Breaking News

Symposium: Fourth down and goal — Will the court punt again?

Michelle Ghetti is Deputy Solicitor General for the state of Louisiana, which authored a multi-state amicus brief in support of the petitioners in New York State Rifle & Pistol Association v. City of New York.

As we spend fall weekends watching football, one has to wonder – in the big game of constitutional football, will the Supreme Court once again punt the Second Amendment? In the words of Justice Clarence Thomas, the court has treated the Second Amendment as a disfavored right, a “constitutional orphan,” refusing to clarify the standard for assessing Second Amendment claims for over 10 years. Thomas is joined in that concern by Justices Samuel Alito and Neil Gorsuch. However, three votes do not a writ grant make. Justice Brett Kavanaugh, though, has expressed a broad historical view of the Second Amendment. Although vote counts for granting certiorari aren’t public, perhaps his was the necessary fourth vote to grant certiorari in New York State Rifle & Pistol Association v. City of New York.

But is this enough to get a decision by the court defining the contours of the Second Amendment? Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor have expressed the views that use of arms for self-defense does not warrant federal constitutional protection and that Second Amendment rights are not fundamental for incorporation purposes. Justice Elena Kagan appears equally unsympathetic to Second Amendment claims. And, although Chief Justice John Roberts joined the majority opinions in both District of Columbia v. Heller and McDonald v. City of Chicago, he is known as a consensus builder and has long said each case should be decided on the basis of a rule of law that does no more than is necessary to resolve the particular dispute before the court.

So, what other limited issue raised in this case, wholly apart from the Second Amendment, might capture the interest of a majority of the court? Four other constitutional “plays” might get five votes: (1) decide that the case is now moot, (2) determine that New York City’s regulations violate the commerce clause, (3) conclude that its regulations violate the right to travel, or (4) hold that its rule is preempted by the Firearm Owners’ Protection Act.


The court has sent mixed signals regarding mootness: When New York City revised its rule and requested dismissal, the Supreme Court declined the invitation, instead directing that the question be considered at oral argument. The first “play,” then, could be to decide after argument that the case is moot. My able co-contributors have fully covered that possibility in their articles. Even for those justices who ache for a decision clarifying the parameters of the Second Amendment, five pending cert petitions more directly present that question: Malpasso v. Pallozzi (whether licenses can require a “good and substantial reason” for possessing a gun), Cheesemen v. Polillo (whether licenses can require a “justifiable need” for possessing a gun), Worman v. Healey (whether “assault weapons” and “large capacity feeding devices” can be banned), Pena v. Horan (whether possession of a gun can be limited to “safe” guns) and Mance v. Barr (whether the federal government can prohibit interstate handgun sales). Finding this case to be moot and taking up one or more of these other cases may be a better route to clarifying Second Amendment law.

Commerce clause

The second most likely play to get a consensus would be to conclude that New York City’s regulations violate the commerce clause. The regulations do not allow any of New York City’s 8.5 million residents to transport a gun outside of their homes, even locked and unloaded, except to one of the seven in-city shooting ranges or to an approved in-state hunting area. Paying a fee to practice with one’s gun, to participate in a competition or to hunt on certain land is plainly commerce. Wildlife tourism – including recreational hunting and sports shooting – annually creates millions of jobs and generates billions in tax revenue and spending throughout the United States. In 2016 alone, 11.5 million people took 147 million trips to hunt within the United States, generating more than $27 billion in spending, nearly $2 billion in federal tax revenue and $1.6 billion in state and local tax revenue. Furthermore, nearly 200,000 American jobs and $7 billion in salaries and wages can be attributed to the hunting industry. It is no less a competitive, revenue-generating sport than golf or baseball and, just as a golfer or baseball player would be entitled to use his own golf clubs or bat to engage in his sport, hunters and sharpshooters need and are entitled to use their own guns. New York City’s regulations also clearly favor a small group of local businesses over those outside the city, thereby impeding the free flow of commerce.

A law isolating commerce locally blatantly discriminates against interstate commerce and can only survive if the municipality can demonstrate, under rigorous scrutiny, that it is needed to advance a legitimate local interest. New York City’s alleged “local interest” is the safety of its citizens, but it has been unable to articulate how possessing an unloaded handgun to travel to an out-of-jurisdiction gun or hunting range is any more a risk to the safety of its citizens than carrying an unloaded gun to one of the in-city or in-state ranges. Make no mistake, an unloaded gun is no more dangerous than a golf club or a baseball bat – competitive athletic equipment that no one has seen fit to restrict to the inner sanctum of one’s home. And even if an unloaded gun were dangerous, common sense dictates that it would be less dangerous to carry it outside of city limits rather than to a local range. Finally, a state or municipality simply cannot protect a local industry against competition from outside its boundaries, even for safety purposes, if reasonable alternatives exist – such as requiring that the guns be unloaded and locked in a container separate from any ammunition.

Lastly, New York City’s regulations cannot be considered in a vacuum. To determine what the practical effect of a statute may be, the court in part considers what would happen if not one but many states or municipalities adopted similar legislation. Should this regulatory scheme be upheld, given the current environment, numerous cities around the country may adopt a similar protectionist scheme. This would be devastating to gun-related commerce throughout the United States.

Right to travel

The third play would be to invigorate the seemingly dormant constitutional right to travel, which hasn’t been the basis of a decision by the Supreme Court in 20 years. The right derives from the explicit right of “free ingress and regress to and from any other State” originally found in the Articles of Confederation. No longer explicit, it is considered to be part of either the privileges and immunities clause or the commerce clause. The right to travel from one state to another is fundamental to the concept of our federal union and crucial to our “national interest in a fluid system of interstate movement.” A law implicates this right if it deters interstate travel or uses any classification that penalizes the right.

The New York City regulations unquestionably deter the city’s gun-possessing residents – believed to be approximately 1.2 million, 840,000 of whom possess premises permits – from traveling to another state with a handgun in their possession, a classification that penalizes these residents’ right to travel. This is true whether the trip is for hunting, shooting practice, competition, or just for a vacation or to visit friends or relatives.

Furthermore, taken together with New York state’s restrictive gun-possession laws, the city’s ordinance unconstitutionally restricts nonresidents, possessing a gun legally in both the departure and arrival states, from traveling through New York without running the risk of arrest and prosecution. In 2018 alone, 2.3 billion Americans traveled within the United States for business or leisure, including 65 million visitors to New York City. New York state has 24 airports, four major water ports, 3,447 miles of railroads and seven border ports of entry through which Americans pass, and it is impossible to get to or from six states by public roadways without passing through New York.

Because the city’s ordinance unreasonably blocks the right to ingress and egress based on possession of an item legal in other states, it interferes with and unconstitutionally burdens the right to travel. Furthermore, should the city’s regime be upheld and similar restrictions adopted in other jurisdictions, safe interstate travel would be in jeopardy.

FOPA preemption

Although the petitioners have not specifically argued New York City’s regulations are preempted by federal law, the fourth play, although perhaps only providing limited relief, is to interpret the Firearm Owners’ Protection Act, 18 U.S.C. § 926A, as preempting the restrictions, at least insofar as they limit travel with guns in vehicles.

FOPA provides that, “notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof,” a person is entitled to “transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm,” if it is unloaded and, along with its ammunition, not readily accessible from the passenger compartment of the vehicle. It was enacted in response to serious abuses by the Bureau of Alcohol, Tobacco, and Firearms against law-abiding citizens. Hunters, in particular, were being arrested for firearms violations while passing through a state with tight controls.

Preemption of a state law by a federal law occurs, for example, when Congress expressly preempts state law or when the law conflicts with federal law so that a party cannot comply with both state and federal requirements. Under FOPA, Congress explicitly preempted state law on interstate travel with firearms. And if a citizen following federal law carries an unloaded, inaccessible gun in his vehicle, he would violate New York City’s ordinance. FOPA preempts that ordinance, and the Supreme Court should so hold.

Although the chief justice would prefer to view Supreme Court justices as umpires rather than coaches, there is still a level of strategy involved in the selection of cases for review and the basis of the ruling. The court has the ability to avoid the Second Amendment issue in this case once again, but hundreds of thousands of lawful gun owners hope it will not.

Recommended Citation: Michelle Ghetti, Symposium: Fourth down and goal — Will the court punt again?, SCOTUSblog (Nov. 21, 2019, 1:00 PM),