GateHouse: Showdown at the High Court

Matthew T. Mangino

GateHouse Media

January 25, 2019

The U.S. Supreme Court has not heard a gun rights case in more than nine years. That will change this fall. The Supreme Court said it will review New York City’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits.

The court’s decision to hear the appeal filed by a New York affiliate of the National Rifle Association could signal a more conservative Court’s interest in reviewing the often controversial world of gun ownership and gun rights. More directly, the court may be more willing to take on a gun rights case now that Justice Anthony Kennedy has retired and been replaced by Justice Brett Kavanaugh - who joins President Donald Trump’s first appointee Justice Neil Gorsuch.

According to Amy Howe of the SCOTUSBlog, opponents of the New York City ordinance suggest that the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits is draconian.

The so-called “premises license” allows New York City residents to take their guns to one of seven shooting ranges within city limits. The city ordinance forbids them to take their guns anywhere else, including second homes and shooting ranges outside the city, even when they are unloaded and locked in a container separate from ammunition.

The Second Amendment provides, “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.” Much of the debate about the Second Amendment has related to whether the amendment protects armed militias or armed individuals.

In 2008, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in Washington D.C. According to the Constitution Center, a 5-4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

Two years later, the Court struck down a similar handgun ban in Chicago.

The Court at the time listed a series of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”

Long time conservative member of the court, Justice Clarence Thomas made no secret of his frustration with the Court’s reluctance to review gun cases. In 2014, Thomas criticized the Court for not taking up more gun cases, calling it a “disfavored” right.

“The right to keep and bear arms is apparently this Court’s constitutional orphan,” wrote Thomas.

The New York City case, at first blush, does not appear to be the vehicle to resolve any of the presumptively lawful regulations cited by the justices the last time a gun rights case was heard by the Court. Some of those presumptively lawful regulations have the support of gun advocates, but ardent supporters of the Second Amendment consistently view with suspicion any effort to control or restrict gun ownership.

Adam Winkler, the author of “Gunfight: The Battle Over the Right to Bear Arms in America,” told the New York Times he was surprised the Supreme Court agreed to hear such a minor Second Amendment case. “It’s a city ordinance, not a state law ... (t)his particular rule is unusual. It may be the only one of its kind in the country.”

“The justices,” said Winkler, “may see this as a way to start addressing gun rights outside the home in a quirky and incremental manner.”

New York City Mayor Bill de Blasio told reporters at a recent news conference that the city would vigorously defend its unique premises license.

Battle plans are being drawn - the showdown at the High Court may impact the way Americans own, possess and transport guns.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.comand follow him on Twitter @MatthewTMangino.
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