Monday, February 26, 2018

NYC gun law does not violate Second Amendment

Mass shootings always bring the Second Amendment to the forefront. But contrary to popular opinion, Second Amendment rights are not absolute. We see how that all works out in a recent Second Circuit decision that upholds a New York City gun regulation against a Second Amendment challenge.

The case is New York State Rifle & Pistol Association v. City of New York, issued on February 23. The City issues "premises licenses" for gun owners. These licenses prevent you from removing the gun from the address on your license (usually your home) except that you can transport the gun to authorized shooting ranges, unloaded, in a locked container, with the ammunition to be carried separately. (There is also a separate concealed carry regulation for people who can prove they need the guns outside the home).

Constitutional law is famous for its multi-part constitutional doctrines that courts use to analyze  legislation and regulations. After the Supreme Court issued its Heller ruling in 2008, deciding for the first time that the Second Amendment confers an individual right own a gun in certain circumstances, courts review gun regulations under "intermediate scrutiny," which gives the government some leeway on regulating guns in light of the competing interests between the government and gun owners. Some gun rules are also analyzed under strict scrutiny (which often strikes down the regulation) when the restrictions "operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes). The Second Circuit reviews the NYC rules under intermediate scrutiny because the rule does not substantially burden plaintiff's ability to obtain a firearm for the home, and an adequate alternative remains for him to acquire a gun for self-defense. The rule only restricts his ability to take the gun out of the house.

Intermediate scrutiny applies because firearms practice is not itself a core Second Amendment right (as compared to gun ownership to protect your family in the home) and the City does not ban firearms ranges in that jurisdiction. There is at least one authorized range in each of the five boroughs. Under this level of judicial scrutiny, the NYC rules are legal because they seek to protect public safety and prevent crime, and the rules are tailored toward that end. There is evidence that taking the gun out of the city poses a potential public safety risk, as it reduces the likelihood of violence in stressful situations, like road rage, family disputes and crowd situations. In contrast to the evidence NYC has put forward in defending its rules, the plaintiffs have offered "scant evidence demonstrating any burden placed on their protected rights, and nothing which describes a substantial burden on those rights."


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