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When and how to regulate guns is one of the biggest issues across this country, but the Supreme Court has rarely weighed in. In 2008, it ruled for the first time that the Second Amendment right to bear arms is an individual right. Two years later, the court said that right applied to state laws, not just federal laws regulating gun ownership and use. Since then, however, there has been radio silence as the justices have turned away one after another challenge to gun laws across the country, until now, as NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The case before the court today comes from New York, a city and state with some of the toughest gun regulations in the country. Several gun owners challenged the rules for having a handgun at home. They contended the city gun license was so restrictive, it was unconstitutional. Specifically, they said the state law and city regulations violated the right to bear arms because they forbid pistol owners from carrying their guns anywhere other than seven firing ranges within the city limits. That meant that pistol owners could not carry their guns to a second home or to shooting ranges or competitions in other states nearby. The lower courts upheld the regulations as justified to protect safety in the most densely populated city in the country.
But when the Supreme Court agreed to hear the gun owners' appeal, the state and the city changed the law to allow handgun owners to transport their locked and unloaded guns to second homes or shooting ranges outside the city. With those changes, the first question today will be whether the case is moot and should be thrown out because New York has already given the gun owners everything they asked for in their lawsuit. James Johnson is counsel for the city of New York.
JAMES JOHNSON: This is an instance where it appears the petitioners won't say yes for an answer.
TOTENBERG: Lawyer Paul Clement, representing the gun owners, counters that the amended regulations still give the city too much power to regulate.
PAUL CLEMENT: The city of New York never expressed any doubt about the constitutionality of these regulations when they were winning in the district court and the court of appeals. And then lo and behold, all of the sudden, the city decides, you know, maybe we don't need these regulations after all.
TOTENBERG: And he observes the city is still defending the original regulations. The city is, indeed, doing that because the justices refused in October to throw the case out on mootness grounds opting instead to hear the mootness arguments today along with the direct challenge to the regulations themselves. That does put the city in a weird position, defending regulations that are no longer in place and that it claims it has no intention of reviving. Again, New York's lawyer James Johnson.
JOHNSON: It's our position that by justifiably restricting the ability to carry firearms broadly on the streets of New York, it contributes to making the city safe.
TOTENBERG: And there's the rub. What did the Supreme Court mean in its 2008 decision when it said the right to bear arms is an individual right? Justice Antonin Scalia writing for the five justice court majority back then described it as the right to own a gun for self-defense in one's home. Moreover, the opinion contained a paragraph of specific qualifiers that, according to court sources, were added to Scalia's opinion at the insistence of Justice Anthony Kennedy, who provided the fifth vote needed to prevail in the case. The court said, for instance, that its opinion cast no doubt on longstanding bans on carrying firearms in sensitive places, such as schools and government buildings, or bans on dangerous and unusual weapons. But Kennedy, who insisted on that limiting language, has now retired, replaced by Justice Brett Kavanaugh. And Kavanaugh, as a lower court judge, wrote expansively about gun rights.
CLEMENT: I do think it will make a difference that Justice Kavanaugh is on the court.
TOTENBERG: The gun owners' Paul Clement notes that not only does Kavanaugh have a record sympathetic to broad gun rights, but he was constrained by the court's precedents when he sat on the lower court.
CLEMENT: Now he can interpret the Constitution in a different way in his new perch. He's somebody who I would think is going to be receptive to arguments that the Second Amendment fully protects an individual right and is not strictly limited to the home.
TOTENBERG: New York argues that the history of gun ownership dating back to colonial times shows that in this densely populated city, the law forbid the discharge of firearms in any street, lane, alley, garden or other places where people frequently walk. And by 1784, the state regulated the storage and transport of gunpowder. Today, the city notes, New York is the most densely populated city in the country. Manhattan alone packs around 1.6 million residents into 23 square miles. And the population doubles every weekday with commuters. These people, plus tens of thousands of tourists, move through the city's crowded streets, thus creating a staggering concentration of sensitive places, such as schools, day care centers, government buildings, playgrounds and places of worship, all places that the Supreme Court said in 2008 are legitimate places to ban guns.
Countering that argument, lawyer Clement maintains that the Founding Fathers never intended the right to own a gun to be limited to the home. At the very minimum, he notes, our founders allowed gun owners to carry their firearms from one place to another. Like any good advocate, Clement is offering the justices alternative routes to a gun-friendly ruling.
CLEMENT: They could say the Second Amendment's not limited strictly to the home and therefore this regulation has to go.
TOTENBERG: The alternative and broader ruling, he says, would treat the right to own a gun in the same way that limits on free speech are treated - with considerable suspicion.
CLEMENT: I don't think anybody would think that if the city of New York said, you know, we have seven perfectly nice libraries in the city of New York and there's really no reason for any of you to go to libraries in New Jersey, I think everybody would recognize, no, that's clearly a First Amendment problem.
TOTENBERG: New York's lawyer, James Johnson, dismisses that analogy, noting that libraries have no lethality. But both sides know that if the Supreme Court rules on the merits of the now-defunct regulations, it will be a very big deal for one simple reason. It will be only the third decision on gun rights in modern times. And it will inevitably lay down some new guidelines for lower courts to follow when gun regulations are challenged.
Nina Totenberg, NPR News, Washington.
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