The upcoming Supreme Court case New York Rifle and Pistol Association v. the City of New York could be the first major Second Amendment case in almost a decade. It centers around a New York City regulation prohibiting residents from taking their guns to second homes and shooting ranges outside the city, even when the guns are unloaded and separated from ammunition. New York’s NRA affiliate and some gun-owning residents challenged the regulation, but, in the midst of litigation, New York City changed it – raising the question of whether the case was now “moot”. And, Senate Democrats filed a controversial brief addressed to the Supreme Court warning that they might pursue structural reform of the Court if they don’t like the outcome in this case. Detailing the twists and turns of the case and its potential impact on the Second Amendment – Adam Winkler of UCLA Law School and Ilya Shapiro of the CATO Institute join host Jeffrey Rosen.
Here’s some vocabulary that may be helpful to know this week:
- Mootness: A case becomes moot if the conflict, or the law at issue, that was present at the start of litigation no longer exists.
- Judicial review doctrines: A judicial review test is what courts use to determine the constitutionality of a statute or ordinance. There are three main levels in constitutional law:
- Strict scrutiny: For a law to survive a court’s review under strict scrutiny, it must be narrowly tailored to achieve a compelling government interest;.
- Intermediate Scrutiny: A level down from strict scrutiny. The law must be substantially related to an important government interest.
- Rational basis review: The most deferential kind of review to the legislature. A law only has to be “rationally related” to a “legitimate” government interest.
Adam Winkler is Professor of Law at UCLA Law. He is the author of Gunfight: The Battle over the Right to Bear Arms in America (2011) as well as the Interactive Constitution’s Second Amendment explainers.
Ilya Shapiro is the Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and the editor-in-chief of the Cato Supreme Court Review. He is one of the authors of Cato’s amicus brief, written on behalf of the New York State Rifle and Pistol Association.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- District of Columbia v. Heller (2008)
- McDonald v. Chicago (2010)
- State precursors to the Second Amendment – “Writing Rights” from The National Constitution Center’s Interactive Constitution
This episode was engineered by Kevin Kilbourne, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Ellie Rutkey.
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of The National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American People.
On today's episode we revisit the Second Amendment, and dive into the upcoming Supreme Court Case New York Rifle and Pistol Association versus The City of New York. This is a case that centers on a New York City regulation that forbids residents from taking their guns to second homes and shooting ranges outside the city even when guns are unloaded and separated from ammunition.
The law, which New York has since repealed is being challenged by New York's NRA affiliate and some gun-owning residents. Here to explore the case that could become the Court's first major Second Amendment ruling in almost a decade are two of America's leading Second Amendment experts and two great friends of We The People.
Adam Winkler is Professor of Law at UCLA Law School. He is author of Gunfight: The Battle Over the Right to Bear Arms in America as well as the Interactive Constitution's Second Amendment explainer, which listeners should check out before or after, but not during listening to the podcast.
Adam, thank you so much for joining.
Adam Winkler: [00:01:20] Thanks so much for having me, Jeff.
Jeffrey Rosen: [00:01:22] And Ilya Shapiro is Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. He is one of the author's of Cato's amicus brief written on behalf of the New York State Rifle and Pistol Association.
Ilya, it is wonderful to have you back on the show.
Ilya Shapiro: [00:01:37] Good to be back.
Jeffrey Rosen: [00:01:38] Let's begin. As Professor Kingsfield says with the facts, and they're especially important here because there's an argument that New York has repealed the law at issue in the case, and therefore, the case is moot, meaning that its no longer uh, a live controversy. And the Supreme Court should dismiss it. Adam, tell us about the facts of the case, New York's effort to repeal or change it, and whether or not you believe the case is moot.
Adam Winkler: [00:02:01] Well, thanks again for having me Jeff. And it's of course, a pleasure to be here with Ilya again uh, and working with the National Constitution Center. So the law at issue here is a New York City Police Department rule, not a state law or even a city ordinance. But a New York City Police Department rule that restricts where someone with a permit to have a gun um, in his home can take that handgun. Uh, and uh, this was uh, an ordinance that was apparently enacted right after 9/11 do, during the Giuliani Administration.
Um, and uh, the provisions of uh, the rule um, say that you can transport your handgun um, only to a limited number of places. You can take that handgun to uh, uh, a small arms range, or shooting club uh, as long as its unloaded and in a locked container and the ammunition carried separately. Uh, if that shooting club is in New York City. And this case, uh, the challengers in this case uh, including the New York uh, State Rifle and Pistol Association and a number or individual plaintiffs who hold premises license permits in New York City uh, seek to transport their handguns to other places.
So for instance, uh, they've argued that they should be able to take their handguns to shooting ranges and competitions that are outside of New York City. But that's not allowed under the current law, or under the uh, previous rule that was in place. Uh, or as one uh, plaintiff uh, claims that they wanna be able to take their gun to second home they have elsewhere in New York State. But the premises permit does not uh, allow that.
So they have filed suit seeking an injunctive relief uh, uh, allowing them to um, carry their firearms to these select places. Um, the difficulty for them is whether the case is still a live controversy or not. Um, when, uh, although New York did defend this rule through the Circuit Court and won uh, at the Second Circuit below, which held that these provisions and restrictions were constitutionally permissible under the Second Amendment and other constitutional provisions.
Um, nonetheless, uh, New York has uh, realized the error of its ways. The police department has rescinded the rule. And not only 'cause they have they rescinded the rule, but the State Legislature has stepped in and passed a state law that prohibits New York or any other county in New York from enacting such a similar law. Uh, as a result, um, uh, the challengers here have really gotten everything that they wanted uh, or at least uh, formally requested uh, in the case.
That is to say they can take their guns now to shooting ranges outside of the city. They can take them to their second homes uh, and the injunctive relief that they've sought has effectively been provided to them by the New York State Legislature. I think the case is undoubtedly moot now. The Supreme Court may none the less hold onto it because mootness provides plenty of leeway for the Justices.
Um, but any opinion in this case would clearly be an advisory opinion about a law that is no longer on the books in New York or any other state in the nation.
Jeffrey Rosen: [00:05:03] Ilya, as Adam says, New York claims the case is moot. And it doesn't wanna file a substantive uh, response. The New York Rifle and Pistol Association rejects that claim. And says that the city is not allowed essentially to change its rules after an appellate loss that frustrates Supreme Court review, and therefore, the C-C-Court could hear. Tell us more about the argument that the case is not moot.
Ilya Shapiro: [00:05:28] Right. Well, th-they have filed the brief. The briefing is done at this point. Uh, they make the point that the case is moot. And they m-style the rest of their argument as the former law and you know, use verb tenses to indicate that this is a uh, a h-hypothetical situation now rather than a, than a live case. Good, good lawyering on that part.
Uh, and as Adam mentioned, this is a prudential judgment by the court. It's not uh, a legal rule or constitutional rule they're enforcing about when a case becomes moot, or when a court can hold onto it. Uh, the challengers are saying, “Look, uh, this isn't exactly like your typical uh, uh, mootness case where everything's settled and there can be nothing going forward.” Uh, this uh, th-the challengers, or, oh, sorry, the city has displayed bad faith. Uh, they won below. And yet, they're fearful of Supreme Court review and tried to you know, j-are trying to get rid of this case just so that there wouldn't be uh, any Second Amendment ruling uh, whatsoever.
Uh, and in effect, uh, it's, uh, the, the issue is capable of repetition, but evading review. Not necessarily with regard to New York City, but uh, nationwide. And of course, the Supreme Court only takes uh, cases of uh, uh, national, constitutional, and other uh, uh, import, uh… I don't have a strong feeling on whether its, its moot or not. I'm not an expert in, in, those kinds of federal courts or, s-or, or civil procedure type of uh, analysis.
Uh, but uh, at the outset you said that uh, this is the first case in a decade interpreting the Second Amendment. Uh, let's be clear on that. That's why this is so important. Uh, in Heller, in 2008, the Court struck down a complete ban on functional firearms uh, in the home. Uh, two years later, technically not a Second Amendment case, a Fourteenth Amendment case, McDonald versus Chicago applied Heller to the States, and that's it.
And so we have not had any fleshing out of the Second Amendment right to keep and bear arms since Heller. You can't have a ban inside the home. Okay. Well, lower courts have been all over the place in terms of what standard to apply when evaluating uh, whether open carry or concealed carry uh, rules, restrictions, bans, uh, magazine limits, how many uh, bullets, uh, you can, how many rounds you can, you can have in a particular uh, uh, firearm.
All these different restrictions that are, that are put in by cities, by states. Uh, and so the Second Amendment in effect means different things in different parts of the country depending on which Circuit you're in, which is the classic situation where the Supreme Court steps in to give uh, uh, guidance. So um, you know, those are the, you know, you've gotten a flavor for why um, so many people don't want this to be mooted out. And uh, you know the b-it's the, the, I think what ultimately the Supreme Court is going to do is roll in the mootness discussion into the merits of the case.
They haven't yet scheduled it for argument. But they also haven't ruled on the mootness. And th-the Supreme Court clerk directed the parties to continue filing briefs, uh, as if it weren't moot. So uh, you know, we'll see. Probably in the December calendar, maybe January, they will finally have argument.
And look, the mootness issue provides an off ramp. If John Roberts say doesn't want in the end to make a uh, uh, a determination on the Second Amendment, or to start uh, fleshing out that jurisprudence. This is a way that if he wants to, he could cobble together uh, a coalition to dismiss the case without taking a position one way or another.
Jeffrey Rosen: [00:08:52] Adam, Ilya's reference to capable of repetition, but evading review uh, peaked my interest that uh, I remember from my first weeks in law school uh, [Kila Marr] my wonderful con law teacher uh, cited that as the core of uh, our discussion of r-reproductive rights cases including Roe. And the Court h-h-heard abortion cases, even though uh, the particular case might be moot uh, after a pregnancy come to terms or an abortion takes place because uh, it is capable of repetition so, y-yet evading review.
So tell us about the relevance of the clear desire by some Justices including Justices Thomas and Gorsuch to hear a Second Amendment case. Justice Thomas has complained that the Justices have heard 35 First Amendment and 25 Fourth Amendment cases since 2010. They've repeatedly turned away Second Amendment challenges. He calls this inexcusable and says, “The Second Amendment shouldn't be uh, uh, a second class right.”
Um, so again d-d-describe the kinds of cases that the Court has refused to hear uh, Justice Thomas, Gorsuch, Justices Thomas and Gorsuch's objections. And what that might say about whether the Court will hear this case on the merits.
Adam Winkler: [00:10:03] Well, uh, thank you, Jeff. And uh, I-I think Ilya is right that um, because um, mootness is a prudential issue, we don't know exactly how the Court's gonna rule, and the Court has plenty of leeway on how it goes about it. One thing that's worth noting is that it's not really true that this problem here uh, such as uh, state law, or a city rule that restricts where you can take your gun uh, and requires you only to take it to one of seven places as New York City Police Department rule did.
Uh, whether that's really capable of repetition yet evading review, um, there's no other city or state that has such an ordinance in place. New York no longer has such a, such an ordinance in place. New York City Police Department cannot put an ordinance like this back in place because its been prohibited by state law to do it.
So it's hard to imagine this as being one of those situations where it's capable of repetition, yet avoiding review. The only way this could be repeated would be for a state to pass a law or some other government law uh, uh, lawmaking authority were to pass a law that were uh, a brand new through the process of um, bicameralism and presentment with it the at the state level to the governor.
Um, before you get such a law on the books. Uh, if that's all that it takes to eliminate the idea of an advisory opinion, well, then I would suggest that there is no such rule uh, against advisory opinions. Um, because any state could adopt any law if you wanna take hypotheticals. Um, there is no law on the books here.
Now, part of, I can't uh, fault the, the, challengers from being disappointed that they've already received everything that they re-that they wanted, or requested in their brief, so are in their complaint. Um, largely because what they were really seeking was not what they asked for. Uh, while they were challenging these particular provisions of New York law, what they were really seeking was a broad and expansive new Second Amendment case at the Supreme Court that would articulate broader and more protective Second Amendment principles.
Uh, this fits in to what you say with regards to Justice Thomas complaining that the S-Second Amendment is being treated like a second class right. That the lower courts have since Heller, upheld the vast majority of gun control laws out there. And applied uh, relatively deferential standard of intermediate scrutiny to gun laws.
Um, the challengers here along with at least several Justices uh, are really eager to get the Supreme Court to articulate uh, stronger principles such as a higher standard of review, or more clear principles for the right to carry a gun in public uh, then they've received from the courts so far. Uh, and for them that's what this case is really about. Although, technically and formally, uh, the challengers have already s-received the relief they were formally re-requesting.
Jeffrey Rosen: [00:12:51] Ilya, help our listeners understand the difference between strict scrutiny and intermediate review. Uh, some uh, of New York's defenders including Members of the House of Representatives have said that intermediate review is appropriate when the core Second Amendment right is not implicated. They describe the core Second Amendment right as defined in Heller as a right to uh, possess guns in the home. So they say that any regulation involving guns outside the home should be subject to intermediate scrutiny, which as con law junkies recall, means that the law has to be substantially related to an important governmental interest.
Uh, Justices uh, Thomas and Gorsuch, and I, i-is it right that Cato agrees? Think that uh, strict scrutiny is the better standard, that means the law has to be necessary to achieve a compelling governmental interest. Tell us about the difference between these two standards. And why you think a higher standard is constitutionally appropriate?
Ilya Shapiro: [00:13:45] Yeah. I think that's right. An-and I think you've uh, you've fairly described uh, uh, Cato's position. Uh, the point is that no right is absolute. So it's not a matter of uh, if you apply strict scrutiny, then that means uh, restrictions on children or the uh, the mentally ill, or those who are uh, violent uh, criminals, or ex-felons, or something like that uh, that those kinds of restrictions have to fall.
Uh, no. Uh, just like means uh, of uh, time, place, and manner uh, uh, restrictions. Th-the First Amendment uh, especially core political speech is, is very protected by the First Amendment. That doesn't mean that I can go to your residential neighborhood at 3:00 AM and start uh, discussing my views of uh, President Trump on a megaphone.
Uh, uh, again, because that would disturb the peace. And, and, and whatever else. So, so similarly there, there's certainly room for regulation. But like uh, uh, like all rights, certainly those that are listed in the, in the Bill of Rights, um, uh, th-they, they do need to be subject to uh, this, uh, th-this heightened scrutiny. Meaning that the, th-the government really needs to justify uh, uh, its, its restrictions, its regulations.
Um, in fact, you know, uh, some people say that strict scrutiny is uh, is essentially fatal. Uh, very few laws have ever survived strict scrutiny. Whereas, intermediate scrutiny can uh, uh, survive. These are semantic games to uh, to a certain point. Uh, but the uh, th-the thing is the, th-the Supreme Court really does need to uh, determine uh, or, or, guide courts about whether they're to apply kind of uh, a text in history standard, whether they ha-well, if Heller banned a uh, an interest balancing, you know, d-different interest that different parties in, in Second Amendment cases might have.
Uh, intermediate scrutiny has only really been applied to uh, sexual discrimination uh, cases. That's where it came about. Before that, it was just rational basis. Is there some conceivable rational basis for a law? Uh, or strict scrutiny. But then we have this, this intermediate now. Um, i-in a, in a sense this is, this is kind of s-uh, semantics. It's uh, it's all uh, artifice that the court has come up. It's not like these s-standards of review are in uh, or standards of scrutiny are, are, are in the Constitution.
Um, but uh, b-uh, I-I do think that for such an important right as uh, the right to keep and bear arm, the right to armed self-defense, uh, that the government needs to do more than simply kind of wave at having an important interest a-and not really tailor very much uh, what its rules might be.
Jeffrey Rosen: [00:16:09] Adam, in a recent op-ed in the LA Times, of course, we need to talk about gun violence in America. The question is how to do it effectively. You note, that since Heller was decided in 2008, federal courts have ruled in favor of gun control laws in approximately 95% of Second Amendment cases. So most of the regulations have been upheld ranging from uh, assault weapons bans to uh, uh, other important regulations.
Help us understand how big a deal it would be if the Supreme Court were to require strict scrutiny rather than intermediate scrutiny? And also help our listeners understand whether you think the text history and structure of the Second Amendment require strict scrutiny, or not?
Adam Winkler: [00:16:53] Well, great Ja-Jeff. I'm happy to do so. And uh, uh, I-I disagree with Ilya on the idea that the difference between say strict scrutiny and intermediate scrutiny is only semantic. It may turn out to be only semantic. I think that even if the court were to apply strict scrutiny in the gun context, they would end up upholding a lot of gun laws. We've seen that for instance at the state level where in some states they require strict scrutiny as a matter of State Constitutional Law to review gun regulations.
And often, those gun regulations are upheld. But I do think that the strict scrutiny is honestly applied, and sincerely, and consistently applied it would result in basically a curtailing of the entire gun regime that we have in America. Ilya says it wouldn't effect s-th-things like bans on felons possessing firearms.
But if the compelling governmental interest in restricting felons from possessing firearms is that people with a dangerous past can't be trusted with guns again in the future, well, uh, there are plenty of felons uh, and felonies that are not violent felons uh, or felonies. And uh, of course, uh, then the law would not be properly tailored by banning them.
So the law would be over inclusive and the ban on felons would fall. Take background checks. What most people think are clearly constitutionally permissible to just do a quick background check before uh, a purchase is made. Uh, of course, under federal law, only federally licensed dealers have to conduct a background check. If you buy a back, uh, a gun from someone who's not a federally licensed dealer, no background check is required.
It's hard to imagine how such a law could survive strict scrutiny, which requires that the law be narrowly tailored to pursue its interest. What governmental interest could there be for exempting 20 to 30% of gun sales that occur without a federally licensed dealer? There couldn't. So the background check's bill that we have would be unconstitutional.
And I think this gets into why so many cases have resulted in laws being upheld so far. The gun community in America is extremely strong politically. America does not pass a lot of really onerous gun laws. Some cities do. Some states do. But not a lot because the gun lobby exerts so much power on government regulation. The reason why we have a background check law at the federal level that doesn't cover all gun sales is because the gun lobby has pushed for those exceptions.
Well, it would be odd now with the gun lobby because of its political strength gets exceptions in the law built in, and then challenges the law for being unconstitutional because its not well-tailored to pursue its ends because it has these exceptions. So uh, I-I think uh, that uh, at the end of the day the strict scrutiny versus intermediate scrutiny, it may end up being just semantic.
But if it's sincerely applied, uh, would lead to a scaling back of significant amount of gun laws, or alternatively if it's not, would water down strict scrutiny as its applied to other rights and would provide precedence that would lead to a watering down of First Amendment principles, uh, due process principle, uh, and equal protection principles.
Jeffrey Rosen: [00:19:57] All right. Ilya, um, e-e-although, you disagree about precisely the effect of uh, embracing strict scrutiny, it would be a change in the law and more regulations would fall. Help our listeners understand why you believe that the text history and structure of the Second Amendment as originally understood and as properly interpreted compelled strict scrutiny.
I-I'll note that on, that on our Interactive Constitution, Adam Winkler and Nelson Lund agreed that the central original purpose of the Second Amendment was to prevent the f-federal government from subduing the people through military force. And federalist and anti-federalist uh, disagreed only about whether an armed populace was adequate to deter federal oppression.
Uh, th-that changed uh, in Reconstruction when people became more concerned about ensuring that African Americans could arm themselves to defend themselves against racist mobs. But what does that history tell us about whether strict scrutiny as opposed to intermediate scrutiny is appropriate?
Ilya Shapiro: [00:20:57] Well, first of all, uh, let me clarify that there might not be as much disagreement between uh, me and Adam on uh, the, the effect of strict scrutiny. I do agree that a law that uh, bans non-violent felons from having a uh, uh, firearm would probably fall because there's no real, there's no good reason to do that.
Uh, other kinds of uh, restrictions would certainly fall. Um, uh, I think the problem really has been that those courts that have been purporting to apply intermediate scrutiny have been watering down the intermediate scrutiny they've been applying. And, and effectively, making it uh, a rational basis that whenever the state or local government uh, just waves its hands and says, “Public safety.” Then the, the courts end up uh, deferring.
We've seen that on the Second Circuit here. But also uh, the Third Circuit uh, with New Jersey l-uh, laws. The Ninth Circuit uh, going on bonk frequently to overturn even when there's a panel that has a, uh, a pro-gun rights uh, ruling. Um, b-but in any event, um, the, the right I think has changed over time. And uh, you're right that you character uh, the, the way that you characterized um, the Second Amendment uh, at the Founding, um, that the concern was about uh, government uh, oppression, an-and things like that.
Uh, in uh, in uh, in the Reconstruction era however, and this is, we have to interpret things through a Fourteenth Amendment lens. Um, this is, got into the McDonald opinion uh, extending it uh, the right to uh, uh, to the states. Uh, the concern had shifted uh, for uh, unpopular minorities everywhere whether that be freed uh, uh, freed men, uh, Black freed men, or uh, Union sympathizers in the South, Confederate sympathizers in the North uh, Asian immigrants in the West, uh, all sorts of people who uh, were being uh, oppressed by their state and local governments, not the federal government in various ways.
Uh, an-and being uh, being disarmed. One of the, one of the first uh, aspects of redemption uh, capital R, uh, when Reconstruction was uh, ended through kind of uh, a dirty deal with uh, Andrew Johnson an-and beyond. Uh, one of the first things that states uh, started doing in, in implementing the early stages of Jim Crow was indeed to disarm uh, Black people as well as putting in all sorts of restrictions on their economic liberties and property rights and what have you.
So I-I do think it's important to look at uh, that kind of history and the meaning of the right to keep and bear arms. The, the natural right that was protected by whether you call it the due process clause of the Fourteenth Amendment, or the Privileges or Immunities Clause. Uh, in any event uh, th-that, that history an-and structure is meant to uh, uh, protect a fundamental right, a, a natural right.
Um, an-and when we're talking about those kinds of uh, uh, very important rights uh, u-under the six, under the Supreme Court's rubric, again, they don't have to use a sc-scrutiny scale. Th-That's judicially invented. But under the existing rubric, that does point to strict scrutiny rather than uh, this lesser standard. An-And I do agree. Uh, I-I didn't m-mean to say if, if, if my meaning uh, came out this way. I didn't mean to say that there would be no difference in the kinds of uh, rulings on gun regulations that would come out uh, under these two different scrutiny levels.
Jeffrey Rosen: [00:24:04] Adam, so, so now we're seeing the stakes uh, before the Supreme Court. Uh, Ilya's just articulated a, a powerful case, which he locates in constitutional history espes-uh, both uh, natural right of self-defense, which is pre-political in recognizing the Declaration of Independence and then during Reconstruction the attempts to uh, disarm African Americans for racists uh, purposes including their efforts to carry a gun outside the home.
So i-if you were an originalist justice as Justice uh, Gorsuch and Justice Thomas are y-you might well be sympathetic to Ilya's argument and perhaps the writing is on the wall. Tell us why you think that's wrong? An-And why uh, th-the Second Amendment properly interpreted does not compel strict scrutiny an-and, and the argument against this originalist interpretation of the Second Amendment?
Adam Winkler: [00:24:53] Well, I mean, uh, first thing uh, we should start with is the text of the Constitution. The Second Amendment uh, itself says that, uh, “A well regulated militia, comma being necessary for the security of a free state, comma the right of the people to keep and bear arms, comma shall not be infringed.” And although its got a lot of commas, uh, o-one thing it clearly has is a recognition of the ability of states and the necessity of states to regulate the militia, a well regulated militia being necessary for the security of a free state.
And we can have arguments about exactly what kind of regulation counts under the Second Amendment. Uh, but of course, the Framers understood that the word regulate meant the ability to um, a-adopt laws governing how these things would be done. For instance, we have a Commerce Clause that provides Congress with the power to regulate interstate commerce.
Does not give Congress, uh, that empowers Congress to do something. To enact regulations uh, and so I think the text of the Second Amendment uh, which is unusual among our constitutional amendments in that explicitly recognizes, uh, the importance of regulation um, for the security of a free state. So I think the text is the first place to start. Second place to start is the history.
We have a long history of the right to bear arms in America under State Constitutional Law and under Federal Constitutional Law its a little more iffy. But under both those uh, federal and state uh, jurisprudence uh, lines, uh, it's very clear. The courts have never applied a very high in scrutiny um, to uh, gun regulations. And have upheld the vast majority of gun regulations throughout American history.
Uh, so for the Court to adopt strict scrutiny now, uh, would be not only contrary to the text, it would also be contrary to the history of uh, the Second Amendment and the right to bear arms. And finally, I think it's important to recognize that too often we say that there's something like a rubric where if it's a fundamental right that's part of the Bill of Rights, then it must be protected by strict scrutiny.
But that's totally divorced from current constitutional doctrine. Under the Supreme Court's doctrine today, strict scrutiny is reserved for five areas of constitutional law. And isn't applied in any other area. It's applied under certain provisions of the First Amendment, although, it's important to recognize that many of the provisions of the First Amendment do not trigger strict scrutiny. Most forms of speech regulation do not even trigger strict scrutiny.
Most forms of religious discrimination don't trigger uh, strict scrutiny. There's no strict scrutiny applied historically under the Second Amendment. No strict scrutiny under the Fourth Amendment uh, which is of course, one of our most important set of rights against unreasonable searches and seizures. Uh, there's strict scrutiny only under a couple provisions of the bill, uh, the Fifth Amendment, the due process laws as applied uh, to certain kinds of cases.
But the right against self-incrimination and the Fifth Amendment and other rights in the Fifth, Sixth, Seventh, Eighth Amendments, none of those trigger strict scrutiny. So that the idea that somehow some right because its in the Bill of Rights and we think its an important right automatically triggers strict scrutiny, it just has no basis in law.
So I think the text, the history, and understanding Supreme Court doctrine suggest that this is not one of those areas where strict scrutiny is appropriate. We all recognize, including Ilya's recognized, that there's important place for government regulation in this space. Strict scrutiny should be reserved as it has been to areas in which there is immediate suspicion that any law passed in this area is unconstitutional. I don't think gun laws meet that standard.
Jeffrey Rosen: [00:28:27] Thank you very much for that very clear argument against strict scrutiny under the Second Amendment. You've just argued that text, history, precedent, all cancel against strict scrutiny and noted only in five areas uh, which don't include the Second and Fourth Amendment. Does strict scrutiny apply? Ilya, your response.
Ilya Shapiro: [00:28:45] Well, I don't think we should get uh, hung up on this is what I meant by semantics. Um, even if you're talking about uh, intermediate scrutiny, or th-the two step method that uh, the Second Circuit has adopted. That is first. You look at whether the regulation involves the core Second Amendment right, uh, and then you see whether it, then you apply the intermediate scrutiny uh, uh, uh, uh, uh, if it's not uh, uh, to see whether there's an important uh, a government interest uh, that's uh, that's close enough the way that its, that its drawn.
Um, if, if, even if we're talking about what the core right is I don't think you can um, plausibly limit it to just having a gun in the home. Uh, after all, the text says keep and bear. So that means some sort of carrying, some sort of bearing your firearm, which makes sense. Uh, people run into all sorts of uh, needs for self-defense outside the home. Uh, especially, uh, you know, people living in more disadvantaged communities where there's higher rates of crime, an-and what have you.
Or, women wanting to defend themselves. Or, there was a brief filed by the Pink Pistols, the LGBT community that's targeted for hate crimes. They all want to be able to uh, uh, you know, to have their right uh, outside the home. So uh, it seems to me that if you're going to go into this artificial two step uh, analysis, uh, the core right is keeping and bearing.
Now, that means certain restrictions like whether you can have uh, a magazine that has 40 rounds versus 30 versus 20. Uh, at that point you're starting to get outside of the core right of keeping and bearing arms uh, for self-defense. So um, uh, a-again, you know, b-but e-especially for the non-lawyers listening to this, uh, I-I don't want to get too bogged down uh, on strict scrutiny verus intermediate scrutiny.
In Heller recall, uh, the Supreme Court didn't even mention what's the stan, the standard of review of s-scrutiny is, which is partly why we've gotten this mish-mash of different kinds of standards or, or scrutiny uh, types uh, to apply in different circuits across the country.
Jeffrey Rosen: [00:30:42] Adam, I hear you saying that this difference between strict and intermediate scrutiny is not just semantics. You've argued that so far because lower courts have upheld under a version of intermediate scrutiny 95% of all Second Amendment uh, cases uh, Heller and McDonald have not uh, been the source of America's failure to have gun control. That failure you attribute to the NRA and to legislative paralysis.
Um, if, if the Court were to adopt strict scrutiny, would the law be transformed and what kinds of additional regulations do you believe might fall?
Adam Winkler: [00:31:18] Well, I-I like I said earlier, I think it kind of depends on what kind of strict scrutiny the Court applies. If they apply the strict scrutiny that they apply to political speech in the fir, under the First Amendment, well, then I think we would expect um, a whole bunch of laws to be struck down because gun laws uh, by their very nature uh, uh, often have exceptions. Often, do not fully pursue their underlying governmental interests as a result of political compromise as forced upon lawmakers by uh, po-political coalitions out there and political forces.
Um, and so I think strict scrutiny could result in uh, a lot of problems for gun laws. Uh, but it's actually we should recognize that it's not just a matter of whether it's strict scrutiny or intermediate scrutiny. Um, and so maybe to this extent I-I do agree with Ilya on the notion of that's a semantic thing. I think the Court could accomplish a lot without focusing on the standard of review.
The Court has not made clear whether the right to bear, keep and bear arms extends outside of the home. Uh, as Ilya says, the text seems to provide at least some recognition of a right to carry a gun uh, in public by the right to bear arms. Um, and the Court need-ish, needs to. And if not in this case, certainly will in the coming years articulate clear principles for when you have a right to carry a gun in public and under one, what circumstances.
Um, and uh, uh, the, uh, so, it's not just a standard of review question, it's also about what is the scope of the Second Amendment right uh, over and above the standard of review. Um, I think what uh, what we might, we'll see going forward uh, is that the Court is likely to step in and clarify the standard of review, maybe strengthen the standard of review.
I think one possibility is that the Court might step in and say that the lower courts have been doing intermediate scrutiny wrong. That they need to require more evidence by the government that the underlying will pursue and achieve its underlying goals. I'm not sure that that requirement of uh, evidence in advance of an innovative policy's effectiveness uh, i-is a rule that is uh, often applied in other constitutional areas.
In fact, I'm pretty sure it's not. Um, but nonetheless it might be one that's adopted uh, here. So that might be an alternative way for the Court uh, to go about it. I look for the Court in the coming years to make clear that the right does extend outside the home. I look for the Court to call into question uh, the laws on the books in places like Los Angeles and New York City uh, and Boston that restrict people from carrying guns in public uh, to basically almost no one.
Um, and I look for qu-the Court to second guess things like restrictions on military style, or so called assault rifles. Uh, and those uh, assault weapons bans. Um, I think regardless of what the Court does in this New York case in terms of whether its moot or not, there are more cases waiting in the wings. And the Court is going to step in um, and it's only a matter of time.
Jeffrey Rosen: [00:34:11] Ilya, your thoughts on what kind of regulations the Court is likely to strike down in the years ahead. Uh, l-let's s-start with a-assault uh, weapons bans. You've noted that the Fourth Circuit has found AR-15's, one of the most popular rifles in America to be without constitutional protection. The DC Circuit upheld s-an assault weapons bans over the dissent of then Judge Kavanaugh. Do you think that assault weapons bans are constitutional or not? What else do you think should fall? And then maybe give us an example of some regulations that you think should be upheld under strict scrutiny.
Ilya Shapiro: [00:34:43] Sure. Uh, I largely agree with Adam. Agree slash hope that he's right uh, that the Court will have this appetite uh, to take up uh, a more of these types of uh, regulations to, to flesh out the right. Um, the now that you know, the speculation is that they weren't taking these cases because neither side could be sure which way Justice Kennedy would have gone. Well, Justice Kavanaugh, as you mentioned, there are several cases where uh, he has uh, written uh, in a way that I like uh, to put it that way, um, with regard to how to analyze this, this right.
Uh, th-the, the term assault met-weapon is a um, it's, it's inept. Uh, there's no you know, technically speaking the way guns are manufactured, there's not a designation. This is an assault weapon versus this is a hunting rifle versus this is uh, you know, some other type of, o-of long gun or short gun, or, or what have you. Uh, as best as I can tell, uh, an assault weapon going back to the federal assault weapon ban uh, is something that scares uh, Senator Diane Feinstein, who is uh, the, the ranking member of uh, or the chairman at a certain point of the uh, of the Judiciary Committee when the assault weapon ban was, was coming through.
Uh, what th-the sorts of factors that under the previous federal assault ban under most state uh, bans uh, uh, make a, a firearm into a so called assault weapon are things like its color, all black, whether it has a pistol grip, whether there is a mount on which you can put a bayonet, um, uh, whether there's the, the stock is uh, the part that gets into your shoulder, whether that's collapsible.
All sorts of different cosmetic uh, sorts of uh, things that do not affect either how quickly the bullet can be fired, how fast it travels, when its fired how many times you can pull the trigger uh, of in a minute. Uh, none of these sorts of things uh, that make a weapon more lethal are actually uh, affected by you know, its designation as an assault uh, weapon.
And in fact, wher-whether you're talking about AR-15's or other kind of popular uh, uh, rifles these are common uh, for either self-defense, for hunting, which by the way has lesser protection constitutionally than self-defense does. Or, just uh, any other reason that someone would keep uh, a long arm. These are fundamentally uh, rifles. Th-They, they look scary uh, in a sense, quote unquote. Uh, but they are not uh, machine guns. They are not what the Army uses.
Um, uh, th-this is you know, people talk about military style. I don't even know what that means. Um, unless you're starting to get into things like rocket launchers, and tanks, an-and things like that. I went on the uh, Colbert Report, the old Colbert Report, when Steven Colbert was a satirist rather than having his own uh, uh, uh, earnest uh, uh, night time talk show, uh, in the wake of th-the McDonald decision.
And he asked me, “So what, you know, what kind of a regulation is okay?” And I said, “No personal, uh, rocket launchers.” And so that's uh, an-an example. Or, as I alluded to earlier, a ban on having a magazine that spits out just dozens of, of, uh, or, and that doesn't spit out. But that contains, um, you know, 30, 40, 50, uh, rounds. These are really novelties. Uh, they, they uh, I-I don't think that's protected, or background checks for that matter.
As long as it doesn't fundamentally burden your right. As long as the background check doesn't take weeks and weeks. Uh, you know, more or less instant 24 hours the way that we can have uh, given modern technology. I think those sorts of things uh, because they don't uh, uh, of, uh, b-burden the right that heavily at all uh, would survive a strict scrutiny regime. Or, a regime that looks at uh, the text, and the history, and the structure of protecting this natural right to armed self-defense.
Jeffrey Rosen: [00:38:33] One last uh, point before our closing arguments. Adam, there was a very explosive amicus brief filed in this case by Senator Sheldon Whitehouse of Rhode Island and four other Democratic Senators. The Supreme Court is not well and people know it uh, the brief states. Uh, perhaps the Court can heal itself before the public demand it be restructured in order to reduce the influence of politics. That question was from a poll question.
Um, what do you make of the Whitehouse brief and what does it say about likely uh, Congressional responses if the Court in this case or other cases uh, recognizes the Second Amendment as a first class right requiring strict scrutiny.
Adam Winkler: [00:39:15] Well, uh, uh, I, I thought that the Wall Street Journal editorial board uh, dubbed this brief properly. They called it, it wasn't uh, uh, amicus friend of the Court brief. It was an enemy of the Court brief because the, the Senators really do take on the conservative Justices claim that they're in cahoots with the Federalist Society and the NRA uh, and um, and that as a result of dark money campaigns to promote Justice Kavanaugh and Gorsuch, uh, the Court has been high-jacked by uh, a minority, a very politically engaged and active minority. But a minority nonetheless.
Um, uh, I-I'm not sure that this brief was a great idea in the sense that uh, if anything it seems more likely to push the Justices in the majority to keep this case. Uh, uh, the, the brief was under the auspices of uh, this is um, uh, uh, designed for a mootness analysis that um, this case is moot and if the Court continues to hear it, it's really just doing the political bidding of the NRA.
Um, I think that the brief is right that this case is moot. And that the Court shouldn't hear it. And if the Court does hear it, it's being driven likely by ideological concerns about the Second Amendment and not by the dictates of law. And of course, Conservatives have been telling for years that we want justices who follow the law, not their own personal ideology or what they think is right or should be.
Uh, but I think um, calling the Justices their faces um, tools of the Republican Party and the Federalist Society is not likely to be an effective way to get that message across. Maybe one thing we can say is that it does reflect a growing sense among Democrats that significant Court reform maybe necessary in light of the fact that uh, we've had a Court that's increasingly controlled um, by uh, political party, or by nominees of a political party that just can't win a majority of American elections.
Jeffrey Rosen: [00:41:13] Ilya, because we're nearly out of time, your thought on the uh, Whitehouse brief and also uh, your prediction about whether or not the Court is gonna declare this case to be moot.
Ilya Shapiro: [00:41:24] Yeah. I agree with Adam about this uh, this is uh, you know, he's getting more publicity for this. I'm not sure it's necessarily the kind of publicity he wants. Uh, implicitly Cato is one of the organizations that's assailed for uh, you know, having shadowy dark money fund its uh, amicus campaign, doing the bidding of whoever, NRA, or anybody else, you know.
Um, to I-I must have missed my last phone call from Wayne LaPierre, or something like that. I'm a constitution nut, not a gun nut. But, but anyway, um, I, I, I doubt this will have uh, any uh, affect at all uh, on what the Court ultimately does. Um, and I think you know it, it all comes down to John Roberts. Uh, they, they finally took this case, the Second Amendment case after a decade of not doing anything.
Uh, and uh, there are various uh, off ramps. Uh, they also took a uh, part of the claim here is that it violates the, the Commerce Claus, violates the right to travel outside of New York City, all of these sorts of things. So those were also off ramps, but presumably they didn't take up this kind of case to s-say more about the right to travel. Um, so you know, we'll see how things develop.
Uh, I think if they schedule it for argument, I think if they don't dismiss it as uh, uh, as moot before scheduling argument, then more likely than not they will end up reaching the merits, in which case they will uh, start fleshing out uh, the uh, you know, certainly say that this law was uh, was unconstitutional an-and indeed start fleshing out the, the right to keep and bear arms uh, outside the home.
Jeffrey Rosen: [00:42:50] Many thanks for that. And Adam, uh, last brief word to you. Uh, w-will the Court uh, declare the case moot or not? And what do you think it's gonna do?
Adam Winkler: [00:42:58] Uh, I don't know whether the Court will declare uh, the case moot or not. Uh, predicting of the future of that's gonna be a little difficult. Uh, I think this case clearly is moot. Um, uh, but I also don't think that that's going to solve the problems for gun safety reform advocates uh, created by the two new Justices on the Supreme Court. There's a number of other S-Second Amendment cases waiting in the wings.
And even if this case gets declared moot, and by the way, uh, interestingly enough I think the state of, the City of New York will not defend the law on the merits should this case go forward. So we may not have any merits brief whatsoever. Um, arguing that the underlying law is constitutionally permissible uh, if it goes forward. Um, but I think uh, gun safety reform advocates have to face the fact that the Supreme Court has changed, has become more gun friendly.
Uh, and even if this case is mooted out, there's plenty of other cases that are waiting for the Supreme Court to step in and grant cert. And it's only a matter of time.
Jeffrey Rosen: [00:43:53] Thank you so much, Adam Winkler and Ilya Shapiro for uh, a vigorous uh, lively and really illuminating discussion of the Second Amendment. As you say, there will be many more Second Amendment questions that will come up throughout the year. And we'll hope to have you both on again to discuss them. Adam, Ilya, thank you so much for joining.
Adam Winkler: [00:44:12] Thank you.
Ilya Shapiro: [00:44:13] Thank you.
Jeffrey Rosen: [00:44:15] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Ellie Rutkey.
Homework of the week. Dear We the People Listeners, please go to the Interactive Constitution on the Constitution Center website and check out the State Constitutional Precursors of the Second Amendment. It's a little hard to find although, after Constitution Day it'll be really easy.
But if you go to the Interactive Constitution homepage, you'll see this thing that says, “Interested about the origins of the Constitution and how it relates to Constitutions around the world.” Click that, or just Google Writing Rights. And then you'll get all of the state constitutional versions of the Second Amendment.
You can begin with the Virginia Declaration of Rights, which was uh, Madison's uh, starting place. And then for extra credit, figure out how many states protected the Second Amendment as an individual right, and how many as a militia-based right at the time of the Framing? And if you figure it out, then email me, [email protected], and tell me the answer.
Please rate, review, and subscribe to We the People on Apple Podcast. And recommend the show to friends, colleagues, or anywhere, everywhere who is hungry for a weekly dose of constitutional debate and who after all is not. And remember always when you wake and when you sleep, that the National Constitution Center is a private, non-profit.
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On behalf of the National Constitution Center, I'm Jeffrey Rosen.