How much is too much? That was a principal question in the partisan gerrymandering case Rucho v. Common Cause. But one could just as easily ask that question about New York City’s extensive restrictions on publicly transporting handguns. At the time this lawsuit was filed, the City generally limited premises license holders to keeping handguns in their homes and to transporting handguns in locked cases to seven New York City ranges. Premises license holders could not transport their handguns to out-of-city firearm ranges or to second homes. The Court’s decision to grant certiorari likely signals that, to quote Justice Kagan’s dissent in Rucho, “This much is too much.” Faced with this reality, New York officials have taken extensive efforts to moot the case. The Petitioners have responded by broadening their attack on New York’s public carry restrictions. And so a case that was originally about a narrow Second Amendment issue—unusually severe firearm transportation restrictions—has now metastasized into a case about federal jurisdiction, public carry, and the standard of review for Second Amendment challenges.
Although the petitioners have challenged New York City’s regulations on license holders, this case has arisen largely because of New York State’s strict handgun laws. Since 1911, New York has required its residents to have a license to possess a handgun in their homes or to carry a handgun in public. For most civilians, New York issues two types of handgun licenses. A “premises license” is valid only within a specific home or place of business. A “carry license” is valid to “have and carry concealed, without regard to employment or place of possession.” Licensing officials have substantial discretion to issue either type of license, but carry licenses are harder to obtain. A premises license can be obtained by a person with “good moral character.” A carry license requires that the applicant additionally show “proper cause.” New York issues handgun licenses at the local level, either through a police department (in New York City and its suburbs) or through local judges. And as is true in most discretionary issue jurisdictions, local officials define what “proper cause” means. Many jurisdictions in New York issue public carry licenses without restriction on virtually a shall-issue basis. Others, especially those in and around New York City, take a stricter approach.
For licensing officials who want to strictly limit the carriage of handguns in public, New York law created a dilemma. A premises license authorized too little conduct. A person issued a premises license had no authority to transport or carry a firearm for target shooting, hunting, or between different homes and businesses. As the name of the license indicates, the license holder is quite literally limited to the premises listed on the license. But a carry license authorized too much conduct, for a licensee could carry a loaded concealed firearm almost anywhere for any lawful reason, including for self-defense. (Upstate carry licenses are not valid in New York City, without a special endorsement from the New York City police.) So what does a licensing official do if he wants to authorize a person to have a handgun in his home and to use a shooting range but he does not want to allow the person to carry a loaded handgun for self-defense?
The answer in most New York jurisdictions has been to issue restricted carry licenses. A restricted carry license might be marked “hunting and target shooting only,” and the licensing official would warn a licensee that the license is valid for possession in the home and transportation only for the listed activities. New York courts have upheld the licensing officer’s power to restrict licenses, holding that officials have inherent power to limit the license to the proper cause that justified issuance. But there is a catch: because New York law does not authorize licensing officials to restrict licenses, a carry license is still a carry license, whether or not it has restrictions. This means that police cannot prosecute license holders who violate any administrative restrictions. The licensing official’s only redress is to revoke the license.
New York City police deemed mere license revocation inadequate. New York officials have long restricted transportation of handguns between a home and a firing range to unloaded handguns in a locked container. New York City officials tried prosecuting license holders who violated these restrictions. In one case, the license holder transported an unloaded pistol in an unlocked pouch on the front passenger seat rather than locked in the vehicle’s trunk. But because the license holder had a Target carry license, the court dismissed his prosecution.
New York City responded by revoking carry licenses issued for target shooting and hunting. In their place, they issued premises licenses, which City officials then purported to “endorse” for target shooting and hunting activities. This way, if premises license holders carried pistols outside the endorsement, the City would prosecute them for exceeding the limitations granted by a premises license.
Here is where the case begins to get complicated. Just as New York law does not authorize a licensing official to restrict a carry license, it also does not authorize local officials to “endorse” a premises license—essentially to turn a premises license into a limited carry license. New York limited premises license holders to the seven ranges in New York City and, if licensed as hunters, to hunting grounds in New York State. Why only the seven New York ranges? New York officials have argued that the limitation was necessary to verify that license holders were actually transporting their firearms to shooting ranges. But the limitation also likely resulted from the shaky legal foundation of endorsed premises licenses. To the extent New York City could endorse these licenses, the City was exercising its home-rule power. And it is one thing for the City to regulate pistol transportation inside the City where it has jurisdiction—but quite another to use its home-rule power to regulate pistol transportation in other cities and villages. What authorizes New York City to allow premises license holders to carry pistols in Albany or West Chester? In a perfunctory opinion, a New York intermediate appellate court upheld New York City’s power to issue premises-license endorsements, but it remains unclear what limits exist to the City’s power.
The Supreme Court’s decision to grant certiorari in this case bucks its usual criteria for deciding what cases to hear. New York City’s firearm transportation rules are virtually sui generis. Like New York State, Alabama, Connecticut, Indiana, and Massachusetts also require a license to carry a handgun for target shooting. But these states routinely issue carry licenses. Of these states, Massachusetts officials have the most discretion to restrict licenses, but no police chief restricts the possession of a firearm to the home, except in the rare case where an applicant specifically requests that restriction. (It is theoretically possible to obtain the equivalent of a premises-only license in Massachusetts, but that license has been obsolete for decades.) Even in New York State, all licensing officials, except the City, issue restricted carry licenses. This issue is limited to the five boroughs.
Why did the Court take the case? Probably because it felt the Second Circuit went too far in rubberstamping restrictions on the Second Amendment. Although purporting to apply heightened scrutiny, the Second Circuit’s opinion has the feel of a court straining to find reasons to uphold New York City’s policy. New York City’s policy did not violate the Second Amendment, the court held, because license holders can buy second guns for their second homes and rent handguns at firing ranges outside New York City. It would be hard to imagine the Second Circuit upholding a prohibition on transporting books on the theory that a person could re-buy the book or find it in another jurisdiction’s public library. This case gave the opportunity to push back against lower courts who (to quote Richard Re) were taking Heller and “narrowing it from below.”
But the Supreme Court also likely took the case because the consequences of its decision were low. The most controversial gun-control issue percolating through the lower courts is whether Americans have a right to carry loaded handguns in public for self-protection. The circuits are split on this issue. The First, Second, Third, and Fourth Circuits have upheld the states’ ability to restrict gun carriage to those few citizens who can verify that they are in extreme danger, while the D.C. Circuit has invalidated a similar special need requirement in the District. The Seventh Circuit invalided Illinois’s complete ban on public carry and strongly suggested that a special need requirement would be unconstitutional, too. And the Ninth Circuit has held that there is no right to carry a concealed weapon, but has left open whether there is a right to carry firearms openly. (This issue will not arise in the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits because no jurisdiction in those circuits either prohibits private citizens from carrying firearms or restricts the carriage of firearms to those who can prove a special need.) The Supreme Court has allowed this split to fester, probably signaling that several justices—including perhaps some in the Heller majority—do not want to cross this rubicon.
Yet, various forces are pushing them in that direction. New York City and State have attempted to moot the case. The City amended its regulations to authorize premises licensees to transport handguns to firing ranges and second homes outside of the city. (Full disclosure: I filed an amicus brief, arguing, in part, why the city lacked power to do this under state law.) But then over the summer, the New York legislature amended its state law to authorize premises license holders to transport handguns to firing ranges, shooting competitions, and between homes and businesses. The City now argues the case is moot, and their argument is strong. If New York City wanted to prevent premises license holders from transporting firearms, it would require an act of the legislature, the governor’s approval (or a veto override), and then the imposition of new regulations by the New York City police. This seems extraordinarily unlikely. The petitioners have countered, in part, by broadening their attack on New York City’s public carry restrictions. Yet, it seems highly unlikely that the Supreme Court will use this case—which raised only locked, unloaded firearm transportation—to decide the public carry issue.
More likely, if the Court reaches the merits, it could opine on the standard of review. The lower courts have settled on some form of intermediate scrutiny for most Second Amendment cases—or at least that is what they claim. But the intermediate scrutiny they apply looks nothing like the intermediate scrutiny applied in other contexts. Courts routinely use hypothetical and speculative reasons to uphold gun control laws and place the burden of striking them down on the plaintiffs (rather than the burden of upholding them on the government). The Court could use this case to clarify the standard of review for gun cases. Gun control advocates seem especially worried about this. But these fears may be overstated; it is unlikely that the justices who support Heller can agree among themselves on the standard of review for Second Amendment cases.
Finally, there is now the question of how the Court will decide mootness. The petitioners have received everything that they asked for in relief—the right to transport firearms to second homes, firing ranges, and shooting competitions. Under analogous cases involving civil rights claims and commercial disputes, the Court is often quick to find mootness where the legislature changes the law. A more stringent standard for mootness might be welcomed by an unusual collection of liberal and conservative civil-rights groups. But a 5-4 mootness decision could also seriously call into question the Court’s ability to impartially resolve jurisdictional claims in politically charged cases.
When it comes to the Court, predictions are always a hazardous guess; but it seems likely that this case will end with a whimper, not a bang. Either the Court will dismiss this case on jurisdictional grounds or it will issue a narrow ruling striking down the policy that the City has already abandoned. I think it is unlikely the Court will issue a sweeping ruling on either the standard of review or public carry.
For New York gun owners, this might be a Pyrrhic victory. In restrictive towns outside New York City, gun owners have benefitted from an uneasy truce. They would receive a restricted license to carry, allowing them to transport pistols in holsters or unlocked cases to and from specified activities; and if the licensees chose to violate the activity restrictions, they would face no criminal or civil penalties—just the loss of their carry licenses. Because New York State has changed its law to allow limited transportation by premises license holders, restrictive licensing officials may start shifting handgun owners to premises licenses, which allow only the transportation of pistols unloaded in a locked case for a narrow set of activities. Thus, even with a victory, more New York gun owners may find themselves under tighter restrictions on transporting handguns than when this case began.
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Robert Leider is an Assistant Professor at George Mason University, Antonin Scalia Law School. He filed an amicus brief in support of petitioners in this case.