After the grand but doctrinally vacant pronouncements of District of Columbia v. Heller1 and McDonald v. City of Chicago,2 the Supreme Court rejected nearly every Second Amendment petition for certiorari for a decade and let the lower federal and state courts turn Heller’s theory into doctrine.3 Last Term, the Court finally agreed to hear another Second Amendment case. But, in New York State Rifle & Pistol Ass’n v. City of New York4 (NYSRPA), the Court held the Second Amendment dispute moot after the City and State of New York amended the challenged licensing scheme.5 The concurrence and dissent suggest that at least four Justices are interested in changing the lower courts’ two-step application of Heller when the Court does reach the merits of a Second Amendment case. But it would be a mistake for the Court to disrupt this dominant mode of review in the lower courts. NYSRPA shows why the lower court test is preferable to a purely historical and textual one and that the Court can enforce the Second Amendment without treating it as a privileged right.
The NYSRPA petitioners challenged a unique New York City ordinance that prohibited holders of premises-licensed firearms6 from transporting handguns outside of the home except “directly to and from an authorized small arms range/shooting club [within the City of New York].”7 The petitioners filed a complaint in 2013 alleging that the transport restriction violated the Second Amendment because it prevented them from transporting their firearms to a second home or shooting range outside the city.8 They sought a preliminary injunction and a declaration that the premises-license restrictions were unconstitutional.9
The district court granted the City’s motion for summary judgment.10 The court declined to apply strict scrutiny to the challenged rule because it did not “impinge on the ‘core’ of the Second Amendment, . . . [the] right to possess a handgun in the home for self-defense.”11 Applying intermediate scrutiny,12 the court decided that the rule passed constitutional muster because the transportation restrictions were substantially related to the City’s interest in public safety and crime prevention.13
The Second Circuit affirmed.14 Writing for a unanimous panel, Judge Lynch15 addressed the Second Amendment claim by applying the two-step inquiry the circuit adopted after Heller.16 At the first step, the court asks whether the Second Amendment applies.17 If the amendment does apply, the court proceeds to the second step and asks whether heightened scrutiny is appropriate.18 At step one, the panel assumed without deciding that the Second Amendment protected the transportation of guns to firing ranges and second homes.19 At step two,20 the panel determined that the second-home restriction did not merit strict scrutiny because an “adequate alternative” existed, namely purchasing a second handgun that is licensed for the second home.21 As for the shooting-range restriction, the panel concluded that the rule did not merit heightened scrutiny because gun owners had ample opportunity to train within the city.22 Ultimately, the panel agreed with the district court that the ordinance survived intermediate scrutiny as applied to both forms of transportation in light of the substantial government interest in public safety and crime prevention.23
The New York Police Department (NYPD), which administers the City’s licensing scheme, announced shortly after the Supreme Court granted certiorari that it would change the challenged ordinance.24 Following notice and comment, the NYPD amended the rule to allow individuals to transport their premises-licensed handguns “directly to and from . . . [a]nother residence”25 and a “lawful small arms range/shooting club or lawful shooting competition.”26 The revised rule specified that the residences, ranges, and clubs may be within or outside the City of New York,27 but that transport within the city “shall be continuous and uninterrupted.”28 New York State then revised its laws to preempt local regulations and allow the transportation of licensed firearms directly to or from “any . . . location where the licensee is lawfully authorized to have and possess” their licensed handgun.29 The City filed a Suggestion of Mootness.30
The Supreme Court vacated. In a per curiam opinion,31 the Court declared the petitioners’ claims for declaratory and injunctive relief moot because the amended licensing scheme provided “the precise relief that petitioners requested.”32 The Court declined to address the petitioners’ contested complaint that the new rule would not allow for “coffee, gas, food, or restroom breaks.”33 It also refused to consider petitioners’ last-minute claim for damages.34 It remanded the case for the lower courts to consider the scope of the new rule and whether it was too late for the petitioners to request damages.35
Justice Kavanaugh concurred to note that he agreed with the per curiam mootness determination but also with the dissent’s concerns that lower courts are not properly applying the Court’s Second Amendment precedent.36 He added that “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” that were pending at the time.37
Justice Alito dissented.38 He accused the City of manipulating the Court’s merits docket and argued that the case was still live for two reasons.39 First, the petitioners did not receive all of their requested relief because travel to and from authorized locations must be “continuous and uninterrupted,” potentially precluding coffee and restroom stops.40 Second, if the Court were to find that the restrictions violated the Second Amendment, the district court could award damages on remand even though petitioners did not include a damages claim in their pleadings.41 Justice Alito reasoned that a merits win would at least entitle the petitioners to nominal damages, which are “widely recognized” as precluding mootness,42 and perhaps even compensatory damages based on potential injuries suffered.43 Justice Alito also contended that it was not too late to permit a claim for damages because the City suffered no apparent prejudice and “would [not] have litigated the case any differently if it had been on express notice that petitioners” wanted damages.44 He then rejected the majority’s reasoning, arguing that the petitioners did not actually receive the full relief they requested because they were not granted “unrestricted access” to ranges and homes outside the City.45 In Justice Alito’s view, the new law did not replace the original injury with a new one: it simply reduced the existing injury.46
Finally, Justice Alito addressed the merits, explaining that the Second Amendment challenge was “not a close question.”47 He reasoned that the City’s rule impinged on the same core right at issue in Heller since the “right to keep a handgun in the home for self-defense” comes with an associated right to learn and practice with the handgun.48 Importantly, Justice Alito indicated that he would have used history as his primary guide in determining the constitutionality of the challenged rule. Because the City failed to provide evidence that “laws in force around the time of the adoption of the Second Amendment . . . prevented gun owners from practicing outside city limits,” the ordinance violated the Second Amendment.49 Justice Alito continued by arguing that “there was nothing heightened about” the lower courts’ application of heightened scrutiny.50 He dismissed the City’s public safety justification as spurious and suggested that the scant support of an NYPD officer’s affidavit was insufficient to satisfy even intermediate scrutiny.51 He concluded by noting that if “this case is representative of the way Heller has been treated in the lower courts . . . there is cause for concern.”52
Although the four concurring and dissenting Justices in NYSRPA seemed inclined to grant certiorari in another Second Amendment case, and four votes are enough to grant a petition for certiorari, the Court denied ten Second Amendment petitions less than two months later.53 These denials might indicate that the Justices lack consensus over the scope of the individual right to bear arms;54 or that five Justices believe the lower courts are getting it right, and the other four do not want the Court to endorse the two-part test.55 That five Justices might prefer the current framework to Justice Alito’s proposed historical analysis should comfort those who care about principled judicial decisionmaking and (at the very least) not disconcert those who want rigorous enforcement of the Second Amendment. Indeed, the two-step framework is amenable to Second Amendment enforcement so long as courts require the government to provide sufficient evidence to justify its “important governmental objective.”56
Tiers-of-scrutiny review is consistent with the way courts approach analogous constitutional rights.57 The First Amendment contains a categorical command58 that is not enforced categorically59 — it does not protect all speech.60 And the level of First Amendment protection of covered speech is modulated based on the content of the speech and the identity of the speaker.61 Likewise, the Second Amendment contains a categorical command that does not protect all weapons and allows some regulation of the core right to bear arms in the home: the Heller Court preserved longstanding restrictions on “the possession of firearms by felons and the mentally ill,” bans on firearms in “sensitive places,”62 laws regulating the commercial sale of firearms, and prohibitions on “dangerous and unusual weapons.”63 Given these similarities, it is no wonder that lower courts look to First Amendment doctrine when faced with challenges to firearm regulations that incidentally implicate the core right to possess a handgun for defense of hearth and home, such as the criminalization of firearms with obliterated serial numbers.64
The two-part test requires that courts apply means-end scrutiny to challenged laws that impinge on the Second Amendment — that is, they must evaluate (under a particular tier of scrutiny) whether the regulation is appropriately tailored to a sufficiently strong governmental interest. Because means-end scrutiny is used to evaluate other constitutional claims, courts are far more capable of performing the two-step inquiry than they are of performing an originalist historical analysis.65 As Professor Darrell Miller has explained, “originalism is a game with nine players” — in other words, lower courts lack the institutional competence to measure rights solely on the basis of history, text, and tradition.66 At least one circuit court, for instance, has “face[d] institutional challenges in conducting a definitive review of the relevant historical record” in a case challenging the federal prohibition on licensed dealers from selling firearms to anyone under the age of twenty-one.67 Decisionmaking in the lower courts also looks very different from decisionmaking at the Supreme Court. The Supreme Court can disregard, narrow, or overrule its prior cases, but lower courts, bound by vertical precedent, do not have such freedom.68 Moreover, the Heller majority did not actually reject means-end scrutiny — in fact, it dismissed Justice Breyer’s proposed interest-balancing approach in part because it did not involve “the traditionally expressed levels” of scrutiny.69
Justice Alito’s dissent also demonstrates that there is little reason to believe that Heller’s originalist methodology is more principled than the familiar tiers of scrutiny. In McDonald, Justice Scalia defended Heller’s historical test as “much less subjective” than a balancing test.70 But Justice Scalia also conceded that “[h]istorical analysis can be difficult” because it “sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.”71 In NYSRPA, Justice Alito resolved all such threshold questions and nuanced judgments in favor of the petitioners. At the outset, Justice Alito decided that the transportation of arms to gun ranges and second homes fell within the core of the Second Amendment, a significant expansion of the right beyond the home.72 Justice Alito’s next move was similarly important: he explained that he would not uphold the restriction in the absence of evidence that “municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.”73 The City did present evidence that states and municipalities have long regulated the place and manner of firearm training,74 and the Heller majority acknowledged that certain stringent restrictions on firearm transportation are presumptively constitutional.75 But Justice Alito guaranteed the answer by framing the question at a high level of specificity. Legal history is hardly an objective endeavor.76 Though the application of heightened scrutiny requires judges to use their judgment, the application of law to competing interests at least “limits the judge’s choices” and “lays bare the judge’s reasoning for all to see and to criticize.”77
Indeed, there is much to see and criticize in the lower courts’ application of heightened scrutiny in NYSRPA. Assuming the Second Amendment applied to the City’s licensing scheme,78 the ordinance should have been struck down at step two because the City did not support its regulation with the “reasonable inferences based on substantial evidence” that intermediate scrutiny requires.79 Few would argue that public safety and crime prevention are not important governmental objectives.80 Yet the City did not marshal substantial evidence showing that its narrow regulation promoted either.81 And when the City sought to moot the case, it quickly conceded that the amended rule posed no public safety risk.82 Firearms present unique public safety threats, and cities face significant challenges in regulating them.83 But that threat should not relieve the government of the burden of justifying restrictions on constitutional rights, nor should it lead courts to give blind deference to the government and its experts.84 At the same time, the Court’s perception that lower courts are hostile to the Second Amendment85 should not lead it to adopt a malleable and impractical historical test. Courts can and should enforce the Second Amendment under the current two-part test.