The Supreme Court has announced it will hear New York State Rifle & Pistol Co., a Second Amendment case with the potential to be much larger than it seems.
New York City offers two sorts of handgun licenses: “carry” and “premises”. A carry permit is difficult, nigh impossible, to receive; premises permits, much easier but more limited. In fact, the only things one may do with a premises permit are keep a firearm in one specific home and transport it to and from any of seven approved firearms ranges in the city.
In New York State Rifle, this permit regime is being challenged by two people with premises permits who want to be allowed to take their firearms out of New York State to attend shooting competitions. (One also has a second home and wishes to transport it between homes, which is also forbidden under the premise permit, which allows the holder to store it at only one location.)
Why will this be important? It’s not because we wonder whether the law will be struck down — it almost assuredly will be. It’s because we’ll discover how SCOTUS wishes the Second Amendment to be interpreted. At a high level, laws can be reviewed by three different standards and which one ought be used is sometimes unclear. They are:
Rational basis means, quite simply, “is this within government’s lawful ability to regulate, and is the regulation somehow tethered to reality however tenuously?” Most laws have their Constitutionality examined under rational basis testing, but we know cases involving the Second Amendment must not be.
[Rational basis testing cannot] be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms … [i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.Heller v District of Columbia, Footnote 27
Strict scrutiny is the other extreme. For laws to pass strict scrutiny review, they must advance a compelling governmental interest, be narrowly tailored to only advance that interest, and be the least restrictive way of advancing that interest. This is a very hard standard to meet; many laws founder on the rocks of strict scrutiny.
And between those extremes is the wasteland of intermediate scrutiny, which has a formal definition I won’t burden you with because I’ve yet to find any consensus on what the definition means. In practice intermediate scrutiny covers everything from “just a little bit looser than strict scrutiny” to “just a little tighter than rational basis,” and across the country no two judges administer it in quite the same way. Intermediate scrutiny is a still-developing area of law, and there are several important parts of it that are still left unspecified. (For instance, is ‘heightened scrutiny’ any different from ‘intermediate scrutiny’?)
Most, but not all, of the Bill of Rights is evaluated under strict scrutiny. Your right to stand on a streetcorner and rant about the government receives strict scrutiny protections, but the right of liquor companies to advertise their wares receives intermediate scrutiny. Generally speaking, civil rights used in commerce receive intermediate protection, but used individually receive strict protection.
But note that qualifier — generally speaking. We don’t know how Second Amendment cases affecting the rights of individuals should be interpreted, except that rational basis review is forbidden.
SCOTUS will be telling us. If they say Second Amendment rights are entitled to strict scrutiny, the results will be genuinely seismic: probably half or more of existing firearms laws cannot bear the weight of strict scrutiny review!