How to Train Your Handgun
A brief disclaimer before we get started: between the time I started work on this post (a few weeks ago) and now, the Supreme Court actually decided the case we’re going to talk about today. My goal, generally, is to review these cases before they get decided so that you’re prepared in the event a big decision comes out. Obviously, that’s not going to be the case this time, but I still think this case is worth talking about.
If you’re interested in reading the Court’s decision, I’ll leave the link here. Otherwise, check out the review below, and look out for another post this week in which I’ll follow up on the decision and explain what it means for the parties going forward.
New York State Rifle and Pistol Association v. City of New York
We’re back for another big one. This week we’re going to talk about guns. Specifically, the general scope (pun absolutely intended) of the Second Amendment. Now, you know what the Second Amendment is all about, and you probably have your own set of core beliefs about what it should mean. Even now, you’re probably thinking about individual rights, universal background checks, and mental health screening. That’s all great. You’re entitled to your beliefs.
Here’s the thing though: I don’t care, and neither does our hypothetical Supreme Court. Our Supreme Court doesn’t care about political causes, or public interest groups. Our Supreme Court has never heard of Brady or the NRA. Our Supreme Court only cares about the facts of the case and the law that applies.
With that out of the way, let’s get to it.
The Parties:
The Petitioners:
There are several petitioners in this case, and there’s really no need to discuss all of them in detail. Suffice it to say that they’re a group of individuals and a gun club, and they’re challenging a New York City law that prevents them from transporting their guns to shooting ranges, second homes, and other locations outside city limits. We’ll borrow their terminology and refer to the law in question as “the transport ban.
The Respondents:
The Respondents here are the City of New York and the License Division of the City’s Police Department. These are the parties responsible for issuing handgun permits in New York City, and for enforcing the law that’s being challenged. They’re here in the Supreme Court defending the City’s law.
The Law:
The Transport Ban:
Ok, as always, let’s talk briefly about the law that is being challenged in this case. The first thing to note is that New York City has what’s generally recognized as the strictest set of gun control laws in the United States. Compared to the rest of the country, it’s really difficult to own a gun in New York City. Once again, you may think that’s a good thing, or you may think that’s a bad thing. I don’t care, and in our fantasy world, neither does the Supreme Court. All our Court cares about is whether New York’s laws are constitutional.
And we should be clear on one piece of terminology from the get-go. The State of New York has a licensing system similar to the kind that exists in many states, with different licenses issued to different people for different purposes. Generally, there are two broad categories of gun licenses, with a bunch of subcategories. Broadly speaking, there are carry licenses, which allow their holders to carry their guns in certain public areas, and premises licenses, which are issued to people who want a gun in order to protect their home or business. In this case, we’re only dealing with premises licenses.
Now, with that distinction out of the way, what kind of laws are we talking about?
Well, in this case, we’re talking about a law that was on the books back when this case was filed in the Supreme Court in 2018. The transport ban prevents people with premises licenses from taking their guns anywhere but to an approved gun range within city limits. The only exception is that these gun owners can apply for special permits to take their firearms somewhere other than these approved gun ranges. Aside from that, if you only have a premises license, it’s a crime in New York City to take your legally owned gun out of your house.
Notice that I said this law existed in 2018. If you looked at the New York Penal Laws (and if you value your sanity, I wouldn’t recommend reading any state’s legal codes), you’d notice that the law being challenged here doesn’t actually exist anymore. And if you read through the glossary, you might be thinking about mootness. If so, you’re on the right track. Pat yourself on the back. Either way, keep this in the back of your mind as we review the law and the arguments. It’s going to come up again.
The Second Amendment and Heller:
Now, this is a gun rights case so we’re going to need to talk about the Second Amendment. Keep in mind, you may (and probably will) disagree with me about the policy or the wisdom of what I’m about to say, and that’s ok. It’s not our job to decide whether the law is bad or good, it’s our job to decide whether it’s constitutional.
Let’s start at the beginning, with what the Second Amendment actually says. Here’s the text:
“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.”
Read that sentence out loud. Go ahead, I’ll wait.
When you read the Second Amendment out loud, you notice a couple of things right away. First of all, it’s just a poorly written sentence. It’s jumbled, out of order, and it looks like whoever wrote it had just discovered the comma and wasn’t quite familiar with how to use it yet. Also, you’ve probably noticed that it doesn’t really seem to be about guns at all. No, mostly it seems to be talking about a militia with a capital M.
If you were thinking those things, then you were basically thinking what most people, lawyers and laymen alike, were thinking up until 2008. Before then, the Second Amendment was almost never brought up in court, mostly because people assumed that it didn’t really do very much at all.
Then, in 2008, the Supreme Court heard a case called District of Columbia v. Heller. If you have any kind of informed opinion on gun rights, you’ve heard of that case. Over the last 12 years, Heller has been recognized as a massive shift in the way courts think about the Second Amendment. And it’s important here because it’s the case on gun rights in the twenty-first century. In fact, when our case is eventually decided, it’s going to be decided mostly based on what the Court said in Heller, way back in 2008. I may not know much, but I can promise you that.
So what did Heller actually say?
Well, as you can imagine, a large portion of the Court’s opinion in Heller dealt with the literal language of the Second Amendment, and just what in the world it actually meant. There were essentially two main arguments. The District of Columbia, whose laws were being challenged in Heller, argued that all that stuff about militias (called the “prefatory clause,” see below) was what defined the right to keep and bear arms.
“A well regulated Militia, being necessary to the security of a free State…”
-The Prefatory Clause of the Second Amendment
Thus, they argued that people only had a right to keep and bear arms if they participated in the militia. This was the traditional interpretation of the Second Amendment. Obviously, the United States doesn’t have much of a militia these days, so this interpretation would have severely limited the scope of the Second Amendment.
If you wanted to create a coherent, readable Second Amendment expressing this viewpoint, it might go something like this:
“The right of the people to keep and bear arms in service of the militia and armed forces, shall not be infringed.”
The other camp, Heller’s camp, argued that the prefatory clause and the second clause (called the “operative clause,” see below) were functionally independent of one another, and that the prefatory clause essentially established the reason for the existence of the Second Amendment. In other words, they argued that because the militia was so important to the Founders, the Second Amendment must have protected an individual right to keep and bear arms, so that the militia could never be dissolved.
“…the right of the people to keep and bear Arms, shall not be infringed.”
- The Operative Clause of the Second Amendment
Again, if you wanted to create a coherent, readable Second Amendment out of this viewpoint, it might look something like this:
“Because the militia is such an important concept, individuals must have a right to keep and bear arms.”
Heller’s camp eventually won the day. And when the Court handed down its decision in Heller, it recognized, for the first time in American history, a fundamental, individual right to keep and bear arms.
Now, there are some people who would leave it at that, but that isn’t the end of the story. Heller dealt specifically with a law that banned ownership and possession of firearms in the home. As a result, the Court’s understanding of the Second Amendment in Heller was that it specifically protected the right to keep and bear arms in the home. And Heller explicitly noted that the primary purpose of the right to keep and bear arms (aside from militia service) was self-defense. Remember that, because it’s going to be important.
Also, Heller recognized that the Second Amendment right to keep and bear arms was not unqualified. What that means is that the right isn’t absolute. For example, the government can make you get a license before you exercise your Second Amendment rights, and even after you’ve gotten a license, the government can say you can’t exercise your Second Amendment right to buy a missile launcher or possess guns at an elementary school. In addition, if you’re a convicted felon or a person suffering from a severe mental illness, the government can tell you that the Second Amendment doesn’t apply to you at all.
Incidentally, most of your constitutional rights are qualified in this way. For example, you have a right to freedom of speech under the First Amendment, but it isn’t absolute. You can’t, for example, walk into the Oval Office and shout obscenities at the president without suffering some consequences.
But that’s enough about Heller.
Before we go on, let’s summarize:
Before Heller, if you’d gone to the Supreme Court and said that you had a personal, individual right to own a firearm, you’d have been laughed out of the building. But Heller changed all that. After Heller, you have a fundamental, individual right to possess firearms in the home. However, the government can still make you get a gun license, and it can still tell you what sorts of guns you can buy and where you can or can’t possess them.
So that’s where we are right now, let’s look at the arguments in each case.
The Petitioners:
Ok, so before we get started, I want to briefly note that the Second Amendment isn’t the end of the story in this case. The petitioners have also made two very interesting arguments using the Commerce Clause and the fundamental Right to Travel. That said, while I find those arguments interesting, if I went through all those arguments, this post would end up being 10,000 words long. Besides, you came here for the gun show, so we’re going to stick to the Second Amendment stuff. As always, if you’re interested in the other arguments, you can find the case briefs on the Supreme Court docket, and you can check out my summaries of the Commerce Clause and Right to Travel by heading over to the Glossary.
Now, let’s get to it.
This case is extremely interesting because New York City’s peculiar transport ban really presents a perfect means for the petitioners to argue for an expansion of the Second Amendment. What I mean is this: if we’re only looking at Heller, then the City’s gun laws are probably constitutional under the Second Amendment. As you’ve probably noticed, the City’s law doesn’t have anything at all to say about gun ownership in the home. In fact, the transport ban doesn’t even come into effect until you take your gun outside your house. This doesn’t interfere whatsoever with Heller’s understanding of the fundamental right to keep and bear arms in the home.
But the petitioners are essentially going to argue that Heller didn’t go far enough. And here’s how they’re going to do it. They’re going to make two sorts of arguments: (1) a historical argument, and (2) what I’ll call a practical argument.
Let’s talk about the historical argument. When it comes to interpreting the Bill of Rights, which has been around in some form since 1789, the task usually requires a great deal of historical research. And these cases usually come down to competing interpretations of the same history. Now, you might read that sentence and think it’s ridiculous. How can there be competing interpretations of the same history? Isn’t history just a collection of facts that we all accept to be true? Well, yes and no. The fact of the matter is that if you’re talking about the simple stuff (i.e. the Bill of Rights was ratified in 1791), you’re not going to get much debate. But once you get into the weeds about what life was actually like around the time certain laws were passed, you’re going to get differences of opinions. That’s exactly what you’re going to get here. You’re going to see the petitioners argue that in 1791, when the Second Amendment was passed, the average person on the street would have believed that they had a right to own a gun and carry it wherever they wanted. On the flip side, you’re going to see the respondents argue that even in 1791, the average person on the street would have understood that the government was allowed to tell them when, where, and for what purpose they could own a gun.
One of the main questions facing the court is, essentially, what did these guys think about gun control?
That said, let’s look at the petitioners’ historical argument.
In essence, that argument goes like this: In 1791, in most parts of the new United States, most people who could afford a gun owned one, and most of those people carried them around when they left the house. It wouldn’t have been uncommon, for example, to see people walking down the street with a rifle slung over their shoulder and a pistol on their hip. This being the case, the petitioners argue that the Second Amendment must have included a fundamental right not just to own (or “keep”) firearms, but also a general right to carry (or “bear”) them. Those people, back in 1791, would have looked at a law like the transport ban as ridiculous, especially in light of the fact that they had just won their independence from a foreign nation—Britain—that had tried to disarm them in the lead up to the American Revolution. If that’s the case, then the history and traditions of the early United States support an expansion of gun rights. But as I mentioned, this just one view of the issue. Keep it in mind, we’ll get to the other side of the history when we get to the respondents’ arguments.
As for the practical argument, the petitioners note that the Second Amendment says “keep and bear arms.” This, they say, has to be talking about some place other than in the home. You don’t bear arms in the home, unless the Second Amendment is saying you can keep your gun at home and you can wear it around the house, but you can’t take it outside. Besides, if the primary purpose of gun ownership is self-defense, as Heller suggested, then it’s illogical to limit gun ownership to just the home. There are countless scenarios in which self-defense might be necessary, and most of them actually arise outside the home. Finally, the petitioners argue that the right to keep firearms includes a right to be proficient with them. If this is the case, then the Second Amendment includes a right to transport firearms to a shooting range or other training location.
The final argument to note here is an interesting argument about the militia clause. Remember that first part of the Second Amendment that gave everyone so much trouble in Heller? Well, it’s a general rule in the Supreme Court that the Court isn’t supposed to read laws to make certain portions of them meaningless. To use the Second Amendment as an example, the Court in Heller could have said something like this:
“The United States doesn’t have a militia anymore so the whole first clause is irrelevant and we’re not going to consider it.”
That would have been reasonable. But the Court didn’t do that, because it’s supposed to consider all parts of a law or constitutional amendment. What it said instead is that the militia clause informs the rest of the Amendment. Essentially, the militia clause establishes the purpose of the right to bear arms: to keep the militia from going away.
You can probably see where this is going. If that’s really the case, then the Second Amendment can’t just be limited to the home. What good would a militia be if they couldn’t take their guns outside? Not much of a militia. And that’s the argument that the petitioners are making here: that for the militia clause to mean anything (which it must), the right to keep and bear arms must extend outside the home.
Essentially, the petitioners’ argument can be summed up something like this: while some restrictions on gun ownership are permissible, the restrictions in this case are so severe that they basically deprive legal gun owners from exercising their Second Amendment rights at all.
The Respondents:
Before we get into New York City’s arguments about the scope (I just can’t help myself) of the Second Amendment, let’s return to the issue of mootness that we discussed earlier. If you took the time to read the glossary, you know that mootness is a legal concept that generally refers to situations in which the main dispute in a case no longer exists. If you’ve ever heard someone describe something as a “moot point,” then you’re familiar with mootness.
Mootness is a big issue here, because if a case is deemed moot, that means that the entire case stops right where it is. The Court isn’t allowed to make any determinations or issue any opinions. There are a few limited exceptions to this rule (again, check out the glossary), but generally speaking, if the Court determines that the issue in this case is moot, the case will simply cease to exist, with no decision in place.
So what’s the deal with mootness here? Well, we talked about it earlier, but essentially the problem is this: during the time that this case has been pending in the Supreme Court, New York City changed its gun laws. We don’t have to get into the new law, but suffice it to say that the issues raised by the petitioners are no longer issues. Based on a reading of the current New York City gun laws, the petitioners in this case would be allowed to do everything they couldn’t do before: (1) transport their guns to shooting ranges outside the City; (2) cross state lines with their guns; and (3) transport their guns to businesses or second home outside the City.
That being the case, you can see what New York’s position is: none of the parties has any stake in the outcome of the case anymore. The petitioners have effectively already gotten what they wanted at the beginning—the ability to transport their guns the way they see fit. And the City no longer has any interest in defending the case, because the old law isn’t even in effect anymore. That would seem like an open and shut case of mootness, right?
Well, not exactly.
You see, there’s a lot more going on here than meets the eye.
Normally, the parties to a case in the Supreme Court don’t want the issue in the case to be moot. They go to great lengths to make sure it isn’t moot because they want their day in court. They want a decision. They want to win. But in this case, one side essentially has nothing to gain and everything to lose. I’m talking about New York, of course. Think about it. New York City wants to be strict on guns. It’s a city of almost 9 million, and its officials strongly believe that one major way that they can prevent crime is by being tough on guns. Whether you agree with that or not, that’s what they believe. Now, assume that the City wins this case. What’s the practical result? Well, nothing really. The law stays in place. The status quo remains the same. But now, assume that the City loses. That would change everything. The Supreme Court, in striking down New York City’s gun laws, probably changes the scope of gun rights for the rest of the country. Because that’s the thing about Supreme Court cases: on the surface, they’re just about the rights and responsibilities of the parties in the case, but in reality, they often end up changing the rules for the whole country. So if the petitioners win, not only are the City’s gun laws invalidated, but the gun laws of many American cities are put in jeopardy. That’s a lot to lose. And keep in mind that right now, the Supreme Court is dominated by what most would call a conservative majority. New York City’s fear is that these conservative Justices would like nothing more than an excuse to broaden the scope of the Second Amendment nationwide.
Millions of people, tens of thousands of legally-owned guns.
This, of course, is what the petitioners are really after: a big nationwide change to the Second Amendment. Sure, they care about transporting their guns, but what they really want is for the Supreme Court to interpret the Second Amendment in a broader way.
So this case is in an interesting position, where one side (New York City) doesn’t want its day in court and the other side (the petitioners) wants it very much.
No matter how you feel about guns, you might be thinking that this is sort of a sneaky move by New York City, and make no mistake, it is. It’s also a move that the Supreme Court generally frowns on. The Court doesn’t like it when one of the parties to a case tries to take the issue out of the Court’s hands, and that’s exactly what the City is trying to do by changing its laws, whether it’s willing to admit or not. But as of this writing, the case remains on the Court docket, and despite the City’s efforts, has not been deemed moot.
That being the case, we’re going to operate under the assumption that the mootness argument isn’t going to fly, and that the Court is going to hear the case on the merits. So let’s talk about New York’s position on the Second Amendment. As you can imagine, it’s pretty simple: the transport ban doesn’t violate the Second Amendment because it’s only a minimal restriction on the right to keep and bear arms.
The City’s argument goes something like this. New York’s gun laws don’t affect the right to keep arms at all. You can still keep a gun in your home for self-defense, which was the primary point of the decision in Heller. The only thing the transport ban affects is the right to bear arms. And the transport ban doesn’t remove the right to bear arms, it just limits that right. As the Supreme Court said in Heller, some limitations on the Second Amendment are ok, just like they are on most fundamental rights. And in this case, the limitations at issue: not being allowed to train wherever you want to train, or carry your gun wherever you want to carry it, are minimal limitations that are consistent with the history of the country and the Second Amendment.
This is where the other side of the historical debate comes in. Remember what petitioners had to say about the history behind the Second Amendment: in 1791, a large percentage of the populace owned guns, and those people would have been shocked by a law as restrictive as the transport ban. But, the respondents correctly note that states have always restricted the places in which gun owners can train and take their guns, going all the way back to the 1700s. In fact, many states and localities had laws on the books in the 17 and 1800s that prohibited people from carrying or firing guns in specific areas, such as occupied towns or public roadways. The same general understanding exists today. You can’t go and shoot at targets in Central Park, and you can’t build a gun range on the roof of your building. That is, the right to bear arms, especially for training purposes, is and has always been limited in reasonable ways. The same is true for transporting firearms and ammunition to different locations inside and outside the state. There have always been laws in place regulating the transportation of firearms, and as long as those laws haven’t completely deprived anyone of their rights, those laws have been ok.
Basically, the whole of New York City’s argument can be summed up as follows: as in Heller, the Second Amendment protects your right to keep and bear arms, not your right to keep and bear whatever arms you want, whenever you want. The transport ban doesn’t affect the right to keep and bear arms, it just affects where and for what purposes you can bear arms in the City of New York. As a result, it’s not severe or intrusive enough to violate the Second Amendment.
And that’s what we’re really talking about here. That’s the essence of the case. New York City isn’t trying to stop people from owning guns, and the petitioners aren’t trying to drastically expand the scope of the Second Amendment. Both parties essentially agree that some restrictions on gun ownership are constitutional. But they disagree on how intrusive those restrictions can be.
So there you have it. The arguments of each party laid out, plain and simple. As always, if you want to get down into the weeds with any of these arguments, check out the Supreme Court docket. Otherwise, let’s take a look at some talking points.
Talking Points:
This case isn’t really about the Second Amendment as we generally think about it. Here, the main issue is how far can a state or local government go in restricting the places that legal gun owners can take their guns, and the purposes for which they can take them there.
The petitioners are arguing that the Second Amendment protects their right to bear arms, which in this case means take them to gun ranges of their choosing and to their second homes and businesses.
The City is arguing that it’s allowed to tell gun owners where they can and can’t train, and generally where they can and can’t take their guns.
This case is going to be decided based on the 2008 decision in District of Columbia v. Heller.
A big issue here is whether there’s even a case at all:
New York’s gun laws changed in 2019, and the law being challenged here isn’t even on the books anymore.
But, New York likely changed its gun laws in order to avoid a decision in this case, which the Supreme Court frowns on.
Technically, the rule of mootness exists so that courts won’t issue decisions that don’t affect any individual person’s rights.
These sorts of decisions are called advisory opinions and they are very much against the rules.
The general idea of mootness is this: if courts are making decisions that affect the rights of the parties to the case, then they’re interpreting the law, which is what we want.
But if courts are issuing decisions that don’t affect the rights of the parties, then they may be making their own law, which we definitely do not want.
Think about that in the context of this case:
How are the rights of the parties being affected?
Are they still affected even though the law in question doesn’t exist anymore?
Why This Case Matters to YOU:
As always, we’ll start with the obvious. If you’re a gun owner or a gun control advocate, this case matters to you, but probably not in the way you might think. Chances are, this case isn’t going to be the sort of sweeping change to gun rights that Heller was. And that’s because the issue in this case is actually pretty narrow. The issue is the extent to which a state or local government can tell you where and for what purposes you can transport your guns. That’s pretty much it. And as we know from Heller, the Second Amendment isn’t an unlimited right. It’s clear that state and local governments can tell you where and why you can transport your guns, the issue here is how much can they tell you. How far can they go?
This case may also be a good illustration of the problem of politics on the Court, which, of course, is the reason I started this blog to begin with. As we know, the Supreme Court is, in reality, mostly conservative. I say “in reality” because, of course, our hypothetical, fantasy Supreme Court doesn’t give a fuck about politics and just decides cases based on the law. But in reality, there’s a pretty good chance that this case, if it isn’t deemed moot, will be decided in favor of the petitioners. That’s not the interesting part. The interesting part is how the Court gets to that decision. One of the really interesting paradoxes on the modern Supreme Court is the many ways that the Justices will abandon their ideologies in pursuit of a certain outcome. One of the most common examples is the issue of government regulation. Typically, you’d probably agree with me that conservatives favor less government regulation, and liberals favor more. And that’s how you’d expect this case to come down, right? The conservatives deciding that the City can’t and shouldn’t regulate gun rights this way, the liberals deciding the City can and should. But let’s take a different example: abortion. Oddly, in that context, the positions are entirely reversed, with the liberals on the court generally arguing that the states can’t and shouldn’t regulate that issue, and the conservatives saying the states can and should.
Therein lies one of the main issues with a politically-active court: nothing is predictable, and nothing is decided based on the law.
So that’s it. As always, keep in mind that no matter what you feel about the issues in this case, there are real people on both sides and those real people are just trying to do what’s right based on their own beliefs. They aren’t evil. They aren’t monsters. They have a healthy difference of opinion. The real question is what do you believe?
Feel free to message me directly with questions, comments, concerns, or suggestions for the next review. Also, be sure to sign up for the newsletter (using the link below) to get more information on these cases as they get decided, and follow the blog on social media to stay up to date on new posts.