The Supreme Court on Monday will hear its first Second Amendment case in nearly a decade, and it’s about time. Eleven years after the Court declared in its landmark Heller ruling that the Second Amendment enshrines an individual right to bear arms, liberals are still in denial and need a judicial reminder.
States and cities have exploited the Court’s reluctance to again enter this political battlefield by pressing restrictive policies that hollow out Heller, while lower courts have defined the right down. A textbook example is New York State Rifle & Pistol Association. v. City of New York.
At issue is a New York City ban on gun owners transporting their handguns to second residences and shooting ranges outside the city. The case is an opportunity for the Justices to police their Second Amendment precedents, clarify the standard of judicial review for government infringements, and affirm that gun rights aren’t confined to the home.
Democrats have gone to great lengths to get the Justices to drop the case. After the High Court accepted it in January, the New York Police Department revised its ban to allow gun owners to take their handguns (locked up and unloaded with the ammunition stored separately) “directly to and from” second homes and shooting ranges outside the city.
But as amicus briefs note, the Court has criticized this kind of strategic “voluntary cessation” of challenged conduct by defendants to preserve favorable judicial outcomes or avoid adverse rulings. Courts are only supposed to review “live controversies,” but the Justices are loath to rule a case moot unless it is “absolutely clear” a defendant won’t resume the challenged conduct.
New York’s behavior offers no such confidence. Crafty city officials coaxed fellow Democrats in the New York State Legislature to pass a law pre-empting their abandoned transport ban. But not so fast.
The new state law may moot Commerce Clause claims since gun owners are no longer prohibited from taking their guns out of New York. Yet the law also forbids those outside the city from taking their guns into the city, and the Court has held that “as long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Clearly that’s true here.
New York City argues that, even if the case isn’t moot, its transport ban was still necessary to protect public safety. By prohibiting law-abiding folks from taking their licensed firearms outside their homes, police would supposedly have an easier time enforcing gun laws against criminals. This logic is what the Court criticized in McCutcheon v. FEC (2014) as “prophylaxis upon prophylaxis.”
The Second Circuit Court of Appeals nonetheless agreed with the city. The judges claimed that gun owners could get around the transport ban by buying a second handgun for their second home or renting one at a shooting range. But one reason gun owners patronize shooting ranges is to practice shooting their own guns for self-defense. Heller held that the Second Amendment protects the right to use firearms for the “core lawful purpose of self-defense,” “learning to handle and use [arms]” and “hunting.” It presumably therefore also protects the transportation of a firearm for such purposes.
Elected Democrats have even turned the attack on Heller into a political assault on the Court itself. Rhode Island’s Sheldon Whitehouse and four other Senators filed an extraordinary amicus brief in August warning the Justices to drop the New York case—or run the risk of Congressional retribution.
“The Supreme Court is not well. And the people know it,” said the brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” If Donald Trump wrote that, Democrats would call it extortion.
These Democratic threats to the Second Amendment, like those against the First, underscore that core constitutional rights are in danger. The Court has an opportunity in the New York gun case to reaffirm that the Bill of Rights isn’t merely an advisory opinion.
—The Wall Street Journal