The Trump administration late Wednesday asked the U.S. Supreme Court to overturn New York City’s controversial rule that bans individuals from transporting handguns outside their home in most cases.
In a brief filed with the high court, attorneys with the U.S. Department of Justice, which is not a party to the litigation, argued in a brief to the court on Wednesday that the rule contradicts the Second Amendment and unlawfully restricts interstate commerce by limiting where gun owners can bring their firearms.
The rule is being challenged before the high court by the New York State Rifle and Pistol Association, which appealed a lower court decision upholding the regulation from last year. The group is affiliated with the National Rifle Association.
The U.S. Department of Justice brief said “Few laws in the history of our nation, or even in contemporary times, have come close to such a sweeping prohibition on the transportation of arms. And on some of the rare occasions in the 19th and 20th centuries when state and local governments have adopted such prohibitions, state courts have struck them down.”
The rule, referred to by the Trump administration as the “transport ban,” prohibits licensed handgun owners, in most cases, from transporting their firearm to another location other than the address where it’s registered.
There are a few exceptions to the rule. Gun owners are allowed to take their firearm to a gunsmith or hunting ground as long as they first get permission from the New York City Police Department. Guns also are allowed to be transported to authorized shooting ranges and gun clubs, but only those within New York City.
The NYPD, which first created the rule, announced an amendment to the policy last month in response to the litigation that would allow guns to be transported to a few additional locations. The changes are currently open to public comment, after which they’re expected to be finalized.
The amendment would allow gun owners to bring their firearms to shooting ranges outside New York City and another address where the license-holder is allowed to have the weapon. They also would be able to bring their guns to shooting competitions, so long as it’s lawful where the contest is held.
Those changes go to the heart of the Trump administration’s arguments against the rule based on the dormant Commerce Clause of the U.S. Constitution. Attorneys for the administration argued in their brief that barring gun owners from traveling to shooting ranges outside New York City unlawfully prevents those businesses from making more money.
“Although the transport ban does not prohibit anyone from using out-of-state ranges, it does treat out-of-state ranges less favorably than local ranges, allowing residents of the City to use their own guns at the latter but not the former,” the brief said. “That means it is impermissibly discriminatory.”
But the Trump administration’s arguments based on the Second Amendment made up the majority of the brief, which argued the significance of the federal law’s syntax.
The relevant part of the Second Amendment, heard often during debates on gun control, is the constitutionally enshrined “right of the people to keep and bear arms.” Attorneys for the Trump administration argued that the Founding Fathers deliberately chose to include both the words “keep” and “bear” to ensure that gun owners would not face major restrictions on carrying guns.
The word “keep,” the Trump administration argued, already implies the right to have a gun inside someone’s home. That part isn’t contradicted by the city’s rule; it’s the right to “bear” arms that’s infringed upon by the policy, the brief said.
“If the right to ‘bear’ arms were limited to the home, it would be superfluous, adding nothing to the right to ‘keep’ arms,” the brief said. “The word ‘bear’ contributes something meaningful to the Second Amendment only if it encompasses the ‘bearing’ of arms outside the home.”
The brief expanded on that argument by giving a few examples of when it would be necessary to bear arms outside the home. One would need to transport their gun to go hunting, for example. They also would need to carry their gun to train as part of a “well-regulated militia,” which is also prescribed in the Second Amendment, the brief argued.
The Trump administration likened the case to the landmark Supreme Court decision in District of Columbia v. Heller. That decision, handed down in 2008, struck down a local law in Washington, D.C., that banned handguns in the municipality, even in homes.
The Supreme Court held, in that case, that the Second Amendment protects the right of a law-abiding citizen to keep a firearm at home for lawful purposes, like self-defense. The same idea should be applied in this case as it relates to the city’s rule, the Trump administration argued.
“In this case, the Court should confirm that the Second Amendment also protects the right of a law-abiding, responsible citizen to take his firearm outside his home, and to transport it to other places—such as a second home or a firing range—where he may lawfully possess that firearm,” the brief said.
The New York State Rifle and Pistol Association is represented by Paul Clement, a partner at Kirkland & Ellis in Manhattan. He was not immediately available to comment on the filing.
Representatives from the New York City Law Department did not immediately offer comment on the brief Thursday morning.