Symposium: Supreme Court should address lower court nullification of the Second Amendment

[Elderberry]

SCOTUSblog by David Kopel and Randy Barnett 11/20/2019

Symposium: Supreme Court should address lower court nullification of the Second Amendment

In the 2008 decision District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment is an individual right of all Americans, like everything else in the Bill of Rights. Yet many lower courts have refused to accept the Supreme Court’s holding. Among the worst offenders are the U.S. Courts of Appeals for the 2nd and 9th Circuits. In New York State Rifle & Pistol Association v. New York City, the Supreme Court should address the problem of lower court nullification of the Second Amendment.

The case involves New York City’s ban preventing licensed handgun owners who live in the city from taking their handgun outside the city. Under the regulation, licensed owners could not take their handgun to a second home, or anywhere else. They could not use their New York City handgun at a target range in New Jersey or a safety training class in Westchester County.

The only places for a New York City resident to practice gun safety were seven target ranges within the city, whose population is 8.6 million. These small urban ranges cannot match what is available elsewhere. For example, while small ranges allow shooting straight ahead at a short distance, facilities with more space can teach students how to shoot while moving, and how to defend against attackers who are not directly in front of them. By preventing better training, the NYC travel ban gravely endangered the lives of law-abiding handgun owners.

More: https://www.scotusblog.com/2019/11/symposium-supreme-court-should-address-lower-court-nullification-of-the-second-amendment/#more-290371

[Elderberry]

Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake

SCOTUSblog by Joseph Blocher and Eric Ruben 11/20/2019

https://www.scotusblog.com/2019/11/symposium-disrupting-the-consensus-on-second-amendment-doctrine-would-be-a-mistake/#more-290366

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an “individual” right to keep and bear arms for private purposes like self-defense, and that the right—like all constitutional rights—is subject to regulation. But, aside from listing some “presumptively lawful” measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutiny—repeated often by the petitioners in this case—is simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the “two-step test.”

More at link.