For the first time in a decade, the Supreme Court has decided to hear a case on the Second Amendment right to keep and bear arms. The New York State Rifle and Pistol Association sued the City of New York challenging the latter’s ban on taking a licensed handgun out of the licensee’s home; the only exception to that ban is that the handgun may be taken to a gun range within the City. Thus, a New Yorker whom the City itself has licensed to possess a handgun cannot transport her handgun to a weekend second home (even to exercise the core constitutional purpose of self-defense), to an upstate county to participate in a shooting competition, or even across the bridge to a neighboring city for target practice. From the City’s perspective, it is better for a handgun owner to leave her firearm in her vacant house in the City, where it is more susceptible to burglary.
The City baldly asserted—without offering any evidence whatsoever—that the ban is necessary for “public safety,” due to some unspecified risk supposedly created by licensees transporting their handguns—in compliance with unchallenged parts of the City’s law—unloaded and locked up in containers separate from ammunition. The City was unable to explain how a licensee inflicts any risk on society when transporting her firearm through the City to a shooting range or other location outside the City, but not when transporting the identical firearm under identical conditions by identical means within the five boroughs. New Yorkers are famous for imagining that their municipal limits delineate the outer reaches of Western Civilization, but this is a bit much.
The U.S. Court of Appeals for the Second Circuit upheld the ban based on “intermediate scrutiny,” even though that standard requires that a restriction actually works to achieve a legitimate goal. This case is thus a stark reminder of how much the lower courts have watered down the Supreme Court’s decisions in DC v. Heller (2008) and McDonald v. Chicago (2010), which held the Second Amendment to be a fundamental right and invalidated the DC and Chicago handgun bans.
The City urged the Supreme Court not to take the case, arguing that the City’s handgun transport law is an outlier that doesn’t exist anywhere else in America. But the aggrieved petitioners insisted that was all the more reason for the Court to review it. The handgun bans at issue in the Court’s prior Second Amendment decisions were also rare and extreme legal limitations on firearms. Yet they were, for that very reason, good vehicles for the Court to begin drawing the lines that demarcate the minimum that the Second Amendment protects. One starts with the core protection of a constitutional right, not with its more problematic outer limits, and one makes one’s way with small, incremental steps. This case affords the opportunity for the Court to examine the terms and application of the intermediate-scrutiny legal test embraced by the Second Circuit and most other lower federal courts. The Supreme Court may choose to redirect judicial scrutiny to the Second Amendment’s text, history, and tradition, which Justice Scalia emphasized in the seminal Heller opinion—and which Justice Kavanaugh employed in a dissent when he was on the D.C. Circuit. Or the Court may direct application of strict scrutiny where the core right is at stake, or may remind the lower courts that intermediate scrutiny isn’t toothless. The lower courts are sorely in need of this kind of guidance and discipline, as they have treated the Second Amendment as a second-class right.