What to Know About the Supreme Court’s First Gun Case in 9 Years

Brennan Center Fellow Eric Ruben breaks down the significance of a challenge to New York City’s strict gun permitting process.

April 10, 2019

Cross-posted from The Trace.

The Supreme Court in its next term is expected to hear a challenge to New York City’s ban on transporting a licensed handgun to a home or shooting range outside the city. It’s the first gun case the court will consider in nearly a decade.

The regulation, which doesn’t exist in any other American city, applies to holders of a “premises permit,” one of two handgun permits residents can obtain, which allows them to keep guns in their homes and transport them, locked and unloaded, to one of the city’s seven shooting ranges. To travel anywhere else with a firearm, premises permit holders must obtain a concealed carry permit. The New York State Rifle and Pistol Association, the local gun group that brought the challenge, contends that obtaining an extra layer of licensing to take a gun outside the five boroughs is not “consistent with the Second Amendment, the commerce clause, and the constitutional right to travel.”

Gun rights advocates have long argued that New York City’s process to get a concealed carry permit is arduous and time-consuming. The permit is also generally off limits to civilians. Recipients have mostly been business owners, security guards, former members of law enforcement, and prominent figures like President Donald Trump’s sons, Donald Jr. and Eric. (The process is so demanding, in fact, that consulting firms have sprung up to help applicants streamline it.) Gun rights advocates say obtaining a premises permit is hard enough: It takes anywhere from three to 10 months and requires interviews with the New York Police Department’s gun licensing division, character reference letters and other forms of documentation.

Gun reform groups, on the other hand, fear that a Supreme Court that includes two Trump-appointed justices could expand the scope of the Second Amendment so that it guarantees a right to carry firearms in public, both openly and concealed. One such group, the George Takei-helmed One Pulse For America, has even asked the NYPD to scuttle the requirement that residents who wish to bring their guns outside the city obtain a concealed carry permit, in hopes that the Supreme Court would dismiss the case and not establish a precedent on the matter.

What kind of ramifications could a high court decision have on the right to carry guns in public? Here, Eric Ruben, a fellow at the Brennan Center for Justice who teaches a class on the Second Amendment at New York University, answers our questions.

This interview was conducted by The Trace's Jennifer Mascia has been edited for clarity and length.

Jennifer Mascia: What could this ruling do, not just in New York City but across the country?

Eric Ruben: It’s hard to say, because obviously we don’t have an opinion in front of us. The fact that the court accepted this case almost a decade after District of Columbia v. Heller [which held that the Second Amendment protects the right to keep firearms in the home for the purpose of self defense], and after refusing to hear over 80 cases where there were petitions to the Supreme Court, is somewhat telling. The Supreme Court is saying that it is now ready to get back into the fray and continue the project of articulating what the Second Amendment means after Heller.

In Heller, the Supreme Court only had to determine whether or not a ban on home possession and a requirement to store firearms unloaded at all times in the home is unconstitutional. It does not have anything to do with carrying guns in public. But this case does involve, at least in a narrow way, the public transport of firearms, because it deals with whether or not someone can lawfully take a handgun, albeit locked and unloaded, from the home to other places by traveling through public.

So at minimum, the Court is going to have to determine whether or not the right extends at all, in any way, shape or form, to the public square. And depending on whether the Court issues a broad ruling or a narrow ruling, an opinion in this case could certainly have ramifications for other public carry policies.

We’ve done several stories about how crime guns start out as legal guns that legal gun owners tend to leave unsecured in cars. Could a reversal of the ban spark more gun theft in New York City?

It’s important to keep the narrow nature of the particular restriction in mind. It is not a challenge to the New York City permitting scheme for carrying a handgun for self defense. It’s just a challenge to a restriction on the ability of people with home permits from leaving the five boroughs to either go to second homes or shooting ranges. In that regard, it’s a relatively unique policy. The Court is considering whether or not that policy is constitutional. It’s not considering the constitutionality of the broader scheme for public carry, but there is concern that a broad ruling in a case like this could set precedent on carrying guns in public.

How did the premises permitting and concealed carry permitting process develop?

New York State began licensing firearms back in the early 1900s, with a law called the Sullivan Act. So the notion of firearm licensing in the state is over a century old.

Before 2001, there was something called a “target permit” that would allow New York City residents to carry a handgun to shooting ranges and shooting competitions outside the city. But there was concern that the target permitting policy was being used to avoid other public carry restrictions. A person with a target permit caught with a gun in public could say they were traveling to a shooting range outside the city lawfully. In other words, the concern at the time — and of course, this was before Heller — was that the ability to carry a gun to a shooting range could be used as a pretext to skirt the rest of the regulations. And that permit was then scrapped by the NYPD. A negative ruling in this case would in essence force the city to revisit that determination.

Could a conservative ruling encourage gun rights groups to come back with future challenges?

The constitutionality of “may-issue” [discretionary] permitting schemes is going to come before the Supreme Court in the coming years. I’d be very surprised if it doesn’t arrive there. I don’t think this case squarely presents that question. The Court could, of course, say some things in deciding this case about the scope of the right to carry guns in public that could influence the litigation of other public carry policies.

Do you think New York City’s arduous permit process could be dismantled by this Supreme Court decision?

It’s really hard to speculate about that, because New York City’s policy has been upheld by the federal courts. But the Supreme Court has not weighed in on the question. The majority of federal appeals courts that have considered the constitutionality of permitting laws like New York’s have upheld them. But the Supreme Court will have the final word.

(Image: Geoff Livingston/Getty)