ANNE MARIE MCLAUGHLIN—In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep guns in the home for self-defense. Two years later, the Court extended Heller to apply to both state and local governments. For nearly a decade after, however, the Supreme Court declined to hear Second Amendment cases, even as heated debates over firearms increased in the wake of gun-related tragedies. Last year, Justice Thomas expressed his frustration over the Court’s inaction, regarding the right to bear arms as “this court’s constitutional orphan.”
Surprisingly, on January 22, the Supreme Court accepted review of New York State Rifle & Pistol Association Inc., v. City of New York, a case that will evaluate the constitutionality of government restrictions on the transporting of guns outside the home. At issue is a New York City ordinance that prohibits residents from taking their guns anywhere outside the city limits—even to second homes or shooting ranges outside the city—regardless of whether the guns are registered and unloaded. The Second U.S. Circuit Court of Appeals in New York upheld the ordinance, holding that the restrictions are constitutional as they do not violate the Second Amendment, the Commerce Clause, or the fundamental right to travel.
In their brief, the challengers argued that the ordinance contravenes their constitutional right to transport their lawfully purchased gun in a safe manner outside of the city. Further, they argued that the restriction would foster the “perverse consequence” of forcing residents to leave their guns in their vacant homes for extended periods of time. By contrast, lawyers for the city argued that the ordinance promotes public safety and will avoid situations “where it would be better not to have the presence of a firearm.”
The case is expected to be heard during the fall, and with a divided Court and the 2020 presidential election nearing, it is likely to be closely watched. Yet, how far the Court will go in shaping Second Amendment jurisprudence is uncertain. The Supreme Court has not clarified the standard of review applicable to Second Amendment challenges, leaving circuit courts with little guidance, save for Heller. In Heller, the majority seemed to reject rational basis review and instead, adopted a textualist approach supported by the Second Amendment’s historical background. Justice Breyer dissented, arguing that the appropriate standard of review is an interest-balancing test, whereby a court would determine “the interests protected by the Second Amendment on the one side and the governmental public-safety concerns on the other.”
Heller exemplifies the various analytical approaches the Court might adopt in New York State Rifle. However, neither the “textualist and history” approach, nor the interest-balancing test escape the problem of subjectivity. Determining which historical accounts matter and which texts deserve the most weight is as problematic as a judge potentially dismissing the government’s justifications for public safety. With the U.S. averaging at least one deadly mass shooting per month in 2018, a clear, workable standard of review for the Second Amendment is urgently needed. The Court has signaled they are ready to address the Second Amendment again—let’s hope they do so boldly.