Supreme Court Takes Gun Law Case for the First Time in a Decade
5.27.2021
Supreme Court To Hear First Second Amendment Case in Over a Decade
Introduction
Last November the New York State Bar Association’s House of Delegates adopted the report and recommendations of the Task Force on Mass Shootings and Assault Weapons, which I co-chaired with NYSBA Past President David Schraver. In its report, “Reducing the Epidemic of Mass Shootings in the United States – If Not Now, When?”[1] the task force set forth several concrete recommendations for legislative change that would go a very long way toward reducing not only mass shootings but gun violence in general, as well as suicides, in the United States. NYSBA has included the recommendations set forth in the Task Force Report in its 2021 federal legislative priorities and is actively reaching out to lawmakers in Congress to achieve their enactment.
The Task Force Report addressed some of the major court decisions that have passed on various gun control legislation enacted throughout the country over the last several years. These include the key United States Supreme Court decisions of District of Columbia v. Heller[2] and McDonald v. City of Chicago.[3] Not until January 22, 2019, in the case of New York State Rifle & Pistol Association v. City of New York, did the Supreme Court agree to take up the first review of a Second Amendment challenge since McDonald. The case was ultimately deemed moot, vacated and remanded in a per curiam opinion on April 27, 2020,[4] after New York City amended its rule that had previously limited the circumstances under which a handgun could be removed from a premise and transported, where the owner had a license to possess it on that premise. On June 15, 2020, the Supreme Court continued the trend by declining to review a total of 10 Second Amendment cases pending on its docket. This was surprising to many who follow Second Amendment developments since these cases involved significant issues, and some displayed a split among the circuit courts. Also, four of the court’s conservative members – Justices Thomas,[5] Alito,[6] Gorsuch,[7] and Kavanaugh[8] – all expressed concerns that lower federal and state courts have not been applying the court’s Second Amendment precedent correctly, and it only takes four justices to grant a petition for a writ of certiorari. Commentators posit that the justices may have believed the timing was not right to take up these cases in light of the political climate and uncertainty whether there would be a majority that would support a loosening of gun restrictions.[9]
In light of this background, it is noteworthy that on April 26, 2021, the Supreme Court decided to review the New York law that imposes strict limits on carrying guns outside of the home, in the case of New York State Rifle & Pistol Association v. Corlett. This law has been on the books for a very long time and requires that individuals who want a license to carry a gun outside of their home demonstrate a “proper cause.” Some legal experts believe that the court may have decided that now is the time to take up a Second Amendment case in light of the change in the composition of the justices.[10] With the death of Justice Ruth Bader Ginsburg, and the addition of Justice Amy Coney Barrett, whose decisions[11] as a judge on the Seventh Circuit suggest that she shares the conservatives’ concerns about the scope of the Supreme Court’s Second Amendment decisions, there may be more confidence that a majority decision in favor of loosening gun restrictions can be achieved.
Case Background
New York State Rifle & Pistol Association v. Corlett[12] is a challenge to New York’s concealed carry law. The New York law[13] at issue requires applicants to demonstrate “proper cause” to obtain an unrestricted license to carry a concealed firearm outside the home. Two men, backed by the New York State Rifle & Pistol Association, challenged the law in the Northern District of New York, arguing that it violates the Second Amendment. The district court[14] rejected the challenge to the law in 2018, and in 2020, the Second Circuit, relying on its 2012 decision in Kachalsky v. County of Westchester,[15] affirmed by summary order the district court’s rejection of the challenge. [16] In Kachalsky, the Second Circuit had occasion to consider the constitutionality of the New York law. There, the court applied intermediate scrutiny and held that “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention,” and “the proper cause requirement is substantially related to these interests.”[17] The Supreme Court granted certiorari to determine the specific question of “whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”[18] The case is scheduled to be argued in the fall, with a decision expected sometime next year.
The Second Circuit is not the first appellate court to grapple with this issue, and the split in the circuits is no doubt a significant reason that certiorari was granted. The First,[19] Third,[20] Fourth,[21] and Ninth[22] circuits have analyzed similar laws and, like the Second Circuit, held that they pass constitutional muster. By contrast, the D.C. Circuit[23] and the Seventh Circuit[24] have held that similar “proper cause” laws are unconstitutional under Heller.
Highlighting this split in the Courts of Appeals, the law’s challengers urged the Supreme Court to weigh in. On the substance, petitioners argue that the text, structure, and purpose of the Second Amendment all confirm that its protection of the right to bear arms extends to public spaces. They argue that the Second Circuit “distorted the holding of Heller” and that Heller itself also supports an expansion of gun rights beyond the home.[25] In opposing certiorari, New York’s attorney general argued that, in fact, none of the Courts of Appeals to engage with this issue held that the Second Amendment right to bear arms was necessarily limited to the home.[26] At the same time, however, the New York attorney general noted that all of these courts, in line with Supreme Court precedent, acknowledged that “the right to carry firearms in public is not unlimited and can be subject to regulatory measures consistent with longstanding limitations.”[27] In addition, the attorney general argued that New York’s law “directly advances the State’s compelling interests in protecting the public from gun violence.”[28]
Gun Violence Continues to Plague the United States
Despite the global coronavirus pandemic, our country has continued to endure a relentless scourge of mass shootings and gun deaths.[29] Tragic examples include the March 16 mass shooting this year during which eight people were killed and one person seriously injured at three massage parlors in and near Atlanta, Georgia. Six of the eight victims killed were women of Asian descent.[30] Almost a week later, on March 22, ten people, including a police officer, were killed in a grocery store in Boulder, Colorado, when a shooter opened fire using an AR-15-style pistol with an arm brace.[31]
Closer to home, on May 8 of this year, two brothers who worked as sidewalk CD peddlers in the Times Square area of New York City had an argument, during which one brother, who has a lengthy arrest record, fired at the other. Instead of the bullets hitting the intended target, three innocent bystanders were shot, two women and a four-year-old girl.[32] These three Times Square victims are just a few of the hundreds of people who have been shot in New York City in 2021. Police Department statistics indicate that as of May 9 of this year, 505 people have been the victims of gun shootings, the most that the city has suffered since 2010.[33]
In light of this ongoing national crisis, both Congress and the Biden Administration have advanced initiatives to attack the problem. In March, the House of Representatives passed two bills that would close loopholes in the gun background check system (that legislation is awaiting action in the Senate).[34] These proposals correspond to recommendations in the Task Force Report.[35] In April, President Biden called on Congress to go further and ban assault weapons and high-capacity magazines.[36] In addition, President Biden announced that the Department of Justice would be implementing various new rules to reduce gun violence.[37] Many of the President’s proposals were also recommended in the Task Force Report.
The concerns regarding people carrying guns in public do not just apply to individuals who, under the law, do not have a right to purchase or possess them. The more people who are allowed to carry concealed firearms in public, the greater the risk to public safety and harm to individuals. The American Bar Association has issued policy[38] on concealed carry laws that give discretion to enforcement authorities to determine whether a permit or license to engage in “concealed carry” should be issued in jurisdictions that allow the carrying of concealed weapons, and opposes laws that limit such discretion. The report noted the increased risk of injury and death from carrying loaded and concealed firearms in public:
“The carrying of loaded, concealed firearms in public increases the risk of gun-related deaths and injuries. The danger posed by criminals who engage in this conduct is obvious. However, public safety is threatened even where persons carry concealed guns pursuant to a state permit or license. Such carrying increases the chance that everyday disputes will escalate into deadly encounters, and the risk that accidental shootings will occur where large numbers of people are gathered. The concealed carrying of firearms also places law enforcement officers at heightened risk of gun violence.”[39]
Supreme Court Precedent and Past Court Decisions
The Task Force Report noted that the Supreme Court cautioned in Heller that the Second Amendment right it recognized, that law-abiding citizens may possess an operable handgun in the home for self-defense, is “not unlimited,” and does not confer a “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[40] Significantly, the court said: “prohibitions on carrying concealed weapons were lawful under the Second Amendment” and identified a non-exhaustive list of “presumptively lawful regulatory measures,” including: “prohibitions on the possession of firearms by felons and the mentally ill,” laws forbidding guns in “sensitive places” like schools and government buildings, and “conditions and qualifications” on the commercial sale of firearms.[41] In McDonald, the Supreme Court, while invalidating a Chicago law that generally prohibited the possession of handguns, repeated that a broad spectrum of gun laws remain constitutionally permissible.[42]
Although Heller did not address the issue of government regulation of carrying guns in public, many courts indicate that the Second Amendment does apply to gun possession outside of the home. There is a consensus among these courts, however, that the government has broad authority to regulate guns in public where firearms may endanger third parties. An August 25, 2020 Giffords Law Center report[43] found that courts in general affirm the constitutionality of laws that restrict carrying guns in public. Except in cases where laws prohibit all people from carrying guns in all circumstances, most courts have rejected challenges to laws that regulate carrying guns outside of the home.[44] The report notes that courts have decisively upheld laws that require someone to have a license to carry a gun outside of the home as well as conditions on such licenses, such as: “Requiring an applicant for a license to carry a concealed weapon to show ‘Good cause,’ ‘proper cause,’ ‘need,’ or to qualify as a ‘suitable person.’”[45]
The appropriate level of scrutiny in Second Amendment cases depends on the nature of the conduct being regulated and the degree to which the challenged law burdens Second Amendment rights. In general, a consensus has emerged that intermediate scrutiny, which examines whether a law is reasonably related to an important or significant government interest, is appropriate in the majority of Second Amendment cases. Under “intermediate scrutiny,” courts will uphold the challenged law upon finding it furthers an important government interest and does so by means that are substantially related to that interest.[46] A simple preponderance of evidence standard should be applied, except in the narrow class of cases in which a challenger can show that the law “substantially” or “severely” burdens a core Second Amendment right.[47]
Conclusion
The Supreme Court has made it clear that the important Second Amendment right to keep and bear arms, like other constitutional rights, is subject to reasonable limitations. A proper and necessary balance between rights protected by the Second Amendment and the fundamental interests of public safety must be maintained for the public good. There is a long history in our country of allowing states to decide this proper balance in passing concealed carry laws. Now, a newly constituted Supreme Court will be taking up this question. This significant Supreme Court decision will have a momentous impact on the safety and well-being of not only New Yorkers, but the entire nation. All of us will be watching and waiting.
Margaret J. Finerty is a partner at Getnick & Getnick in New York City. Her practice areas include federal and state False Claims Act qui tam litigation, IRS and SEC whistleblower matters, corporate monitorships and business integrity counseling. Prior to joining Getnick & Getnick, she served as a New York City criminal court judge and as an assistant district attorney in the Manhattan district attorney’s office. Finerty has served on NYSBA’s Executive Committee for eight years and in its House of Delegates for approximately 20 years. She recently co-chaired, with Past President David Schraver, NYSBA’s Task Force on Mass Shootings and Assault Weapons, which issued the report “Reducing the Epidemic of Mass Shootings in the United States – If Not Now, When?” approved by the House of Delegates in November 2020. NYSBA has included the report’s recommendations in its 2021 federal legislative priorities.
Major recognition goes to Getnick & Getnick associate Nico Gurian for his significant contribution to the research of the background, case law and legal issues discussed in this article.
[1]. An online version of the task force report is available at https://staging.nysba.cliquedomains.com/app/uploads/2020/11/12.-Final-Report-11.5.2020-Task-Force-on-Mass-Shootings-and-Assault-Weapons-With-cover-FINAL.pdf.
[2]. 554 U.S. 570 (2008). The Supreme Court in a 5–4 decision held for the first time that the Second Amendment protects an individual right of law-abiding citizens to possess an operable handgun in the home for self-defense. Significantly, the court cautioned that this right is “not unlimited” and that certain regulations and limitations are “presumptively lawful.”
[3]. 561 U.S. 742 (2010). The Supreme Court in a 5–4 decision held that the Second Amendment right set forth in Heller is incorporated in the Due Process Clause of the Fourteenth Amendment and binds the states as well as the federal government.
[4]. 140 S. Ct. 1525 (2020); https://casetext.com/case/new-york-state-rifle-pistol-assn-inc-v-city-of-new-york.
[5]. See, e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1866 (2020) (Thomas, J. dissenting from the denial of certiorari) (arguing that the court should have granted certiorari in a case challenging New Jersey’s handgun-carry-merit laws because the case “gives [the court] the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square circuit split on the constitutionality of justifiable-need restrictions on that right.”).
[6]. See, e.g., New York Rifle & Pistol Ass’n. v. City of New York, 140 S. Ct. 1525, 1527 (2020) (Alito, J. dissenting) (explaining that most lower courts “have failed” to properly apply the Supreme Court’s decision in Heller and McDonald).
[7]. See, e.g., id. (Justice Gorsuch joined Justice Alito’s dissent in full).
[8]. See, e.g., id. (Kavanaugh, J. concurring) (explaining that he “share[s] Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald,” and expressing a belief that “[t]he Court should address that issue soon.”).
[9]. Amy Howe, Court To Take Up Major Gun-Rights Case, SCOTUSblog (Apr. 26, 2021, 10:50 AM), https://www.scotusblog.com/2021/04/court-to-take-up-major-gun-rights-case/; Cody J. Wisniewski, Why Did the Roberts Court Punt on Ten Second Amendment Cases?, National Review (June 19, 2020), https://www.nationalreview.com/2020/06/why-did-the-roberts-court-punt-on-ten-second-amendment-cases/.
[10]. As Professor Adam Winkler, a law professor at the University of California, Los Angeles, and the author of Gunfight: The Battle Over the Right to Bear Arms in America (2013) explained in The New York Times recently, “Trump’s appointments to the Supreme Court have created a likely strong majority in favor of curtailing America’s gun laws.” See Adam Liptak, Supreme Court to Hear Case on Carrying Guns in Public, N.Y. Times (Apr. 26, 2021), https://www.nytimes.com/2021/04/26/us/supreme-court-gun.html.
[11]. See, e.g., Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J. dissenting) (arguing that the Second Amendment only permits legislatures from banning individuals shown to be dangerous – but not all felons categorically – from owning guns, and expressing that the majority’s holding treated the Second Amendment as a “second-class right”).
[12]. The original defendant, George P. Beach II, was replaced by Keith Corlett after Corlett succeeded Beach as New York State Police Superintendent upon Beach’s retirement. Beach was named as a defendant in his official capacity in the district court.
[13]. Under New York law, the only way to lawfully possess a firearm is to obtain a license pursuant to N.Y. Penal Law § 400.00. Section 400.00(2)(f) – the section now at issue before the Supreme Court – provides that such a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.” New York courts have held that to establish “proper cause” for a license without any restrictions (e.g. not for target practice, hunting, or self-defense), an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Klenosky v. N.Y. City Police Dep’t, 75 A.D.2d 793 (1st Dep’t 1980), aff’d on op. below, 53 N.Y.2d 685.
[14]. N.Y. State Rifle & Pistol Ass’n, Inc. v. Beach, No. 1:18-cv-00134 (BKS) (ATB) (N.D.N.Y.) (order granting motion to dismiss, filed Dec. 17, 2018).
[15]. 701 F.3d 81 (2d Cir. 2012).
[16]. N.Y. State Rifle & Pistol Ass’n Inc. v. Beach, No. 19-00156 (2d Cir.) (opinion affirming judgment of district court, issued Aug. 26, 2020).
[17]. Id. at 97.
[18]. https://www.supremecourt.gov/qp/20-00843qp.pdf; See Liptak, Supreme Court To Hear Case on Carrying Guns in Public, supra note 10.
[19]. Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018).
[20]. Drake v. Filko, 724 F.3d 426 (3rd Cir. 2013).
[21]. Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013).
[22]. Young v. Hawaii, No. 12-17808 (9th Cir. 2021) (en banc).
[23]. Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017).
[24]. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
[25]. Petition for Writ of Certiorari at 23, New York Rifle & Pistol Ass’n, Inc. v. Corlett, No. 20-843. There are strong reasons to doubt this interpretation of Heller. Heller’s holding is explicit that an individual has a constitutional right to possess a handgun “in defense of hearth and home” which, on its own terms, does not include public spaces. See Heller, 554 U.S. at 652.
[26]. Brief in Opp. to Certiorari at 8–10, New York Rifle & Pistol Ass’n, Inc. v. Corlett, No. 20-843.
[27]. Id. at 9.
[28]. Id. at 18.
[29]. See Nigel Chiwaya, Gun violence Is Up. It’s Been Up for More Than a Year, NBC News (Apr. 26, 2021), https://www.nbcnews.com/news/us-news/compare-gun-violence-2021-n1265201.
[30]. Derrick Bryson Taylor and Christine Hauser, What To Know About the Atlanta Spa Shootings, N.Y. Times (Mar. 17, 2021), https://www.nytimes.com/2021/03/17/us/atlanta-spa-shootings.html; the shooter was captured by police, with a 9-millimeter gun found inside his vehicle; he had been a customer of the two Atlanta spas and had previously sought treatment for sex addiction.
[31]. Ray Sanchez, Paul Murphy, Blake Ellis, Amir Vera, Here’s What We Know About the Boulder, Colorado, Mass Shooting Suspect, CNN.com (Mar. 24, 2021), https://www.cnn.com/2021/03/23/us/boulder-colorado-shooting-suspect/index.html; the shooter was wearing a bullet proof vest and carrying a 9mm handgun; he had a prior arrest record for assault.
[32]. Ashley Southall and Ed Shanahan, Times Square Shooting Suspect Arrested in Florida, N.Y. Times (May 12, 2021), https://www.nytimes.com/2021/05/12/nyregion/times-square-shooting-arrest.html; fortunately the victims’ injuries were not life-threatening; the shooter was later apprehended in Florida.
[33]. Id.
[34]. See House Passes Bill To Expand Background Checks for Gun Sales, Politico (March 11, 2021), https://www.politico.com/news/2021/03/11/house-passes-bill-to-expand-background-checks-for-gun-sales-475329.
[35]. Supra note 1.
[36]. See President Biden’s announcement here: https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/07/fact-sheet-biden-harris-administration-announces-initial-actions-to-address-the-gun-violence-public-health-epidemic/.
[37]. Id.
[38]. See Policy 11A115, Policy and Resolution, with the accompanying report issued by the ABA’s Standing Committee on Gun Violence, Aug. 2011, https://www.americanbar.org/groups/public_interest/gun_violence/policy/11A115/#:~:text=The%20carrying%20of%20loaded%2C%20concealed,in%20this%20conduct%20is%20obvious.&text=The%20concealed%20carrying%20of%20firearms,heightened%20risk%20of%20gun%20violence.
[39]. Id.
[40]. 554 U.S. 570, 626 (2008)
[41]. Id. at 626–27, 627, n. 26.
[42]. Supra note 3 at 785–86.
[43]. Giffords L. Ctr., Post-Heller Litigation Summary (Aug. 2020), Post-Heller Litigation Summary | Giffords.
[44]. Id., see notes 40-42; See, e.g., Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89, 94 (2d Cir. 2012) (holding that “the Amendment must have some application” outside the home, but “[t]he state’s ability to regulate firearms and, for that matter, conduct, is qualitatively different in public” where “firearm rights have always been more limited” and there is a “tradition of states regulating firearm possession and use,” and United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“[A]s we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” (citations omitted).
[45]. Id.
[46]. Ass’n of N.J. Rifle & Pistol Clubs, 910 F.3d 106, 119 (3d Cir. 2018) (“‘[U]nder intermediate scrutiny[,] the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.’”) (quoting Drake v. Filko, 724 F.3d 426, 436 (3d Cir. 2013)).
[47]. Supra note 11 at 125–26 for a further discussion; see also supra note 43.
