5/2/2019 Will the Supreme Court Use a New York City Regulation to Strike Down Gun Laws?

n to Strike Down Gun Laws? | The New Yorker

Comment February 4, 2019 Issue

Will the Supreme Court Use a New York

City Regulation to Strike Down Gun
Laws?
The Justices agree to hear another Second Amendment case, this time with Brett Kavanaugh
on board.

By Amy Davidson Sorkin

ew York City is a strange and dangerous place, if the plaintiffs in a gun-control

N case that the Supreme Court has just agreed to hear are to be believed. The suit,
which calls the city’s restrictions on transporting handguns through its streets “bizarre,”
“irrational,” and “perverse,” was brought by the New York State Ri e & Pistol
Association—the state affiliate of the National Ri e Association—along with two gun
owners who live in the Bronx and one from Staten Island. The case is notable for
reasons that go beyond its caricature of the city and its mores. To begin with, this will
be the rst time the Court seriously considers the Second Amendment since it adopted
a radical view of gun rights in District of Columbia v. Heller, in 2008, which
overturned a near-ban on handguns in Washington, D.C., and in McDonald v. the
City of Chicago, in 2010, which did away with similar restrictions in that city. Those
decisions were “transformational,” the plaintiffs argue, but “the news has not yet
reached New York City.”

It will also be the rst opportunity for the Court’s newest member, Justice Brett
Kavanaugh, to begin building what promises to be a disastrous pro-gun legacy. Heller, a
5–4 decision written by Justice Antonin
Antonin Scalia , upended the way that generations of
judges had read the Second Amendment, by recognizing a fundamental, individual
right to bear arms, unconnected to a “well-regulated militia.” McDonald then
con rmed that Heller could be used to overturn state and local gun laws, as well as
federal legislation. Still, both decisions leave room for some basic, long-standing
restrictions on guns, such as those that prevent violent felons from buying them.
Kavanaugh, though, in the wake of Heller, appears ready to toss out as many
restrictions as he can. As an appeals-court judge, he wrote, in a 2011 dissent, that the
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5/2/2019 Will the Supreme Court Use a New York City Regulation to Strike Down Gun Laws? | The New Yorker

District of Columbia should not be allowed to ban semi-automatic assault ri es, largely
because they were “in common use.” He added that asking people to register their guns
is unconstitutional.

The New York case has certain elements in common with Heller: it is a challenge to a
municipal regulation which has the potential to loosen laws around the country. The
very strictness of the regulation may have made it an appealing target. It is possible, but
difficult, to get a license to carry a handgun in New York. An alternative is a “premises”
license, which allows an owner to have a handgun in his or her home but also, under a
city regulation that has been in force since 2001, requires that owner to keep it at home.
With a few narrow exceptions, owners can only take their guns out of the house,
unloaded and in a locked case, to go to a shooting range in the city which has
certi cation from the N.Y.P.D. There are seven such ranges, with at least one in each of
the ve boroughs.

The plaintiffs want to be able to take their guns to second homes or to shooting ranges
out of town. They take the view that preventing them from travelling through the
streets with their guns actually increases the risk to public safety, in part by forcing
them to leave their weapons “in their vacant New York residences,” where anything
could happen. One brief suggested that the city might be “underestimating its
burglars.” (Crime rates in New York have, in fact, gone down dramatically in recent
decades; the number of shootings is the lowest it has been in twenty- ve years.) The
plaintiffs also claim that being asked to travel without their guns is akin to being
forbidden to travel at all—as though a person were not constitutionally whole without
a gun. To them, the restriction is as profound a violation of rights as “a prohibition on
leaving city limits to get an abortion.”

An overriding issue at stake, then, is whether the Court will decide that the right to
Clarence
“bear” arms is tantamount to a broad right to travel with them. ( Justice Clarence
Clarence
Thomas
Thomas has said, with regard to an earlier case, that he emphatically believes it is.)
Thomas
Gun regulations now vary widely among the states; the strictest of them may
eventually be forced to conform to the loosest. A far greater risk to public safety than
leaving handguns in empty apartments is the nationwide effort to sanctify the right to
carry weapons, concealed or openly, in public places. A majority of states now permit
“open carry”—some of them even in bars, stadiums, and day-care centers—and some

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5/2/2019 Will the Supreme Court Use a New York City Regulation to Strike Down Gun Laws? | The New Yorker

impose onerous requirements on stores, restaurants, and other businesses that seek to
ban guns from their premises. Rates of gun deaths vary, too; they are about six times
higher in Alaska and Louisiana—states with very lax gun laws—than they are in New
York.

The Justices, in seeking a national standard in the wake of Heller, will, in effect, decide
which type of situation is truly “bizarre.” They may do so partly by answering a
question that Heller and McDonald left open: What level of “scrutiny” should be
applied to gun-control laws in balancing valid government interests, such as public
safety, against the individual right recognized by Heller? Kavanaugh, for his part, has
written that public safety should not be a determining factor—only “text, history, and
tradition” really matter. With that view, he exceeds what had, until recently, been the
gun lobby’s wildest hopes.

Meanwhile, the movement to pass stricter gun laws has been gathering strength. A
recent Gallup poll found that more than sixty per cent of Americans are in favor of
them. There is a growing revulsion at a state of affairs that has made lockdown drills a
rite of passage for kindergartners—not least from schoolchildren themselves, who, as
the students at Marjory Stoneman Douglas High School, in Parkland, Florida, have
shown, can be powerful advocates for saner laws. Candidates who support gun control
won signi cant victories in the midterm elections, some of them—such as
Representatives Lucy McBath, of Georgia, and Jason Crow, of Colorado—in red and
purple states. According to the Giffords Law Center to Prevent Gun Violence, forty
members of Congress who had been regarded as N.R.A. stalwarts lost their seats.

That political will is set to collide with the ideological priorities of the Court’s
conservatives. The larger con ict will play out in the 2020 campaign, as voters decide
whether Donald Trump will get to appoint even more judges who share an expansive
view of gun rights. In 2011, Kavanaugh wrote that, after Heller, “D.C. seemed not to
heed the Supreme Court’s message.” The echo of that language in the plaintiffs’
portrayal of New York is probably not accidental; gun-rights advocates have been
waiting for Kavanaugh, or someone like him. Their brief was submitted on the day his
con rmation hearings began. ♦

This article appears in the print edition of the February 4, 2019, issue, with the headline
“Guns and the City.”
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