Will the Supreme Court Use a New York City Regulation to Strike Down Gun Laws?
S E E D E D C O N T E N T
New York City is a strange and dangerous place, if the plaintiffs in a gun-control 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 Rifle & Pistol Association—the state affiliate of the National Rifle 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 first 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 first 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 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 confirmed 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 District of Columbia should not be allowed to ban semi-automatic assault rifles, 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 certification from the N.Y.P.D. There are seven such ranges, with at least one in each of the five 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-five 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 “bear” arms is tantamount to a broad right to travel with them. (Justice Clarence Thomas has said, with regard to an earlier case, that he emphatically believes it is.) 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 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 significant 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 conflict 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 confirmation hearings began
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Seems people were all up in arms about the abortion issue, gun control was put on the back burner.
That may come back to bite now.
Live way out in the woods with a rifle, a shotgun, a .22 pistol a hot rodded Glock and a full auto HKMP5.
Here we have someone (Kavanaugh) that has argued just registering a gun in unconstitutional.
Wonder what what he will decide.../s
He's probably going to rule that having a law that says you can't take your gun to your brother's house in Syracuse is a ridiculous overreach and abuse of power.
Because it is.
This should never have gotten this far. Somebody in NYC should have amended the law a long time ago.
Just because people mean well does not mean everything they write into a law is Constitutional.
From what I can gather it was used as a tool to stop the flow of guns in and out of the city.
I know they will over turn it. At least 5-4.
Which kinda makes it unconstitutional, doesn't it? They can't really say "the Constitution doesn't apply in NYC".
Did it become unconstitutional at a certain time? Was it always unconstitutional or are some trying to make it that way?
Gun Control Is as Old as the Old West Contrary to the popular imagination, bearing arms on the frontier was a heavily regulated business
Sounds to me like it was always unconstitutional.
Let me be specific here. We're not talking about somebody "carrying" a gun. We're talking about somebody not being permitted to transport their gun, even while it's empty and locked.
Think about the implications of this being upheld. Any behavior a city doesn't want can be suppressed or eliminated by simply over-regulating the transportation of the equipment.
The excerpts are from the Smithsonian Institute.
It was not just one town that did this. It was not just one state.
The amendment is vague. It says people can own a gun. It say nothing about transporting it or where a gun can be wielded.
People are trying to make the amendment say what they want.
People are trying to make it so they can carry anywhere at anytime. Making the amendment fit their ideal.
The 2nd Amendment?? The right to keep and bear arms shall not be abridged? Doesn't cover transporting those arms??
Sorry, that's ludicrous.
I'm not talking about that. Those people are wrong, too. Just because they're stupidly wrong does not mean you have to be.
This particular law is badly done. That does not imply we'll all be wearing ivory handled Colts everywhere we go.
Just like the Colorado baker case does not mean it's OK to discriminate against gay people. If people are stupid enough to think that, that's their problem.
We don't need to try to justify bad laws simply to keep the morons from thinking they've won.
The right to keep and bare arms is not defined. People want it defined. Some to fit a certain ideal.
Repealing the law will just make it, to yes, where people can carry. If one gets stopped they can just say, well I was just going here or here. With people saying that they cannot leave their guns at home for fear of theft and they should be able to transport them as they see fit, not having it in a lock box, it would basically just make the city open carry.
A lot of people in the city do not have their own vehicles. They have to transport via subway or taxi. Maybe taxi drivers don't want unlocked guns in their backseat. Same for people on the subway or car services. There are aspects of city life that are not in play in other areas.
IMO having a ruling will just make the city unable to pass any future law/s that some may see as a compromise.
Since we all can guess how they are going to rule, all I can say is it will come down to their wording/phrasing and/or whether they rescind parts or all.
I will agree though, the law should have been better written.
To keep arms , would mean that the people have the right to have arms in their domicile , which many of the anti gun crowd seems would like to limit it to that , and make it so they never see the light of day outside ones domicile. the important part , is the to bear arms , to bear is to carry , to have on in possession on ones person . so , to keep AND bear have a two fold purpose , the people have the right to both keep arms , and carry them as well .
the 9th amendment could very well cover transport of personal property outside the jurisdiction of any municipality , under the peoples right to freely travel as they wish with their own property .
9th: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
So what does that mean? The ninth amendment states that though only some rights are specifically listed in the Constitution, those rights not specifically listed are not denied to the people.
not that vague if one understands the words in the simple meaning they were written in at the time .
and it would seem that it is not just a question of the 2nd , but also the 9th that are rights retained by the people.
The amendment is just that. Some will say it is enshrined while others will say itself can be amended.
I can't think of any right that is absolute.
Any part of the Constitution can be amended. All you need is 2/3 of each house of Congress and 3/4 of the States to do it. Until an amendment is amended, however, it is an integral part of the Constitution. I hope that all of the anti gun people try it; it will have absolutely no legal result but will keep them out of our hair for about 20 years.
or 2/3 rds of a constitutional convention , which still has to be ratified and accepted by 3/4 ths of the states , there has been a reason there has only ever been 1 constitutional convention, Government doesn't like the idea that a convention of the states can take away power they have achieved.....any amendment after the first 10 (bill of rights ) has come into existance through the congressional method of amendment.
Yep, that's how the Constitution came into being in the first place. The drafters were only supposed to be a convention to amend the Articles of Confederation but went a bit overboard.
3/4 of the States means that any 13 States saying no (or taking no action at all) can shut down any Amendment. I can easily think of 13 States that would, loudly and clearly, say "Go To Hell" to any attempt to repeal the Second.
Well, there is the ideal that man only has those rights in which he can defend.
The Second Amendment not only states that arms are a right that supersedes the Constitution, is meant to aid that ideal.....
If they can take away the second, then they can take away the First, Fourth, Fifth, Tenth and Fourteenth amendments also.......
The first ten amendments are called the bill of rights, meaning rights reserved for the people and cannot be removed by any act of government....... (done to assure the citizens of various states that they cannot be dominated by any government formed by said constitution)
And no less than five of the Founders made that exact argument in defending their constitution including no less that George Washington.....
You say the government can take away those rights?
There isn't anything that says they have to repeal the entire thing. Parts of laws get ruled unconstitutional all the time. Affordable Care Act, Patriot Act, etc.
If it's written well, it will have a severability clause.
I am saying rights can have limitations and restrictions. Not absolute.
All rights DO have limitations and restrictions. That's established.
"A majority of states now permit “open carry”—some of them even in bars, stadiums, and day-care centers—and some impose onerous requirements on stores, restaurants, and other businesses that seek to ban guns from their premises"
I'm more concerned with closed carry than open carry. If someone's walking around with a gun, I want to know so I can choose to leave if they're someone I'm not comfortable being around when they're armed. If you don't practice regularly and take gun safety seriously, I don't want to be around you if you're carrying. And I sure as hell would NEVER want to be in a bar with someone who is armed. No responsible gun owner would be drinking while armed.
We had some yahoo chase a guy down the street while waving his gun - apparently the guy had been trying the locks on his door. He chased him through the farmer's market that was going on at the time! He's banned from all the bars because he carries all the time.
Sounds like the topic of the seed is pretty easy to guess which way the court will rule. if a person in NYC is permitted according to the law , can the city make a law that restricts that person from moving the permitted item in and out of city limits in accordance with transportation laws? existing federal law says no , so this is basically a no brainer.
I always get a kick out of some of the responses from those against lawful carry, what they have to remember is that a person carries not to protect others ( it is debatable if there is a benefit to those not carrying making the thugs have to guess).
As someone that can legally carry , if I choose to , the gun is not for your protection . I will watch you get molesticated and assaulted maybe even killed and only use my firearm to protect myself and those immediately with me I know, and if I have to use my gun after the thug is done with you , I will at least have a chance to testify either at his murder trial , or coroners inquest.
From what I gather the complaint is two fold. Within city limits it can only be transported in a lock box. Even if going to a shooting range, which there is one in each borough. The other is them saying that they shouldn't have to leave their weapon at home because they might get robbed, so they should be able to carry it around with them. (like they couldn't get mugged or knocked out on the street and have it stolen)
Basically they just want to be able to carry around the city.
have to see how it is presented to the court , that's what will make the difference.
I just don't like these absolutes being made. It is taking away from cities the ability to police as they see fit.
A lot of people just want to carry their gun with them whenever, wherever they go. Whether it be just going to see a movie or even going to a water park with kids.
I don't care how much people insist they can carry anywhere, there are a lot of people that are uncomfortable with it and don't want it around.
If they were going by precedent, there were towns in the old west where people had to surrender their weapons.
No matter what some say they are trying to make their own precedent and absolutes.
I guess one of my points in the seed is we most likely know which way the two new justices will rule. If they went against the conservative view, I would be shocked.
I feel confident that SCOTUS will overturn this batty law and return people's rights.