Federalism is a complicated topic, but the short version is that federal law supersedes state law, with the 10th Amendment reserving any rights not taken by the federal government to the states. This dynamic results in the Second Amendment superseding state and local gun laws, with enough space between federal gun laws for states to act. However, there is loud disagreement over whether this Amendment provides for a personal right of individual gun ownership, or the right to serve in a militia.
The balance of this conversation was shifted in the Heller case in 2008, which pre-dates the appointment of Barrett, Kavanaugh, and Gorsuch. The case found a right of gun ownership in one’s home. The subsequent shift from a 5/4 to a 6/3 conservative justice balance since the Heller court strongly implies another conservative ruling.
With the Supreme Court recently accepting a case regarding the constitutionality of New York City’s comparatively-restrictive gun laws at a time that it is clearly rightward-leaning, the court seems poised to make significant changes in gun laws nationwide. This will drastically affect cities like NYC that have firearm legislation resulting from a history of gun violence.
History of Violence and Gun Laws in New York City
For those who are thrown off by the happy European children in the M&M’s store, yours truly still remembers the strip clubs, prostitutes, and baseball bat-wielding Black Hebrew Israelite preachers that occupied Times Square in the late ‘80s. Trust me, it makes some guy in a superhero costume duking it out with a topless woman over performance turf seem pretty tame in comparison.
Currently, the most dangerous city in America is Detroit, with 328 murders in 2020. According to NYPD statistics, in 1990 alone, New York City experienced over 2,200 murders. While all of the United States faced higher crime rates in the ‘90s in general, the violent crime rate for New York City was at or near the top in all categories. Against that backdrop, the city started passing some of the strictest gun laws in the country.
Currently, New York City is one of the most difficult places in the US to own or carry a weapon due to legislation like the SAFE Act and requires a difficult to obtain New York Pistol License for concealed carry. This license requires the applicant to be a NY State resident, 21, have no prior felony or serious offense convictions, be of good moral character, have a legally recognized reason for wanting to possess or carry a firearm, and be ready to open the business for which the license is being applied. The legally recognized reason to carry a firearm is strictly interpreted and requires an applicant to have a better reason than most.
This comparatively-stringent requirement led to it being challenged in the Bruen case.
District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen
Currently, two Supreme Court cases have a very direct influence on gun laws and the discussion of federalism and NYC’s gun laws: District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen.
Heller addressed the very heart of the discussion on federalism in gun laws, that is, what rights do the Second Amendment grant? In this case, the District of Columbia required that lawfully owned rifles and shotguns be “unloaded and disassembled or bound by a trigger lock.” At the Supreme Court, this was found to violate a personal right to firearms guaranteed in the Second Amendment. This was the first case to address the issue of whether the Second Amendment is an individual right, and did so with a strong “yes.” However, this right was limited to the home, and did not necessarily apply outside.
Looking to the application of NYC gun laws, the city only allows concealed carry with a New York Pistol License. This requires the applicant to be a NY State resident, 21, have no prior felony or serious offense convictions, be of good moral character, have a legally recognized reason for wanting to possess or carry a firearm, and be ready to open the business for which the license is being applied. The petitioners in Bruen were denied concealed carry licenses because they did not face a danger beyond that faced by the general public.
Speculation on the case is mostly around what the scope of the ruling will be; however, it seems a foregone conclusion to most court-watchers that they will rule conservatively and in line with Heller. This places the central speculation on whether they will find only the comparatively-restrictive legislation at the heart of Bruen pre-empted by the Second Amendment, or whether they will extend the logic of Heller outside the home.
Supreme Court Today
Even with the power to broadly interpret the law, the Supreme Court has historically avoided controversy. This is partly because the Supreme Court is not a democratic body: they are lifetime appointments made by one man, and three of the past four of them were made by a man who did not win the popular vote. As such, their legitimacy has always been the weakest amongst the three branches of government.
Looking to the most influential actions of the Supreme Court, their most useful societal function is dragging the last couple of holdouts into the modern era of civil rights: Sure, Brown v. Board of Education did make significant changes in public accommodations, and Loving v. Virginia ended the ban on mixed-race marriage. However, a majority of the country had already taken the “Whites Only” sign off the water fountains and allowed mixed-race marriage – it was mostly the southern and border states that had to be dragged into the civil rights era. While the Supreme Court did this and many other measures to protect minority rights, to be blunt, they were only
typically protecting the rights that around 2/3 of Americans already agreed on. If you don’t hit that point, you may be stuck with another Dredd Scott decision until sentiments change.
In the case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court is showing a complete lack of restraint that had previously been characteristic of the institution by wading into a controversial issue that is addressed legislatively all over the country. This was after several justices who voted to overturn Roe swore that they would not during their confirmation hearings.
For court-watchers, most have no expectation that this lack of restraint will be limited to ruling against the sentiment of most Americans on the hyper-controversial issue of abortion. This leaked draft is likely a signal that the court intends to make further counter-majoritarian rulings on controversial issues with a consistent conservative ideology on display despite clear state-level legislation addressing the issue. Considering how this ruling strikes at the heart of the implied right of privacy when Justice Alito wrote in the opinion that this does not apply to other rights like LGBT marriage or the use of condoms, I find this as trustworthy as when he said he would not overturn Roe.
Likely Future for NYC
In all likelihood, the court will continue the new trend we saw in overturning Roe v. Wade, that is, to push the conservative opinion of the current court.
What does this mean for New Yorkers on their daily commute? The next subway shooting may happen when a Second Amendment advocate forgot to fasten his gun properly and it was grabbed by one of the dozens of people that jump in front of the train to kill themselves every year.
Unfortunately, regardless of the intent, putting more guns into a high-stress, the densely-populated city has little to no chance of improving the situation: someone looking for a false sense of security or the opportunity to Cosplay John Wick is going to lose every time to someone who has zero combat training, but does have a brick and the element of surprise.
After Brick-guy grabs the gun off his victim, guns don’t kill people, but they do make it easy. Once brick-guy starts shooting and panics commuters in a shoulder-to-shoulder crowd, I don’t think Bob from accounting in the next subway car is going to step up with his Glock, identify the threat, and then shoot Brick-guy without hitting anyone else stampeding out of the car.
Thumbnail Credits: Ben Fractenberg/THE CITY
- Ryan Campbell Opinion Piece