You’ve probably heard the United States Supreme Court has finally decided to hear a Second Amendment case after refusing to do so in the 11 years since Heller and McDonald. The New York State Rifle & Pistol Association Inc. v. City of New York case involves a unique to the nation law severely limiting the ability of New York City residents to transport firearms outside their homes. While 2A advocates around the country are hoping this will be THE case to finally break the gun control zealots back, there is an equally good chance it will not.
The case is about a New York City law called a “premises license”. With it, the very few New Yorkers who are lucky enough to get it are allowed to posses their registered firearm ONLY at their home or be transported, unloaded, locked and separate from ammunition, to one of seven NYPD approved shooting ranges within the City of New York. The firearm cannot be taken out of the city to any other range or property, even if the owner owns the other property.
New York City used to issue a “target license” in addition to the nearly impossible to get “carry license”, issued only to retired law enforcement, celebrities and other favored persons. However the City reported widespread abuses of the target license with licensees traveling out of state, attempting to take their firearms out of the city on airplanes and being in possession of their firearms in areas and at hours when no NYPD approved shooting ranges were open. Thus the more restrictive “premises license” scheme was put into place.
Even the most skeptical of us can see glaring Constitutional issues with this type of licensing. Only being able to possess your legally owned and registered firearm at your residence – the single premises listed on your license – or back and forth to one of seven shooting ranges within the city is so restrictive that you would not even be able to secure your firearm elsewhere should you leave on vacation, to say nothing of sanctioned shooting events, training or lawful self defense anywhere except the one licensed premises.
Yet, the Court of Appeals for the Second Circuit ruled this law was Constitutionally valid under the McDonald precedence that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” While this is one purpose of the Second Amendment, it is not the only one.
One of the major issues with rulings like this is the level of scrutiny applied by the courts. In this case, like most others by courts hostile to the Second Amendment, intermediate scrutiny was used as opposed to strict scrutiny. While most of us would probably agree that determining whether something is Constitutional valid is going to be the same no matter how you look at it, that’s not the way the courts see it.
In the absolutely briefest of terms, under intermediate scrutiny, it must be shown that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest. In this case, that guns on the streets of the city are bad and having less of them makes the city safer. As we’ve seen in any number of other Second Amendment cases, the government doesn’t even have to prove that their logic is valid, only that they are pursuing this interest.
Strict scrutiny on the other hand requires a narrowly tailored and least restrictive means to further a compelling governmental interest. Most First Amendment cases are decided under strict scrutiny and very few First Amendment restricting laws have been able to pass this test.
So where does this leave us? Well, it’s very unlikely the current Supreme Court, with two new Constitutional originalist Justices, was willing to accept this case to uphold it. To do so would essentially relegate the right to keep and bear arms to your own home. However, as with all court challenges, nothing is a sure thing.
Many gun rights advocates are looking at this case as being the one that finally affirms the right to bear arms outside the home, just as Heller and McDonald did for firearm possession inside the home. However that may be a little bit optimistic. Supreme Court rulings are more often than not very narrowly focused, impacting only the case at hand or ones nearly identical to it. With this being a one of a kind law, even if the appeal is successful, it may not easily translate into extended Second Amendment rights elsewhere.
Potentially the best-case scenario would be a ruling that all Second Amendment challenges be interpreted using strict scrutiny. While highly unlikely, this would signal that the Supreme Court is finally ready to consider the Second Amendment a first class right.
While I am cautiously optimistic, it’s worth noting that even with the Heller and McDonald decisions, politically motivated activist judges around the country have been upholding Constitutionally invalid laws that fly in the face of these Supreme Court rulings for years.
Why? Quite simply it’s a numbers game. The gun control lawmakers and judges know the US Supreme Court only hears arguments on about 80 cases per year, and decides about 50 more without oral arguments. This is out of the roughly 7000 requests to hear cases per year. And that 7000 represents the best of the best cases with the highest likelihood of success before the court, thus worthy of the time, money and effort needed to litigate them. Knowing this, it would take the Supreme Court decades of hearing nothing but Second Amendment cases to reverse all the Second Amendment infringements across the nation.
With this, I’m going to repeat what I’ve said time and time again. Getting your rights restored through the courts AFTER they have been taken away is a fool’s game. Once your rights are gone, there is no guarantee and only a fair chance AT BEST that you will ever have these rights again. The ONLY way to positively keep your rights is to stop electing the people who write and support the laws designed to strip away your rights in the first place.
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