– August 21, 2019 – In the wake of recent mass shootings in El Paso, Texas, and
Dayton, Ohio, the biggest obstacle to effective gun control may not be
President Trump, Mitch McConnell or even the National Rifle Association (NRA)
but the United States Supreme Court.
It’s been a long time since the Supreme Court considered a major Second Amendment case. Eleven years ago, the court delivered a landmark victory to the gun-rights lobby in District of Columbia v. Heller—a 5-4 majority decision written by the late Justice Antonin Scalia that ruled, for the first time, the Second Amendment protected an individual right to own and bear firearms.
Heller broke with the great weight of prior scholarship and legal precedent, including the Supreme Court’s 1939 decision in United States v. Miller, which held the Second Amendment protected gun ownership only in connection with service in long-since antiquated state militias. And while Heller was technically limited to gun ownership in the nation’s capital and other federal venues, the court extended its individual-rights analysis to the states two years later in McDonald v. Chicago, via a 5-4 opinion authored by Justice Samuel Alito.
When the court reconvenes in October, its docket will include a new Second Amendment appeal—New York State Rifle & Pistol Association Inc. v. City of New York—that has the potential to rival or surpass Heller for its impact on gun rights and gun regulation.
At issue is a New York City ordinance adopted in 2001 barring residents from taking their guns outside city limits. The ordinance was challenged in a federal lawsuit filed by the NRA’s New York affiliate and three city residents, who argued the regulation was unconstitutional in light of Heller.
The plaintiffs lost at both the district court level and before a three-judge panel of the Second Circuit Court of Appeals, which issued a unanimous decision in February 2018 concluding the ordinance withstood Second Amendment scrutiny under Heller. The Supreme Court agreed in January to review the case.
Realizing it could easily lose before the Supreme Court, New York City announced in June it had amended the transportation ordinance and would henceforth permit licensed gun owners to take their firearms to second homes, businesses or shooting ranges outside city limits. In July, the city filed a formal motion with the Supreme Court, requesting that the case be dismissed because the ordinance was no longer in effect. The court is scheduled to consider the motion in its first closed-door conference of the new term on Oct. 1.
If the Supreme Court consisted of open-minded jurists committed to a fair understanding of the Constitution, the city would likely prevail. Indeed, the case might even offer an opportunity to repudiate Heller as a misguided application of “originalism,” the legal theory popularized by Scalia that posits the Constitution should be interpreted according to its meaning for the Founding Fathers. [Read More]