The high stakes of NYC’s U.S. Supreme Court gun control case

On Jan. 22, the U.S. Supreme Court agreed to hear its major first case dealing with gun rights since 2010, New York State Rifle & Pistol Association v. City of New York. The outcome of the case will not have a huge impact on either public safety or the rights of gun owners in New York. But how the court decides the case could have a major long-term impact on Second Amendment rights across the country. It could affect both existing gun control regulations in states such as New York and prevent states from passing such measures going forward.

This case will determine the constitutionality of a New York City regulation that prevents licensed handguns from being taken outside the city, even if they are unloaded. A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld the regulation. According to the court’s opinion, the regulation would not “significantly inhibit their ability to utilize training facilities to obtain and maintain firearm skills, let alone that the Rule operates as a substantial burden on the right to keep and use firearms for self-defense in the home.” Because the gun owners could maintain handguns in their homes for self-defense, had access to at least one firing range in each of New York City’s five boroughs, and could rent or borrow a firearm for practice at a firing range outside of the city, the court reasoned that the law did not infringe on the core Second Amendment right to keep a weapon for personal protection or to become sufficiently proficient in using the weapon as to make the handgun practical as a tool of self-defense.

Because the New York City regulation is unique and does not affect many people inside the city, the immediate stakes of the decision are limited. The regulation is not a severe burden on the rights of gun owners, and by the same token striking down the law would not have a large impact on the safety of people residing in New York. But this doesn’t mean that the court’s decision to take the case is inconsequential – far from it. The decision could provide an important signal of how a more conservative Supreme Court will interpret the Second Amendment going forward. And the most likely outcome is that the court shows an intention to limit the ability of states to enact gun control measures, ultimately leading to more gun-related violence.

The Supreme Court’s 2008 opinion in D.C. v Heller was a landmark case because it held for the first time that the Second Amendment protected an individual’s right to bear arms from undue burdens imposed by the federal government. In 2010, this right was applied in McDonald v. Chicago to also protect individual gun ownership rights against state governments and their subdivisions, such as cities and counties.

And yet the scope of the decisions were modest. While striking down the ban on handgun ownership in the District of Columbia, the court left many questions about the nature of the individual right unanswered and gave state, local and federal governments substantial leeway to regulate firearms. “Like most rights, the right secured by the Second Amendment is not unlimited,” declared the court in Heller. “(N)othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Weapons that can be reasonably be deemed “dangerous and unusual” can also be banned. As a result, the precedents set in Heller and McDonald have not been used by lower courts to overturn many gun regulations. For example, New York’s SAFE Act included a number of relatively stringent gun regulations, among them a broad assault weapons ban and virtually none of it – except for one small provision concerning a limit on the number of rounds of ammunition that a gun can hold – has been ruled unconstitutional by any court.

Since McDonald, the court has been biding its time. But the late Justice Antonin Scalia, who authored the court’s relatively narrow opinion in Heller, and Anthony Kennedy, who may have had a moderating impact on the 5-4 opinions, are no longer on the court. The Roberts court, with Donald Trump’s very conservative nominees Neil Gorsuch and Brett Kavanaugh firmly in place, may be ready to more aggressively expand the Second Amendment, starting with this case.

It is possible, but very unlikely, that the court took the case to uphold the ban and lend its concurrence to a lower court’s judgment in a minor case. The smart money would be that the court took the case so that it could strike down New York City’s regulation. Assuming the court does so, how the court strikes it down matters.

It is possible that the Supreme Court will overturn the Appeals Court and throw out the law with a broad, aggressive opinion establishing a standard of judicial review for gun control laws that would threaten a substantial number of common gun regulations, including many of those that already exist in New York and some of the bills Gov. Andrew Cuomo is expected to soon sign into law, such as a prohibition on school employees carrying guns in schools.This would be a devastating blow in a country in which gun control laws are already far too lax.

But probably the most likely outcome is that the court strikes down the law with a minimalist opinion focusing on the specific facts of the case without necessarily doing much to clarify the scope of the Second Amendment as it might apply to future cases. The regulation under review is unusual, as most regulations apply either to keeping firearms out of the hands of people unfit to carry them or to particularly unsafe weapons, which would not be directly threatened by a narrow ruling applying to the specific facts of this case. This would still be significant as gun right advocates would press more cases and lower courts increasingly filled with young, reactionary judges appointed by Trump would then have more ammunition to push the envelope.

The challenge to New York City’s idiosyncratic gun regulation, then, may ultimately just be a footnote in the ongoing battle over gun control. But it may also be remembered as the case that announced the Supreme Court’s war on states like New York that want to regulate firearms more than the rest of the nation.