Yesterday morning, the Supreme Court agreed to hear New York State Rifle & Pistol Association v. New York City, which challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city – including to weekend homes or shooting ranges.
Finally! In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right – until now. Matt Larosiere and I made the case a few weeks ago in the pages of the Wall Street Journal that the Court was neglecting its duty to say what the law is by abdicating its responsibility to resolve important controversies regarding various gun regulations. “The federal circuits can’t even agree on how to evaluate Second Amendment challenges, let alone what the result should be.”
With N.Y. State Rifle & Pistol, the Court can start checking the massive resistance of many states and cities to this important constitutional right. And it can start instructing the lower courts, many of which have treated the right as second-class, how the law works in this area. For law-abiding gun owners and others who wish to exercise their fundamental right to armed self-defense – particularly those who live in places with high crime and woeful policing – this is most welcome news.
Of course, the justices could end up deciding this case on Commerce Clause grounds – interfering with access to another state’s markets – or the Fourteenth Amendment right to travel, to avoid a possibly controversial Second Amendment ruling. But it’s hard to see that there would be more consensus on those grounds. The real fear is that the Court will simply throw out this categorical ban – as in Heller, which involved a complete ban on possession of handguns – without advancing the larger jurisprudential ball. We’ll see if Justice Brett Kavanaugh, who has a strong Second Amendment record, can convince Chief Justice John Roberts to use higher caliber legal analysis.