BERNABEI: New York on Hot Seat over Gun Rules




graphic for leo bernabei's column of a street sign and red text that says "five guys boroughs and fries new york city politics"By June, the U.S. Supreme Court will be issuing a monumental ruling on its first case dealing with the Second Amendment in over a decade, pitting the New York State Rifle & Pistol Association against the City of New York.

For years, New York’s gun laws have not only violated the Second Amendment, but also common sense and basic principles of firearm safety. Since 2001, New York has had a bizarre regulation that prohibits New York City residents from transporting their licensed firearms out of the city, even where they would otherwise be allowed to have them. This ban is being challenged, and the decision of the case could lead to very significant changes in the manner in which states and localities have the ability to control firearms.

In 2010, the Supreme Court issued its last major ruling on the Second Amendment, protecting an individual’s right to own a handgun in their own home and incorporating that right among the states. However, the Court left the issue of whether this right extends to outside of the home for another day. With no clear federal guidelines, state laws on this topic vary widely

At the far end of the spectrum, jurisdictions like New York City place some of the most burdensome regulations on handgun use and carry in the country. Here, even if one was to be given a permit to keep a handgun in his or her home, the city did not allow these permit holders to take their handguns out of the five boroughs for any reason. Own a lake house upstate? Too bad. Have a weekend home in Pennsylvania? Tough luck. Buy another gun licensed at your second address, was New York’s answer. 

Does this not sound insane? How on earth does someone owning two guns make the public any safer than owning only one? (Even the lawyer for New York City struggled with this question in front of the Supreme Court.) That’s exactly what the petitioners in this case are asking. The answer is that it doesn’t, and New York realized their entire slew of unconstitutional firearm restrictions beyond this one was on a death march to the Supreme Court chamber unless they mooted the argument. And that’s exactly what they did, or at least attempted to do.

On paper the NYPD, New York State Legislature and Gov. Andrew Cuomo gave the petitioners all that they wanted: the ability to transport their firearms outside of New York City to a second residence anywhere in the United States where they are legally entitled to have their firearm(s). To a Government 101 student, this would seem to be the end of the case. New York claimed it was no longer necessary to argue, but the Supreme Court was wise enough to realize that this isn’t even remotely the end of this case.

Our High Court has long established, “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” There is no such clarity in this case. Were the Supreme Court to drop the case, nothing would have prevented New York from reversing course the next day and reinstating its total travel ban outside of the city. 

Additionally, under the current rules one must still travel uninterrupted; that would preclude bathroom breaks or a stop for coffee. New York City’s attorney “pinky-promised” in his Supreme Court argument that these stops wouldn’t be prosecuted, but that shouldn’t give any anyone solace, much less the petitioners in this case. 

Besides, honesty and New York politicians haven’t seemed to mix well in the past. Just last year, the State Legislature and Cuomo repealed a state ban on gravity knives. This came after a federal judge ruled the ban unconstitutional. With the law repealed in the midst of the associated case working its way to the Supreme Court, New York filed an almost identical brief, claiming that the case was now moot. However, the NYPD stated the day after Cuomo signed the bill into law that they would continue enforcing the gravity knife ban through an obscure, rarely cited MTA regulation prohibiting their possession on the City’s public transportation.

The NYPD is saying the quiet part out loud: “We’ll argue that cases we don’t like are no longer applicable to current law but continue to enforce those laws in other ways.”

If that doesn’t crush a mootness argument, I don’t know what does. As the saying goes, history doesn’t repeat itself, but it often rhymes. The same thing is happening now, and the Supreme Court must recognize that.

It has been over a decade since the Supreme Court has granted certiorari to a major gun case. As Clarence Thomas wrote two years ago in a dissent to a denial of certiorari for one such case, “The right to keep and bear arms is apparently this Court’s constitutional orphan.” It is high time to change this orthodoxy.