By: David B. Kopel – nationalreview.com –
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The Supreme Court’s 2008 District of Columbia v. Heller decision affirmed that the Second Amendment protects an individual right to arms. Two years later, McDonald v. Chicago made that right enforceable against state and local governments.
The McDonald Court declared that the Second Amendment is not a “second-class right,” to be “singled out for special — and specially unfavorable — treatment.” In 2019, however, Heller is in a precarious situation: There have been numerous victories for gun rights, but many lower courts have in practice nullified the Second Amendment. Later this year, the Supreme Court may hear a case involving egregious Second Amendment infringements by the New York City government. The Court should take the opportunity not only to strike New York’s abuses, but also to firmly remind lower courts that the Second Amendment is a first-class civil right.
Before Heller, Washington, D.C., banned handguns and required that long guns be stored in an inoperable state, rendering them useless for self-defense. Today, D.C. citizens not only may defend their homes and families with handguns or long guns but also may carry handguns in public. The D.C. handgun-carry licensing system is not perfect, but it does provide a fair pathway for applicants who pass safety training and a fingerprint-based background check — thanks to the D.C. Circuit’s 2017 decision in Wrenn v. District of Columbia.
Heller and McDonald ended handgun bans in Chicago and six of its suburbs. Then, in 2012, the Seventh Circuit in Moore v. Madigan struck down Illinois’s statewide ban on carrying guns in public. Now, Illinoisans, like residents of D.C. and most of the rest of the nation, can bear arms lawfully.
When the D.C. city council banned handguns in 1975, followed by Chicago and its suburbs in the 1980s, the stated purpose was to build momentum for national prohibition. In 1994, pollster Lou Harris confidently predicted that handguns would be outlawed within two or three years. Today, handgun bans are effectively off the table. The 2016 election preserved and fortified the Court’s 5–4 pro–Second Amendment majority. And in some cases, at least, the lower courts have proven willing to enforce Heller.
In some states and cities, for example, xenophobic laws prohibited legal-resident aliens from obtaining handgun-carry permits or even possessing firearms at all. From Hawaii to Massachusetts, those laws have been struck down. The most recent case ended the refusal of Riverside County, Calif., to let aliens apply for concealed-carry permits. (All courts have upheld the 1968 federal ban on arms possession by illegal aliens.)
Under President George H. W. Bush, the Department of Housing and Urban Development had encouraged housing authorities to include gun bans in their lease conditions. The Chicago Housing Authority enforced its ban with warrantless home searches until a federal court in 1994 ordered it to desist. Post-Heller, most housing authorities have voluntarily removed these unconstitutional conditions. Those that persist always lose in court, most recently this April, in a case involving the East St. Louis Housing Authority.
Further, the Second Amendment protects “arms,” not just firearms — as the Supreme Court affirmed in 2016’s Caetano v. Massachusetts, a terse per curiam opinion overturning a decision that had upheld the state’s ban on electric stun guns. Since then, almost all state and local stun-gun bans have been repealed or held unconstitutional. (Still clinging to bans are Hawaii and Rhode Island, plus Wilmington, Del., and some smaller towns.) Also declared unconstitutional have been New York State’s ban on nunchucks and Connecticut’s ban on transporting a police baton when moving it to a new home.
But in other areas, results are mixed. Bans on switchblade knives (folding knives that automatically open when a spring is released) were struck down in Wisconsin but upheld in New Mexico. Because lawful commerce in arms is essential for Second Amendment rights, federal courts ruled against gun-store bans in Chicago and one of its suburbs — but Alameda County, Calif., bans all new gun stores within its jurisdiction, and the Ninth Circuit en banc held that the ban does not even raise a Second Amendment issue.
Worse, the right to bear (i.e., carry) arms is almost wholly denied in Hawaii, Maryland, and New Jersey. The same is true in many cities or counties in California, New York, Delaware, Rhode Island, and Massachusetts. These bans have been upheld by federal circuit courts, and so far the Supreme Court has not taken any opportunities to review them. Justices Thomas and Gorsuch dissented from denial of certiorari in a 2017 California case, Peruta v. San Diego. A pending New Jersey case, Rogers v. Grewal, gives the Supreme Court another chance to address the problem.
This is not the only area where the lower courts have failed and the Supreme Court has refused to correct them. Perhaps because of uncertainty about what Justice Kennedy would do, the Court has done little with Second Amendment jurisprudence since McDonald.
In the Ninth Circuit, district judges or three-judge appellate panels sometimes rule in favor of Second Amendment rights, but no rights-affirming decision has survived en banc review. Thus, in a circuit that covers over 20 percent of the U.S. population, it is permissible to require that handguns in the home be locked up when not being worn — so that a person who is sleeping or bathing cannot have a functional handgun available. Likewise, a ten-day waiting period may be imposed on gun buyers who have just passed a background check and who already own another gun. The Supreme Court denied cert in cases challenging these policies, drawing dissent from Justices Thomas and Scalia in the first, and from Justice Thomas in the latter (Scalia having passed away by then).
Most egregiously, California now effectively bans all handgun models that have debuted since 2013, via a mandate that new handguns microstamp their serial number in two locations on every unit of ammunition the handgun fires. Double-microstamping to California specifications is impossible; neither in a test lab nor anywhere else has anyone been able to comply with the law. A certiorari petition in a case challenging this law, Pena v. Horan, is currently pending before the Supreme Court.
The Seventh Circuit and several others have upheld bans on magazines that hold more than ten rounds and on many common rifles, including the AR-15. The Supreme Court’s cert denial in a case challenging one of these laws, Friedman v. City of Highland Park, drew stinging dissents from Justices Thomas and Scalia, detailing how bans on common arms “typically possessed by law-abiding citizens for lawful purposes” violate Heller’s express language.
The Second Circuit is worst of all. Anti-gun-rights decisions often have dissenting opinions in other circuits, but never in the Second. Consider the case currently before the U.S. Supreme Court, New York State Rifle & Pistol Association v. New York City.
A New York City police regulation forbade residents to take their handguns out of the city. A resident of Staten Island could not practice at a range in New Jersey, attend a training class in New Hampshire, or shoot at a competition in Connecticut. Nor could she possess her handgun for protection when traveling in another state in compliance with that state’s laws.
The Second Circuit said that the travel ban probably does not even raise a Second Amendment issue. Even if the Second Amendment were involved, said the circuit panel, the ban could be upheld based solely on a vague and unsubstantiated affidavit from a police official who speculated (with no evidence) about road-rage shootings.
Normally, when faced with a limitation on a constitutional right, courts are supposed to consider whether there are “less burdensome alternatives” or “substantially less burdensome means” of achieving the government’s purpose. Courts must also consider whether the plaintiffs have rebutted the government’s evidence. And courts must not let the government get away with speculation or shoddy data — or no data at all. But when the Second Amendment is at issue, the Second Circuit jettisons the normal standards of judicial review.
This spring, once the Supreme Court had granted certiorari for the New York City case, lawyers on all sides of the gun issue recognized that the travel ban was indefensible under ordinary constitutional standards. Some anti-gun groups, such as Brady and Giffords, knew better than to defend the travel ban; their Supreme Court amicus briefs, filed “in support of neither party,” primarily argued that the Court should not recognize any right to carry arms for protection. Mayor de Blasio’s administration has been desperately attempting to stop the Court from hearing the case, for fear of a broad ruling on the right to arms. De Blasio’s appointees partially modified the anti-travel regulation, and the anti-gun state government enacted a law partially preempting such regulations.
The city’s lawyers argue that the case is moot because the city has now desisted from its abuses. Mootness doctrine is intricate, and perhaps this ploy will succeed. The Court will decide whether to proceed with the case on October 1, at its “long conference.” Regardless, the legal record is clear: The Second Circuit unanimously and flippantly upheld an extremist gun-control policy without a scintilla of empirical support. And the Second Circuit’s opinion was no aberration, but was typical of the massive resistance to Heller that is coming from too many lower courts.
The Supreme Court needs to exert leadership, reaffirm that Heller and McDonald meant what they said, and rein in lower-court defiance of constitutional rights. If the justices decide that mootness doctrine prevents them from doing so in the New York City case, there are plenty of others to choose from.