By Lisa Soronen
After turning down countless petitions challenging state and local restrictions on guns, the U.S. Supreme Court has finally agreed to review the constitutionality of a gun law.
In New York State Rifle & Pistol Association Inc. v. City of New York, New York the Supreme Court will decide whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.
The U.S. Court of Appeals for the Second Circuit held the law is constitutional on all accounts.
A New York City administrative rule allows residents to obtain a “carry” or “premises” handgun license. The “premises” license allows a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee may only take his or her gun to a shooting range located in the city. Challengers want to bring their handgun to their second home and to target practice outside the city.
In 2008 in District of Columbia v. Heller, the Supreme Court held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Among many questions left unanswered, the court did not state whether an individual has a Second Amendment right to possess a gun outside the home.
Second Amendment cases are won or lost depending on what level of scrutiny the court applies. If the court applies “strict scrutiny” it will likely strike the law down.
The Second Circuit didn’t apply strict scrutiny as a result of the challengers being unable to transport a gun to their second home. If they want a gun at their second home they can simply buy another gun. Likewise, the court didn’t apply strict scrutiny despite the fact that the challengers could not bring their gun outside the city for target practice. The rule imposes “no direct restriction” on the right to “obtain a handgun and maintain it at their residences for self-protection.”
Applying intermediate scrutiny, the Second Circuit held the rule was “substantially related to the achievement of an important governmental interest.” It seeks to “protect public safety and prevent crime.”
And the court agreed with the former commander of the License Division that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.”
The Second Circuit concluded the rule doesn’t discriminate against interstate commerce in violation of the Commerce Clause.
First, it does not facially discriminate against interstate commerce. Licensees may still patronize out-of-state firing ranges—they just can’t bring their gun licensed in New York City. Second, no evidence suggests the rule was intended to protect the economic interests of the city’s firing range industry.
Finally, the challengers failed to offer evidence that the rule has had a discriminatory effect on interstate commerce. While the challengers claim they have not attended out-of-city shooting events with their gun, they may have attended them without their gun.
While the Supreme Court has recognized a constitutional right to travel, it is only implicated when a rule “actually deters such travel, or when impedance of travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.”
The Second Circuit rejected the challengers’ right to travel argument stating: “Nothing in the Rule prevents the Plaintiffs from engaging in intrastate or interstate travel as they wish. The Plaintiffs may go where they like, and in particular may attend and participate in shooting tournaments or similar events held outside the City of New York. The regulation concerns only their ability to remove the specific handgun licensed to their residences from the premises for which they hold the license. The Constitution protects the right to travel, not the right to travel armed.”
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor on judicial issues to the NCSL Blog.