During oral arguments in NYS Rifle & Pistol, there were extended discussions of New York’s diverse geography. There are the rural areas of upstate New York, the urban jungle of New York City (never say “downstate”), and “intermediate areas” like Rensselaer County. These varied communities raise the question of whether the scope of Second Amendment rights can vary from place-to-place.
For example, Justice Thomas asked NY SG Underwood how population density affects the scope of the right to bear arms:
JUSTICE THOMAS: General Underwood, you seem to rely a bit on the density of the population. You say, I think, that states like New York have high-density areas. And implicit in that is that the more rural an area is, the more unnecessary a strict rule is. So, when you are –when you suggest that, how rural does the area have to be before your restrictions shouldn’t apply?
Later, Justice Kagan returned to Justice Thomas’s question. (We are all better off that the revised format has enabled Justice Thomas to share his wisdom). Kagan explained that it would be intuitive for rights to vary in Wyoming and New York City. But that argument does not “match with our notion of constitutional rights generally.” Rights should not vary by place.
JUSTICE KAGAN: I mean, if you think about Justice Thomas’s questions about less populated areas, the rural areas of New York versus the cities, I mean, it seems completely intuitive that there should be different gun regimes in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate. But it’s a –it’s –it’s a hard thing to –to match with our notion of constitutional rights generally. I mean, Mr. Clement makes a big point of this in his brief about how we would never really dream of doing that for the First Amendment or other constitutional rights, allow that level of local flexibility that you’re basically saying we should allow in this context. So I guess I just want to hear you say why you think that is. You know, what justification is there for allowing greater flexibility here?
General Underwood’s reply focused on the importance of local officials having discretion. After all, local officials know the circumstances of their communities. Justice Sotomayor then interrupted Underwood mid-sentence. Sotomayor contended that Underwood had dodged Kagan’s question:
JUSTICE SOTOMAYOR: I don’t think that was Justice Kagan’s question.
MS. UNDERWOOD: Oh, I’m sorry.
JUSTICE SOTOMAYOR: It was on a broader level, I believe. She can correct me if I’m wrong. The issue is no other constitutional right do we condition on permitting different jurisdictions to pass different regulations or –but do we have any other constitutional right whose exercise in history has been as varied as gun possession and use?
(I’m sure someone is keeping track of when female Justices interrupt veteran female advocates, forcing them to say “I’m sorry.”)
Justices Thomas, Sotomayor, and Kagan recognize that a constitutional right should not mean different things in different states. I don’t think this agreement will affect the bottom line in NYS Rifle & Pistol. But this overlap should affect how the opinions are written.
I am very sympathetic to this premise. I made a similar argument in one of my first law review articles, The Constitutionality of Social Cost. I asked whether the Second Amendment has a “geography clause”–a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.
Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis’s laboratories of experimentation thesis and Justice Harlan II’s never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens’s two‐track approach to incorporation, he leaves open the door for localities to devise solutions to social problems that “suit local needs and values” according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.
I could not have fathomed that a decade after I wrote this article, the questions I posed about the Second Amendment would still be unresolved.
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