Please join us to discuss the upcoming oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Our experts will give a history of the case, discuss the salient facts, and offer predictions on how the Court will come out.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Civil Rights and Criminal Law & Procedure Practice Groups, was recorded on Friday, November 22, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on a Courthouse Steps Preview Teleforum on New York State Rifle & Pistol Association Inc. v. City of New York, New York. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us our moderator, Robert Leider, who is a Professor of Law at the Antonin Scalia Law School. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Robert, the floor is yours.
Robert Leider: Thanks, Micah, and good afternoon. For this debate on the New York State Rifle and Pistol Association v. City of New York case, we have two terrific experts, George Mocsary is a Professor of Law at the University of Wyoming College of Law. He is the author of Firearms Law and the Second Amendment, as well as a number of other articles on the Second Amendment which have been published in the Connecticut Law Review, the Duke Law Journal online, the Fordham Law Review, the George Mason Law Review, and many other journals.
Robert Spitzer is Distinguished Service Professor and Chair of the Political Science Department at the State University of New York College at Cortland. He’s also written five books on gun control, including Guns Across America, Reconciling Gun Rules and Rights, and numerous articles that have appeared in law review and peer review publications. And he’s also widely quoted in the popular media on gun control.
And as Micah indicated, I’m your moderator, Robert Leider. I’m an Assistant Professor of Law at the George Mason University Antonin Scalia Law School. Full disclosure: Although I will be acting as a neutral moderator here, I did file a brief in support of the petitioners in this case. Before I turn it over to the panel, I wanted to give a brief background about the New York City licensing regime and how this case came to be.
So to simplify slightly, New York issues two main types of handgun licenses to civilians, premises licenses and carry licenses. Premises licenses are issued to those with good moral character and are valid only in a specific home or place of business. Carry licenses have the additional requirement of proper cause, and they are valid, quote, “without regard to employment or place of possession.”
Now, this licensing regime has posed a conundrum for many New York licensing officials who favor strict gun control. Because premises licenses are valid only in a person’s home or business, they don’t authorize enough legitimate conduct such as the ability to carry a handgun to a firing range. But carry licenses have too much authority since a person with a carry license can carry a concealed weapon at all times, including for self-defense. So for those officials who favor strict gun control, the traditional answer to this dilemma has been for licensing officials to issue restricted carry licenses; that is, licenses that are limited to the proper cause that justified issuance.
Now, New York law does not, on its face, provide for the administrative restrictions. The state courts have held that this is an inherent power of licensing officers, and that if the licensees violate the restriction, licensing officials may revoke a person’s license. But importantly here, there are no criminal penalties attached since a person with a carry license is, in fact, authorized by state law to have and to carry concealed at all times.
Now, what brought this case about is that New York City officials ultimately determined that the restricted carry license system was not working. Because of the lack of criminal penalties, several license holders decided that they would not obey New York City’s rules on transporting guns outside the home, and they were willing to risk license revocation if caught. And so what New York City did in response is they moved away from issuances and instead, they began issuing premises licenses which they would endorse for transportation to and from ranges.
Now, state law did not authorize these endorsements, and New York City was relying on its home rule power to regulate guns for public safety. And so what New York City decided to do was to limit those target shooting endorsements to firing ranges within New York City. The license holders could not transport their guns to ranges outside of the city unless they had a carry license. And because they had premises licenses, state law also forbids them from transporting guns anywhere outside their homes, including to second homes or to other businesses.
So that’s what prompted the litigation here. Petitioners have sought an injunction requiring New York City police to issue endorsements for second homes and for ranges outside of New York. The district court denied the injunction, and the Second Circuit affirmed, holding that the limit to New York City ranges did not violate the Second Amendment, the First Amendment right of association, the Commerce Clause, or the right to travel. For the first time in a decade, the Supreme Court granted certiorari to decide a Second Amendment claim, outside of one summary reversal that it did a few years ago.
Now, after the Supreme Court granted certiorari, New York officials tried to moot the case. So New York City first changed its rules to authorize non-city ranges and second homes, and then the New York legislature also stepped in and amended its state law to provide that premises license holders may transport their firearms, among other places, to ranges and between second homes and their businesses.
So as it currently stands, I think there are four main issues that lurk in this case. The two obvious issues are, first, mootness. Are the city’s and the state legislature’s actions sufficient to moot this case? Have the petitioners gotten all the relief that they’ve sought? And second, if not, if this case does remain live, did the city’s ban on transporting firearms violate the Second Amendment?
But I also think lurking in the background are two further issues for which this case is becoming a proxy war. The first is what standard of review will the Court apply to Second Amendment challenges? And the circuit courts have settled on either a sliding scale, or often, intermediate scrutiny approach, but challengers to various laws have pushed for strict scrutiny. And the second issue is will this decision have broader implications on the right to carry firearms in public? On its face, this case is only about transporting locked guns between ranges and second homes, but the petitioners in this case have said that power is implied from a broader right to bear arms in public. And so there’s a question of whether the Court will opine on this broader issue.
So with that, I will turn it over to Professor Mocsary for some introductory remarks.
Prof. George Mocsary: Thanks very much, Robert, and thanks also, Bob, for participating in this with us, and to Micah and The Federalist Society for arranging this call for us. I love doing Federalist Society events because they always get varying viewpoints. It’s never an echo chamber, and that makes it interesting and more rewarding, I think, for everyone.
So I’ll start with the Second Amendment aspect of it, and I’ll focus on one area of that. I think the statute at issue in this case is very extreme and, I believe, must fail any type of heightened scrutiny, which I think is where the action will be. I believe it also fails under historical analysis. To the extent that I’m reading any Supreme Court tea leaves, and I know that I should always make a disclaimer against that, but to the extent that what I’m saying can be interpreted that way, I think the Supreme Court will apply some kind of heightened scrutiny, and I think under that standard, it should fail.
Robert’s already described for us the law which was a combo of statutes and regulations. It barred someone from taking a lawfully possessed and registered handgun anywhere but to one of seven shooting ranges in the city, so no other home in the city, no other home outside the city, and no shooting range outside the city. Those are really the main things at issue here. And the city’s reasoning was that it wanted fewer guns, presumably, on the street. It cited, quote, “road rage,” quote, “stressful situations,” and that people might illegally carry their firearms, including, quote, “on airplanes,” pretending that they are going to a shooting range outside the city.
And that reasoning, to me, fails all around. These reasons would apply whether someone is going to an in-city range or an out-of-city range. It’s hard to imagine how someone who was carrying illegally can pretend that he or she was following a law requiring that the gun be unloaded and locked separate from the ammunition in the trunk. And the law necessarily mandated that the gun stay in the city and on its streets, working directly against the law’s stated aims.
Yet, I think at a different level, it’s more extreme than that. The city said that the law didn’t burden, quote, “any protected conduct to acquire and maintain proficiency in licensed handguns.” Somewhat problematically, the law necessarily caused guns to be left in vacant residences in the city while their owners were out of town. That’s a terrible idea, as a separate matter, considering that the majority of crime guns are stolen. And so the natural result, again, is that this law would result in more -- you can expect it to result in more crime guns on the street.
The city asserted that the owners of the weapons who had premises permits can become proficient in firearm use by renting or borrowing guns outside of the city. But as anyone with a basic knowledge of firearm training will tell you, including every police officer to whom I’ve spoken, it’s a terrible idea to practice with one gun and rely on another, including the same make and model of gun that’s not your specific gun. So the result, again, would be the perverse one that you’d have less firearm proficiency by those who have the firearms.
Finally, the city argued that the Supreme Court should not grant cert exactly because the city’s law was an extreme outlier. The idea was that only the city would be affected by any potential right deprivation, so the issue wasn’t important enough for the Supreme Court to take. And I think these problems are irreconcilable under heightened scrutiny. Indeed, I believe, and I’ve said in public and in my writings that the best explanation for the existing of this kind of law that seems so contrary even to its own aims was to harass, bully, and if all went as hoped by those enacting it, to overcriminalize entirely peaceable and law abiding gun owners. And we know that gun owners who get permits, certainly, at least, carry permits, are hyper law abiding, at least as law abiding as police, and probably more so.
But the Second Circuit went for it, applying what it called intermediate scrutiny, and it upheld the statute. So the Supreme Court granted cert, as it should have. And as soon as that happened, a great many of those who quite vigorously, actually, defended the law until that point began lobbying for its repeal. When, in fact, it was changed at the city and then at the state level, the city asked for a dismissal on mootness grounds, which the U.S. Supreme Court did not grant but did say it will consider at oral argument and did ask for briefing on the point.
So on mootness, there’s a range of claims made and responded to, whether government should get more deference when it takes an action that allegedly moots a controversy, and whether -- connected with that, whether it matters that governments have more resources that they can pick and choose which litigation adversaries to fight and which to yield to, that they enjoy immunities that private entities don’t, whether it matters that legislatures can’t bind future governments, can’t bind future legislatures. Also, whether it matters that this is a constitutional question. Does it matter that New York State passed a statue that overrode the city’s regulations, or preempting the city’s administrative regulations? Does it matter that previous license holders may have violated the transport ban and thus need vindication for their past actions, and are there consequences to them later on?
In fact, I think just yesterday or the day before, or maybe two or three days ago, the United States sent a letter to the Court about mootness, saying that it’s moot in some ways but not moot in other ways. And both parties responded, and so on, so that these arguments go back and forth. They all tend to be arguments and claims founded in explications of various common law mootness doctrines that arise in various situations. But the fundamental point behind mootness is whether the state or city can be expected to keep its laws where they are or rachet them back up to where they were pre-litigation, either by reenacting the same law or enacting one that is similarly, in my mind, at least, similarly draconian.
And given the absolute hostility of all three branches of both the city and state governments to firearms or owners, and most importantly to the owner’s rights, and I’m happy to share some examples in the Q&A, it’s not surprising, and indeed, it’s proper, I think, that the Supreme Court wants to judge for itself whether the city’s and state’s wards can be trusted. And it wants to test those assertions in court, in the forum that’s meant to test these sorts of claims.
So what about the standard of review that Robert mentioned? So Second Amendment cases have generally been adjudicated by lower courts under a version of heightened scrutiny, typically intermediate scrutiny, or so-called intermediate scrutiny, that’s so weak as not only to often resemble rational basis review, but in one or two cases, sometimes undermines decades of fundamental rights jurisprudence. The member enforcement includes many cases as extreme or more extreme as this one in applying transparently weak reasoning under supposedly heightened scrutiny to laws that are incongruent with Heller. Cases that come to mind are Drake in the Fourth Circuit, Caetano in Massachusetts, Jackson in California, Highland Park, Kwong v. Bloomburg in New York, Kolbe in the Fourth Circuit.
Sometimes, the courts admit to applying reasonableness review, which as Adam Winkler at UCLA has said is just another name for rational basis. There are countless cases where the burden to prove a violation of a fundamental right under heightened scrutiny is shifted from the government, where it’s supposed to be, to the plaintiff. There are countless cases where you read “plaintiff has not shown,” and “plaintiff has not proven,” and so on. There’s even a pattern of courts hearing and rehearing cases until the court’s desired outcome is reached, with the Ninth Circuit going as far as to grant sua sponte en banc rehearing. And sometimes, the judges who decide the cases openly express their hostility to firearms and their owners, and to Heller, both in the cases and in external writings.
And so the Court here may be using this case as a vehicle to rein in this kind of behavior by lower courts. There’s a sense out there among many that the Supreme Court’s legitimacy is being impinged upon by these lower courts who are not applying Heller properly. And so that might be part of what the Supreme Court wants here, and it may have heard the case to make sure that these cases are decided under a version of heightened scrutiny that really, one, resembles the heightened scrutiny that we see in other contexts, and two, doesn’t undermine heightened scrutiny in other contexts. And I think that, in turn, can have implications for public carriage.
So Heller’s analysis strongly implies that the Second Amendment protects the bearing of arms, both in the home and outside the home. And I’m happy to go through some of those factors in the Q&A, but I won’t go through them here in the interest of time. But so far, cases challenging public carriage laws have generally been analyzed under the toothless version of heightened scrutiny that I discussed a moment ago.
So the big impact of this case on public carriage, assuming it’s heard, and assuming a merits decision is made, or perhaps even if one isn’t made, I think would likely be that it’ll demand meaningful heightened scrutiny that’s congruent with how heightened scrutiny works in other situations. And so it’ll have a dual effect there, a direct effect on the standard of review and an ancillary or secondary effect on public carriage, or at least how those cases are heard.
Robert Leider: Thank you, Professor Mocsary. Professor Spitzer?
Dr. Robert Spitzer: Yes, good afternoon. I wanted to thank Robert in particular and our hosts for this discussion today. The New York City Rifle & Pistol case is an odd case. So you’ve got this obscure law in New York City, a law that probably doesn’t exist any place else in the country, and not surprising that this law would be challenged in court because it’s pretty typical that many gun laws are challenged in court. There’ve been a great -- over 1,000 appeals through the court since the Heller decision back in 2008. And after all, lawyers have to make their boat payments, so I think it adds to the economy of the country.
But that aside, one does have to wonder why the Supreme Court agreed to hear this appeal. And, of course, it hasn’t heard a significant Second Amendment case in the last decade. And I think you can make some inferences about that, which I’ll get to. As you all know, the Court is going to be hearing this, I think it’s December 2, if I’m not mistaken, on the two questions of mootness and on the merits.
And while I am not a lawyer, it seems to me the mootness question is an open and shut case. Of course, there are arguments made on both sides, but if mootness has any meaning, surely it means that the thing that was the basis for the suit no longer exists. And while George pointed out that it could be that New York City or New York State might in the future decide to rachet their laws back up, seems to me the remedy is then you haul them back into court if and when they do such a thing. And that’s kind of what one might expect.
But that, again, takes us back to the case of -- or to the question of why the Court is hearing -- or is very interested in this case. And it seems to me that there are a couple of background political contextual factors that help explain that. One is that we have an ever more conservative Supreme Court and federal courts because of the many appointees of President Trump since 2017. We have two new members of the Supreme Court, of course, who are very conservative. And it does seem as though there is a greater appetite or interest in taking a Second Amendment case because of a feeling that Second Amendment rights have somehow been slighted or not treated with due respect.
Justice Clarence Thomas said in an opinion, I believe in 2018, last year, and he referenced his view that the Second Amendment had been treated cavalierly, as a disfavored right, as a constitutional orphan. And while I think those concerns are perfectly silly, frankly, especially if you look at the arc of case law since 2008, I think it’s a clear signal that among at least some conservative jurists, there’s a real desire to want to find and have a Second Amendment case where the end result will be to expand the definition of Second Amendment rights.
And certainly with respect to the realm or area of gun carrying and the related question of gun transport, it was a question that wasn’t squarely addressed in the Heller case and is one area, along with the question of standard of review, strict scrutiny, intermediate scrutiny versus rational basis that has not been resolved. But I think there’s a real appetite to want to open up and expand Second Amendment rights beyond where they exist now.
And I would actually view the arc of cases in the last ten years as the courts kind of finding a reasonable settling place very much in the way that the Heller decision laid out. And there are -- and of course, in that decision, the Court established this personal or individual right to have a handgun for self-protection in the home. But it, of course, did not say anything about transport of weapons outside of the home. But it also did set out a number of areas where gun laws would generally be allowable, and those were laws, by and large, that were already on the books and that function pretty well as public policy.
And one of the chief considerations in evaluating a constitutionality of a gun law was, of course, the history of gun laws. And there’s been in recent years quite a bit of research on gun law history. And I’ve done some of that research, and the historical record on the question of transporting or carrying firearms is a very interesting one. So way back in 1686, for example, New Jersey enacted a law, the then-colony of New Jersey, that barred the wearing of weapons because they induced, quote, “great fear and quarrels.” And from 1686 until the start of the 20th century, every state in the Union except for four states enacted laws that severely restricted or barred gun carrying.
And you saw these laws crop up in particular in the South, especially in the antebellum South before the Civil War when there was a significant rise in interpersonal violence, in dueling and shooting, that sort of thing. And that prompted the enactment of laws, especially in southern states, to restrict or bar the carrying of weapons. And as office holders and others said during the time, the notion was that if you were carrying a weapon around concealed, you were up to no good. You also saw these kinds of law crop up in the Midwest, today’s Midwest, what we would rather generally define as the Wild West because even though it is not very well known, as westward movement took place in the 19th century and settlements were established, villages, towns, and cities, one of the very first things they did was to enact laws to restrict the carrying of weapons, especially in incorporated areas for pretty much the same reason.
And so those laws were on the books when the 20th century dawned, and it was only in the 1980s and early ‘90s when a concerted political effort was made in many state legislatures to roll back those laws that we saw the spread of what you might call the modern concealed carry movement that made it easier in most states for civilians to carry weapons with them. So if the history of gun laws tells us anything at all, it is that carrying weapons by civilians for the sake of carrying them is something that was normally subject to severe restrictions.
And there were normal exceptions made in these early laws for law enforcement, for people who carried weapons with them as part of their job, and for people who were simply passing through an area or were transporting a weapon for some specific purpose. And I think the logic of all of that applies very much to the present situation, but I don’t think that history will play a particularly great role in how the Supreme Court views this case, assuming they decide to take it. And I think just looking at the political tea leaves, few though they are, I think the Supreme Court will take this case, and I think we’re going to see some changes in Second Amendment law. And that’s the extent of my comment for now.
Robert Leider: Well, thank you. So we will open it up for questions now. As we get the queue ready, Professor Spitzer, could I just ask you to follow up on what you just said? Looking at the way you view the historical laws, how would this law relate because in some ways, the laws did have exceptions. The New York City exceptions are very narrow. Would they fit within the customary exceptions, or do you think that on the merits, this law is stricter than what was customarily done?
Dr. Robert Spitzer: Well, looking at the law before the city changed the law, it certainly, to me, would have run up pretty close to the fringe of the kind of carrying that would have been protected or exempted or modified in some way, let’s say, in the 19th century West because the idea of carrying your weapon to a specific location, in the modern context in New York City to take your weapon to a shooting range or to a secondary residence where the purpose is transport, you’re not carrying it around with you in your daily life, as it were, is something that would legitimately subject to question under this particular historical caveat, although you’d want to delve into the specific history of how states handled this particular issue, how New York State law in prior decades had dealt with it, bearing in mind that it was a law that was applicable only to New York City.
And New York City is exceptional in many ways, and you see different gun laws in New York City than you do in the rest of the state. And I would note parenthetically that I don’t live in New York City. I live in upstate rural area, and in fact, I have a concealed carry permit that I obtained here in New York State, so I’m intimately acquainted with the process of getting one. And it is significantly different than the process that’s available to New York City residents, but it’s because New York City is the largest city in the country, and it’s very densely populated. And I think that’s really an argument for allowing some flexibility in gun laws between a densely populated urban area versus, let’s say, a sparsely populated rural area.
Robert Leider: Thank you. Professor Mocsary, I’ll give you a minute or two. Can you describe how you think the New York City law fits into the historical context?
Prof. George Mocsary: Bob and I mostly agree on this point. Maybe there’s a suggestion, or maybe he’s suggested that it’s at the fringe, but maybe it would pass muster or pass constitutional muster or pass under historical analysis. I would say that it wouldn’t, but I certainly agree that it’s as far as any jurisdiction has really pushed laws like this. And I think the fact that it’s just internally inconsistent because we are talking about locked carriage of a firearm -- not carriage on a person, but the transport of a firearm in a locked container separate from the ammunition in one’s trunk. So it doesn’t implicate the uniqueness of New York City as being the largest city, densely populated, and so on.
I think we disagree to some extent on the history here. I read the history, including the 1686 New Jersey statute, to outlaw -- to generally disfavor concealed carry. The 1686 statute outlawed concealed carry, but it didn’t outlaw open carry. And I happen to have it here in the casebook in front of me. And that was typical of the 19th century statues as well. Between that statute and the early 19th century, there were practically no carry restrictions imposed. There were more—as he says correctly; we certainly agree on that point—enacted in the South when interpersonal violence relating to southern honor and dueling and so on came into play.
But all of those cases, all of the statutes, or nearly all, I should say, the court decisions interpreting them, at least, said that at least one form of either open or concealed carry had to be allowed. That said, we both commented on it because it’s in our minds and we do this, but I think that’s not what’s at issue in this case. At issue in the case is whether you can transport a firearm locked in your trunk in a locked container separate from the ammunition to use it someplace where you can lawfully use it. When you look at it in that sense, I think it’s pretty extreme.
Robert Leider: All right, thank you. Let’s go to our callers.
Micah Wallen: We will now go to our first caller.
Caller 1: Oh, hi. Yes, thanks for the opportunity. I’m a corporate lawyer. I’m not a constitutional litigator or anything, but an avid gun owner that owns several and understands how silly this law is for anybody that understands anything about guns. And that is part of my question here. I know in a lot of gerrymandering cases, and a lot of constitutional rights cases, courts do tend to go into the intent legislature on why they wanted to pass certain things.
Do you feel that there could be some movement here that this is such a glaringly obvious -- they don’t care at all about transportation safety or anything, but this is just clearly by the words of a lot of New York legislators and the advocates who are pushing this law. It’s so obvious that it was the first step to infringe on Second Amendment rights, just like in race based cases, if legislatures came out and said, “Well, we know we can’t go too far, but this’ll be the first step in order to stop certain classes of people from voting.”
Robert Leider: Professor Mocsary, I’ll let you open it up.
Prof. George Mocsary: So at the base level, I agree. And I’ve said elsewhere in public a number of times and I’ve written that I think a great deal of modern gun control is -- really, it stems from a sort of cultural imperialism and our attempts to overcriminalize and harass people whom the state has no reason to have on its radar, or people whom the state has no additional reason to have on its radar.
So someone who’s going to go through the immense trouble of getting a premises permit in New York City is not the type of person who is untrustworthy for any reason or can be expected to abuse or misuse a firearm. And the sorts of abuses that the city describes are ones that are exceedingly easy to detect, I think. I mean, if someone’s carrying illegally, then the gun is on the person’s person. It’s not a situation where a ban on transport in the trunk locked and so on is conducive to allowing one to fake. It’s hard to fake compliance with a ban on concealed carry in the city by carrying something in your trunk.
And I think that gets to the mootness question also. There’s this doctrine called the voluntary cessation doctrine. And it shows up in various ways at the Supreme Court and at the circuit courts and all the lower courts. And the idea is that when a jurisdiction tries to moot a case in suspicious circumstances like this especially, but really any time, but especially in suspicious circumstances, the courts want to be certain that the practice couldn’t reasonably be expected to recur. There are situations where the practice had recurred.
And by the way, it doesn’t really matter whether the repeal of the law in this case was sincere or not because it’s also happened that laws were repealed, the case was mooted, another administration came in and reenacted the law. It happened with some abortion laws and whether religious institutions can be forced to provide abortions, religious hospitals and healthcare providers.
And so what -- your point, I think, gets really to the mootness question here. I think that’s why the Supreme Court just doesn’t trust New York State, and especially the New York State executive, which has been so hostile to gun rights. It doesn’t take it at it’s word. It doesn’t believe that it won’t do some, at best, do something else that’s equally draconian and go after gun owners. So it probably wants to lay down some standard about what’s acceptable or not. So it’s all -- you take all the issues Professor Leider mentioned are actually quite intertwined here.
Robert Leider: Professor Spitzer?
Prof. Robert Spitzer: Let’s remind ourselves that we’re having an argument about a law that no longer exists, and if the Court wants to take that element of this case into account, assuming the Supreme Court takes the case, then so be it. That’s up to them. But having said that, this law, this former law was modified by New York City back in 2001. So I don’t think it’s the first step to some kind of march to obliterate or even infringe Second Amendment rights.
And having said that, I think more generally, it’s important to remember that it’s not enough to say that people who have permits are good people and don’t do bad things, and therefore, we shouldn’t be worrying about them. It’s important to remember, as any firearm owner knows, that firearms are inherently dangerous in and of themselves, and that laws in America or laws anywhere are not built on trust. Good people do bad things all the time, often by mistake, by misjudgment, by neglect, by other reasons. I mean, New York State requires me to wear my seatbelt when I go driving in my car even though I’m a good driver because of the possibility that something bad could happen that might not even be my fault.
And so the idea that we somehow in the area of gun policy sort of jettison normal or typical theoretical concerns behind lawmaking when it comes to gun policy I think is sort of not right because there are perfectly sound policy reasons why the government has an abiding interest to protect the lives, health, and safety of its citizens. And certainly there are limits to how far the government can and should go in that regard, but I think you can certainly apply principles of law that apply to other commodities, other consumer products, other activities that are helpful to understanding gun laws as well.
Robert Leider: All right, thank you. Let’s go to the next caller.
Caller 2: Yes, it seems to me that the greatest danger of not allowing people to have access to guns is our governments. In the 20th century, there were only 18 million private murders committed by 6 billion individuals. And at the same time, only 200 or so governments committed 180 million murders of their own people, not counting wars. This is why gun ownership is so much more important than, say, the unfettered right to use a buggy and a horse that people can take for granted.
Robert Leider: Thank you. Professor Spitzer, a comment?
Dr. Robert Spitzer: I make a basic distinction between interstate violence, war, for example, or violence exercised by the power of the state, whether in a democratic nation, a police officer shoots somebody on the streets, whether justified or not, versus and encompassing the violence of an authoritarian nation that uses violence systematically or otherwise against its own citizens. And I’m not saying those two are the same by any means because we have democratic procedures and protections that we hold dear, but I think it’s important to make a distinction between state authorized violence versus interpersonal violence. I mean, if you add up the total quantity of killings that occur annually around the globe, clearly, you see more deaths resulting from the actions of governments, of nation states, than you do interpersonal violence disputes between individuals. And I think they need to be thought of in rather different ways.
And I would just add, sort of an allusion of the caller or reference of the caller to the idea of civilians being armed as a protection against state sponsored violence, I’m not sure how that would really be applicable to the United States case because we are a democratic nation, and if our nation’s founders wanted anything, it was a nation and a system where citizens could seek redress of grievances by peaceful means, by speech, by press, by the jury trial, and by all of the other protections that we enjoy, not by individual citizens deciding on their own that they need to somehow use violence against the government to protect liberty or some such thing.
Robert Leider: Professor Mocsary?
Prof. George Mocsary: Yes. So this is a very complex and actually insightful question as well. And I’d first like to add to the caller’s comment here, and if he’ll allow me to clarify it a bit, I’m actually working on some research now for the online chapters of our casebook about the difference between a mass murderer and -- not mass murderer. I should say all murder which at the government scale happens -- can very easily happen at the mass murder level. So one -- the 180 million number that the caller cited does not include battle deaths, so that doesn’t include wars between nations.
That number includes only something that R.J. Rummel called democide. That’s were governments kill their own people tyrannically, either by starving them, by outright executing them, and so on. And as of a couple of days ago, the number that we’re up to in our research is about—and it’s funny, I’ve just been working on this—is over 214 million people killed by governments, an extraordinary number of them in China under Mao for several decades, Russia, Nazi Germany, and so on.
The Founders, I believe, most certainly did not want government to have a monopoly on the implements of violence. That very clearly in my mind was the goal of the Founders in enacting the Second Amendment. They absolutely wanted, and Professor Spitzer and I absolutely agree on this, they wanted redress first to come from speech, petition, all of those sorts of things. But history has shown that those things just do not always work. In the early 1900s, Germany looked like the most cosmopolitan place in the world. It looked like the best place for Jews ever to have existed on the planet. And it didn’t take a lot of time for things to look different. The Nazi Jews registration list to disarm Jews; they declared them enemies of the state and dangerous to the state and disarmed them and so on.
So there’s absolutely no question on another point as well that came up that the best remedy to state violence is democracy, without a doubt, without a doubt. And the worst or the most deadly type of government is communism. And then there are various iterations in between them. By the way, I’d encourage anyone who’s interested in this to look for online Chapter 14 to my casebook which will be available for free in the next month or two.
So I believe all of that is correct. I would caveat that statement, though, by saying that I’m not sure that a transport ban is directly relevant to that. I mean, it is relevant to that in that in an environment like New York City where every firearm is registered, where the police can come take it any time they want, and where you risk breaking the law by moving it out of the city, it really gives the state a lot more control over your arms, and that deters any security control aspect of the Second Amendment. And by the way, I’d add all ten members of the Supreme Court who ruled on Heller and McDonald agreed that the purpose of the Second Amendment was tyranny control and was defense against government.
Again, that said -- and I guess one more point on that about the police department -- the city being willing to use its registration. I can tell you from a personal experience, I lived in New York City and I didn’t have a handgun permit, but I did have a long gun permit. So I had rifles and shotguns in my apartment, as it were. And one day, I was cooking, and I heard a really loud boom from outside. It didn’t sound like a firearm to me, but to the uninitiated or those unfamiliar with firearms, it could have been taken as a firearm.
Maybe 20 minutes later as I’m cooking -- I lived in one of these old buildings with loud, echoey hallways. I lived on the top floor of my building at the end of the hallway. And I heard the elevator button ring, “ding,” saying that you’ve arrived at your floor. I heard people step out of the elevator, walk down the hallway, without stopping at any other apartments, and ring my bell to my apartment. So when I answered the door, it was two police officers. And the officers asked, “Hey, have you heard any loud bangs like a gunshot?”
And I thought it odd that they came into my building, didn’t ring my bell downstairs, they just waited for someone to let them in, came in, went to the elevator, took it to the top floor, walked to the end of the hallway, and rang my bell. It clearly was because they knew that I had some firearms registered there. Well, anyway, I told them, “Yeah, I heard it. I don’t think it was a firearm. If it was, it was something very big, big bore rifle or shotgun.” Anyway, I didn’t think it was a gun. And after they spoke to me, they became satisfied that I hadn’t done anything wrong, that I hadn’t shot out the window.
But the point it that New York City and the officers are very willing to use their registration lists. And in fact, in New York City, there has been firearm confiscation based on registration lists. Again, that said, I’m not sure how directly relevant this transport ban is to that other than as another means to overcriminalize gun owners.
Caller 2 : Well, let me ask the question this way. The Second Amendment does have some military related objectives, and the prefatory clause declares as much. Are those objectives relevant at all to the ban on transporting guns or is this solely something that’s relevant to the extent to which the Second Amendment protects self-defense against criminal wrongdoing?
Dr. Robert Spitzer: Yeah, I mean, the first half of that sentence, a well-regulated militia being necessary to the security of a free state, there is good reason to believe that that reference, that is, to militia members, understanding that a militia is a government organized and regulated, call it quasi-military body, because militia members are essentially part-time soldiers, at least in the traditional definition. The modern definition extends only to the modern National Guard, which is somewhat different, but it’s still under the militia rubric that it could be applicable if the persons in question, let’s say, were going because they were members of the National Guard and wanted to take their weapons to a National Guard training upstate or something like that, so that could be relevant.
Although when you go back to the Heller decision, Justice Scalia in the majority opinion pretty much drew a red line through the first half of that sentence, even though saying that it was relevant but in the particular way that he claimed it was in the decision. So it’s not clear to me that a court now or let’s say the current Supreme Court would bring that provision back in, but it does raise this interesting question. If you’re connected to government service in some way, might that be applicable to you? And one could certainly see how it might be.
Prof. George Mocsary: Generally speaking, I agree. I think if a city regulation or even a state regulation, because the federal government has plenary or nearly plenary power over the militia, interfered with a militia regulation from an entity above it, so if a city regulation interfered with a state or federal, or a state regulation interfered with a federal one, that would be certainly a separate cause of action there, and I think separate grounds for invalidating the transport ban.
I will say that I don’t believe that the modern -- that the National Guard, the modern so-called militia, according to the Dick Act, which created the National Guard, was passed under the authority of the militia clauses. I don’t believe that’s the militia that the Founders envisioned, but again, that’s sort of an ancillary point there. The Founders envisioned a militia composed of the body of the people, which is the great number of citizens capable of bearing arms, and in fact, being armed and ready to serve when needed.
But all of that said, I think that -- I suspect that both parties have briefed, and I think that both parties are going to argue, and I suspect the Court will use some older militia analogues to define historical transport restrictions or lacks thereof or what have you in arguing and deciding the case.
Dr. Robert Spitzer: If I could just add one footnote to that, quickly. On the question of militias, going back to the 1600s, American militias have always consisted of two parts, the general or unorganized militias consisting of all eligible males but roughly between the ages of 18 and 45, and the organized or select militias which existed in the early 1600s. In fact, the first one was formed in the colony of New York. And it was the organized or select militias that ultimately became what was established in law in 1903, the Dick Act, as the National Guard, but that occurred after decades of lobbying by organized militia members to be identified and labeled as the National Guard. It’s the National Guard that is the antecedent of the organized or select militias that began in the 1600s.
Prof. George Mocsary: Yeah, I actually don’t disagree with that. That’s a true statement. The Founders didn’t necessarily envision it that way. They were afraid of select militias. They saw how the Stuart monarchs in particular used select militias, people who were on the government payroll and dependent on government funds for their wellbeing. They wanted a broader armed militia which was the unorganized militia as you said.
Dr. Robert Spitzer: But they provided for both. Sorry, go ahead.
Caller 2: All right. Yeah. Although to the extent that the Second Amendment would protect training as an incident of militia service, do you think it would protect it only for the select militia or for the general militia as well?
Dr. Robert Spitzer: It would certainly apply to the general militia if it were mobilized and called up. And that’s a power that Congress still theoretically possesses in law.
Prof. George Mocsary: Yeah, yeah. I’d say that’s right. It applies to both. It applies to the general militia. Congress can call up the militia, and Congress has plenary power over official government training of the militia. Much of that plenary power is now ceded to the President, which is a separate can of worms.
Micah Wallen: We have one more question lined up in the queue, so with a few minutes left, I’m going to go ahead and move to the last caller.
Caller 3: Hello. Thank you for you presentation today. I have two related questions, I think. Given the narrow and somewhat weird fact pattern that’s involved in the case before the Court right now, what do you think is the outer edge of where the Court could take a result?
And relatedly, given that one of the fact patterns, there’s a couple of particularities with the people who were the, I guess, original plaintiffs, what if any do you think this decision could come out related to cross jurisdictional issues because some of what was happening here was issues about people wanting to take them to a second home, so people having multiple residences and being subject to multiple rules, but supporting transporting the guns they own to their different spaces? Thanks.
Robert Leider: Professor Mocsary, do you want to lead off?
Prof. George Mocsary: Sure. So I think the outer edge -- I think at one edge of the spectrum, the Court could say that the decision was moot -- I’m sorry, that the case is moot and leave it at that. Perhaps if New York State and New York City can convince it that yeah, really, we did voluntarily stop -- there was complete voluntary cessation and we’re absolutely sure that that’s the case. I suspect that won’t happen, but who knows? I think at the other end, the Court could rule that this was an unconstitutional statute, and in the process, lay down the standard of review that should apply, and in fact, apply it to the case, and in the process sending a message about -- or setting the precedent for how Second Amendment cases should be analyzed.
Robert Leider: Professor Spitzer?
Dr. Robert Spitzer: Yeah, the Court could theoretically, as George was just saying, decide -- announce that the case is moot and be done with it, but I don’t think they’ve gone to all this trouble to come up with that result. I think what’s much more likely, in fact, I’d even make the prediction, not that the prediction of some college professor makes a difference, but I think they’re going to take the case. I think they’re going to widen it. I think they’re looking to find a way to say that public carrying in some manner is not protected under the Second Amendment. They might get to the scrutiny test question as well, but I think they’re going widen the Second Amendment and their definition of it beyond the Heller case, and I think it’ll extend to public carrying in some manner.
Robert Leider: All right. Although one interesting thing to note here is that they have not taken one of the pubic carry cases, and they have pretty much a complete circuit split on that issue. And they’ve either denied certiorari or held the cases in abeyance, so I think there is some reason for believing that they are trying to stay away from the public carry issue as long as they can.
Dr. Robert Spitzer: That’s a perfectly fair and legitimate point to make, but of course, the Court has changed fairly recently. Kavanaugh hasn’t been on the Court very long. And we’ll know soon enough, won’t we?
Robert Leider: Fair enough. I just wanted to throw a third perspective in there.
Dr. Robert Spitzer: Oh, no. Absolutely.
Robert Leider: Do we have any further callers on the line?
Micah Wallen: No more questions, and with a minute left, I’ll toss it back for anyone if they have any closing remarks.
Prof. George Mocsary: I just wanted to thank everyone for participating in this. Bob, I appreciate the back and forth, and Robert for moderating, and Micah for generously hosting us.
Dr. Robert Spitzer: I would echo those very same sentiments. It’s good to speak with you, George, and good luck with your new book, by the way.
Prof. George Mocsary: Thank you. Thank you very much.
Robert Leider: And thank you to everyone, and especially to Professor Spitzer and Professor Mocsary for participating. It was a great debate. Thank you.
Micah Wallen: And on behalf of The Federalist Society, I would like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are now adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.