Legal Sidebari

The Future of the Second Amendment: New
York State Rifle & Pistol Association at the
Supreme Court
May 15, 2020
On April 27, 2020, the Supreme Court issued a two-page per curiam (unsigned) opinion in New York
State Rifle & Pistol Association, Inc. v. City of New York, effectively dismissing a case that had been
poised to clarify the Court’s Second Amendment jurisprudence. As described in previous Legal Sidebars,
the case involved a portion of New York City’s (NYC’s or the City’s) firearms licensing scheme that the
U.S. Court of Appeals for the Second Circuit (Second Circuit) upheld as valid. The Supreme Court’s per
curiam opinion did not address whether the firearm licensing provision at issue violated the Second
Amendment, however. Instead, the Court concluded that intervening changes in law gave the plaintiffs in
the lawsuit “the precise relief” they had requested, rendering the case moot. It thus appears that for the
time being, case law concerning the scope of the Second Amendment right to keep and bear arms could
continue to develop in the lower courts without further High Court guidance. Nevertheless, in separate
concurring and dissenting opinions, four Justices signaled “concern” that the Supreme Court’s Second
Amendment precedents are not being properly applied and suggested that the Court may need to weigh in
to rectify the situation. As such, although New York State Rifle & Pistol Association did not result in a
substantive constitutional decision, it is possible that the Court will issue such a decision in another case
in the near future.
This Legal Sidebar provides an overview of Second Amendment doctrine; summarizes the facts and
history of the New York State Rifle & Pistol Association case; discusses the Supreme Court’s per curiam,
concurring, and dissenting opinions in the case; and briefly addresses implications of the decision going
forward.
Second Amendment Overview
The Second Amendment provides in full: “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 its 2008 decision in
District of Columbia v. Heller, a five-Justice majority of the Supreme Court held that the Amendment
protects an individual right to possess firearms for historically lawful purposes and struck down
regulations that effectively banned the private possession of operative handguns in the home, emphasizing
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that the Second Amendment’s “core lawful purpose of self-defense” is “most acute” inside the home. The
Heller majority also provided some guidance on the scope of the right, noting that it “is not unlimited”
and clarifying that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of firearms,” among other “presumptively lawful” regulations. As
for the types of weapons that may qualify for Second Amendment protection, the Heller Court read a
prior decision as limiting coverage to weapons “in common use at the time” a court reviews a particular
firearm, with “dangerous and unusual weapons” being excluded from the ambit of the amendment.
Since Heller, the Court has addressed the Second Amendment on two other occasions. In McDonald v.
City of Chicago, the Court held that the Amendment applies to state and local governments through the
Fourteenth Amendment, and in Caetano v. Massachusetts, the Court issued a brief, unsigned order
vacating as inconsistent with Heller a Massachusetts Supreme Court decision that upheld a law
prohibiting the possession of stun guns. The Court’s jurisprudence has thus left key questions
unanswered, including (1) the extent to which Second Amendment protections apply outside the home
and (2) what methodology courts should use in addressing Second Amendment challenges to firearms
regulations more generally. With no further Supreme Court guidance, lower federal courts have generally
adopted a two-step framework for reviewing federal, state, and local gun regulations. At step one, a court
asks whether the law at issue burdens conduct protected by the Second Amendment, which typically
involves an inquiry into the historical meaning of the right. If the law does not burden protected conduct,
it is upheld. Courts at step one have sometimes recognized a safe harbor for the kinds of “longstanding”
and “presumptively lawful” regulations that the Supreme Court in Heller appeared to insulate from doubt.
In a variation, some courts have treated such regulations not as de facto constitutional but merely as being
entitled to a presumption of constitutionality.
Under the two-step framework, if a challenged law burdens protected conduct, a court next applies either
intermediate or strict “scrutiny” to determine whether the law is nevertheless constitutional. Whether a
court applies intermediate or strict scrutiny ordinarily depends on “the nature of the conduct being
regulated and the degree to which the challenged law burdens the right.” A law that severely burdens the
“core” protection of the Second Amendment receives strict scrutiny (meaning that the law must be
“narrowly tailored to achieve a compelling governmental interest” to be upheld), whereas “a regulation
that does not encroach on the core of the Second Amendment” receives intermediate scrutiny (meaning
that the law must be “reasonably adapted to a substantial governmental interest”). What precisely
constitutes the “core” of the Second Amendment has produced a split among the circuit courts: Several
courts have identified the core right as essentially confined to self-defense in the home, but some other
courts have viewed the carrying of a firearm for self-defense outside the home, at least in some contexts,
as falling within the Second Amendment’s core.
Using the two-step framework, the federal circuit courts have upheld many, but not all, firearms
regulations, often after concluding that the “core” of the Second Amendment is not severely burdened and
thus intermediate scrutiny should be applied. However, multiple Supreme Court Justices have previously
signaled that they may not fully agree with the two-step methodology or some of the results that the lower
courts have reached. For instance, Justice Kavanaugh wrote as a judge on the D.C. Circuit that courts
should “assess gun bans and regulations based on text, history, and tradition, not by a balancing test such
as strict or intermediate scrutiny.”
New York State Pistol & Rifle Association: Background
New York State Rifle & Pistol Association v. City of New York involved a portion of New York City’s
handgun licensing regime. In the State of New York, it is a crime to possess a handgun without a license,
and the state delegates to localities the authority to administer the licensing requirement. In general, a

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New York resident who wants to lawfully possess a handgun may obtain two kinds of licenses: a
“premises” license, which authorizes possession of a handgun in the home or a place of business, and a
“carry” license, which authorizes concealed carry in public. Until recently, premises license holders in
NYC could keep a handgun only at the address on the license, and the license holder could remove the
handgun from that address without further permission only (1) to transport it to and from an authorized
shooting range within NYC “[t]o maintain proficiency in the use of the handgun” and (2) to transport the
handgun to and from areas designated for hunting (subject to license authorization). Transportation could
occur only with the handgun unloaded and in a locked container separate from any ammunition.
In 2013, three NYC residents and the New York State Rifle & Pistol Association, a firearms advocacy
organization composed of individuals and clubs throughout the state, filed suit seeking an injunction
against NYC in federal court, alleging that the City’s premises licensing scheme was unconstitutional.
The plaintiffs each sought to take their premises licensed handguns to shooting ranges outside of NYC,
and one plaintiff sought to take his handgun to a second home outside the City as well. Among other
things, the plaintiffs alleged that because NYC’s premises licensing scheme prohibited them from doing
these things, it deprived them of their right to self-defense in a home other than their licensed NYC home
and severely restricted a corollary right to develop competency in the use of the licensed handgun in
violation of the Second Amendment. The Second Circuit upheld the licensing provisions at issue,
however, applying the two-step inquiry described above and concluding that the fit between the licensing
requirements and the City’s interests in public safety and crime prevention satisfied intermediate scrutiny.
The Supreme Court subsequently agreed to review whether, in the plaintiff-petitioners’ words, “the City’s
ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city
limits is consistent with the Second Amendment[.]” The petitioners and the United States (as amicus in
support) urged the Supreme Court to take a broad view of the Second Amendment, arguing that the
Second Circuit applied a “watered-down” form of scrutiny and that the text, history, and tradition of the
constitutional provision make clear that the right at issue extends beyond the home and protects “at a bare
minimum” the “right to transport … arms to other places where they may be lawfully used.” In response,
the City asserted that the Second Circuit properly applied the two-part analysis employed by “every
circuit to decide the issue” in concluding that the regulations survived intermediate scrutiny.
After the Supreme Court agreed to review the lower court’s rulings, NYC amended its premises license
rules to (1) allow a license holder to transport the licensed handgun directly to and from other residences
within or outside the City where he or she could have and possess the handgun and (2) permit transport to
and from lawful shooting ranges and competitions within or outside the City as well. Separately, the
governor of New York signed legislation amending the statute that governs premises licenses to make
clear that licensed handguns may be transported between locations where possession is lawful, including
dwellings and shooting ranges, displacing any inconsistent state or local laws. Based on these changes to
the laws at issue in the case, the City argued that the plaintiffs had received everything they sought in the
lawsuit and thus the case had become “moot” (i.e., the parties now lacked a requisite “personal stake in
the outcome”) and should be remanded to the lower courts without addressing the merits of the
petitioners’ arguments. In response, the petitioners asserted that continuing limitations in the new laws
had kept the controversy alive and that they could still seek monetary damages for adverse effects from
the old rules.
New York State Pistol & Rifle Association: Supreme Court Decision and the Future
On April 27, 2020, the Supreme Court issued a brief opinion declining to weigh in on the Second
Amendment issues raised in the New York State Rifle & Pistol Association case. Instead, the Court
determined that the intervening changes of law had rendered the petitioners’ challenge to the old
restrictions moot. As such, the Court took the view that the case should be remanded so that the lower
courts could address whether the petitioners could add a claim for damages with respect to the old rules

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and raise additional claims with respect to the new rules. The Court accordingly vacated the Second
Circuit’s judgment and remanded the case without addressing the Second Amendment.
Four Justices wrote or joined separate opinions that grappled with the constitutional issues more directly.
Justice Kavanaugh concurred that the case should be remanded for the lower courts to consider any
ostensible new claims in the first instance, but he wrote separately to express “concern that some federal
and state courts may not be properly applying” the Second Amendment. He urged the Court to “address
that issue soon” and cited his own prior dissenting opinion as a D.C. Circuit judge in which he asserted
that Second Amendment claims should be analyzed based on text, history, and tradition. Justice
Kavanaugh also agreed with the analysis of the Court’s Second Amendment jurisprudence set out in
Justice Alito’s dissent. In that dissent, Justice Alito, joined by Justice Gorsuch and (in large part) Justice
Thomas, argued that the case was not moot given ongoing disputes over limitations in the new laws and
the potential availability of monetary damages. Justice Alito therefore would have reached the merits of
the case and concluded that NYC’s premises license restrictions violated the Second Amendment.
According to Justice Alito, the restrictions “burdened the very right recognized in Heller,” i.e., “the right
to keep a handgun in the home for self-defense,” which carries a concomitant right to transport the
handgun “to a range in order to gain and maintain the skill necessary to use it responsibly.” And in Justice
Alito’s view, given that the case implicated “a concomitant of the same right recognized in Heller,” the
City failed to identify any historical basis for restrictions on that right involving transporting firearms
outside city limits for practice. Justice Alito further argued that even if history were not sufficient to
establish the unconstitutionality of the licensing scheme at issue, the scheme should not survive
heightened scrutiny given the perceived weakness of the City’s public safety rationale. In summation,
Justice Alito indicated that if “the mode of review” employed by the Second Circuit in the case was
“representative of the way Heller has been treated in the lower courts … there is cause for concern.”
In light of the Supreme Court’s disposition in New York State Pistol & Rifle Association, the Second
Amendment status quo in the lower courts, for the moment, remains. However, the law may still be
poised to change in the near future. Though the Court did not address the Second Amendment in its per
curiam opinion, four Justices signaled concern that lower courts may be reviewing firearm laws in an
overly lax manner that is inconsistent with the Court’s jurisprudence. And the Court does not have to wait
long to take up the right to keep and bear arms if it so chooses: Petitions for certiorari are pending in at
least 10 additional Second Amendment cases (including cases involving challenges to requirements that
are also the subject of legislation introduced in the 116th Congress, such as assault weapons). Justice
Kavanaugh also suggested in his concurrence in New York State Pistol & Rifle Association that the Court
should “perhaps” address the perceived deficiency in lower courts’ application of Second Amendment
doctrine in one of those cases. Four votes must exist to grant certiorari in a case, and the concurring and
dissenting opinions in New York State Pistol & Rifle Association suggest that Justices Alito, Gorsuch,
Kavanaugh, and Thomas may be interested in having the Court further elaborate on the scope of the
Second Amendment soon. Whether those four Justices would join with a fifth to alter the doctrine being
applied in the lower courts remains to be seen, however. Were the Court to do so, the decision could have
significant implications for existing firearms laws and the ability of lawmakers to legislate in this area in
the future.
Author Information

Michael A. Foster

Legislative Attorney

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