Supreme Court Will Take Up Second Amendment Challenge to NY’s Gun Laws

For the first time in more than a decade, the Supreme Court will review a Second Amendment challenge to a state’s gun laws, and this time New York’s law is in the crosshairs. The Court on Monday granted certiorari in New York State Rifle & Pistol Association v. Corlett, in which the Second Circuit affirmed the constitutionality of New York’s gun licensing regime, to resolve a circuit split and decide the question left open in District of Columbia v. Heller: “[w]hether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense” (Petition for Certiorari, No. 20-843, pg. i).

This is a major gun rights case, involving an issue that advocates have pressed the Supreme Court to take up for years. Now with a strong conservative majority on the Court, this challenge to New York’s gun laws could be the one cited decades from now as establishing the right to carry a gun for self-defense anywhere you go without limitation by the state. Or it could be the case where the Supreme Court once again reaffirms reasonable state regulation of the right to bear arms for self-defense while in public. Given the huge stakes at play, and New York’s gun licensing laws at the center of it all, let’s take a step back through the Supreme Court’s Second Amendment precedent to see how we got here.

The Second Amendment and the Supreme Court’s Opinion in Heller

As in all cases of constitutional interpretation, we start with the text. The Second Amendment to the U.S. Constitution provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the Supreme Court’s landmark Second Amendment gun rights opinion in Heller, Justice Scalia broke down the meaning of those words in great detail and ultimately concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, 554 U.S. 570, 592 (2008). The Court acknowledged that that individual right is not unlimited, however. As Justice Scalia put it: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.

Some state regulation of the right to keep and bear arms is permissible, but to what extent? In Heller, the Supreme Court struck down D.C.’s strict gun laws that banned handgun possession in the home and required any guns in the home to be rendered inoperable, the very place where the need to be able to defend yourself and your family is most acute. But Heller did not address the question that the Supreme Court will now consider: does the Second Amendment right to bear arms extend to unfettered carrying for self defense outside of the home?

New York’s Gun Licensing Scheme

For more than a century in New York, the State has required anyone who wants to possess and carry concealable firearms—a term that includes most handguns, but excludes most rifles and shotguns—to obtain a license to do so (see N.Y. Penal Law § 265.00[3]). The State has adopted separate licenses and standards for in-home possession of firearms and for carrying in public. For a “premises” license, a person need only show that they are at least 21 years old (unless honorably discharged from the military), “of good moral character,” not a felon, not on the run from the law, and not mentally ill, among other things (see N.Y. Penal Law § 400.00[1]). For a carry license, there are a limited few who are entitled to a carry license because of their employment as armored bank messengers, corrections officers, or state judges (but only in the First and Second Departments; sorry, upstate judges, you’re out of luck) (see N.Y. Penal Law § 400.00[2][c]-[e]).

For everyone else, they must show “proper cause” for issuance of a carry license, meaning that the firearm is needed “for target practice, hunting, or self-defense” (New York Brief in Opposition, at 5, quoting Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86 [2d Cir. 2012]; see N.Y. Penal Law § 400.00[2][f]). For the former two categories—target practice and hunting—New York issues restricted licenses that limit the legal possession of the firearms to those uses. A carry license for self-defense, on the other hand, is an unrestricted license, and so it carries a higher standard that the applicant must satisfy. In particular, to show that you should be issued an unrestricted license for self-defense, you have to establish “an actual and articulable—rather than merely speculative or specious—need for self-defense” (NY BIO, at 5, quoting Kachalsky, 701 F.3d at 98). The petitioners in New York State Rifle & Pistol Association challenge the “proper cause” requirement for issuance of an unrestricted carry license, arguing that it violates their Second Amendment rights.

The Second Circuit Rejects a Prior Second Amendment Challenge to New York’s Proper Cause Requirement

This isn’t the first time that New York’s gun licensing regime has been challenged, however. In Kachalsky, the Second Circuit rejected an identical Second Amendment challenge to New York’s proper cause requirement for an unrestricted carry license for self-defense in public, distinguishing it from the Supreme Court’s opinion in Heller, which was focused on Second Amendment rights within the home. As the Second Circuit explained, state regulation of carrying firearms in public is enshrined within the Second Amendment. But that regulation must satisfy intermediate scrutiny to pass constitutional muster under the Second Amendment. The Second Circuit held that New York’s proper cause licensing regime did. “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” (Kachalsky, 701 F.3d at 97). And, the Second Circuit concluded, the proper cause requirement for an unrestricted firearms license for self-defense was substantially related to those interests. In particular, the Court noted that New York’s legislature had concluded, more than 100 years before, that the proper cause requirement limiting those who could carry firearms in public would help reduce violence and assist police in their daily jobs to protect the public. Indeed, the Court explained,

Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention. It is not, as Plaintiffs contend, an arbitrary licensing regime no different from limiting handgun possession to every tenth citizen. This argument asks us to conduct a review bordering on strict scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive alternative. But, as explained above, New York’s law need only be substantially related to the state’s important public safety interest. A perfect fit between the means and the governmental objective is not required. Here, instead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere. That New York has attempted to accommodate certain particularized interests in self defense does not somehow render its concealed carry restrictions unrelated to the furtherance of public safety.

The Plaintiffs Bring a New Second Amendment Challenge to the Proper Cause Requirement Angling to Overturn Kachalsky and Establish an Unrestricted Right to Carry Firearms in Public

Notwithstanding that the Second Circuit had already rejected an identical Second Amendment challenge to the proper cause requirement in Kachalsky, the plaintiffs in New York State Rifle & Pistol Association—two individuals who were denied unrestricted licenses, but were issued restricted licenses instead, upon the determination that they did not satisfy the proper cause requirement, and an affiliate of the NRA—brought a new Second Amendment challenge. The State, relying on the binding precedent in Kachalsky, moved to dismiss. The District Court for the Northern District of New York dismissed the challenge, holding that it was bound by Kachalsky, notwithstanding the plaintiffs’ arguments that the case was wrongly decided. In a summary order noting its prior rejection of the very same arguments in Kachalsky, the Second Circuit affirmed.

But relief at the Second Circuit never seemed to be the goal of the litigation anyway. With a conservative majority on the Supreme Court, one that was strengthened by the appointment of Justice Amy Coney Barrett last fall, the plaintiffs appear to have been using the litigation to get the Second Amendment issue involving the right to carry firearms in public, which was left open in the Supreme Court’s opinion in Heller, back to the Court. And they succeeded.

Notwithstanding New York’s arguments that the circuit split the plaintiffs argued existed was illusory, that this case wasn’t the proper vehicle for addressing this significant Second Amendment issue, and that New York’s firearm licensing regime falls well within the State’s regulatory powers under the Second Amendment, the Supreme Court granted certiorari and will review the case next term. As many commenters more qualified to opine than I have noted, this is a huge gun rights case that will be cited for decades to come. And New York is right smack in the middle of it all. This will be very interesting to watch, as merits and amici briefing rolls into the Supreme Court over the next few months.

For those interested, the petition for certiorari, New York’s brief in opposition, the petitioners’ reply, and the appendix containing the decisions and statutes under review are here:

The Supreme Court Holds that NY Credit Card Surcharge Law Regulates Speech

In Expressions Hair Design v Schneiderman, the Supreme Court today held that New York General Business Law § 518, which bans the imposition of credit card surcharges on customers, though permits retailers to offer a discount to those who pay in cash, regulates retailers’ speech, and remanded the case to the Second Circuit to decide whether the statute violates the First Amendment.  General Business Law § 518 provides that that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.”

Five New York businesses challenged the statute as a violation of their First Amendment rights by impermissibly regulating how they communicate their prices to customers.  After the United States District Court for the Southern District of New York found in the retailers’ favor, the United States Court of Appeals for the Second Circuit vacated the District Court judgment, holding that section 518 regulated conduct, not commercial speech, and thus did not violate the First Amendment.  Particularly, the Second Circuit differentiated between single sticker pricing regimes and other pricing regimes, and held that the former did not violate the First Amendment because all the law did was require the retailers to charge the same price for credit card and cash sales.  The Court held, however, that whether section 518 prohibited all other kinds of pricing regimes was far from clear, and turned on an unsettled question of state law.  Thus, the Second Circuit declined to address the First Amendment issue beyond the context of single sticker pricing regimes.  The Second Circuit’s opinion is here.

In an 8-0 opinion, the Supreme Court disagreed, and held that section 518’s bar on credit card surcharges does, in fact regulate commercial speech.  The Court began by noting that it decision is limited to the actual pricing scheme that the retailers seek to use: posting a cash price for goods or services with a notation that an additional percentage surcharge will be added to the price if the customer uses a credit card to pay.  Deferring to the interpretation of the statute used by the Second Circuit as not “clearly wrong,” the Court agreed that section 518’s bar on credit card surcharges prohibits the retailer’s preferred pricing scheme.  That prohibition, the Court held, “tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices.” (Opn, at 9).  By regulating the communication of prices, instead of the prices themselves, the Supreme Court held that section 518 regulates commercial speech.

The Court, therefore, remanded the case to the Second Circuit to address the question that it did not previously, whether Section 518’s regulation of commercial speech survived First Amendment scrutiny.  Although the Court’s consideration of the question was limited to the single-sticker pricing scheme set forth by the retailers, the Court noted that the Second Circuit was free to consider the constitutionality of other pricing schemes should it decide to do so.  This offer could be significant and could require certification of the question of statutory interpretation to the New York Court of Appeals to resolve the “unsettled question of state law” noted in the Second Circuit’s opinion below.

The Supreme Court’s opinion can be found here.

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