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An Alternative Answer in NYSRPA

By on April 3, 2020 Categories: ,

[This discussion from Joseph Blocher and Reva Siegel is cross-posted from Oral Argument 2.0]

New York State Rifle & Pistol Association Inc. v. City of New York

No. 18-280 – Argued December 2, 2019

At Issue

Whether a New York City rule banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.

Advocates

  • Paul D. Clement, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
  • Richard P. Dearing, for the respondent

Background and Case Commentary

In New York Rifle & Pistol Association, Richard Dearing—arguing for the government—faced an unusual challenge: Defending the constitutionality of a gun regulation that had already been repealed and replaced by a state statute. That development almost certainly rendered the case moot, and indeed three-quarters of the oral argument focused on the question of mootness.

But some of the Justices also wanted to discuss the constitutionality of the repealed regulation and the scope of Heller’s protections outside the home—and related merits questions we address here. The repealed regulation would have effectively prevented residents of New York from transporting their weapons out of the city, for example to a shooting range or a second home. This was seemingly a unique and relatively recent rule—not the kind of “longstanding” restriction approved as “presumptively lawful” in Heller. Moreover, while the Second Circuit had, in a divided opinion, found that the regulation satisfied intermediate scrutiny, the City could offer little evidence for its effectiveness in preventing gun crime. These merits issues, lurking in the “background” of the case, have received less attention to date.

Dearing, who was making his first-ever Supreme Court oral argument (against veterans Paul Clement and Jeff Wall), did a superb job arguing that the case is moot. But the posture of the dispute made it difficult for Dearing to defend the merits of the now-repealed law or address the government’s compelling interest in regulating guns.

Justice Alito had an exchange with Dearing (at pp. 52-53 of the transcript) in which Dearing, in hindsight, might have more clearly and emphatically defended the government’s authority to adopt the now-repealed law.

The Justice asked “Mr. Dearing, are the – are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” Dearing responded, “We – we no, I don’t think so.” Justice Alito pressed the point: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” Dearing replied that the prior rule made it easier for law enforcement to verify whether a person transporting a gun in public had a license to do so.

But then the Justice asked another follow-up—the question we address below, whether “The Second Amendment permits the imposition of a restriction that has no public safety benefit”—and Dearing yielded the premise of the question. With respect, as our proposed answer highlights, we think that Dearing could have stood his ground and defended the state’s prerogative to enact a law that might produce a “public safety benefit”—even if those benefits cannot be empirically validated.

To be clear, Dearing was focused on addressing the case’s mootness, not defending its prerogative to adopt the now-repealed regulation, and as we have observed, given the posture of the case, rolling out a more expansive account of the state interest would have been hard to do at oral argument. (With the benefit of time and space, we do so in a separate blog post here.)

That said, it does seem critical to assert that government has compelling interests in regulating guns in ways that cannot always be validated empirically, both because government needs the discretion and flexibility to respond to local circumstances and emergency conditions and because government needs to regulate in ways that preserve public confidence and trust.

New York State Rifle & Pistol Association Inc. v. City of New York on Oyezhttps://www.oyez.org/cases/2019/18-280

Key Questions from Oral Argument

Justice Alito (45:12): So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?

Reva Siegel and Joseph Blocher: Your honor, two quick points on the concept of “public safety benefit.” First, new forms of gun regulation—like new forms of gun technology—won’t come with a deep empirical record one way or the other. But that fact should not prevent government from trying to address a problem in new ways. We need the states and local governments as laboratories of experimentation attempting to fashion locally appropriate solutions to complex problems of gun violence. Heller doesn’t limit those laboratories to repeating only those experiments they have tried before, nor should the government have to face the impossible burden of proving that a new law will certainly save lives.

Second, even when government lacks data showing that a particular gun law saves lives, the law might still provide an important benefit. The public harms of gun violence reach far beyond crime and injury, and the government’s interest is correspondingly broad as well. This Court has repeatedly recognized—including in strict scrutiny First Amendment cases like Williams-Yulee—that the state has an important and even compelling interest in promoting the public’s confidence and sense of security in institutions like courts and schools. The Court should similarly recognize the importance of such interests in the Second Amendment context.