This article appeared online at on Wednesday, January 23, 2019: 

For the first time in nearly a decade, the has agreed to hear on appeal a Second Amendment case. In New York State Rifle & Pistol Ass’n, Inc. v. City of New York, a District Court’s three-member panel ruled unanimously that New York City’s ban on transporting outside the home was constitutional.

Although the issue is “transporting” (as in carrying a firearm in a sealed container to take to a gun range) as opposed to “carrying” or “bearing” a firearm in public, UCLA law professor Adam Winkler think’s “It’s the biggest open question in Second Amendment law today.”

The last time the considered gun laws, it left open the question of whether the Second Amendment permitted a citizen to carry a firearm outside his home. Since then, more than 1,000 lawsuits have been filed by pro-2A groups and pro-bono law firms using those decisions to attempt to expand the rights of gun owners on the state level. Until now, none of those decisions that ruled against them and were appealed have seen the light of day at the nation’s highest court.

At issue is not only whether New York City’s ban on transporting is constitutional or not, but whether the court’s newest justice, Brett Kavanaugh, will prove his bona fides as a supporter of the Founder’s original intent regarding a citizen’s right to “keep and bear” firearms.

Kavanaugh dissented in Heller v. D.C. (Heller II) when the D.C. Circuit Court upheld the District’s ban on possession of most semi-automatic rifles and its registration requirement for all guns owned by persons living in the District.

Kavanaugh wrote:

In Heller, the held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional….


D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional.

However, Kavanaugh added that gun-owner licensing could be appropriate:

Licensing requirements mandate that gun owners meet certain standards or pass certain tests before owning guns or using them in particular ways. Those laws can advance gun safety by ensuring that owners understand how to handle guns safely, particularly before guns are carried in public. For example, many jurisdictions that permit the carrying of concealed have traditionally imposed licensing requirements on persons who wish to carry such weapons.

At bottom, wrote Kavanaugh, it’s what the Constitution says and not what his opinion might be that controls:

So my view on how to analyze the constitutional question here under the relevant precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. (Emphasis added)


But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.

The High Court will hear the appeal at the start of its next term in October. By that time the composition of the court might be different. If Justice Ruth Bader Ginsburg’s failing health takes her off the bench, President Trump would have a third opportunity to nominate a judge who also holds with Kavanaugh’s originalist or textualist view of the Republic’s founding document.

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