUS hasn’t taken a 2A case in almost a decade. Does this signal that the right to keep and bear arms will no longer be “this Court’s constitutional orphan” (as Justice Thomas once wrote)?
The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions.
Some of the Justices, and other commentators, have lamented the failure of the Court to take 2d Amendment cases.
In February 2018, Court refused to hear a case challenging a California mandatory 10-day waiting period which had to be observed even for those who already owned guns legally and had gone through the permitting and background check. Justice Thomas wrote in dissent:
The Second Amendment protects “the right of the people to keep and bear Arms,” and the Fourteenth Amendment requires the States to respect that right, McDonald v. Chicago, 561 U. S. 742, 749–750 (2010) (plurality opinion); id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review. District of Columbia v. Heller, 554 U. S. 570, 628, n. 27 (2008).
But the decision below did just that….
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.
Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case….
Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.
If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari….
The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.
* * *
Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special—and specially unfavorable—treatment,” id., at 778–779 (majority opinion), I respectfully dissent from the denial of certiorari.
The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York.
The Petition for Certiorari described the Question Presented:
QUESTION PRESENTED
New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. 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 City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.
The question presented is:
Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.
In New York City’s Response, it presented its Counter-Statement of the Question Presented:
COUNTERSTATEMENT OF QUESTIONS PRESENTED
A New York State law that is not challenged here recognizes two major types of handgun licenses: “premises” licenses and “carry” licenses. Petitioners Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry each hold a premises handgun licenses allowing them to keep a handgun in their New York City residence. The City’s implementing rules also permit premises licensees to transport their handguns to and from City shooting ranges for target practice or competition.
Petitioner argue that the Second Amendment, dormant Commerce Clause, and right to interstate travel compel the City to afford them broader latitude for transportation of a handgun under a premises license. The questions presented are:
1. Whether this case is appropriate for certiorari review, where it (a) presents no circuit split or conflict with this Court’s precedents, and (b) addresses what petitioners describe as a “one-of-a-kind” municipal rule with “no analog in any other jurisdiction”?
2. Whether the Second Circuit’s application of established constitutional principles to the particular rule here warrants review by this Court?
The case thus is fairly narrow. It doesn’t involve the right to own a firearm in itself. But it addresses how liberal municipalities try to make it so difficult to own a firearm through absurd conditions that it amounts to a de facto ban or undue burden.
Ilya Shapiro of the Cato Institute issued the following statement:
In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right—until now. With this case, the Court can start checking the massive resistance of many states and cities to this important constitutional right. And it can start instructing the lower courts, many of which have treated the right as second-class, how the law works in this area. For law-abiding gun owners and others who wish to exercise their fundamental right to armed self-defense—particularly those who live in places with high crime and woeful policing—this is most welcome news.
Does this mean that the right to keep and bear arms no longer will be a “constitutional orphan,” as Justice Thomas once ruled?
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Perhaps the Obama justices want to get some of these cases heard before Trump appoints Ginsburg replacement.
By the way, has anybody seen Ginsburg recently? Is she still alive?
Barely alive?
She voted with the minority on the trannies-in-the-military decision today.
She is still alive and might outlive many here.
She has been receiving blood transfusions from Keith Richards.
She has been getting the transfusions because she has been too weak to transform into a bat and fly around and night and find blood on her own. But she will be bat worthy again soon.
There are tons photos of RBG where she looks like she should be in a nursing home, she can’t even sit in a chair without sliding off like a empty bathrobe and yet the left constantly says how amazingly fit and vibrant she is.
I never thought I’d see such blatant, stupid propaganda in the U.S. in my life. They’re not even good at propaganda. These people should be laughed out of existence yet they’re revered by millions.
It’s so damn ridiculous.
I’m just happy to hear that Bagdad Bob has a new job.
From,
https://www.motherjones.com/politics/2018/11/what-cult-ruth-bader-ginsburg-rbg-got-wrong-obama-trump/
If you pay attention to Ginsburg’s public appearances, it’s pretty clear many are carefully stage managed; video of her is tactfully edited. She’s usually shown sitting graciously in a chair, or linking arms with someone as she walks, as though from affection and not from need. But in the courtroom, away from the cameras, she projects a very different image—the one that probably inspired all those liberal lawyers to her call for her timely retirement seven years ago.
About a week before her latest fall, I sat through a pair of tedious Supreme Court arguments about arbitration, so I got to see the Ginsburg most Americans do not. She was engaged in the arguments, but her speech is increasingly difficult to understand. As has long been the case, people strained to listen when she asked a question—a hot bench went quiet.
When a Supreme Court session adjourns, the public isn’t allowed to depart until all the justices have left the bench. After the arbitration arguments were gaveled to a close, I got up to leave with the rest of the onlookers. But then everyone stopped. All of the justices had left except for Ginsburg, who was having trouble getting out of her chair. There was an embarrassed silence as members of the press, the bar, and the public tried not to gape as Ginsburg mustered the courage to descend a single step off the bench and finally disappeared behind the red curtain. The contrast between the real-world Ginsburg and the comic-book superheroine of social media was striking.
New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. [emphasis added]
Is there an exception in the City’s gun laws that “allows” the purchaser of a new firearm to “possess” it at the place of purchase and en route to his/her home?
Or is a gun buyer violating the law the second he/she takes possession and tries to take it home, regardless of whether it’s locked, unloaded, and secured?
Addressing the question in our third paragraph: how connected is the buyer? What mood is the police officer in. How much grease has to go into that blue-sleeved palm?
You take it from the shop to the shooting range, then to your home, although I suppose a cop could just hang out at the gun shop and arrest you as soon as you took possession, since the shop itself isn’t a valid place to possess it. Neither apparently can you legally take the gun from your home to the shop to have it serviced. Both would probably tend to bankrupt the gun store, which is probably a bonus as far as NYC is concerned. I also see that the law is described as “en route” to the shooting range, which in regular English means it doesn’t include the shooting range itself.
She voted on the military transgender issue
And naturally voted the wrong way.
I dearly hope that this court takes the opportunity to expand 2A jurisprudence to bring this set of rights to something like the same status as other amendments in the Bill Of Rights.
Whenever the Supremes take on the Second, you have to take a deep breath that it’ll come out right.
Wouldn’t it be nice if the courts gave the right to keep and bare arms the same standing as they give the freedom of the press.
It would be interesting to see the courts apply Strict Scrutiny to all these gun grabing attempts by the States.
Keep dreaming, Ragspierre and Shadow5, keep dreaming.
It eases the burden of reality.
The second amendment clearly and plainly states that the states cannot require us to ask their permission to be armed. These laws should be chucked and the city/state penalized with prison sentences for the politicans who enacted or expanded them.
From an orginialist’s POV, it had no effect on the states. As was true of all the Bill Of Rights. They were always originally to constrain the central government.
With respect I must disagree. From the originalist stand I refer you to the Supremacy Clause.
Sorry, you’re just wrong. The Constitution was in very few areas “supreme” and they were understood that way.
The sovereign states were trying a new experiment in a “more perfect union”, and they weren’t about to give up their prerogatives to an all-supreme central government.
Most of the states had their own very good instruments for securing the rights of their citizens, including the rights we think of as under the 2A.
You’re both wrong. The constitution was supreme in all areas, but it didn’t restrict the states’ power to ban or regulate guns, any more than it restricted their power to ban or regulate speech or religion, or to imprison people without due process of law, to take their property without compensation, and to torture them to death. It could have done so, and if it had that would have overridden anything in state laws or constitutions that said otherwise, but it didn’t. The 14th amendment did that.
No, Milhouse, YOU are wrong. The Constitution was “supreme” only in the few areas enumerated.
The states and the people were supreme everywhere else.
Let’s see…
I fail to see “except for these areas” Add in the fact that, while the first amendment explicitly says “Congress shall make no law”, the 2nd is the more explictly broad “the right of the people…shall not be infringed”.
Whatever judge prior to the 14th ruled the 2nd didn’t apply to the states was flat wrong and should be posthumously disbarred.
Another mistaken assertion.
CONGRESS shall make no law EXPLICITLY did NOT bar the states. ONLY the new congress.
The Constitution, as written, enumerated the powers of the new central government. That is all. It did NOT bar the states except for those powers. The states could…and did…retain a broad set of powers to themselves. The Constitution would never have been ratified otherwise.
Exactly. Supreme meant supreme, then as now. In all areas. The constitution did impose some restrictions on the states, and when it did so they were supreme, and overrode state constitutions and laws. For that matter all federal statutes override state constitutions and laws, and have done since 1789. So long as Congress acts within its enumerated powers its word is supreme.
So Rags is wrong to claim the constitution’s supremacy was limited until the 14th amendment passed. The only reason states were allowed to infringe the rights the Bill of Rights protected was that the constitution didn’t say they couldn’t.
However. UnCivilServant is wrong to claim that the 2nd amendment applied to the states. If it had it would have said so. Wherever the constitution imposes some restriction or duty on the states it says so explicitly. The first 10 amendments limit the power of the United States, not of the states. “Shall not be infringed” means “by the United States”. To this day the 7th amendment’s requirement for jury trials does not apply to the states; it doesn’t say it does, and the courts have said it’s not a fundamental right so it’s not incorporated in the 14th.
If it is supreme and does not state a scope, it applies to everything, but that is secondary. The 2nd is not stating a limitation upon the federal government or upon congress, it is stating an unalienable right reserved to the people against ALL governments, even before the judges realized their error and used the 14th as a fig leaf to correct themselves without admitting the initial error.
“So Rags is wrong to claim the constitution’s supremacy was limited until the 14th amendment passed. The only reason states were allowed to infringe the rights the Bill of Rights protected was that the constitution didn’t say they couldn’t.”
That’s bullshit, Milhouse. Try reading that paragraph for meaning.
The new central government was DESIGNED NOT to be supreme except in a few, carefully stated, ways.
And the Bill Of Rights was NOT a statement of powers, but a statement of the limitation of central government powers having NOTHING to do with the states.
rags wrote:
The new central government was DESIGNED NOT to be supreme except in a few, carefully stated, ways.
And the Bill Of Rights was NOT a statement of powers, but a statement of the limitation of central government powers having NOTHING to do with the states.
Damn, I want to give you a thumbs up and I can’t. Frustrating!
The Supremacy Clause makes a validly enacted federal law superior to a conflicting state law. It does not per se supersede state sovereignty in all areas.
Your two sentences contradict each other. The supremacy clause, which you correctly summarize, by definition does supersede state sovereignty. That state laws remain valid wherever federal law is silent doesn’t change that; obviously they do, until federal law decides to speak. The only real limit on that is not a result of state sovereignty but of the fact that the US constitution limits the areas on which federal law can speak.
Time to reflect that the Heller decision, affirming the 2nd A is a right of the Individual, was a 5-4 decision. We came way too close on that one.
Since SCOTUS has consistently refused to enforce Heller, winning it was meaningless.
Consider. Let us say that the Supreme Court definitively overturns the New York City restrictions with something akin to implying the insertion of an object crosswise.
Who, tell pray, will enforce the decision? I can see the Leftists running New York City and State quoting one of the first Democrats: “The Supreme Court has made its decision, now let them enforce it”. Federal law only applies in Leftist jurisdictions when they want it to.
Subotai Bahadur
With the dems pushing gun control, you can be sure there will be more of these cases. It’s a good thing we got to make the last 2 court nominees. A couple more wouldn’t hurt at all.
Millhouse, believe you are right on this one. The fourteenth amendment, in a lot of ways, nullified the tenth, especially on enumerated rights. Even Clarence Thomas mentioned this in the text above. When you consider how a constitutional amendment is approved, and all the steps in must take, it is then that you realize that the federal and state representatives of executive, legislative, and judicial branches approved the fourteenth which severely restricted states and municipalities from denying or restricting enumerated rights of minorities, but was written in such a way that it actually expands constitutional protections for all of us.
Of course the 14th “incorporated” the Bill Of Rights to apply to all levels of US government.
The point was that the Bill Of Rights, prior to the 14th applied ONLY to the central government and not the states.
“The right of the people to keep and bear arms shall not be infringed”
Seems like it applies to every jurisdiction.
No, it doesn’t. Since it doesn’t say “by the United States or by any state”, the implied subject is the United States alone. It’s the 14th that says the states can’t violate any fundamental right (leaving it to the courts to decide what those are).
2nd Amendment United States of America clearly states: A well regulated militia being necessary to the security of a free state, THE RIGHTS OF THE PEOPLE to keep and bare arms shall not be infringed.
So clearly that right was enumerated as a right reserved to the people themselves. All other arguments aside those five words should reign in the minds of all State and Federal judges when addressing this issue. (See the Heller decision.)
You can’t quote the Second and use “enumerated” in a sentence and get away with it.
The Constitution enumerated a LIMITED set of supreme powers of the new central government.
The Bill Of Rights set out a NON-INCLUSIVE list of things the new central government could NOT do.
That’s it.
Damn it!
“the right of the people to keep and bear Arms, shall not be infringed.”
PERIOD!
Thank You, Merlin!
Whew . . .
The discourse here today on the interpretation of our Constitution bears evidence why the appointments to our Supreme Court Justices should weigh heavily for those who read to follow the Constitution as opposed to those who want to re-write it.