Does New York City’s ban on transporting a licensed handgun to a location outside of the City violate the Second Amendment, the Commerce Clause, or the right to travel?
This case asks the U.S. Supreme Court to decide whether New York City’s (the “City”) restrictions on the transportation of handguns is unconstitutional pursuant to the Second Amendment, the Commerce Clause, or the fundamental right to travel. Under a former rule, the City issued premises licenses to qualified individuals. Such licenses permitted a licensee to possess a handgun at the licensee’s City residence but placed restrictions upon the transportation of the handgun to locations outside of the City. Romolo Colantone, Efrain Alvarez, and Tony Irizarry (collectively, “Petitioners”) were issued premises licenses and wanted to use their handguns at shooting ranges and competitions located outside of the City, and Colantone wanted to transport his handgun to and from his second home in upstate New York. Petitioners, joined by the New York State Rifle and Pistol Association, argue that the City’s transportation restrictions violate the Second Amendment, the Commerce Clause, and the fundamental right to travel. The City, joined by the New York City Police Department-License Division, counters that its former rule is a constitutional exercise of its regulatory power and protects public safety. The City recently amended the rule at issue, so the City also argues that this case is moot. In addition to impacting City residents who possess handguns under a premises license, the Court’s decision will have implications for public safety concerns of vulnerable populations and populations living within major urban areas and is likely to inform national debate on gun control.
Questions as Framed for the Court by the Parties
Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
New York State prohibits the unlicensed possession of handguns. New York State Rifle & Pistol Association, Inc. v. City of New York at 52. In New York City (the “City”), licensing officers may issue a handgun license to a City resident pursuant to 38 R.C.N.Y. § 5-23 (the “Rule”). Id. at 52-53. One such license is a premises license, which allows an individual to possess a handgun at the individual’s residence within the City. Id. A premises licensee is prohibited from removing the licensed handgun from the licensee’s specified City residence, unless an exception applies. Id. Among the several exceptions, a premises licensee may transport the licensee’s handgun to and from an “authorized small arms range/shooting club” located in the City. Id.
Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry (collectively, “Petitioners”) have premises licenses. Id. at 53-54. Petitioners wanted to use their handguns in shooting tournaments taking place outside of the City. Id. They also wanted to transport their handguns to shooting ranges outside of the City because these ranges were closer to their homes than ranges located within the City. Id. Further, Colantone wanted to transport his handgun between his City residence and his second home in Hancock, New York. Id.
On March 29, 2013, Petitioners, together with the New York State Rifle & Pistol Association, filed suit in the U.S. District Court for the Southern District of New York (the “District Court”) against the City and the New York Police Department-License Division (collectively, “Respondents”), seeking a declaration that the Rule was unconstitutional and an injunction against its enforcement. Id. at 52. Petitioners argued that the Rule violated the Second Amendment, the Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel. Id. Petitioners moved for summary judgment against Respondents and a preliminary injunction to temporarily stay the restrictions. Id. In turn, Respondents cross-moved for summary judgment against Petitioners. Id. On February 4, 2015, the District Court granted Respondents’ cross-motion and dismissed the complaint. Id.
On appeal, the U.S. Court of Appeals for the Second Circuit (the “Second Circuit”) affirmed the District Court’s decision. Id. at 52. Petitioners reiterated their constitutional arguments, but the Second Circuit ultimately held that the Rule did not substantially burden Petitioners’ Second Amendment rights, regulate extraterritorial economic activity, prevent Petitioners from engaging in interstate travel, or violate Petitioners’ right to expressive association. Id. at 55, 64, 67-68. Petitioners appealed the Second Circuit’s decision, and, on January 22, 2019, the U.S. Supreme Court granted certiorari. Orders and Proceedings, 18-208.
On July 16, 2019, New York Governor Andrew Cuomo signed a bill amending New York Penal Law regarding the ability of premises licensees to transport their handguns. Brief for Respondents, New York City et al. (“Respondents”) at 9. Under this amendment, premises licensees may now transport their handguns to residences, places of business, shooting ranges, competitions, and “any other location” in which they are licensed to possess a handgun. Id. Additionally, on July 21, 2019, the New York City Police Department implemented an amended rule that allows premises licensees throughout the City to transport their handguns to and from another residence or place of business in which they are also licensed to possess such a handgun. Id. at 8-9. The amended rule also allows premises licensees to transport their handguns to and from shooting ranges and competitions both within and outside of the City. Id. at 9. Despite these amendments, the Court took this case to consider the constitutionality of the Rule (hereinafter, the “former rule”). Id. at 1.
Petitioners argue that, although Respondents amended the laws at issue to allow licensees to travel with their guns to out-of-state gun ranges, shooting tournaments, and second homes, this case is not moot because Petitioners’ injuries have not been sufficiently addressed. Reply Brief for Petitioners at 2, n.1. Indeed, Petitioners claim that the City still exercises plenary power over licensees’ ability to transport guns and carved out of the former rule the “bare minimum” to moot this case. Response to Respondents’ Suggestion of Mootness at 13–14. Instead, Petitioners assert, they want forward-looking relief—a declaration that they have a constitutional right to carry their guns to places where they can lawfully keep and bear them, which would prevent the City from reinstituting the former rule. Id. at 15.
Respondents stress that the amendments to the laws at issue in this case grant Petitioners the relief they seek, thus rendering this case moot. Brief for Respondents, New York City et al. (“Respondents”) at 13. Respondents explain that the amended laws now allow premises licensees to transport their guns to second homes and shooting ranges outside of the City. Id. at 14–15. Therefore, Respondents argue, the City has no law to defend, Petitioners have no injury for which to seek redress, and the Court should dismiss the case. Id. at 14–16.
THE RIGHT TO KEEP AND BEAR ARMS
Petitioners assert that the City’s former license and accompanying travel restrictions violated the right to “keep and bear arms” guaranteed by the Second Amendment (emphasis in original). Brief for Petitioners, New York State Rifle & Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry (“Petitioners”) at 17. Indeed, they contend that the City’s enforcement of the former rule unconstitutionally reduced the Second Amendment to a “homebound right” because the former rule strictly limited a licensee’s gun usage to the licensee’s residence and confined the circumstances in which the licensee could transport the licensee’s guns. Id. at 18–19. Instead, Petitioners assert, the right to bear arms implies a right to transport guns outside of the home. Id. at 19–20.
According to Petitioners, Heller v. District of Columbia dictates that the “scope of the Second Amendment right . . . is determined by reference to text, history, and tradition.” Id. at 30. Petitioners point to the text of the Second Amendment, which plainly protects the right to bear arms. Id. at 19–20. This right, they continue, was intended to promote self-defense and therefore includes the right to transport firearms outside of the home where self-defense may be necessary. Id. at 20. Further, Petitioners argue that the Second Amendment was partially intended to foster the development of a militia, which necessarily entailed the right to transport firearms to various training areas or other lawful areas, like a second home. Id. at 20–21. Petitioners also assert that the Second Amendment implies a “corresponding right to acquire and maintain proficiency” in the use of guns, because proficient gun use for self-defense requires training, which requires travel outside of the home. Id. at 22. Finally, Petitioners contend that the historical record supports their argument because citizens in Antebellum America carried their own firearms to various training areas. Id. at 22–24.
Petitioners additionally contend that the Court should analyze their argument using strict scrutiny because the Second Amendment is a fundamental constitutional right. Id. at 30. Thus, Petitioners continue, the Court should ask whether the former rule was “narrowly tailored to serve a compelling state interest.” Id. Petitioners argue that the City’s contention that the former rule increased public safety is not compelling because increased public safety necessarily conflicts with the Second Amendment, the City supported its public safety claim with minimal—and speculative—evidence, and the former rule arguably kept guns in the City by restricting their transportation to a second home or other gun range located outside of the City. Id. at 33, 35–37.
Respondents argue that the former rule did not violate the Second Amendment. Brief for Respondents at 18–19. Respondents explain that Second Amendment challenges must be analyzed in two parts: first, the Court must focus on the text, history, and tradition of the Second Amendment to determine the scope of protected conduct and potential degree of infringement, and second, the Court must consider the government’s justification for its action. Id. at 17.
Respondents assert that, according to the Second Amendment’s text, history, and tradition, the City’s former rule did not infringe upon Petitioners’ Second Amendment rights. Id. Respondents argue that a plain reading of the text demonstrates that the Second Amendment protects only a right to “have weapons” and to “carry arms for a particular purpose—confrontation.” Id. at 19. To be sure, Respondents continue, the right to train (and to travel to training locations) is an implied right, but because the Second Amendment does not protect it as a “standalone right,” the City may enact reasonable regulations limiting the location and/or manner of training. Id. Moreover, given that the Second Amendment invokes militias, Respondents argue that the permissible limits on the right to transport arms should be informed by the historical limits on how militias were permitted to train: infrequently, at predetermined locations, and without loaded guns in transit. Id. at 20. Further, Respondents maintain that the location and manner of training has been heavily regulated throughout history: localities historically precluded gun owners from training in specific locations, limited target practice to specific licensed galleries, and required gun owners to train near their own homes. Id. at 21–23.
Even if the Court holds that the former rule infringed upon the Second Amendment, Respondents argue that the former rule satisfies means-end scrutiny. Id. at 36. Respondents agree with the Second Circuit’s use of intermediate scrutiny because the former rule did not substantially burden Petitioners’ Second Amendment rights. Id. at 38. Respondents explain that, under intermediate scrutiny, the Court should ask whether the former rule was “substantially related to an important government interest” (emphasis ours). Id. at 39–40. They contend that public safety is an important state interest in and of itself and that the former rule upheld public safety by ensuring that citizens apprehended with guns were on a plausible route to an in-city shooting range. Id. Moreover, Respondents note, the New York Police Department (“NYPD”) claimed that the former rule improved public safety, and the Court has traditionally deferred to the judgment of law enforcement agencies on public safety matters. Id. at 40–41.
THE COMMERCE CLAUSE
Petitioners contend that the former rule, which banned the transportation of guns out of the City, violated the Commerce Clause by preventing gun owners from spending money at ranges outside of the state. Brief for Petitioners at 47–48. Petitioners argue by analogy that the Court would never uphold a ban on a car owner’s use of a mechanic located outside of City limits because such a ban would interfere with interstate commerce. Id. at 48–49. They assert that, for Commerce Clause purposes, guns are not different from cars because both are constitutionally-protected articles of commerce. Id. at 49. Further, Petitioners emphasize that the mere dangerousness of guns does not allow the City to regulate out-of-state commerce. Id. at 49.
Additionally, Petitioners maintain that the former rule discriminated against interstate commerce by impermissibly favoring in-city ranges. Id. at 50–51. According to Petitioners, the former rule limited the use of guns at ranges and hunting grounds outside of the City, which decreased commerce there and increased commerce within the City. Id. at 51. Petitioners note that although licensees were not prohibited from patronizing out-of-city ranges, they were prohibited from bringing their own handguns to such ranges, which is critical because licensees must train with their own guns to use them effectively. Id. at 51–52. Therefore, Petitioners continue, the City’s transportation ban restricted licensees’ ability to participate in “relevant commerce” in out-of-city markets, which amounted to economic favoritism in violation of the Commerce Clause. Id. at 51–53.
Respondents counter that the former rule did not violate the Commerce Clause because Congress partially delegated the authority to regulate firearm possession and transportation to states and localities. Brief for Respondents at 43. Respondents explain that, through its Commerce Clause power, Congress created a federal right to transport firearms across state lines. Id. However, Respondents continue, Congress recognized that states and localities have a core interest in determining whether an individual may “lawfully possess and carry” firearms within their borders. Id. Indeed, Respondents note that Congress explicitly conditioned its federally-created firearm transportation right on the “regulatory determinations” of each state regarding whether an individual may transport a firearm through such state’s borders. Id. at 45–47. Therefore, Respondents assert that the former rule was Congressionally authorized. Id.
Alternatively, Respondents argue that the former rule did not violate the Commerce Clause. Id. at 49. Respondents contend that the former rule did not discriminate against interstate commerce because the rule did not favor in-state economic interests to the detriment of out-of-state economic interests. Id. Respondents point out that although only City licensees could use City shooting ranges, City licensees could still use out-of-state ranges with rented handguns. Id. Therefore, Respondents maintain, the former rule disadvantaged City ranges relative to out-of-state ranges, which indirectly enjoyed a significant commercial advantage. Id. Respondents also assert that the former rule did not control “extraterritorial” commerce because the rule did not actually set prices in another jurisdiction. Id. at 52–53. Indeed, Respondents argue that the former rule did not regulate or impose sanctions on out-of-state conduct and that out-of-state ranges could freely set prices for and offer their services to New Yorkers. Id.
THE RIGHT TO TRAVEL
Petitioners argue that the former rule “actually deter[red]” travel because citizens would otherwise use out-of-City gun ranges or participate in out-of-City shooting competitions but for the rule restricting the transportation of handguns. Brief for Petitioners at 55. Petitioners explain that the Court has consistently found a right to travel, whereby a citizen traveling in another state with the intention to return to the citizen’s home state is granted all rights of a citizen of the temporary state. Id. Petitioners note that this right is violated when a rule “actually deters” interstate travel. Id. Petitioners contend that, under the former rule, if premises licensees transported their handguns to an out-of-City range, their licenses could be revoked, creating an unconstitutional trade-off between exercising their Second Amendment rights and their right to travel. Id. at 56.
Respondents counter that the former rule did not violate the right to travel because the right to cross state borders is not directly impaired—City residents were free to leave or enter the City, just not with a gun. Brief for Respondents at 54–55. Indeed, unlike laws found to have violated the right to travel, such as taxes on persons leaving the state, Respondents contend that the former rule neither directly nor indirectly targeted interstate travel. Id. at 55. Respondents argue that the Petitioners’ interpretation of the “actually deters” test transforms right-to-travel analysis into an “effects-based approach,” which would be a substantial expansion of existing right-to-travel jurisprudence and would invalidate any law restricting the intrastate transportation of certain goods. Id. at 55–56.
PROTECTING VULNERABLE GROUPS
Pink Pistols, in support of Petitioner, argues that the ability to travel with firearms is especially important for the self-defense of vulnerable groups, such as women, LGBT individuals, and people of color. Brief of Amicus Curiae Pink Pistols, in Support of Petitioner at 8. The organization invokes its own origins, in which a young gay man protected himself from armed “gay-bashers” who fled after the man’s companion brandished a handgun. Id. at 4. Pink Pistols contends that, if the Court concludes that the former law is constitutional, vulnerable groups will be deprived of their Second Amendment right to bear arms to defend themselves, rendering them especially vulnerable to violent persecution. Id. at 9. Black Guns Matter, also arguing in support of Petitioner, points out that although handguns are important for self-defense within the home, they are also important for self-defense outside of the home, where “more than two thirds of violent victimizations occur.” Brief of Amicus Curiae Black Guns Matter, in Support of Petitioner at 8. Black Guns Matter continues that law-abiding citizens who pose no threat to public safety should not be deprived of their Second Amendment right to bear arms and defend themselves from these “violent criminals.” Id. at 8-9. Yet, Black Guns Matter asserts, by restricting the Second Amendment to a homebound right, the former rule renders law-abiding citizens vulnerable by limiting their ability to transport handguns to places where they are most likely to need protection. Id. at 2.
March for Our Lives Action Fund (“MFOL”), in support of Respondents, argues that “sensible gun violence prevention policies,” such as the former rule, are necessary for the safety of vulnerable groups and the American public generally. Brief of Amicus Curiae March for Our Lives Action Fund, in Support of Respondent at 28. MFOL presents the accounts of victims of school shootings and urban gun violence to illustrate that young people today are increasingly at risk of gun violence in public places. Id. at 4-5. These vulnerable groups, MFOL continues, are demanding legislative measures to address the “carnage visited by gun violence.” Id. at 30. MFOL cautions that a Court ruling restricting the legislature’s ability to curb gun violence—such as the former rule’s transportation ban—will directly impair “Americans’ rights to stay alive, and in one piece” and young people’s efforts to prevent gun violence. Id. at 25. The National Education Association (the “NEA”) agrees, adding that gun violence trauma has devastating consequences on children’s physical and mental health. Brief of Amicus Curiae the National Education Association, in Support of Respondent at 5–6. The NEA contends that if the Court adopts a strict standard for the constitutionality of firearm regulation, it would prevent schools, communities, and legislatures from creating policies to protect students from such harm. Id. at 14.
PUBLIC SAFETY AND MASS SHOOTINGS
The National Sheriffs’ Association et al. (the “Associations”), in support of Petitioner, argue that the former rule does not actually curb gun violence or promote public safety. Brief of Amici Curiae National Sheriffs’ Association et al., in Support of Petitioner at 30. The Associations point out that before a City resident is issued a premises license, the resident is subject to extensive background checks to ensure that the resident is not a public safety threat. Id. In fact, the Associations note, most shootings are committed by persons ineligible for premises licenses. Id. Indeed, Judicial Watch, Inc. and Allied Education Foundation (the “Foundations”), in support of Petitioner, argue that although restricting gun possession may be a “politically popular” practice in the City, it is not necessarily effective at reducing gun violence or increasing public safety. Brief of Amici Curiae Judicial Watch, Inc. and Allied Educational Foundation, in Support of Petitioner at 7. The Foundations contend that there are other measures that would more effectively deter gun violence without infringing Second Amendment rights, such as promoting non-violence through increased funding for anger management educational programs for adolescents and adults and emotional management education for young children. Id. at 7-8.
Former NYPD Commissioner William J. Bratton (“Bratton”), in support of Respondents, argues that the compelling government interest in protecting public safety must be considered within the specific environmental context of the City. Brief of Amicus Curiae Former Commissioner of the New York City Police Department William J. Bratton, in Support of Respondent at 8. Bratton contends that the City has characteristics that must factor into analysis of its public safety measures, such as a high population density, crowded streets and subways, and a myriad of parades and events. Id. at 10-13. He asserts that these characteristics make the City especially vulnerable to mass shootings and the hysteria caused by the accidental misfiring of a firearm. Id. at 10-14. He argues that failure to adequately restrict the transportation of firearms through this intense, congested environment would further increase the potential for mass shootings. Id. at 15. Bratton continues that, although lawful gun holders do not pose a special public safety risk, most of the guns crimes in large cities are committed with guns stolen from lawful gun holders. Id. at 18. Therefore, Bratton argues, increasing the number of legal guns traveling throughout the City would increase the amount of gun crimes committed within the City. Id.
- Robert Barnes, New York Eased Gun Law Hopeful Supreme Court Would Drop Second Amendment Case — but that Hasn’t Happened Yet, The Washington Post (August 11, 2019).
- Richard Wolf, New York City Limits on Transporting Guns Eased in Effort to get Supreme Court Challenge Dismissed, USA Today (June 21, 2019).