October 22, 2019

The Supreme Court is poised to blow a giant hole in gun control. Here's how the liberal justices can intervene

[Cross-posted from the Harvard Law Review blog]

By Aaron Tang

Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.”  Despite its opacity, this single sentence is the clearest signal yet of the impending doom for critical gun control laws currently in force in eight states and Washington, D.C.

To back up a bit, the case in question is New York State Rifle & Pistol Association v. City of New York.  It involves a Second Amendment challenge brought by gun rights activists against specific restrictions that New York City—the respondent in the case—placed on their ability to travel with their firearms. 

The Court granted certiorari in January, which was itself a bad sign for gun control proponents—the City’s restrictions were upheld in the lower courts and no other federal court has reached a conflicting conclusion, leaving the Court little reason to take the case other than to reverse the decision below.  But the Court tipped its hand still further when it denied the City’s request to dismiss the case as moot in light of intervening city and state laws, both of which granted the challengers the exact relief they requested in their complaint.  If any of the conservative Justices were at all interested in avoiding this highly charged dispute, by far the easiest course would have been to accept the City’s Suggestion of Mootness, given that the challengers had already gotten all that they had asked for.  Their refusal to do so is a strong signal that the conservative majority is poised to issue a blockbuster ruling that will expand the right to carry guns outside the home.  Such a ruling would add insult to injury for countless communities that have been ravaged by gun violence, a number that is growing rapidly due to the striking increase in mass shootings across the nation.

But all is not lost.  The liberal Justices in the minority have a last-ditch strategy that would sacrifice the specific gun restriction at issue in this case, yet save a number of far more critical gun control measures around the county.

To see how, it’s important to start by recognizing just how narrowly the challengers framed their lawsuit, at least initially.  The suit challenges a New York City regulation requiring owners of city-conferred “premises licenses” to keep their guns inside their homes at all times, with two exceptions: to go hunting at an authorized area, or to train at one of seven shooting ranges in the city.  Without a premises license—or a far-more-difficult-to-obtain “carry license,” which requires a significant demonstration of an applicant’s individualized need—city residents are not allowed to keep guns in their homes at all.

Three individuals and the New York State Rifle & Pistol Association sued, asking for two additional, yet modest exceptions to the general restriction on travel by premises license holders: the ability to bring guns to shooting ranges and second homes outside the city.  Critically, the plaintiffs did not challenge New York’s carry license regime, which is the more significant law that prohibits most city residents (i.e., those that cannot show particularized good cause) from carrying concealed firearms in public. 

But the challengers now make clear in their brief before the Court that they are no longer interested in just the two modest travel freedoms for premises license holders.  Instead, the challengers want the Court to issue a sweeping ruling that “the Second Amendment protects a right to carry arms outside the home,” period.  Such a right, the challengers, argue, would “include” travelling to shooting ranges and second homes.  But it would also call into doubt the crucial limits New York places on who may obtain a general carry license, not to mention similar limits in place in seven additional states and Washington, D.C.  It is these general limits on public carry, in other words, that the challengers really wish to invalidate in the hopes of creating a nationwide right to carry firearms in public.  But it also the public carry limits that the City (and gun control proponents more generally) should be especially interested in defending: research shows that restrictive public-carry licensing regimes are associated with a 13%-15% aggregate reduction in violent crime.   Whether premises license holders may bring their guns to second homes and shooting ranges outside the City seems a minor issue by comparison.

Recognizing these high stakes, New York City and State officials earlier this year wisely granted the challengers the narrow relief they requested: both the City and the State enacted new laws affording premises license holders the right to bring their firearms to out-of-city shooting ranges and to second homes.  Under usual principles of constitutional law, these concessions would have mooted the case, leaving no need for an opinion on the broader contours of the Second Amendment right to bear arms.  And so, in July, New York officials asked the Court to dismiss the case.

That is the request that the Court denied in its October 7 orders list.  That decision, in addition to the likely political dispositions of the five Justices in the conservative majority, puts the four more liberal members of the Court in a difficult spot.  One doesn’t need a fancy law degree to know that, given their conservative colleagues’ refusal to duck the issue on mootness grounds, there are likely five votes to invalidate the City’s gun restriction on the merits.  But how the Court does so—and how the City loses—can make a world of a difference.   

It turns out the Second Amendment argument is not the only constitutional challenge in this case.  For understandable reasons, most observers have focused on that argument, since it is that constitutional provision that can trigger the greatest upheaval in local and state efforts to regulate firearms.  But there is another constitutional challenge worthy of our interest: a challenge based on the Dormant Commerce Clause.

Under longstanding precedent, the Dormant Commerce Clause doctrine forbids states (and cities) to discriminate against interstate commerce.  To illustrate this rule and its sensibility, suppose that New Jersey, in an effort to prop up its restaurant industry, passed a law forbidding its residents to eat at New York City restaurants.  One might imagine New York getting angry and retaliating, passing a similar law prohibiting its own residents from eating in New Jersey.  New Jersey might then escalate, forbidding all commercial interactions between its own residents and New York.  Before long, states around the country might be engaged in destructive tit-for-tat trade wars.  Thankfully, Dormant Commerce Clause doctrine stops this from happening: under it, Congress alone—not the states—has the power to regulate interstate commerce.  

Given this rule, the travel restrictions imposed by New York City’s premises license seem constitutionally dubious for reasons having nothing to do with the Second Amendment. Just as New Jersey can’t forbid its residents to eat at New York City restaurants, New York City can’t forbid its residents to bring their guns to New Jersey shooting ranges. Sure, the former market is obviously larger than the latter, but market size is immaterial (indeed, one of the Court’s most cited Dormant Commerce Clause cases had to do with the Arizona cantaloupe market). What matters is that states cannot discriminate against commerce in other states—which is quite arguably what the City’s premises license does vis-à-vis out-of-state shooting ranges. A similar argument could be made about the City’s former restriction on traveling with a gun to a second home: it is facially discriminatory against the out-of-state home purchase and rental markets.

Suppose the four liberal Justices expressed their willingness to join an opinion striking down New York City’s premises license restrictions on this Dormant Commerce Clause ground. For his part, Chief Justice Roberts might be especially interested in crafting a majority opinion on this rationale, since it would produce a unanimous ruling in favor of the challengers: at least five votes based on the Commerce Clause, with perhaps a concurring opinion based on the Second Amendment.  Indeed, it is possible that Justices Alito and Kavanaugh might join the Dormant Commerce Clause majority as well, viewing that as a worthwhile compromise ruling in favor of gun owners that does not inject the Court into the heated, broader nationwide argument over the Second Amendment and public carry limits.  (Justices Thomas and Gorsuch have expressed more doubt about the Dormant Commerce Clause generally).  Even with a concurring opinion on the Second Amendment ground, a unanimous decision in favor of the gun owners would convey the Chief’s famous admonition that “[w]e do not have Obama judges or Trump judges,” certainly more than a polarizing Second Amendment decision that breaks along predictable partisan lines.  And for the liberals, the crucial result would be to make no new law on the Second Amendment.  That, in turn, would allow the vital general limits on public carry in New York, D.C., and elsewhere—the kind of sensible gun restrictions that have saved countless lives over the years—to survive another day. 

March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.