I suppose most people who own a gun have at least a passing interest in what might happen over the next few years regarding our constitutional rights to own and use a firearm.
And that would presumably apply to most people who read the River Hills Traveler as well.
Recently, we have seen an increase in legislation at both the state and local levels attempting to further regulate gun rights.
In fact, in the states of Washington and Colorado, for example, local law enforcement personnel have publicly announced that they will refuse to enforce some of this new legislation because they believe that this new legislation violates our constitutional rights under the Second Amendment to the U.S. Constitution.
In short, there is a growing need to clarify Second Amendment rights beyond our basic right to “keep and bear Arms” within the confines of our own homes.
And this need for clarification ultimately falls upon the U.S. Supreme Court to address.
You may not be aware of it, but in the past 75 years, the U.S. Supreme Court has heard only three cases involving the Second Amendment; the first case was in 1939 and the last two cases were decided more than eight years ago.
These last two decisions, rendered in 2008 and 2010, respectively, are District of Columbia vs. Heller (holding that we have a basic right under the Second Amendment to have firearms within the confines of our homes) and McDonald vs. City of Chicago (holding that the rights guaranteed by the Second Amendment extend to statutes and regulations enacted by state and local authorities).
After a long wait and numerous conflicting decisions in the lower courts, the U.S. Supreme Court, on January 22, 2019, finally agreed to hear another case involving our rights under the Second Amendment.
This case is “New York State Rifle & Pistol Association, Inc. vs. City of New York,” which is scheduled for a hearing during the October 2019-2020 term of the U.S. Supreme Court.
Before we get too far into a discussion about this new case, I should mention that I have been a practicing attorney for more than 50 years.
I am not, by any means, an expert on constitutional law; rather, I am simply a gun owner and hunter who, as with most gun owners, has an interest in what might happen to our gun rights in light of the recent legislative actions at the state and local levels.
I was initially surprised that the U.S. Supreme Court decided to use this particular case to address unresolved issues under the Second Amendment. By that, I mean the facts in this case did not seem to be so outrageous that the situation demands action by the court.
But as it turns out, 22 states have joined together in an amicus curiae brief addressed to the court, asking that the court find in favor of the petitioners, who are challenging specific restrictive regulations enacted by the City of New York on the ownership and usage of handguns by city residents.
The Western States Sheriff Association also filed an amicus curiae brief with the court in support of the petitioners. In other words, there appears to be a nationwide interest in this case that on its face, would seemingly impact only residents of the City of New York.
Although numerous constitutional issues have been raised in this case, the key issues, boiled down, are whether the rights guaranteed by the Second Amendment to keep and maintain a handgun in one’s own home extend beyond the home and whether a state or city can prevent a resident from transporting a firearm beyond the boundaries of that jurisdiction.
By agreeing to hear this case, it appears that the U.S. Supreme Court is now willing to address one or both of these issues.
Let’s look briefly at the pertinent facts in New York State Rifle & Pistol Association, Inc. vs City of New York. By virtue of a variety of city ordinances, and supportive state law, the City of New York requires that all private owners of handguns living within the city be licensed with either a “premises” license or a “carry” license in order to own and maintain a handgun within the city.
The “carry” license is extremely difficult to obtain and is not pertinent to this discussion. As to the “premises” license, there are rigorous requirements for applicants who want to own and maintain a handgun within the city limits.
And if you are lucky enough to acquire a “premises” license to own and maintain a handgun within the city limits, you are not allowed to remove that handgun from your premises except under very limited circumstances.
Generally speaking, the only time you can remove the handgun from your premises is to use it at one of several specific firearm ranges within the city limits. In addition, during the time when the gun is being transported to these firing ranges, it must be encased in a locked container, unloaded, with the ammunition for that gun being stored and transported in a separate container.
In short, if a gun owner with a “premises” license living in the city wanted to carry a handgun for protection outside his home, he could not lawfully do so.
But this law goes beyond that: if you are a premises licensee, you cannot remove that handgun outside the city limits under any circumstance, even if the handgun is in a locked container, unloaded with the ammunition stored separately.
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By the way, this appears to be the only jurisdiction in the U.S. where a local governmental entity prohibits resident gun owners from removing a gun beyond the jurisdiction of the local entity.
The New York State Rifle & Pistol Association, Inc., as the lead plaintiff in this case, filed a petition in federal court against the City of New York claiming that the pertinent ordinances, as described above, violate rights guaranteed by the Second Amendment to “own and bear Arms” because handgun owners cannot effectively protect themselves outside the confines of their own home if their handgun is encased in a locked container and unloaded.
They are also challenging the city’s absolute prohibition against removing the registered handgun beyond city limits.
In case you are wondering, the Second Amendment to the U.S. Constitution is pretty brief; it provides, “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
Obviously, this language is not specific enough, standing alone, to clarify whether this right “to keep and bear Arms” includes the right to have a handgun in your possession outside the home for protection or for any other purpose for that matter.
Nor does it address the question of whether a state or local government can legally prohibit you from removing a gun beyond the jurisdiction of that particular governmental entity.
Generally, most courts have held that the right to possess and use a firearm, including handguns, outside the home is more limited than inside the home; this is because public safety interests are often deemed to outweigh individual interests in protecting one’s self outside the home.
And specifically in the New York State Rifle & Pistol Association case, the appellate court reviewing this case (before the Supreme Court agreed to hear it) held that the ordinances in question are constitutional because they merely “regulate” rather than “restrict” rights guaranteed by the Second Amendment.
Moreover, the appellate court felt these ordinances constitute nothing more than a “minimal” or “modest” burden on rights guaranteed under the Second Amendment.
In other words, rights under the Second Amendment are not absolute. And in determining whether a particular statute or regulation violates the Second Amendment, those rights allegedly being violated are to be “weighed” or “balanced” by the court against a public interest in maintaining a safe public environment.
Attempting to predict how the Supreme Court will rule on a specific issue is somewhat like attempting to predict the weather.
With the recent Republican appointments to the Supreme Court, however, it is generally anticipated that the majority of the current court will be inclined to declare that the City of New York ordinances in question violate Second Amendment rights and are unconstitutional to some extent.
How far the court will be willing to go in this direction remains to be seen. Justice Kavanaugh, in particular, has indicated in a prior dissenting opinion that he does not favor the approach used by lower courts in Second Amendment cases to the effect that there should be a “balancing test” between individual rights to protect oneself and the interests of society in maintaining a safe environment.
Rather, he believes that the test as to whether a particular gun law is constitutional should be determined by the issue of whether the rights being restricted are rights that historically have been allowed.
For example, historically, hunters have been allowed to take their guns on hunting trips; this usage would appear to be protected by the Second Amendment under Justice Kavanaugh’s historical test.
On the other hand, fully automatic firearms have not been historically regarded as legal for hunting or any other purposes and would not be entitled to protections under the Second Amendment under Justice Kavanaugh’s test.
It seems to me, in attempting to predict what might happen in this case, that the court would not have agreed to hear this case if they were simply going to affirm the decision of the lower court in holding that the city ordinances in this case are constitutional; that could have been accomplished by simply refusing to hear this case.
Unfortunately, the parties in this case have not yet submitted briefs on the substantive issues in the case; this makes it even more difficult to predict the probable result.
While it is possible that the court is going to hold that the Second Amendment includes the right to protect one’s self beyond the confines of one’s home, that seems unlikely in this particular case.
It seems more likely that the court will hold that the Second Amendment and the constitutional right to travel freely within the United States, construed together, render unconstitutional the City of New York’s ordinance prohibiting a gun owner from taking his gun outside the jurisdictional boundaries of the city.
The case has not yet been assigned a specific hearing date before the U.S. Supreme Court other than to say that it will be held during the October 2019-2020 term.
After oral argument is held, a decision will not likely be rendered for at least three months and possibly as long as nine months after oral argument.
(Bill Hoagland can be reached at email@example.com.)