Reaching for handgun rights

Romolo Colantone, Jose Irizarry and Efrain Alvarez are licensed New York City handgun owners. They have the right to carry their locked and unloaded pistols and ammunition from their homes, to and from the seven shooting ranges in the city. They do not have the right to do so to ranges outside the city. Nor can Colantone carry his pistol to his second home beyond city limits. Cities all across New York, California and other states do not prohibit such transfers.

These facts have triggered an existential shootout in the twilight zone between concealed and open carry. Travel to a beyond-the-city limits gun range in one's truck or automobile is perfectly legal in most, if not all, cities outside of NYC. But for NYC officials, a weapons transfer outside of one's home conjures the woebegone trappings of the Wild West.

Prior to 2001, NYC issued a comparatively broad "target" license. It permitted such weapons carries outside the city. But the NYPD encountered "widespread abuses of the target license." A NYC ordinance thus initiated a "premises" license, limited to the owner's home address. It excepts handgun transfers to and from NYC's authorized shooting ranges.

The three NYC residents and the New York State Rifle & Pistol Association thus sued NYC, aiming to shoot down the city's exceptionally restrictive handgun carry law. The alleged wrongs included violations of the Second Amendment, commerce clause and right to travel. New York State Rifle & Pistol Association Inc. v. City of New York, 18-280 (NYSR&PA).

The Manhattan federal trial judge denied plaintiffs' requests for a declaration that NYC's restrictions were unconstitutional. The intermediate appellate court unanimously affirmed the trial court's ruling. On Jan. 22, the U.S. Supreme Court decided to review this case. Its decision will be a spring 2020 media bombshell. It is now a depth bomb, poised to explode onto the surface of a nation plagued by gun violence.

The Supreme Court's 2008 District of Columbia v. Heller decision affirmatively answered the explosive question whether Washington, D.C. individuals possessed a constitutional right to handguns in the home for self-defense. But as Justice Antonin Scalia cautioned: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The Supreme Court's 2010 McDonald v. City of Chicago decision extended Heller's in-home permit to not only Chicago, but all U.S. cities, states and the federal government. Since these foundational decisions, lower state and federal courts have routinely upheld gun restrictions.

Prior to the Supreme Court's decision to hear the NYC case, the court had refused to review all proffered Second Amendment cases since McDonald. That resistance spawned claims that the court has been missing in action regarding gun rights. Last year, for example, Justice Clarence Thomas (joined by Justice Neil Gorsuch) forcefully dissented from the court's refusals to hear related cases in the decade since the Heller-McDonald pronouncements. Thomas thus characterized the Second Amendment as a "disfavored right" and "this court's constitutional orphan."

The bulletproof recoil is that the Supreme Court has historically avoided three foibles: unnecessarily deciding cases on constitutional grounds; issuing unnecessarily broad decisions yielding unintended consequences; and going off half-cocked, without the benefit of nationwide input from other courts wrestling with such monumental issues.

This epic gun fight at the NYSR&PA Corral already features swaggering combatants. On the day the Supreme Court decided to take this case, NYC mayor Bill de Blasio proclaimed: "We, every single day, are working to make this the safest big city in America. We need the laws that we have that protect against guns being on our streets and we will fight to protect ourselves." Multiple states have and will submit amicus briefs in support of their respective gun control laws.

Between now and the Supreme Court's larger-than-life NYSR&PA decision, there will be many more senseless incidents, triggering senseless loss of life, in communities wounded by senseless individuals. By deciding to hear NYSR&PA -- the case likely won't be argued until the court's October 2019 term, and decided in the Spring of 2020 -- the Supreme Court will finally be obliged to acknowledge Justice Thomas's Second Amendment second-tier constitutional right admonition. Heller and McDonald were both 5-4 decisions. Two conservative justices have since joined the court. It's now solidly conservative majority could limit its ruling to cross-county gun transfers. But the court could also invalidate countless gun control restrictions -- given the individual's nascent constitutional rights, now lurking somewhere within the Heller-McDonald framework. When the smoke clears, this judicial firefight could thus shred the essential fabric of today's state and local gun laws.

One should expect this 2020 Second Amendment blockbuster to provide a workable test for measuring the validity of the nation's patchwork of gun control laws. That Amendment's pillars -- Heller and McDonald -- specifically chose not do so. Other constitutional rights, e.g., free speech, freedom of religion, and abortion have an elaborate template for measuring the validity of attacks on their respective cores. So the court's 2020 marching orders will hopefully strike a viable balance between protecting individual rights, and protecting individuals from each other.