I didn’t include this in my piece on the they key takeaways from the oral arguments in the New York City gun case because it really isn’t, but it is a fun little sidebar to the big question of whether or not the Court will decide that the case is moot.
During questioning of Richard Dearing, the attorney representing New York City before the Court, Justice Samuel Alito attempted to elicit a straight answer from the lawyer about whether or not the City believes the Second Amendment exists outside of the home. The justice started by questioning Dearing about the law in question, which was revised by the city after the Supreme Court agreed to hear the case in a transparent attempt to avoid judicial scrutiny.
JUSTICE ALITO: Mr. Dearing, are the — are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?
MR. DEARING: We — we — no, I don’t think so. We made a judgment expressed by our police commissioner that — that it was consistent with public safety to repeal the prior rule and to move forward without it. JUSTICE ALITO: Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?
MR. DEARING: It was a reasonable — as we’ve outlined in our briefs, it was a reasonable implementation of the — of the state premises license, carry license division. I think — and we’ve explained that there was — was a verification benefit to the way that that rule was set up. That verification benefit perhaps has not played out as much in practice as it had been predicted, and we believe the police can work harder and make sure that the city stays safe.
JUSTICE ALITO: So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?
MR. DEARING: I think you have to look, first, to consider whether the — the type of restriction — how the restriction accords with the history under the Second Amendment before we answer that question. And so I — I think — I think the right place to start, and — and for our purposes, maybe starting with shooting ranges is the best, first key point is this must be viewed as an adjunct to the premises license. This is not just a general statute or generally applicable statute. It’s an adjunct to the premises license. It’s —
JUSTICE ALITO: Well, if it’s viewed in that way, could the city — would it be consistent with the Second Amendment for the city to prohibit any trip by a person holding a premises license to a firing range?
MR. DEARING: I think that would be doubtful. And the — and the reason the city went beyond what state law says about a premises license and — and authorized transport to shooting ranges in the city was because the city recognized that — that training is — does intersect with and is important to effective use of the handgun in the home.
That’s when Justice Alito pounced.
JUSTICE ALITO: So you are conceding — I take it “doubtful” means that it would be unconstitutional. You can tell me if you — you — you don’t know the answer to that question. But, if it — if that’s what it means, you’re conceding that the Second Amendment protects the possession of a firearm outside the home under at least some circumstances?
MR. DEARING: I think what I’m conceding is that, in the case of a premises license, the Second Amendment has something to say about what effective possession in the home means. And sometimes that may mean that you need to be able to — that a license holder needs to be able to undertake certain activities outside the home.
JUSTICE ALITO: Well, if the person is taking the firearm, the handgun, from the home to a firing range, the person is out on the streets of New York, and if — unless a total ban on taking it to a firing range would be consistent with the Second Amendment, it follows that the Second Amendment, under at least some circumstances, protects the possession of a handgun outside the home. Isn’t that correct?
MR. DEARING: I think — I think that’s a fair way to look at it, that — that — that — but — but, from our perspective, the right question regarding a premises license is, did the — did the rule impermissibly burden effective use of the handgun in the premises? In the same way that to get a gun to a premises, you have to get it somewhere outside — you know, purchase it somewhere outside your premises and bring it there, that certain things that happen outside the home may — may be integrally related to effective use of a handgun inside the home. But, when you look at a premises license, and not speaking about the Second Amendment at large or writ large, but the premises license specifically, the only proper lens to look at the question through is whether the restriction impinges on effective use of the handgun in the home.
The Supreme Court doesn’t allow cameras in the courtroom, but you can imagine Mr. Dearing squirming as he tries to answer Justice Alito’s questions, can’t you?
Of course Dearing can’t say “Yes, the Second Amendment protects the right to have a firearm outside of the home.” That’s not New York City’s position, and it’s not the position of gun control advocates, even those who claim to support the Second Amendment.
The gun control movement argued in favor of Washington, D.C.’s gun ban struck down in Heller, they argued in favor of Chicago’s gun ban struck down in McDonald, and when they couldn’t come up with any good argument in favor of New York City’s gun law, they tried to change it rather than risk a court ruling that might tell lower courts to quit treating the Second Amendment like a second class right. They don’t support the right to keep and they don’t support the right to bear, though they may approve of a few individuals having the privilege to do so.
Justice Alito did a superb job in demonstrating the games that gun control activists are playing with the right to keep and bear arms. Let’s hope there are four more justices on the Court who are ready to put a stop to them.