Slate’s MJS slides down the slippery slope

Yesterday, the Supreme Court agreed to hear a challenge to NY’s gun laws in NY State Rifle & Pistol, et al. v. New York, NY, et al.

Here’s the Question Presented:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Question Presented is available on the Supreme Court website here:

In most of the Country, you can travel to a range of your choice or to your home with your gun locked in a case, separate and apart from ammunition and inaccessible to the driver.

In this action, the issue stems from the NY and NYC laws that prevent NYC resident gun owners from traveling to ranges or competitions within the State that are outside city limits (or to ranges in other States).  Some Federal laws appear to allow you to travel between States, so the same resident can legally travel to an out of State range1, but if they travel upstate in NY, they are violating the law. They violate the law, even if the weapon is locked securely, separate from ammunition and inaccessible to the driver.

The law doesn’t merely apply to travel to ranges outside the city, but residents also violate the law if they drive with their weapon to a second home, even if it’s locked and unloaded, inaccessible to the driver. NY says that they should apply for a second resident permit, but it’s unclear if they’d be allowed to travel from one home to the other, even with the extra permit.

It’s little wonder that the Supreme Court took up such a case, as it puts a severe damper on being able to exercise the core right (having a gun for self defense in the home) if you aren’t even capable of bringing it to a second home.

NY claims that allowing people to travel with weapons (even unloaded and locked away) is dangerous. Yet, it allows them to travel through the city to one of 7 available ranges that are supposed to serve 8+ million people.

“The Commissioner’s rules prohibit a New York City premises license holder from transporting her handgun to a separate residence. And the rules do not deem any range or shooting club outside of city limits “authorized,” meaning a license holder is limited to using shooting ranges inside city limits. There are only seven target shooting ranges, exclusive of police or military ranges, in the entirety of New York City, a city with a population of 8.5 million people.”

Pg. 15 of Petition for Cert

A narrow ruling, going as far as to say that taking your weapon to your home or between homes, is a right under the Second Amendment, would hardly be a blow to NY’s very strict gun control laws.

That being the case, here’s how Slate’s Mark Joseph Stern described the case:

The Supreme Court Is Preparing to Make Every State’s Gun Laws Look Like Texas’

“[I]t appears quite likely that the new conservative majority will, for the very first time, extend the Second Amendment beyond the front door and out into the streets, unleashing lower courts to strike down long-standing restrictions on the public carrying of firearms.”


Very likely? Got a cite, Mark?

Stern then raises the slippery slope question:
“If the Constitution safeguards their ability to bring a firearm to and from their second home, why shouldn’t it also protect their right to carry a gun while running errands or visiting friends?”

Did you catch that?

He jumped from having a gun locked in a trunk, inaccessible to the driver – to carrying it around doing errands. Is there any reason to believe the case will go there at all? Not that I can see. The Plaintiffs don’t even argue for that in their briefs.

Here’s what the Plaintiffs argue in their petition for the Court to take the case:

“Indeed, despite bearing the burden under heightened scrutiny, the City has presented precisely zero empirical evidence that transporting an unloaded handgun locked up in a container separate from its ammunition (an activity that federal law affirmatively protects) poses any material safety risk.” (emphasis added)

Pg 12 of Petition for Cert

So where exactly is the challenge to gun laws that Stern claims to be in the making? Here’s what the NY defendants have to say:

A New York State law that is not challenged here recognizes two major types of handgun licenses: “premises” licenses and “carry” licenses….. Petitioner argue that the Second Amendment, dormant Commerce Clause, and right to interstate travel compel the City to afford them broader latitude for transportation of a handgun under a premises license.” (emphasis added)

Pg 3 in Opposition to Cert Petition

So, even the State of NY says we’re talking about premises licenses, not carry licenses and the issue has absolutely NOTHING whatsoever to do with carrying weapons to the local bodega.

Here’s how the NY defendants characterize the nature of the suit:

Claiming violations of the Second Amendment, the Commerce Clause, the right to interstate travel, and the First Amendment, petitioners challenged the lack of authorization to transport their premises-licensed handgun within the City of New York (a) for the purpose of taking it to target practice or competitive shooting events outside the City and (b) in the case of petitioner Colantone, for the purpose of taking it to his second home in upstate New York (id.). (emphasis added)

Pg 14 of Opposition to Cert Petition

There’s no gloom and doom about people carrying weapons into daycares and schools. Nothing about turning NYC into some Texas open carry locale. It’s about taking a weapon to a range and a house – while locked up.

In fact, the only place where conceal carry of handguns is mentioned by the Government defendants is where they say that is NOT an issue in this case:

“[T]he only circuit split identified by Amici Curiae States (Br. at 5-7) concerns an issue that is not presented here: the right to carry a handgun in public for the purpose of self-defense outside the home. This case, by contrast, accepts as a given New York State’s concept of the premises handgun license. It solely challenges the City’s rule authorizing limited transportation of a handgun under that license.” (emphasis added)

Pg 20 of the Opposition to Cert Petition

NYC has some overly restrictive rules which in any other context would be viewed as overly restrictive to a core fundamental right. The only way to gin up enough controversy was to outlandishly claim that the case is about something it is not, in the hopes of scoring points with people that didn’t read the court documents.

Stern probably got away with it for the majority of his readers. They were ill informed.

  1. While you may eventually be vindicated, stories abound of individuals arrested for carrying weapons through NY.

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