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A New York City law that restricts the transport of licensed handguns is at issue.
Top officials from 17 Republican-leaning states are urging the U.S. Supreme Court to hear a challenge a firearms group and gun owners have brought against a New York City handgun law.
The New York State Rifle & Pistol Association and three individuals petitioned the court in September to hear a challenge over a statute that bans people from transporting licensed and unloaded handguns to destinations other than one of seven shooting ranges in the city.
It’s an unjustified infringement on the Second Amendment and also violates the Commerce Clause, the petitioners argue. They say there’s no evidence that transporting a handgun, unloaded and locked in a separate container away from ammunition, poses a safety threat.
“Though the City’s bizarre transport ban is one of a kind, it is exemplary of a broader push by local governments to restrict Second Amendment rights through means that would never fly in any other constitutional context,” says the brief from the rifle and pistol association and the gun owners asking the court to hear the case.
“Unable to flatly ban the possession of handguns in the home, many local governments have responded by erecting obstacles to acquiring them,” the brief adds.
Two GOP governors, Matt Bevin of Kentucky and Phil Bryant of Mississippi, joined the attorneys general of 15 other states in filing an amicus brief Tuesday supporting the petitioners.
Bevin’s general counsel, Steve Pitt, said in a statement that New York’s “restrictive regulations set a dangerous precedent” and impede the right to bear arms. “Kentucky has a fundamental interest in ensuring that the Second Amendment is preserved for our citizens and that the Commonwealth is not harmed by the liberal policies of other states,” he added.
The attorneys general who signed onto the brief hail from states including: Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Montana, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wisconsin.
Two lower federal courts, the U.S. District Court for the Southern District of New York in 2015, and the Second Circuit Court of Appeals in February, have ruled in the city’s favor in the case.
In New York City people can hold two types of handgun permits.
One is a “premises” license, at issue in the current court case, which allows people to have a handgun at their home or business. The other is a “carry” license that permits a person to carry a concealed handgun in public if they can prove they have a special need for the weapon.
The city has argued in lower court proceedings that its law adheres to the Second Amendment, affording gun owners the ability to defend themselves in their city residences, and to remain proficient with their weapons by allowing access to the city’s authorized target ranges.
People are able to rent firearms at out-of-town ranges, and can keep guns at second homes, the city added. Those challenging the law are free to lobby for changes if they’re so inclined, New York conceded. But as written the statutes are not a constitutional rights violation.
The city has also noted that it previously had a “target license” that enabled people to legally travel with licensed handguns to certain locations outside of New York City. But it said during the lower court proceedings that this licensing program was eliminated after police observed “widespread abuses,” such as people transporting loaded firearms, and taking guns on planes.
In arguing that the Supreme Court should take up the case, the petitioners say the court needs to revisit its 5-4 decision in the 2008 case District of Columbia v. Heller, which struck down strict handgun regulations the District had in place and held that the Second Amendment confers “an individual right to keep and bear arms.”
In their amicus brief, the governors and attorneys general contend that in the decade since Heller, the Supreme Court has “avoided defining the parameters” for those rights, leaving states unsure what rights the Second Amendment protects and to what degree.
State and local authorities, the governors and attorneys general say, “cannot confidently enforce gun laws, counsel state legislatures, or provide accurate legal advice if the courts cannot clearly articulate the legal standards applied to review such laws.”
Discord between lower courts is a problem, according to the state officials. Three circuit courts, they say, have issued rulings that would have favored the plaintiffs in the New York City case.
Here they refer to Heller, along with the Supreme Court’s 5-4 decision during 2010 in McDonald v. City of Chicago, another gun case. In McDonald, the court effectively ruled that protections outlined in Heller extend not only to federal law but also to state and local law.
But the governors and attorneys general say lower courts lack sufficient guidance on those rulings and “have chopped Heller and McDonald into fragments and strung them back together creating a patchwork of Frankensteinian rules of Second Amendment law.”
Making their case that the New York City law violates the Commerce Clause, the firearms group and gun owners say the statute blocks gun owners from patronizing shooting ranges outside of the city. They also say it deters them from traveling to second homes and other places.
The appeals court decision “forces petitioners to choose which constitutional right they would rather exercise: their right to travel or their right to keep and bear arms,” their brief says.
It adds: “If the City had banned its golfers from taking their clubs to out-of-state courses or its professional musicians from taking their instruments to out-of- state concert halls, it is hard to imagine that those restrictions on interstate commerce and travel would be tolerated.”
The Second Circuit addressed this type of comparison in its decision earlier this year, noting that the plaintiffs had argued that the city’s rule functions in the same way as a law requiring New York City residents to use their tennis rackets only at in-city tennis courts.
“Of course, tennis rackets present none of the public safety risks that firearms do, and against which states have a legitimate interest in protecting themselves,” the ruling said.
But the state officials sought to lend support to the argument that the New York City law runs afoul of the Commerce Clause, which gives Congress the power to regulate commerce among the states.
“By forbidding its citizens to leave the state with their firearms, New York City’s regulations— blessed by the Second Circuit—create a dissonance in the federal system,” they say in their brief. It adds that “wildlife tourism, which includes hunting, practicing, and competitive shooting, is a multibillion dollar industry in the United States.”
After the Supreme Court’s Heller decision, Washington, D.C. enacted a ban on semi-automatic rifles and magazines that accept more than 10 rounds, along with gun registration requirements. Dick Heller, the plaintiff in the handgun case, and others sued over the rules.
The U.S. Court of Appeals for the District of Columbia in 2011 upheld the semi-automatic weapon prohibitions and other parts of the law. Dissenting was Judge Brett Kavanaugh, who was sworn in to the U.S. Supreme Court on Saturday after a contentious Senate confirmation.
“It follows from Heller’s protection of semi-automatic handguns,” he wrote, “that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”
One of the lawyers representing the The New York State Rifle & Pistol Association and other plaintiffs in the New York City case is Paul Clement, a partner with Kirkland & Ellis LLP, and a former U.S. solicitor general under former President George W. Bush.
New York City requested and has been granted a 30-day extension to file its response to the petition for the case to be heard before the Supreme Court. The response is due by Nov. 8.
Bill Lucia is a Senior Reporter for Government Executive's Route Fifty and is based in Washington, D.C.