U.S. Supreme Court Punts on the Second Amendment

On April 27, 2020, the United States Supreme Court handed-down its first opinion related to the Second Amendment since McDonald v. City of Chicago (2010). Both sides are claiming victory.

New York State Rifle Association v. City of New York, was widely anticipated by gun rights advocates and was the first real hope in a decade that the new court would move the ball forward and repeal a local gun-control law. Instead, the case ended with what one publication aptly described as “a whimper”.  

The case came as a challenge to a New York City law that effectively banned firearm possession outside of the home. The law prohibited the transportation of firearms outside of the city limits, even if they were locked, unloaded and licensed. With few ranges located inside the city, the law created serious problems for New Yorkers who actually wanted to shoot their legally owned firearms. Even by New York City standards, the law was egregious.  

New York State Rifle Association, the National Rifle Association’s in-state affiliate, challenged the law in Federal District Court. New York City repealed the law in a successful effort to render the case moot. Because the law was repealed, the majority of justices agreed with that argument. “the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint," the unsigned majority opinion states. That may be the headline, but there is more to the story. 

Justice Alito, long considered a strong voice for gun owners on the court, was joined by Justices Thomas and Gorsuch in a strong dissent. Alito wrote that “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced…our decision in McDonald v. Chicago…established that this right is fully applicable to the States. Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed.” Alito believes that the court should have decided on the merits of this case, instead of remanding the case back to the lower court.   

In a concurring opinion, Justice Kavanaugh echoed the arguments of the dissent. That concurring opinion contains some of the most useful clues in the entire document. “And I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” Kavanaugh wrote.

Gun control groups are claiming victory, but it is clear that at least a plurality of Justices want to rule on the constitutionality of state and local gun control laws. With Justices Alito, Gorsuch, Kavanaugh and Thomas all appearing to support our second amendment rights, the swing vote appears to be Chief Justice Roberts. It is worth noting that Roberts voted with the majority in both Heller and McDonald, upholding the concept of applying the Second Amendment to the states. The moral of the story is that it takes just the right case to create meaningful precedent at this level. Heller was such a case, as was McDonald. This case was not, but our time will come. 

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