ILYA SHAPIRO and MATTHEW LAROSIERE, CATO INSTITUTE
New York City has a law banning the transportation of licensed handguns out of the city, which isn’t the minor issue it may seem at first glance. When the Supreme Court agreed to take it up in late January, it broke a decade-long silence on the Second Amendment—no cases on the scope of the right since District of Columbia v. Heller (2008) declared an individual right to keep and bear arms. That means this odd little case about a dumb city law may set the standard for how all Second Amendment cases are handled going forward, after the lower courts have spent the last decade trying to restrict the right as much as possible.
New York City’s bizarre ordinance bans pistol permit holders from taking their firearms beyond the five boroughs. (The irony seems to be lost on the eminently anti-gun municipality, which one would think wants as many guns to leave as possible). A group of residents who own handguns and want to transport them outside the city for a variety of reasons—to take them at another residence upstate, to compete and shoot out-of-state, and any other manner of otherwise lawful activities—brought a lawsuit. They lost in the district court, and again in the U.S. Court of Appeals for the Second Circuit, which claimed to apply some level of heightened scrutiny, but in actuality just rubber-stamped the city’s invocation of “public safety.”
Because Cato is concerned with the slipshod way in which Second Amendment claims have been handled in the various courts of appeal throughout the country since Heller, we have filed an amicus brief supporting these plaintiffs before the Supreme Court.
The lack of a clear standard of review in the Second Amendment context has encouraged the development of an unintelligible and wildly divergent body of law. The Supreme Court must establish clear ground rules for evaluating right-to-arms claims and enable the lower courts to develop a coherent, consistent approach to resolving the array of issues that will continue to arise: carry rules, new firearms technology, ammunition/magazine restrictions, licensing schemes, and the like.
Lower courts should engage in an informed analysis based on constitutional text, history, and tradition. Not buzzwords, not a thumb on the scale for states and municipalities. One of the greatest aspects of the American system of government is that the scope of our rights do not change over time (unless the Constitution is amended). They were quite deliberately fixed at the time of the Founding, and then again after a bitter Civil War. Using modern developments and evidence-free security claims as a reason to restrict the rights of law-abiding citizens to armed self-defense is inconsistent with our Constitution.
The Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York in October, after it returns from its summer break.
Ilya Shapiro, is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), has testified before Congress and state legislatures and, as coordinator of Cato’s amicus brief program, filed more than 200 “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the Legal Studies Institute’s board of visitors at The Fund for American Studies, was an inaugural Washington Fellow at the National Review Institute and a Lincoln Fellow at the Claremont Institute, and has been an adjunct professor at the George Washington University Law School. In 2015 National Law Journal named him to its list of 40 “rising stars” in the legal community.
Matthew Larosiere is a legal associate in the Cato Institute’s Center for Constitutional Studies. Prior to joining Cato, he wrote on the subject of firearms and taxation in several publications. Matthew graduated cum laude from the University of Alabama with a J.D. and Master of Laws in Taxation. During law school, he served as the president of the Federalist Society, the ethics opinion editor of the Journal of the Legal Profession, mediator for the Alabama Family Law clinic, and as an officer of several other student organizations. Matthew holds a B.S. in business management and entrepreneurship from the University of Central Florida.