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Gun Control Returned in December to SCOTUS

Prof. Glenn Smith

In December 2019, the U.S. Supreme Court began its first re-entry into Second Amendment waters after deciding in 2008 that the Constitution protects personal gun ownership rights linked to personal safety (District of Columbia v. Heller, 554 U.S. 570).

In a pre-oral-argument op-ed, published in the LA Daily Journal, California Western’s Professor Glenn Smith discussed the issues the Court explored and why the challenge may even be moot!

New York State Rifle and Pistol Ass’n v. City of New York (18-280) challenges local regulations that severely restricts the options of New Yorkers with residential-gun-possession permits to transport their guns outside the home. The challenged laws basically limit in-city transport to driving with locked-and-disassembled guns to one of seven city pistol ranges or, with permission, to a gunsmith; permit holders could only transport outside of New York City to engage in individually approved hunting.

But, writes Smith, New York State Rifle is a strange choice for the Court and the law now under review is far from typical of the gun-control laws that have vexed lower courts.

Heller left many important questions hanging. First, the court declined to clarify what level of scrutiny courts should use to review the constitutionality of gun-control measures. In the vacuum created by the court repeatedly declining to take a follow-up case, lower courts have engaged in spirited disputes and pursued varying paths.

A second set of questions left open concerns exactly what kinds of gun-control laws are constitutionally acceptable, continues Smith.

A third uncertainty is that Heller concerned gun possession in the home. Since then, judges and litigators have vigorously disputed whether and to what extent Second Amendment rights extend outside the home — for example, to open and concealed carry in public.

Smith’s op-ed noted that New York State Rifle turns on an issue not central to most lower court Second Amendment challenges — whether a distinction should be drawn between laws affecting core Second Amendment rights and those focused on more peripheral matters. The 2nd Circuit saw the challenged NYC law as imposing “at most trivial limitations on the ability of law-abiding citizens to possess and use firearms for self-defense.”

In fact, concluded Smith, this may all be much ado about nothing as, after the justices accepted the review, the city and state significantly liberalized the laws in question. These competing sides’ arguments give the justices enough running room to avoid the legal merits on “mootness” grounds. That option may look increasingly attractive, Smith opined as the justices confront the idiosyncrasies of the case and wonder whether it is wise for the court to render a high-profile judgment about such a hot-button issue in an election year.