Monday, December 2, 2019

SCOTUS Case of the Term: NYSRPA v NYC

Today the Supreme Court will hear what may be "THE CASE" of this term, and perhaps the case of the decade: New York State Rifle & Pistol Association v. New York City.  The issue before the
The Right to Arm Bears
Court? What does the Second Amendment mean when it says the right to "bear arms?"  This question was not specifically addressed in District of Columbia v. Heller, 554 U.S. 570 (2008) nor in McDonald v. Chicago, 561 U.S. 742 (2010).  Without a doubt, this will be one of the "most watched" cases this year.

For those that do not have immediate recall of the exact text of the Second Amendment, the text reads,"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."  The Heller case specifically dealt with the question, "Does the Second Amendment 'right to keep and bear arms' only apply to the 'militia' (or National Guard)."   In the majority opinion, Justice Scalia went through the history of the "Right to Defend One's Self."  In summary, the majority opinion of the Court stated the Second Amendment did not only apply to the militia, but rather, the "militia" as it was understood at the time, meant "all" citizens who would be called to defend the state in time of war or extreme civil unrest.  It was also explained that in essence, the clause "a well regulated militia, being necessary to the security of a free state" in modern English (as opposed to 18th century English) meant "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."   The ruling in this case however, only applied to the Federal Government, as the District of Columbia falls under Federal jurisdiction. 

In 2010, the McDonald case dealt with the question of whether the Second Amendment applied to the states.  This case specifically looked at whether the Second Amendment applied to the states through the Fourteenth Amendment.   The majority opinion, written by Justice Alito stated that indeed, the Second Amendment did apply to the states.  In both Heller and McDonald the court stated that a state may not impose a ban on firearms, but that provisions such as banning felons from possessing firearms where Constitutional.

Since the Heller and McDonald rulings, there have been no other significant Second Amendment cases heard by the Supreme Court.   Further, the Heller and McDonald opinions have left a great deal of confusion and conflict on how Second Amendment challenges should be ruled on, leaving a patchwork of conflicting rulings from the Courts of Appeal.   Additionally, one phrase, written by Justice Scalia in the Heller majority opinion has created confusion on the scope of the Second Amendment. 

In his majority opinion in Heller, Justice Scalia wrote:
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute

Unfortunately, many in the media, the public and some of the lower courts have viewed the statement that "the home, where the need for defense of self, family, and property is most acute" means that the Second Amendment only applies to the home.  However, this is not what Justice Scalia stated.  He stated that the need was "most acute" in the home.  Justice Scalia was merely pointing out that because a person spends more time in the home, than in any other place, and because the home is the place where one expects to feel most relaxed and most secure, the need to be able to defend one's self in one's home is highest.  This, however, does not mean that the need to defend one's self in public, does not exist or is not important.  The "misreading" and "misinterpretation" of the Heller and McDonald cases, as well as the Court's failure to hear any substantive Second Amendment cases since 2010, caused Justice Thomas to write a scathing dissent on the Court's decision not to hear a challenge to a gun control law in California.  Justice Scalia went so far as to call the Second Amendment a Constitutional Orphan.

This brings us to New York State Rifle & Pistol Association v. New York City  The New York State Rifle & Pistol Association has asked the Supreme Court to hear a challenge to New York City regulations that prohibit an individual, with a license to have a pistol in their home, from taking that firearm outside of the home.   The NYC regulations required that an individual with a home pistol license ONLY use one of SEVEN shooting ranges inside the limits of the City of New York.  The law further prohibited an individual from transporting a firearm licensed to a home in New York City from transporting that firearm to a second home (a vacation home on Long Island for example).  Finally the regulations even prohibited the individual from taking that firearm to a Gun Smith within the City of New York, without written permission from the Chief of Police.

On appeal to the Second Circuit Court of Appeals, the appeals court, using "intermediate scrutiny" ruled in favor of New York City, stating that the Governmental need to reduce crime and ensure public safety outweighed the individual's Second Amendment right.   There was no explanation on how a firearm that was locked in a gun case, and locked in an individual's vehicle truck away from any passengers and separated from any ammunition (requirements to transport a firearm from point A to point B by New York law) would increase crime or decrease public safety.  Further the Appeals Court stated that since the individual would be transporting the firearm outside the home, there was no "acute" need for self defense.

The NYSRPA appealed to the Supreme Court.   After the Supreme Court agreed to hear the case, and well after all written arguments were presented to the Court, New York City and the State of New York both decided that the last thing they wanted was for the Supreme Court to hear this case.   This opinion was expressed by other states with strict gun control laws.   New York and other states are all in fear that the Supreme Court will rule that the Second Amendment guarantees the right to BEAR arms as well.

In an effort to keep the Supreme Court from hearing this case, in July 2019, NYC and New York both changed regulations to allow some transport of firearms outside the city limits of NYC.   The City of New York then sent a letter to the Supreme Court asking the Court to dismiss the case as moot.  The fear of a "pro-gun" ruling by the Supreme Court is so great, that Sen. Whitehouse (D- RI) filed a brief more or less "threatening" the Court if they did not dismiss this case as moot.   The Court did reject the NYC letter asking the case be dismissed, but did order both parties to be prepared to argue why this case is not moot, when the Court hears the case this morning.

There are three possible outcomes for this case.   The first possible outcome is that the case will be found to be "moot."   It is likely that Counsel for both sides will try to convince Chief Justice Roberts in particular on the issue of mootness.   The belief on both sides of the argument is that each has four Justices in their corners so to speak (although predicting what the Court will do is dangerous).  Each side believes that Chief Justice Roberts will be the deciding vote.  The other two outcomes are the apparent ones. If the Court decides the case is not moot, then the Court will have to decide what the Constitution means by "bear arms."   This will likely end up being a 5-4 ruling, regardless of the direction the Court takes.

Currently, there are several dozen cases that have been put on hold pending the outcome of this case, and this case may end up having an impact for generations to come. 

(The transcript from the oral arguments that were held this morning will be available by close of business today, and the audio recordings of the arguments will be available at end of this week.)

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