By the Supreme Court Hearing
By: Gilbert Ambler, Esq.
Today (December 2, 2019) The Supreme Court of the United States heard NYSRPC v. New York. In this case New York State Rifle and Pistol Club (NYSRPC) is challenged the constitutionality of New York city laws and ordinances that prevented gun owners with “premises licenses” within the city of New York from travelling outside of their home with their firearm other than to a gun range in their city. These gun owners could not travel to a second home with their weapon and could not go to a rifle or pistol club outside of the city.
First off, lets address what is apparent in the legal world. Many jurisdictions that claim “our laws don’t infringe on the Constitution” know full well that their laws are in fact repugnant to the Constitution. It is likely for this very reason that the District of Columbia chose not to appeal their loss in Wrenn v. D.C. (2017) which struck down requirements for a “good reason” before a license to carry a handgun could be obtained in D.C.
And it is telling that D.C. chose not to appeal this decision. After losing Heller I, D.C. laid the legal path for invalidation of most laws prohibiting law abiding civilians from having firearms in their home across the country. Naturally, D.C. was afraid that if it appealed the Wrenn decision and lost, similar losses may be handed down in states like New Jersey and New York which had similar “good cause” or “good reason” requirements before one could carry a handgun.
Similarly, the city of New York has substantially overstepped the bounds of a permissible infraction on the 2nd Amendment, and they KNOW that they are in the wrong. This is why, after the Supreme Court agreed to hear the case, (the court hears about 100 of the roughly 7000 cases that are submitted to it every year for review) New York desperately attempted to moot the case.
A case is not ripe for decision, and therefore the heart of the matter cannot normally be legally decided if it is “moot.” Moot simply means that there is no longer an actual conflict (or an actual case or controversy) for the courts to decide.
In the New York case, upon learning that the Supreme Court was going to hear the case, the city frantically attempted to moot the case. The first step in this was to pass a law allowing the gun owners to travel to other homes and other ranges with their weapon (which was what NYSRPC was initially asking for in their suit). Briefs to the court cited the concept of voluntary cessation and argued that such voluntary action on behalf of the city was insufficient by itself to moot the case. Voluntary cessation is a legal concept that says a case should not be mooted merely because the challenged party has voluntarily ceased their conduct. The reasoning is that if the court dismissed a case when the challenged party quit their actions voluntarily, it would leave open the possibility that as soon as the case were dismissed, the challenged party could take back up their actions (or in this case re-instate the ordinances that they voluntarily dropped). By doing this, a city could avoid having its unconstitutional laws being overturned. In legal speak, such an ordinance is NOT moot, as it is “capable of repetition, avoiding review.” In an attempt to dispel this argument, the State of New York then stepped in and created a law that would prevent the City of New York from reinstating their original unconstitutional ordinance. It is possible that this step will now render the matter moot in the eyes of the Court. But we hope not.
Should the Court determine that the matter is NOT moot, they can then decide the matter at the heart of the case. Here, that matter involves the question of whether it is an infringement on the 2nd Amendment when laws prevent gun owners from traveling with their firearms. I strongly believe that with the current Justices on the Court (we could do a future blog post addressing the Justices individual stances on 2A issues) the answer to this issue will be a resounding YES. A yes would affirm that the Second Amendment applies outside the home (protection inside the home was the core of Heller I) and would limit the ability of cities and states to infringe on the 2nd Amendment outside the home.
Most importantly however, should the court decide that NYSRPC is not moot and address the heart of the question, will be the standard of review that they apply in the decision.
The court reviews laws under three different standards. The most relaxed standard is rational basis review. Rational basis applies when neither strict, nor intermediate scrutiny apply. Under rational basis review, a law that burdens a citizen is upheld if it is “rationally related to a legitimate government issue.” The burden (which is difficult to overcome) is on the law’s challenger to show that the law is an infringement. Thankfully, this standard seemingly does not apply to gun rights issues.
Intermediate Scrutiny is the mid-level scrutiny that the court normally applies to laws that involve gender issues. This is also most similar to the level of scrutiny that many of the Federal District courts have been applying to firearms issues. This is also often called “the two-step approach.” Under this standard of review a law will be upheld if it is “substantially related to an important government purpose.” Unfortunately, using this standard of review, many firearms laws are constitutionally upheld as “substantially related to the governments interest in public safety.”
The final standard of review, and the one that we hope the Court will apply in NYSRPC v. New York is strict scrutiny. Strict scrutiny says that a law will be upheld only if it is “necessary to achieve a compelling government interest.” Strict scrutiny is currently applied in cases involving race and other “important or fundamental rights” including cases involving the majority of amendments in the Bill of Rights (speech, religion, right to assemble, equal protection, ect). In a case where strict scrutiny is applied the burden is on the government to explain why their law should be upheld.
And this is the core of what NYSRPC v. New York might do for Virginians and others living in anti-gun states. If the Supreme Court makes it clear that strict scrutiny applies to Second Amendment issues (in the same manner it applies to most other rights described in the Bill of Rights) then the burden will be on the government to explain why their laws burdening the 2nd Amendment are “necessary to achieve a compelling government interest.” This will be a difficult standard for the government to meet, as most laws that receive strict scrutiny review will be struck down by the courts. Should the Supreme Court decide that the Second Amendment gets strict scrutiny, almost overnight the government will bear a heavy burden to justify laws on issues such as magazine capacity limits, and on where a weapon cannot be carried. This would be a monumental win for the 2nd Amendment.
If this happens the vast majority of gun laws that have been proposed in Virginia will be difficult for the state to justify. If this happens, it will usher in a new age of protection for the Second Amendment.
Should the Supreme Court avoid deciding NYSRPC v. New York on the merits and instead decide it is moot because of the city and state of New York’s changes to the law, then we have additional hope. The Supreme Court has been holding off making a decision on whether to hear a New Jersey case called Rogers v. Grewal involving the right to possess a firearm outside the home. In essence, the Rogers case provides us backup that the plight of gun owners in anti-gun states may soon receive another shot at legal redemption even if the city of New York is able to wriggle out of this case based on mootness.
In the meantime, Virginia, and the country will anxiously await the Court’s decision in NYSRPC v. New York which should come no later than this summer. A favorable ruling could be just what is needed to stop the insanity that is currently proposed in Virginia.
Gilbert Ambler is the owner of Ambler Law Offices, LLC (amblerlawoffices.com). He practices criminal defense in Virginia and Pennsylvania, with a particular focus on the Second Amendment and other constitutional issues.
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