In Heller, McDonald, and now potentially in NYSRPA, the Supreme Court established Second Amendment principles that have been the basis for more than 1,000 Second Amendment challenges in the past ten years. Notably, each of the Supreme Court’s cases involved an outlier law—DC and Chicago were the only notable US cities with handgun bans, and New York’s law is such an oddity that the city itself has effectively disclaimed any interest in it.
One way to get a handle on just how unusual the Heller, McDonald, and NYSRPA laws were/are—and what that might mean for the Court’s doctrinal response—would be to figure out how many people have ever been prosecuted for violating them. If the laws have been actively enforced, then one could make a stronger case for a stringent test to prevent government overreach. If they have not, then there is some danger of—as Justice Blackmun put it in Lucas—such a test being the equivalent of launching a missile to kill a mouse.
Unfortunately, I do not know of an easy way to get reliable information on the relevant prosecution history. The litigation materials themselves turn up a few interesting but inconclusive nuggets. At oral argument in Heller, Alan Gura seemed to acknowledge that no one had ever been prosecuted for violating the particular DC law at issue: “And, in fact, there is a prosecution history not under this specific provision,” though the “laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.” (oral argument transcript at pg. 50) Neither McDonald nor NYSRPA arose from a prosecution.
Of course, a prosecution isn’t necessary to establish standing (Dick Heller was denied a permit, which is enough), and it’s perilous to read too much into silences, but the lack of references to such prosecutions in the cases themselves does raise the question of how the laws the Court struck down actually operated in practice.
Duke research librarian extraordinaire Jennifer Behrens pointed me to some resources on arrest data that might be illuminating. New York City, for example, provides some arrest data online, at least back to 2006, but it’s tough to search, in part because there are many different rules that could be implicated by gun possession in the city: N.Y. Penal Law §§265.01, 265.20(a)(3) (prohibiting some handgun possession – a misdemeanor); N.Y. Penal Law §400.00 (the licensing requirement – a misdemeanor); 38 R.C.N.Y. §5-23(a)(3) (the city rule on transporting to shooting ranges, violations of which result in revocation/cancellation of permit). Chicago seems to have similar data available, though I haven’t been able to make heads or tails of it just yet.
All of which still leaves me wondering how actively these laws have been enforced, and I’d welcome any pointers on how to figure that out.
To be clear, there is nothing necessarily wrong or unprecedented with the Justices granting cert to review the constitutionality of an unusual law. Many landmark constitutional cases involve outlier laws—Griswold v. Connecticut is an easy example. But even in Griswold (and Bowers v. Hardwick, for that matter), the petitioners were actually arrested and convicted.
If the gun laws that the Justices are seeing not only are outliers vis-à-vis the general sweep of gun regulation, but also lack bite in practice, that may have implications for the doctrinal rules they announce. In Heller and McDonald, the Justices struck down the outliers without articulating an over-arching standard of review or other doctrinal framework for Second Amendment challenges as a whole. One of the questions surrounding NYSRPA is whether they will do the same again.