The Lawletter Vol 43 No 3
Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively, the "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.The Penal Code provides for two primary types of handgun licenses: "premises" licenses and "carry" licenses. N.Y. Penal Law § 400.00(2)(a), (f). As its name indicates, the premises license authorizes possession of a handgun only at a particular address, in this case, the permittee's residence. The handgun can be removed from the premises only in limited circumstances, such as
(3) To maintain proficiency in the use of the handgun, the licensee may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, and in a locked container, the ammunition to be carried separately.
N.Y.C. R. 5‑23(a)(3). According to the License Division, an "authorized small arms range/shooting club" must be located in New York City. New York State Rifle & Pistol Ass'n, 883 F.3d at 53. All of the plaintiffs challenged the Rule's prohibition against transporting their handguns to shooting ranges and competitions outside of New York City, and one of the plaintiffs challenged the prohibition against transporting his handgun from his city dwelling to his second home outside of the City. Id. at 54.The Second Circuit employed a two‑step inquiry for determining whether the Rule satisfied the Second Amendment: (1) Does the challenged Rule impinge on conduct protected by the Second Amendment? (2) If so, what is the appropriate level of scrutiny? Id. at 55. As for the first element, the court assumed without discussion that the Rule impinged on a protected right. Id. Regarding the second element, the court observed that the Rule was not a substantial burden on the right of plaintiffs to keep and bear arms, since there were seven facilities within the City of New York at which all plaintiffs could practice shooting, and if they wanted to go to shooting ranges outside of the City they could rent or borrow a gun at those facilities. Furthermore, the plaintiff with a second home was free to obtain a premises permit in the jurisdiction where he owned the second home. (Because the prohibition as applied to the second-homeowner touched on a core area of Second Amendment protection, i.e., the right to self‑defense at home, the court found, somewhat skeptically, that some level of heightened scrutiny applied to the individual challenge, but nevertheless concluded that the regulation satisfied the requirements of heightened scrutiny. Id. at 55‑61.)
Since the Rule did not bar gun ownership outright, strict scrutiny of the Rule was not required. Rather, the court applied intermediate scrutiny, under which the government prevails if it can show that the Rule was substantially related to achievement of an important government interest. Id. at 61‑62. The court found no Second Amendment violation because the Rule was substantially related to the important governmental interest in public safety and crime prevention. The City presented evidence that under a previous looser version of the Rule allowing premises permit holders to travel to shooting ranges beyond the City limits there were documented examples of abuse which threatened the public health and safety, including, licensees traveling with loaded firearms, licensees found with firearms far away from the vicinity of an authorized range, licensees taking their firearms on airplanes, and licensees traveling with their firearms when no authorized range was open. The court reasoned that such abuses of the Rule could lead to impermissible uses of a handgun in acts of road rage, crowd situations, demonstrations, family disputes, and other circumstances where possession of a firearm would threaten health and safety. Id. at 63. Plaintiffs, in contrast, offered no evidence of harm suffered under the Rule and they were free to use shooting ranges within the City with their own firearms or to use shooting ranges outside the City with rented or borrowed guns. Moreover, the second-homeowner could obtain a premises license in the jurisdiction of his second home and purchase a handgun to keep there. Id. at 64.
The court also held that Rule 5‑23(a) did not discriminate against interstate commerce in violation of the Commerce Clause. The Rule "does not prohibit a premises licensee from patronizing an out‑of‑state firing range or going to out‑of‑state shooting competitions." Id. at 65. No evidence was presented that the purpose of the Rule was to protect the City's firing‑range industry. Finally, there was no evidence that the Rule had a discriminatory effect on interstate commerce aside from the plaintiffs’ assertion that they had refrained from using their own handguns in shooting events outside of the City of New York. Id. The court rejected plaintiffs' efforts to trivialize the prohibition against allowing premises license holders to take their guns outside of the City by analogizing the Rule to a hypothetical rule requiring City tennis racket owners to use their rackets only on tennis courts within the City, observing that, unlike guns, tennis rackets did not pose a public safety issue. Id. at 65‑66.For the same reasons that the court rejected the Commerce Clause challenge, the court found that Rule 5‑23(a) did not infringe on the right to travel, noting, "The Constitution protects the right to travel, not the right to travel armed." Id. at 67. Finally, the court found that plaintiffs could not sustain a First Amendment challenge because the Constitution does not recognize a general right to social association. "Gathering with others for a purely social and recreational activity, whether it is dancing or shooting guns, does not constitute expressive association under the First Amendment." Id. at 67‑68 (citation omitted). And even if social association were protected by the First Amendment, the plaintiffs were free to borrow or rent a gun to participate in shooting activities at any shooting range outside New York City. Id. at 68.