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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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What? I have never heard a more absurd excuse to get away with infringement. Under article VI more commonly known as Supremacy Clause. NY State must abide by the US Constitution as a member of the union. In this Constitution we have the 2nd Amendment and the problem is that NY City violates or infringes upon that right. As long as a citizen can pass the required background check he or she should be free to obtain a weapon for self defense. NYC burdens the right of the people to keep and bear arms because it places NYPD as a gatekeeper. Needless to say a one should not need a license to exercise that which is both constitutionally guaranteed and inalienable. NYPD does not grant citizens that right and we need not continue to renew a license every 3 years with $240 to $350 towards NYPD for a weapon that remains home. We are not talking about a Concealed Carry Permit as it could be argued that a weapon outside the home is a public concern but NO. We are talking about the simplest 5 round shotguns for home defense which may be confiscated. As if NYPD of NYC had a right to do that? What most likely happened was poor litigation and judges with political agendas. That is the only way we end up paying a fee for a license to protect your home. As if NYPD could guarantee us safety when an armed invader breaks in?
NYC unabashedly violates the 2nd Amendment. You cannot even defend your life at home without the approval of NYPD. That is not what the Supreme Court has asserted. Weapons that remain home should not be burdened with fees for a right that is as free as the right to speak, so is the right to have the means to preserve life. We register our weapons, they are our property and yet I have to ask permission despite being totally entitled to own a firearm and NYPD can confiscate it if I forget to pay them a fee? EXTORTION... That is what that is.
R. Rodriguez
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