Read: The bullet in my arm
The appeals court also noted that the city has not barred all target ranges; the plaintiffs can go to licensed gun ranges to learn to shoot. Those who prefer to go to out-of-town ranges may do that as well—most gun ranges have weapons available for loan or rent. As for second homes, the plaintiffs need only buy a second handgun and store it there for self-defense when in residence.
Without a test issued by the Supreme Court, the Second Circuit employed “intermediate scrutiny.” Unlike “strict scrutiny”—a test almost impossible to pass—the intermediate test asks whether a law is “substantially related to an important governmental interest”—that is, whether it does a pretty good job of helping the government achieve a goal that seems pretty important. Balancing the mild burden on the challengers’ right against the city’s need to keep guns out of public areas, the appeals court upheld the transport regulations.
The long-term aim of the gun-rights movement is to move the Second Amendment up into the tier of rights that are insulated from virtually any regulation; most prominent among these are free speech and religious freedom. The challengers’ petition in this case argues that the Supreme Court would never tolerate, for example, license fees for newspapers; it further quotes McDonald as saying that the “right to bear arms” should not be treated as a “second-class right.”
There are signs that the Court’s new conservative majority may be ready to move sharply in the direction of stricter review of gun laws. Justice Samuel Alito was in the majority in Heller andMcDonald; as an appeals-court judge, he had argued that the federal government could not ban machine guns. Justice Neil Gorsuch heard no gun cases as a circuit judge, but in 2017, he joined Justice Clarence Thomas in a hard-line dissent that advocated broad gun rights. In that case, the Court denied review to a case challenging a California locality’s restrictions on carrying handguns in public. Thomas wrote in his dissent, “The right to bear arms extends to public carry.” In joining that dissent, Gorsuch sent a strong message about where he stands.
Read: The slave-state origins of modern gun rights
As for Justice Brett Kavanaugh, he has left no doubt about his view. After the Supreme Court decided Heller, the District of Columbia revised its firearms laws to require registration of all weapons—and prohibited registration of assault rifles and high-capacity magazines. In 2011, the Court of Appeals for the D.C. Circuit upheld the new law by a 2–1 vote.
The dissenting vote came from Kavanaugh. According to his reading of Heller, Second Amendment rights are not to be decided by a constitutional “test” in the ordinary sense. Courts need not “balance” a state’s interests, such as preventing crime, against the burden on gun ownership. Instead, gun-ownership rights stand on their own and need no justification in any situation. Judges should assess “text, history, and tradition” only. First, a court is to ask how a given restriction compares with those accepted by the framers of the Second Amendment (this inquiry includes “appropriate analogues [to“traditional” weapons] when dealing with modern weapons and new circumstances”). Next, it must ask how the restriction at issue compares with the role of weapons in society since the framing. Using his “text, tradition, and history” analysis, Kavanaugh wrote that he would have struck down both the assault-rifle ban and the magazine restrictions. One of his reasons was that most places in 2011 didn’t ban assault rifles; that meant the D.C. statute was not “traditional.”