Courthouse Steps Preview: NYSRPA v. City of NY

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on Tuesday, May 21, 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 a Courthouse Steps Preview teleforum on the Supreme Court case New York State Rifle and Pistol Association v. City of New York. My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are fortunate to have with us Ken Klukowski, who is a Senior Fellow at the American Civil Rights Union, as well as Senior Counsel for the First Liberty Institute. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Ken, the floor is yours.

 

Kenneth A. Klukowski:  Well, Micah, thank you so much for having me today. Greatly appreciate being with my Federalist Society friends in discussing an issue that is timely. It’s been somewhat out of the news, regarding court developments, for a number of years. But just as we’re moving into -- I can’t say moving into the political season because I guess it feels like we’re always in the political season these days -- but as we’re moving into the presidential election season, this is always a topic that becomes a front burner topic. And it looks like it’s going to be so again as the Supreme Court takes up what should really be only the third substantive case dealing with the Second Amendment right to keep and bear arms.

 

Now, it’s been so long since we’ve all seen this that I’d like to make the first part of my talk just a survey of the foundational principles in this growing area of jurisprudence so that people understand, as we get to the second part, how significant of a development it is that the Court is taking up the issue that it is taking up at the current time. So it starts with the first case that anyone really references at the U.S. Supreme Court level regarding the Second Amendment is the 1939 Miller case. Now, Miller was charged with transporting a sawed-off shotgun across state lines. It prosecuted, and that went up to the U.S. Supreme Court. Though, ironically, Miller, being a criminal and doing what criminals sometimes do, managed to get himself killed -- ironically not with a gun but with a knife. It was a knife fight.

 

And at the U.S. Supreme Court, his case was -- he was not even present, obviously, and it was not even a true adversarial proceeding. And the Court disposed of it with a short opinion that you wonder these days if it even would have reached a merit to decision. But there was some cryptic language in there about how it was not clear whether a sawed-off shotgun bore a reasonable relationship to a well-organized militia -- well-disciplined militia. And the Court just left it at that. That led to the development of two different schools of thought regarding the Second Amendment.

 

So again, we start off with just a very short -- really just a couple paragraphs in terms of the substantive discussion -- a very short Supreme Court case in 1939. Even though this provision has been part of the Bill of Rights since its ratification in 1791, it took that long to have any real comment from the Supreme Court at all. And the reality is -- and the reasoning behind it is that gun control laws were actually uncommon up until that point. In fact, the first federal gun control law was the National Fire Arms Act of 1934. So that was an FDR measure at the time of the explosion in the size of the federal government and the creation of the modern administrative state.

 

That’s when you got your first federal gun control law. That was in fact -- and then, you had the Federal Fire Arms Act of 1938. And it was that statutory framework that lead to the Miller prosecution to begin with. Once we got into World War II, people forgot all about gun control because people were talking about actually getting guns and being prepared to use them in wartime. Gun control became a big issue again in the 1960s, especially after the twin assassinations in 1968 of both Bobby Kennedy and Martin Luther King—both with firearms—but it was after that, with public outcry, you got the Gun Control Act of 1968, which is the biggest gun control law at the federal level of all time. It creates much of the modern regulatory system that we have regarding firearms.

 

So you come into the 1970s and then into the 1980s without any serious scholarship, even at the law review level, regarding the Second Amendment. There were a couple articles from the 1970s but really few and far between—almost none—and no Supreme Court case law to speak of. And then, in 1983, one scholar, Don Kates, wrote an article that was published by the Michigan Law Review making the case that the Second Amendment was some sort of individual right. Now, there was something of an unspoken consensus at that point, at least among academics, that, really, the Second Amendment was more of a federalism provision in the Constitution. That it had nothing to do with individual rights, that it was rather to say that the federal government cannot bar state governments from arming their National Guard units, National Guard being, under current federal law, the organized set of the militia.

 

If you look at 10 U.S.C. § 311, you’ll see that the militia is organized and unorganized. The organized part is what you have in the National Guard for each of the states. The Kates article made the case that, no, this is actually a private right. That was followed the next year by Stephen Halbrook. He had a book in 1984 and then Professor Nelson Lund, who, of course, has been at Scalia Law for many years, wrote an article in 1987 for Alabama Law Review, again, making the case for an individual right.

 

Then came 1989 when Sandy Levinson published an article—Professor Levison—entitled “The Embarrassing Second Amendment,” 1989, Yale Law Journal, where essentially, the takeaway -- not to put words in his mouth, but the bottom line was, if you look at this recent scholarship over the past half-decade, this sounds embarrassing to admit this, but it appears that the Second Amendment may, in fact, be some sort of individual right. In fact, the title page of that article has -- he drops a footnote in which he references that Nelson Lund -- he’s aware of this Alabama Law Review article that’s out and said that he’s not read the article yet but then admits that he listened to Professor Lund give a speech at the law school where Levison taught.

 

And as he said at the end, “His speech may have penetrated my consciousness more than I realized while drafting this article.” I’m not sure exactly what that phraseology means, but whatever it is this became the starting gun, if you’ll forgive the pun, for a robust debate over what the Second Amendment right to keep and bear arms was. Was it an individual right, as we see elsewhere in the Bill of Rights? Was it some sort of what they called a collective right? So you got those two schools of thought. After Levinson legitimized the idea among many academics on the leftward side of the spectrum to talk openly about it, it led to an explosion of scholarship through the 1990s. So much so that you got a hybrid model called the sophisticated individual right model, where people said, “Well, maybe it is some sort of individual right but only insofar as it is connected to then public militia services.”

 

All that lead up to 2001, where the Fifth Circuit became the first federal appeals court to adopt the individual right matter in a lengthy scholarly opinion. Courts that had gone the other way previously tended to be very cursory reference – just a short reference to the Miller decision that I mentioned from 1939. So not to be outdone, the following year the Ninth Circuit—the liberal lion of that Circuit, the late Stephen Reinhardt—wrote a very lengthy opinion trying to refute the Fifth Circuit and reaffirming the idea that this was not an individual right at all. So at that point, we ended up having a clear circuit split on the issue. And that’s what set the stage for the case that eventually went to the Supreme Court in 2008 in District of Columbia v. Heller, where the Court held that, in fact, it is an individual right unconnected to any sort of militia service.

 

The very week that Heller was handed down—again, a 5-4 decision written by Justice Scalia—there were two cases actually then filed in the Northern District of Illinois challenging the gun ban in Chicago. That was functionally identical to the virtually absolute ban in D.C. with, therefore, the sole issue in those cases being whether the Second Amendment right to keep and bear arms is also applicable against the states and their political subdivisions through the 14^th Amendment. And in 2010, that’s what gave us McDonald v. City of Chicago, where the Court held 5-4 that it does, in fact, apply to the states; that the right to keep and bear arms is a component of the 14^th Amendment. Though with an interesting split, Justice Alito writing a plurality opinion mainly on stare decisis grounds incorporating the right into the concept of substantive due process and Justice Clarence Thomas writing a concurring opinion where he said he can’t join anything pertaining to substantive due process and made the case that the right to keep and bear arms is among the privileges or immunities of federal citizenship, applicable to the states through that.

 

Now, that set the stage for where we’re at today. One would think there are close to a 100 million gun owners in America. 320 million people, about 100 million gun owners. There are an estimated 300 million firearms in private hands in this country. And if you look at federal, state, and local regulatory and statutory, there is, by some estimates, perhaps 20,000 gun control laws in the United States today. Now, if you put all those numbers together, it would seem like you have an essentially infinite number of permutations of potential fact patterns for follow up cases because the reality is that Heller and McDonald both involved one adult American citizen who wanted to own a handgun in his privately-owned home for purposes of self-defense.

 

It went no broader than that, even though the reasoning of the Court would apply very broadly. Some courts were, on those facts, construing the opinion rather narrowly in terms of where the Second Amendment reaches. So there’s all of these questions that were left for another day. There have been dozens of published federal appellate decisions getting into every aspect of the right since then, several of which many of us thought were cert worthy but that we kept seeing cert denials until we got to this case. Now, when I say this case, I’m saying that because I’m trying to think of a good case name for it. This is the New York State Rifle and Pistol Association v. City of New York. I have no idea how we actually collapse that into a workable case name for easy discussion.

 

I know that this may seem like something of a tangential point, but if we’re going to be citing this case for the next 30 years, it’d be nice to know what to call it. Unfortunately, the petitioner’s initials are N-Y-S-R-P-A. That doesn’t lend itself to any sort of an acronym. The respondent, of course, is the City of New York, and there’s tons of cases with New York City. For lack of anything better, I’ll just call it New York State Rifle, at this point. And I certainly welcome any of the more accomplished and esteemed colleagues on this call to maybe suggest a better case name, if anyone has any. But as we get to this case, the City of New York has a rather restrictive gun control regime.

 

Now, this is not to be confused, by the way, I should say with New York State, which I’m going to come back to in a moment, because New York State, along with New Jersey and Massachusetts -- there’s some issues going on with carrying firearms in those cases. But in New York City, in order to have a firearm, you must have a license. That license is for your residence only, and it must be your primary residence. And then, once you have the firearm there, you cannot remove it from that home for any purpose unless you are in route to one of the cities seven police-approved firing ranges. The New York Police Commissioner can credential a shooting range. In a city of 8.5 million, they’ve only approved seven. You are permitted to remove your firearm to go to that firing range and then to return back to your house so that you can stay proficient in that firearm for purposes of self-defense. You cannot remove the firearm for any other purpose whatsoever. You can’t go hunting with it. You can’t take it on travel with you.

 

Of course, this says nothing about being able to actually have it on your person for self-defense as you’re going about your daily life. You cannot even take the firearm to a second residence. If you’re a wealthy Manhattanite who has a separate house out in the Hamptons, you can’t even transport your firearms back and forth between the two. This led to a lawsuit -- the New York State Rifle and Pistol Association is the state affiliate of the National Rifle Association of America. They’re being represented by former Solicitor General Paul Clement. It should be noted that Paul also participated in oral argument, both in Heller and in McDonald.

 

So Paul will be three for three in terms of oral arguments at the Supreme Court on this issue. And it’s being challenged on three separate grounds: that it violates the Second Amendment, but then also with a couple exit ramps in case there would be any difficulty getting to a majority rationale, also challenging it on Dormant Commerce Clause grounds, and under the right to inter-state travel. Now, I would imagine that many of the people on this call would raise their eyebrows at the idea of a negative Commerce Clause. But still, you’re trying to win the case, and you’re taking the law as you find it. So it is a brilliantly briefed and designed case.

 

Paul, I think, is doing a spectacular job for everyone in this regard. I should add, as a matter of full disclosure, that I filed an amicus brief on behalf of the American Civil Rights Union supporting this case on the merits briefing. The top side briefing was complete last week. Noel Francisco also filed a brief on behalf of the United States, and then you had a bunch of members of Congress and states also weighing in. So it’s an enormous array of arguments there. And I think one of the attractive things about this case is that it’s only asking the Court to take a baby step. This essentially becomes does the Second Amendment apply outside the home at all? It’s not challenging whether or not you can -- you need to have a license, maybe that you have to go through a registration process, that you need government permission. It’s not specifying exactly what purpose you’re removing it for.

 

And it’s certainly not getting into whether you have the right to actually carry a firearm on you. This is just about whether or not you can remove it at all. Because even a locked, unloaded firearm in the trunk of your car, not readily accessible, would violate this New York City measure. So it was the first cert grant for this term. I think it’s interesting for Court watchers that, on that final Friday in mid-January, you had cert grants there. Then, it was the following week when they were releasing the full list of orders, including all the denials from the conference. It was there, when we were just a couple days past the cutoff for the 2018 term, that we got the cert grant, making it the first case for October term 2019. Again, bottom side briefing will be coming in in four weeks-time. And it’s hard to say, frankly, how you lose the case, unless a majority of the Court were to say that, in fact, the Second Amendment is a home-bounded right such that you have no right, even under limited circumstances, to remove a firearm from your home.

 

Now, let me close by putting this in the broader context of a couple other pending matters because, as I said, there were a number of cert-worthy cases that were denied along the way in this. Ironically, most of them involving either Paul Clement or Chuck Cooper and his partner, David Thompson. They were all involved, by the way—Chuck and David—in the 2001 Fifth Amendment case that I mentioned. And then, of course, we’ve talked about Paul’s participation in oral argument here. Putting everyone on the same page, Chuck and David also filed an amicus brief representing the NRA in this case -- in Paul’s case for the New York Association. But as you look at several of the cases in the intervening decade since Heller and McDonald, the Court denied review in NRA v. ATF, which was a Fifth Circuit case.

 

Under federal law, you can -- if you’re at least age 18, you can buy a rifle or a shotgun, that is to say long guns, either from a private party or from a gun shop. You can also, if you’re age 18, buy a handgun, a pistol or a revolver, but you must be 21 in order to purchase that handgun from a federally licensed firearm dealer, an FFL holder – a gun shop. You can buy it from your brother. You can buy it from your neighbor. You can buy it from a shady guy down the street, if you’re a law abiding 19-year-old citizen. But you cannot buy it from the federally licensed, federally monitored, federally audited gun shop down that same street. There was an argument that that even failed rational basis review. But nonetheless, the Court didn’t take it up, nor has the Court taken up the many cases about whether you have a right to carry a firearm outside your home.

 

And these have been cases -- whether it’s open carry or concealed carry, whether you need to have a permit, whether you have to take a class in order to qualify for the permit, demonstrate proficiency either with the firearm or demonstrate a working knowledge of self-defense laws. All of those fact patterns have been tried. The Court has denied cert on all of them, and everyone is now wondering, with the evolving composition of the Court, whether this cert grant in New York State Rifle might be the beginning of a trend. And we’re not going to have long to wait because there’s actually two cert petitions pending that it looks like are probably being held pending disposition of this case, ironically, with those cases being brought once again by Chuck Cooper and David Thompson challenging carry laws in New Jersey and Massachusetts.

 

And this is all, actually, heavily briefed in Paul Clement’s briefing and in many of the amicus briefs, such as my own, that some states have adopted what’s called a “Shall Issue Carry” regime, where if you qualify for a permit, it is not discretionary on the part of government. They must issue a permit to be able to carry a firearm outside your home. But they’ve snuck in something that’s typically referred to as “good cause, shall issue.” And that is that, when you apply, if you qualify, they have to issue you the permit. But in order to qualify for issuance, you have to specify good cause for why you need to have a firearm, where they specify that a general concern for self-defense is insufficient to constitute good cause. You have to say something along the lines of, “I’m a prosecutor, and so I fear for my safety,” or “I have an abusive ex-husband, and I fear for my safety,” something along those lines.

 

And you need to articulate some sort of circumstance that distinguishes you from the public at large. In New Jersey and in Massachusetts, challenges to those cases where the court upheld these restrictions, as New York did, in an invocation of what they call intermediate scrutiny, those are now pending on cert, as well. So assuming that Paul Clement is successful with New York State Rifle, we should all be looking immediately to see if either the New Jersey case, which is Rogers v. Grewal, or the Massachusetts case, which is Gould -- whether or not we actually get a cert grant in those as well. If so, we could be looking at a very significant expansion in Second Amendment jurisprudence. So I think that’s all the remarks I was going to share. At this point, I’d like to turn it back over to Micah, and I’m happy to answer questions that anyone might have.

 

Micah Wallen:  All right. Thank you, Ken. Without further ado, we’ll go to our first caller.

 

John Shu:  Hello, Ken. Hello, Micah. This is John Shu here in California.

 

Kenneth A. Klukowski:  Hello, John.  Good to hear your voice.

 

John Shu:  Thank you. To me, the New York Pistol and Rifle case is more about the bear than the keep, but I’d like to get your thoughts, please. Do you see any effect that a ruling might have on other issues such as -- we have a unique issue in California about the microstamping? And my understanding is that other liberal states, like Maryland, Washington, Connecticut -- their state legislatures are seriously considering adopting something very similar to California. So would you please share with us your thoughts on whether the Pistol and Rifle case would have any bearing at all on issues like microstamping that aren’t really bear cases but are commerce cases, though?

 

Kenneth A. Klukowski:  Great question, and let me start off because I think you raised something that perhaps I should have said in my prepared remarks. The biggest textual argument in favor -- whether it’s this New York case or a number of these others, including, by the way, a case out of California that I’m sure John is familiar with, Peruta v. San Diego. That, too, was a case about carrying firearms. Of course, the text of Second Amendment is to keep and bear arms. And it was no one less than Judge Dick Posner on the Seventh Circuit who has been adamantly opposed to the idea of gun rights. He wrote an op ed after Heller comparing it to Roe v. Wade, etc. Whether I’m confusing him with Harvey Wilkinson or not, both of them had weighed in in that regard.

 

And then there were also law review articles, etc., that Illinois, which had a state-wide effective ban on carrying firearms -- the Seventh Circuit, in an opinion written by Posner in 2012 in Moore v. Madigan, said that the text of the Amendment is to keep and bear arms. He said it’s strange credulity. It’s nonsensical to say that that doesn’t mean it has to apply outside the home. He said, “Otherwise, you’re talking about -- you’d have to say that bearing arms means carrying a gun from your family room to your kitchen to your bathroom and that that’s not a reasonable understanding of what that term is.” So if it’s to keep and bear arms, there has to be some application outside the home.

 

And the only question is under what circumstances and in what manner? Now, when you get to something like microstamping -- now, for our listeners who aren’t familiar with it, that is the idea of -- just as there is a serial number required under federal law on every firearm that’s sold in this country, that there’s talk about stamping every box of ammunition or maybe even every single round of ammunition to say “Look, if it’s important that we be tracking firearms, then we should also be tracking the bullets that they’re firing.” Well, of course, the reality is, as five seconds of thought would suggest, this would make the process of manufacturing ammunition very significantly slower and difficult, and thereby making it much more expensive.

 

You could increase by several times over, if not a factor of ten, how much it would cost to buy a box of ammunition. Because the reality is that a handgun without ammunition is essentially just a very expensive paperweight. In order for this thing to be usable, the gun also has to have ammunition. So that ammunition needs to be at an economically viable price. So whether it is microstamping or other attempts to make the exercise of the Second Amendment more expensive, such as expensive excise taxes on every firearm sold or excise taxes on all ammunition or banning lead ammunition under an environmental argument, requiring ammunition to be made from more expensive materials, all of these appear to be attempts to just shift the demand curve so that, between the intersection of supply and demand, you’re just jacking up the price to the point where most people just, from a cost-benefit standpoint, are not able to effectively manage the Second Amendment.

 

I do believe that litigation of this nature is relevant, though not directly so. I think that if you have -- if the pro-Second Amendment side here prevails, as I expect they will, and if you build on that with a case like the New Jersey case or the Massachusetts case that I referenced with Rogers or Gould, respectively, I think it is -- I’m expecting the effect of ripples in a pond; that as that pro-gun case law builds, I think it’s going to start to set the stage. Now, as to whether courts go in a federalism direction where you get a wide variety of divergence in firearms laws -- because, as John mentioned, California is not alone here -- many what we would refer to as blue states are debating all sorts of manner of new firearm restrictions. Whether we see a proliferation in federalism along those lines or whether the courts start holding that these are burdens on the Second Amendment -- and if so, which ones actually pass muster?

 

That gets into questions which are not directly implicated -- well, it’s implicated in this case, but the Supreme Court needs not decide it. As I said, the Second Circuit here applied intermediate scrutiny. That was also the rule that the First Amendment -- I’m sorry, the First Circuit used in Gould and the Third Circuit used in New Jersey and that the Fourth Circuit recently used in Maryland in yet another case that we’re not discussing these days. Whether it is strict scrutiny or intermediate scrutiny and exactly how that applies, whether the levels of scrutiny that we see in, for example, under the Free Speech Clause, whether that applies at all, or whether we’re instead going to have a series of nuanced per se rules, such as we find with Fourth Amendment search and seizure, those, too, are questions that are coming before the Court.

 

One of the things I like about New York State Rifle is that the Court does not need to resolve that here, just like it did not need to with Heller and McDonald. They were just able to issue what was essentially a per se rule. They’re saying you cannot categorically ban firearm ownership and, in this case, extending that one step further to say you cannot categorically bear firearms outside of the home. Whether those broader tiers apply at all, that’s something that can await a future case. So I know that was a long answer, but you spurred a whole new line of discussion, John, and thank you for that.

 

Micah Wallen:  We have another question coming through, so without further ado, we’ll move to that caller.

 

Antoinette Jefferson:  Hi. Antoinette Jefferson. I wanted to know -- you mentioned the First Amendment. I know there are time, place, and manner restrictions, and then also, under the Fourth, you mentioned unreasonable search and seizures. Also, there’s no general federal welfare clause, but there is, at the state level, community care taking or community state-level welfare kind of protection for the community regarding laws that are implemented by the state. So my question really is, under the Fifth Amendment, is there any way to extrapolate or maybe draw a parallel, either under the -- or have a direct correlation under the Necessary and Proper Clause or under the Fifth Amendment Takings Clause?

 

Usually, I know that refers to property like homes or land, things of that nature. But would there be any utilization of that kind of rationale similar to First Amendment time, place, and manner restrictions -- similar to the community care taking exceptions state law and also Fourth Amendment, as stated earlier. Would there be any way to use the rationale under the Fifth Amendment to prevent there from being a takings -- I guess a constitutional taking of a property right, so to speak, under the Fifth Amendment where the government would have to, I guess -- a regulation providing for the ability to obtain a firearm would be a payment, in a sense.

 

I don’t know if that really -- I was just wondering what your thoughts were on that. Or if it’s also under the Necessary and Proper Clause, whereby the government is able to regulate by to also make sure it’s adhering to the mandates -- or adhering to the rights provided under the Constitution.

 

Kenneth A. Klukowski:  I think I’ve got four questions out of that, which I’ll try and be brief in my answers and do roughly in reverse order. First of all, regarding the Fifth Amendment, there are some cases -- there’s actually a couple pending cases right now, one of which I know -- and I know their name keeps coming up like a broken record. But I believe Chuck Cooper and David Thompson have one out of Vermont raising a Takings Clause claim. But in that case, those are regarding new laws that were enacted that have illegalized possession of firearms or certain key firearm accessories and basically making a Takings Clause claim there. So I think under Takings Clause jurisprudence, you’re only getting into a literal taking if you have something and then, all of a sudden, the government is saying that you cannot have it anymore. And then, of course, there are other components to taking as well.

 

Regarding Necessary and Proper, I don’t see a hook there because -- and of course, we’re talking there Article I Section 8 Clause 18 -- because there, in the Necessary and Proper Clause, you’re talking about matters that are necessary and proper to effectuate the enumerated powers of Congress found in the preceding clauses of Article I Section 8. Now, I think the Comstock decision from 2010, I think, was an extraordinarily broad reading of necessary and proper. But here, we’re on the liberty side of the Constitution. We’re talking about enumerated rights rather than enumerated power, so I don’t see an application there.

 

Now, regarding the idea of state constitutional provisions that would essentially allow for various types of gun controls, that becomes a straight up Supremacy Clause issue under Article VI. And that is states can have whatever they want in their own state constitutions, unless it violates, of course, a provision of Article I regarding things that states may not do. But insofar as state powers are in conflict with a federal constitutional right, the federal right supersedes. So whether or not there’s anything in state statute or state constitution to the contrary would have no bearing on what the Constitution safeguards regarding the right to keep and bear arms.

 

And then, ending with what I think your first question was, much of the talk about intermediate scrutiny comes from language -- it was dicta, in fact, in Heller, which was then repeated in McDonald in the principle opinion regarding saying -- to paraphrase here, nothing in this opinion shall be construed to cast out on certain long-standing presumptively lawful restrictions of firearms. And then, it talks about government buildings, sensitive locations, etc. The problem is this. And this is something the Court’s going to need to resolve at some point. Of course, that dicta looked like sausage making. It looked like the price of admission, maybe, to get a fifth vote. There have certainly been comments that Justice John Paul Stevens has said, publicly, since then suggesting that Justice Anthony Kennedy had insisted on language of that nature in order to get his vote.

 

Whether or not that’s true, I think that’s all beside the point, except to note that Justice Kennedy is no longer a vote that you need to win at the Supreme Court on this or any other issue. In that when you’re talking about heightened scrutiny, whether it’s intermediate scrutiny or strict scrutiny, those both involve a presumption of invalidity. Restrictions that trigger heightened scrutiny are not presumptively lawful. They are presumptively unlawful. It is the government that bears the burden. The only question is whether that burden is to prove it’s narrowly tailored to achieve a compelling interest under strict scrutiny or substantially related to advancing an important interest under intermediate scrutiny.

 

Both of those, by the way, of course being the equal protection formulation -- that the articulation under the Free Speech Clause is somewhat different. But the various circuits who have weighed in on this have used the equal protection formulation, talking about substantially tailored -- substantially related to advancing important interests. So this is really incoherent to say that that language really opens to the door to intermediate scrutiny because the only thing that’s presumptively lawful is when you’re under rational basis review. But the Supreme Court made perfectly clear, in the majority opinion in Heller in a footnote at the end, that it was emphatically rejecting rational basis review.

 

So that aspect of this jurisprudence is very confused. It’s much in need of clarification. But again, what’s attractive about New York State Rifle is you don’t need to deal with that in this case. You can just say, “The Second Amendment extends outside the home. Therefore, a categorical ban on that is, per se, invalid.”

 

Micah Wallen:  We’ll now go to our next caller.

 

Dave Hickman:  Hello. This is Dave Hickman out in Washington State. And you articulated who was briefing in favor of the Second Amendment and what their arguments are. I’m kind of curious who’s on the other side and what their arguments are.

 

Kenneth A. Klukowski:  The arguments on the other side—and thank you for the question, sir—is that public safety, under Supreme Court precedent -- protecting public safety is not just an important public interest but, in fact, a compelling public interest. And then, you see this kind of just formulaic recitation of the elements of intermediate scrutiny and just saying “And this law is substantially related to that. Period.” That there’s no -- and again, this is where this is not true heightened scrutiny. In fact, as my amicus brief argues, this is all de facto rational basis review. They’re really putting the burden on the plaintiffs, who, of course, at the Supreme Court level, you’re talking petitioners. But as these lawsuits begin, they’re putting the burden on the plaintiff.

 

They’re presuming that the government’s position is correct. They are not requiring any evidence from the government to show why do you need this particular law in order to protect public safety. In fact, I believe it was the Third Circuit, if I’m not mistaken -- the Third Circuit who said that you could excuse -- I believe it was in that case the state of New Jersey -- for not presenting evidence because who would have thought that someday the Supreme Court would have called this a constitutional right and you would suddenly need to present evidence to explain your restrictions for it. And of course, it’s absurd to think that the judiciary would take that attitude towards burdens on any other enumerated right in the Constitution, to just say, “Oh, whoever thought we would be in the area of calling this a right? And suddenly, the government needs to actually show it’s homework.”

 

So it is de facto rational basis review. There is no requirement of evidence. I recall one case where they were citing data from the 1970s. Of course, that flies in the face of recent case law from the Supreme Court regarding the Voting Rights Act and the pre-clearance process under Section V of the VRA where the Supreme Court struck down the pre-existing system, just saying that current burdens on constitutional rights, if they’re to pass muster, they must be justified by current needs. And in this case, that you can’t be using 50-year-old data and that that data should speak precisely to what we’re talking about here. Because, of course, that data is just talking about firearms in general. It’s not actually cross tabulating and segregating the data in terms of criminal use of firearms versus law abiding use, etc.

 

So none of this passes muster under any meaningful type of heightened scrutiny, and that’s really, I think, what is crying out for the Supremes to weigh in. Because the bottom line here is, even though the Supremes have said that the Second Amendment must not be treated like a second-class right, that is exactly what we see going on.

 

Micah Wallen:  We’ll now go to our next caller.

 

Jeff:  Hello, this is Jeff from California. A few weeks ago, I heard that New York City was considering changing their law, seemingly to moot this case. Could you talk to us a little about whether voluntary cessation doctrine -- how that would apply from Knox v. SEIU and --?

 

Kenneth A. Klukowski:  Happy to and thank you for the question, sir. Yeah. That’s right. New York City asked the Court to hold this case in advanced because, hey, we’re considering changing things. I would just direct everyone -- because he says it better than I could. If you go to the Supreme Court’s website to the docket page or the SCOTUS blog page—the docket number here is 18-280—where Paul Clement just, in my mind, to use vernacular language, just blew their motion out of the water.

 

In terms of looking at that doctrine in this context, all New York City is doing is scheduling a hearing to discuss the possibility that they might, at some point, actually change the regime. There are no -- or at least from the last time I checked, there’s no proposed rule that has been put forward, to say nothing of it actually having been adopted. So it looks to be -- certainly the way Paul’s brief describes it -- and I see it as this as well. The city is scared to death that the Supremes are about to come down against them. They’re just trying to derail it. And so they’re saying, “Hey, we might actually change this before you could render a decision, so why waste your time with it?” But nothing has been changed.

 

That law is still in effect right now. Whether or not anything will ever change is speculative. And whether it would change in a way that would modify the legal arguments being made in this case is also, likewise, speculative. So thank you for asking, and it looks like the case is still on track at this point. It looks like it was a ploy, and it looks like it’s a gambit that did not work.

 

So I want to thank everyone for your time and attention. I hope you found the topic interesting. I think it’s certainly a very significant case that we should all be keeping our eye on in the next term.

 

Micah Wallen:  Absolutely. And on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are 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 fedsoc.org/multimedia.