The threat from a New York gun law

The Supreme Court hears a case Mon­day that could, but shouldn’t, lead to ex­panded gun rights.

Los Angeles Times - - OPINION -

The U.S. Supreme Court will hear oral ar­gu­ments Mon­day in a New York City gun case that the jus­tices could toss out be­cause there no longer is an is­sue on the ta­ble for them to de­cide. Or they could lurch to the other ex­treme and hold that the 2nd Amend­ment con­fers a per­sonal right to carry a firearm in pub­lic. For once, we hope the court takes the easy way out and drops the case rather than giv­ing the 5-4 con­ser­va­tive ma­jor­ity a chance to dan­ger­ously ex­pand the scope of the 2nd Amend­ment.

At is­sue is a New York City re­stric­tion that barred peo­ple who owned a hand­gun un­der a “premises li­cense” from tak­ing the gun from their home (or busi­ness) un­less they car­ried it un­loaded and un­locked to any of seven fir­ing ranges within the city. That meant they could not carry a legally owned weapon out of the city for prac­tice at ranges, to be used in shoot­ing com­pe­ti­tions, or to ac­com­pany the owner to a se­cond home to be used for self-pro­tec­tion there.

The city ar­gued that it had a broad in­ter­est in pre­serv­ing pub­lic safety by en­sur­ing firearms li­censed for use in the home stayed there. While we sym­pa­thize with the goal of keep­ing firearms off the streets, the means that New York City con­cocted were ill-con­ceived and re­stric­tive to the point of silli­ness. Re­gret­tably, but pre­dictably, that re­stric­tion drew a chal­lenge by gun rights ad­vo­cates.

A fed­eral district court judge and the 2nd Cir­cuit Court of Ap­peals ruled for the city. The plain­tiffs ap­pealed to the Supreme Court in hopes of per­suad­ing the jus­tices to ex­pand the court’s 2008 de­ci­sion in District of Columbia vs. Heller and rec­og­nize an in­di­vid­ual right to carry a firearm for self-pro­tec­tion in pub­lic. The high court took the case in Jan­uary; see­ing the dan­ger ahead, the city and state of New York sub­se­quently changed the re­stric­tions to let gun own­ers carry their weapons — still locked and un­loaded — out of the city. The city then asked the Supreme Court to drop the case.

The court de­murred, so Mon­day’s ar­gu­ments will be about whether the court should even con­sider the case — tech­ni­cally, whether New York’s rescis­sion of the re­stric­tions made the is­sue moot — and if it should, whether the ban con­flicts with the 2nd Amend­ment, the Com­merce Clause and the right to travel.

The lat­ter is­sues hang on ar­cane points. New York ar­gues, for in­stance, that its re­stric­tion didn’t in­ter­fere with any­one’s right to travel. It just barred trav­el­ers from tak­ing the gun li­censed to their home or of­fice with them. The city’s lawyers also assert that re­strict­ing the abil­ity to trans­port guns met a le­git­i­mate gov­ern­ment con­cern: main­tain­ing pub­lic safety and re­duc­ing the pres­ence of guns on streets.

The more sig­nif­i­cant is­sue is the 2nd Amend­ment. The court could — and of­ten does — is­sue nar­row rul­ings in cases be­fore it. But the fear among gun con­trol ad­vo­cates is that the con­ser­va­tive ma­jor­ity will use this case to rule that the 2nd Amend­ment right to bear arms for self-pro­tec­tion need not be lim­ited to one’s res­i­dence.

We dis­agree at a fun­da­men­tal level with the Heller de­ci­sion, which up­ended decades of ju­rispru­dence that the 2nd Amend­ment con­ferred a right for Amer­i­cans to keep arms col­lec­tively — in mili­tias, for in­stance. In Heller’s 5-4 ma­jor­ity opin­ion writ­ten by Jus­tice An­tonin Scalia, the court ruled that “there seems to us no doubt, on the ba­sis of both text and his­tory, that the 2nd Amend­ment con­ferred an in­di­vid­ual right to keep and bear arms.” And, the court ruled, the right to self-de­fense has a long his­tory. But it also said that the gov­ern­ment has a le­git­i­mate in­ter­est in rea­son­able reg­u­la­tions gov­ern­ing who can buy and carry guns, and re­strict­ing them from sen­si­tive lo­ca­tions.

But where and how can that right to own a gun for self-de­fense be ex­er­cised? And does car­ry­ing a firearm in pub­lic add to one’s abil­ity to fend off a bad guy? It seems not, judg­ing by stud­ies that find in­creased gun vi­o­lence in states that have right-to-carry laws. A more heav­ily armed Amer­ica, with peo­ple car­ry­ing firearms every­where they go, is not a safer Amer­ica. Un­for­tu­nately, the con­ser­va­tive ma­jor­ity on the court, with its reliance on its own per­cep­tions of the Founders’ orig­i­nal in­tent, could sub­or­di­nate pub­lic safety to what­ever in­di­vid­ual right it be­lieves the 2nd Amend­ment con­fers. It would be much bet­ter for the court to de­cide that since the New York City re­stric­tions have gone away, so, too, should this case.

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