No. 18-280

IN THE

Supreme Court of the United States
THE NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ROMOLO COLANTONE, EFRAIN ALVAREZ, AND
JOSE ANTHONY IRIZARRY,
Petitioners,

v.

THE CITY OF NEW YORK AND THE NEW YORK CITY
POLICE DEPARTMENT – LICENSE DIVISION,
_________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF IN OPPOSITION

ZACHARY W. CARTER
Corporation Counsel of the
City of New York
100 Church Street
New York, NY 10007
(212) 356-2500
rdearing@law.nyc.gov
RICHARD DEARING*
SUSAN PAULSON
*Counsel of Record

Counsel for Respondents

 COUNTERSTATEMENT OF
QUESTIONS PRESENTED
A New York State law that is not challenged
here recognizes two major types of handgun
licenses: “premises” licenses and “carry” licenses.
Petitioners Romolo Colantone, Efrain Alvarez, and
Jose Anthony Irizarry each hold a premises
handgun licenses allowing them to keep a handgun
in their New York City residence. The City’s
implementing rules also permit premises licensees
to transport their handguns to and from City
shooting ranges for target practice or competition.
Petitioner argue that the Second Amendment,
dormant Commerce Clause, and right to interstate
travel compel the City to afford them broader
latitude for transportation of a handgun under a
premises license. The questions presented are:
1. Whether this case is appropriate for
certiorari review, where it (a) presents no
circuit split or conflict with this Court’s
precedents, and (b) addresses what
petitioners describe as a “one-of-a-kind”
municipal rule with “no analog in any
other jurisdiction”?
2. Whether the Second Circuit’s application
of established constitutional principles to
the particular rule here warrants review
by this Court?

 TABLE OF CONTENTS
Page
COUNTERSTATEMENT OF QUESTIONS
PRESENTED ............................................................ i
TABLE OF CONTENTS .......................................... ii
TABLE OF AUTHORITIES.................................... iv
INTRODUCTION..................................................... 1
STATEMENT ........................................................... 2
A. The
relevant
handgun
licensing
framework under state and city law ............. 2
B. The City’s documented history of
enforcement
challenges
when
it
authorized broader transportation of
handguns ....................................................... 4
C. Petitioners’
suit
seeking
broader
transportation
rights
under
their
premises licenses ........................................... 6
REASONS FOR DENYING THE PETITION ....... 11
A. The petition reduces to a request for
case-specific error correction. ...................... 12
1.

Petitioners claim no circuit split and
admit the case is “one-of-a-kind.” ..............12

ii

 2.

Petitioners’ digression into dissimilar
issues from other cases does not
warrant review in this case. .......................13

B. In any event, the Second Circuit did not
err. ................................................................ 18
CONCLUSION........................................................ 27

iii

 TABLE OF AUTHORITIES
Page(s)

CASES
Attorney Gen. of New York v. Soto-Lopez,
476 U.S. 898 (1986)............................................. 25
Bauer v. Becerra,
858 F.3d 1216 (9th Cir. 2017) ............................ 16
C&A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383 (1994)............................................. 24
District of Columbia v. Heller,
554 U.S. 570 (2008)............................................. 19
Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011) .............................. 14
Ezell v. City of Chicago,
846 F.3d 888 (7th Cir. 2017) .............................. 15
Guns Save Life, Inc. v. Ali,
No. 2015-CH-18217, Circuit Court of Cook
County, Illinois, County Department, Chancery
Division, (August 17, 2018) ................................ 17
Heller v. Dist. of Columbia (Heller II),
670 F.3d 1244 (D.C. Cir. 2011) ........................... 21
Kachalsky v. Cty. of Westchester,
701 F.3d 81 (2d Cir. 2012) ............................ 20, 26
McDonald v. City of Chicago,
561 U.S. 742 (2010)............................................. 19
New York State Rifle & Pistol Ass’n v. Cuomo,
804 F.3d 242 (2d Cir. 2015) ................................ 14

iv

 NRA v. McCraw,
719 F.3d 338 (5th Cir. 2013) ...............................20
Osterweil v. Bartlett,
21 N.Y.3d 580 (2013) .............................................2
Pharm. Research & Mfrs. of Am. v. Walsh,
538 U.S. 644 (2003) .............................................24
Rhode v Becerra,
18-cv-802-BEN, 2018 U.S. Dist. LEXIS 178746
(S.D.Cal. October 17, 2018) .................................18
United States v. Marzzarella,
614 F.3d 85 (3d Cir. 2010)...................................21
United States v. Reese,
627 F.3d 792 (10th Cir. 2010) .............................21
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010) ...............................21
Watson v. City of Seattle,
401 P.3d 1 (Wash. 2017)......................................17
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) .........................................15
Woollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) ...............................20
Zablocki v. Redhail,
434 U.S. 374 (1978) .............................................25
STATUTES
18 U.S.C. § 926A .....................................................21
Cal. Penal Code § 30312 .........................................18
Cook County, IL, Firearm Tax Ordinance
§§ 74-665, et seq (effective April 1, 2013). .........16
N.J. Stat. § 2C:58-3.1 ......................................4, 7, 24
N.Y. Penal Law § 265.20(7) ............................4, 7, 24
N.Y. Penal Law § 265.20(7-a) .........................4, 7, 24

v

 N.Y. Penal Law § 400.00(2)(a) ................................. 2
N.Y. Penal Law § 400.00(2)(f) .................................. 2
N.Y. Penal Law § 400.00(3)(a) ................................. 2
Seattle, WA, Ordinance 124833
(adopted August 21, 2015) ...................................... 16
OTHER AUTHORITIES
https://perma.cc/F29K-JZ4Y .................................... 4
https://perma.cc/ZN9B-WCGW .............................. 22
RULES
38 RCNY § 5-01(a) .................................................... 3
38 RCNY § 5-01(b) ................................................ 3, 4
38 RCNY § 5-22(a)(14) ............................................. 3
38 RCNY § 5-22(a)(16) ............................................. 3
38 RCNY § 5-23(a) .................................................... 6
38 RCNY § 5-23(a)(4) .............................................. 3
38 RCNY § 5-23(b)(1) ............................................... 4

vi

 INTRODUCTION
The individual petitioners each hold a license to
possess a handgun in their New York City
residence. The City’s regulations permit them to
transport their handguns, unloaded and in a locked
container, to and from firing ranges within the
City. Petitioners do not deny that they are able to
maintain proficiency in use of their licensed
weapons; they seek the ability to transport their
weapons in the City for the purpose of taking them
to ranges outside the City, which they claim would
be more convenient. One petitioner also seeks to
transport his handgun to a second home in upstate
New York, without denying that he is free to keep a
separate handgun there under a separate premises
license. The United States Court of Appeals for the
Second Circuit rejected petitioners’ claims under
the Second Amendment, dormant Commerce
Clause, and right to interstate travel.
In seeking certiorari review of that decision, the
petition does not claim that it implicates any circuit
split (it does not). Nor does the petition claim that
the core issues here will recur; instead, it openly
casts the challenged municipal rule as an extreme
outlier. The petition thus reduces to a request for
case-specific error correction, which is reason
enough to deny certiorari.
In any event, the court of appeals did not err.
The court rejected petitioners’ Second Amendment
challenge after a thorough analysis applying

 intermediate scrutiny. And it faithfully applied the
Court’s precedents addressing the dormant (or
negative) Commerce Clause and the right to
interstate travel in rejecting those claims as well.
STATEMENT
A. The
relevant
handgun
licensing
framework under state and city law
New York State law establishes a core
framework for handgun licensing in New York that
is not challenged in this lawsuit. The New York
State Penal Law describes two major types of
handgun licenses: (1) “premises” licenses, which
permit the licensee to possess a handgun in the
licensee’s home or place of business; and (2) “carry”
licenses, which permit the licensee to have and
carry a concealed handgun in public. N.Y. Penal
Law §§ 400.00(2)(a) and (f).
The Penal Law requires persons to apply for a
handgun license in the city or county where they
reside. N.Y. Penal Law § 400.00(3)(a). 1 The City’s
handgun licensing rules recognize both types of
handgun licenses provided for by state law: the
1

The New York Court of Appeals held in 2013 that this
requirement specifies only residency, not domicile, thereby
allowing persons to apply for a handgun license in the place of
a secondary residence in New York. Osterweil v. Bartlett, 21
N.Y.3d 580 (2013).

2

 premises license and the carry license. See Title 38
of the Rules of the City of New York (RCNY) § 501(a), (b). Only premises licenses are at issue in
this case.
The City’s rules authorize holders of a premises
handgun license not only to possess their licensed
handgun in a designated premises, but also to
transport that handgun, unloaded and secured in a
locked container, for specified purposes. 2 These
purposes included transporting the gun directly to
and from an authorized arms range or shooting
club within the City in order to maintain
proficiency in the use of their handgun. See 38
RCNY §§ 5-01(a); 5-22(a)(14).
A list of approved ranges is filed with the City
Clerk and published in the City Record (JA120). 3
There are currently seven New York City Police
Department (NYPD)-approved small arms ranges
(other than police or military ranges), with each
New York City borough having at least one range
(JA81, JA122). Petitioners do not claim that the
2

The City’s rules also allow a premises license holder to
transport a handgun to an authorized hunting area or to a
gunsmith, with advance written permission from NYPD. 38
RCNY §§ 5-22(a)(16), 5-23(a)(4). Petitioners do not challenge
these rules.
3

“JA” refers to the joint appendix petitioners filed with the
Second Circuit.

3

 number of ranges within the City reflects anything
other than the play of market forces (see App. at
20n11).
Premises handgun licensees are not prohibited
from patronizing ranges outside the City or State.
Specific statutes in both New York and New Jersey
allow individuals to patronize firing ranges with
rented or borrowed guns. N.Y. Penal Law
§ 265.20(7), (7-a), N.J. Stat. § 2C:58-3.1; See, e.g.,
https://perma.cc/F29K-JZ4Y (advertising handgun
rentals at a shooting range in McBride Township,
New Jersey, 12 miles from New York City; the
website touts that “all you need to shoot is a photo
ID and a friend,” and for females, even the friend is
not required).
B. The
City’s
documented
history
enforcement
challenges
when
authorized broader transportation
handguns

of
it
of

Before 2001, the NYPD offered an adjunct to a
premises license known as a “target license” (JA77).
38 RCNY §§ 5-01(b), 5-23(b)(1) (as in effect prior to
June 30, 2001). The target license allowed the
holder to travel with his or her firearm, unloaded
and in a locked container, to authorized shooting
ranges and competitions, not limited to those
located within New York City.
NYPD observed widespread abuses of the target
license (JA77). Over many years, NYPD received

4

 reports of target licensees travelling with their
firearms when they were not travelling to or from
an NYPD-authorized range (JA77). These reports
included licensees travelling with loaded firearms,
licensees found with firearms nowhere near the
vicinity of an authorized range, licensees taking
their firearms out on airplanes, and licensees
travelling with their firearms during hours when
no NYPD-authorized range was open (id.).
Because of the difficulty in verifying whether a
target licensee is, in fact, traveling to a firing range
outside the City, the License Division eliminated
the target license and converted existing target
licenses into premises licenses, which allow for the
transportation of the licensed handgun only to City
ranges (JA78-79). NYPD-approved firing ranges
are required to maintain a roster listing the names
and addresses of all persons who have used the
range and the date and hour that they used it and
to make those records available for inspection by
NYPD during their hours of operation (JA120).
Thus by restricting the transport of firearms for
target shooting to ranges within the City, the City
was able to both reduce the number of firearms
carried in public (JA68) and enhance NYPD’s
ability to verify a licensee’s statement that he is
transporting his gun to or from an authorized range
(JA70-71).

5

 C. Petitioners’
suit
seeking
broader
transportation
rights
under
their
premises licenses
The individual petitioners each hold premises
handgun licenses issued for possession within a
specific New York City residence. They, along with
petitioner New York State Rifle & Pistol
Association, sued the City of New York and the
New York City Police Department License Division
seeking a declaration that the restrictions on
transportation of handguns under the New York
City premises license are unconstitutional (JA826).
Claiming violations of the Second Amendment,
the Commerce Clause, the right to interstate
travel, and the First Amendment, petitioners
challenged the lack of authorization to transport
their premises-licensed handgun within the City of
New York (a) for the purpose of taking it to target
practice or competitive shooting events outside the
City and (b) in the case of petitioner Colantone, for
the purpose of taking it to his second home in
upstate New York (id.).
Petitioners claimed that 38 RCNY § 5-23(a) (the
“Rule” or “challenged rule”), forces them to use lessconvenient ranges (see JA164-66), but did not allege
that it inhibits their ability to maintain proficiency
in the use of their handguns (JA13-16). Nor did
petitioners address the New York State and New
Jersey laws authorize individuals to rent or borrow

6

 guns at firing ranges for use there. N.Y. Penal Law
§§ 265.20(7), (7-a), N.J. Stat. § 2C:58-3.1.
After the district court (Sweet, J.) granted
summary judgment to the defendants (App. at 4276), petitioners appealed to the United States
Court of Appeals for the Second Circuit. The court
of appeals affirmed the grant of summary judgment
(App. at 1-39).
The Second Circuit first examined whether the
challenged rule burdens the core Second
Amendment right to possess a firearm for selfdefense in the home. With respect to the Rule’s
restriction on a licensee’s ability to take a handgun
licensed to a City residence to an out-of-City home,
the court observed that the Rule imposes no limit
on a licensee’s ability to obtain a license to have a
handgun at a second home and that petitioner
Colantone did not present any evidence that the
financial or administrative costs associated with
obtaining a premises license for his second home or
acquiring a second gun to keep at that location,
would be exclusionary or prohibitive (id. at 14-15).
Colantone did not even estimate the amount of
money or time it might take to obtain a license and
gun for his second home and did not allege that the
Rule restricts his ability to do so in any way (id. at
15). The court concluded that, although the
restriction on transporting handguns licensed to
City residences to out-of-City homes is not
substantial, it arguably approaches the core area of

7

 Second Amendment protection and thus, triggers
intermediate scrutiny (id. at 24).
In examining the Rule’s failure to authorize
transporting handguns licensed to New York City
homes for the purpose of taking them to out-of-City
firing ranges and shooting competitions, the court
found that the Rule does not significantly inhibit
petitioners’ ability to utilize training facilities to
obtain and maintain their firearm skills, let alone
operate as a substantial burden on their right to
keep and use firearms for self-defense in the home
(App. at 16-23). The Rule allows a holder of a
premises license to take the handgun licensed for a
New York City residence to an authorized firing
range in the City to engage in practice, training
exercises, and shooting competitions (id. at 18-19).
And seven firing ranges are available in the City
for any premises license-holder, some of which, the
court observed, are “quite substantial” (id. at 2122). Thus, the court found that the restrictions
imposed by the Rule do not impose a substantial
burden on the core Second Amendment right to
own and possess handguns for self-defense because
there are “ample facilities” for live-fire training and
practice available “within reasonable commuting
distance” from the homes of all city residents (id. at
23). Without “definitively decid[ing]” whether
heightened scrutiny is warranted, the court applied
intermediate scrutiny to this claim (id. at 24).
The Second Circuit sustained the Rule under
intermediate scrutiny. It applied the settled test for

8

 intermediate scrutiny developed by this Court in
other constitutional contexts—asking whether the
Rule is substantially related to an important
governmental interest (App. at 25-26). The Court
found that, in a “detailed affidavit” of the former
Commander of the NYPD License Division, Andrew
Lunetta, the City demonstrated that the Rule
serves the City’s compelling governmental interest
in protecting public safety (id. at 26).
The Lunetta affidavit explained the need to
control the presence of firearms in public generally,
and specifically those held by individuals who have
only a premises license, and not a carry license (id.
at 26). And he explained the importance of being
able to monitor and enforce where premises
licensees can transport their firearms due to the
documented abuses when premises licensees were
previously allowed to carry their handguns to
shooting ranges out of the City (id. at 27). Because
of the difficulty in verifying whether a premises
licensee is, in fact, traveling to a firing range
outside the City, the License Division restricted the
scope of the premises license to allow for the
transportation of the licensed handgun only to City
ranges (id. at 27-28). Lunetta explained that this
allows the City to promote public safety by better
regulating and minimizing the instances of
unlicensed transport of firearms on City streets (id.
at 28).
The court rejected petitioners’ argument that
the Rule could not survive heightened scrutiny

9

 because of the severity of the burden on their
Second Amendment rights. The court found that, in
contrast to the City’s evidence supporting the
Rule’s rationale, petitioners produced “scant
evidence” demonstrating any burden, let alone a
substantial burden, on their protected rights (App.
at 28). Petitioners did not present any evidence
that they could not participate in shooting
competitions outside the City with a rented firearm
or could not obtain a license for a handgun at their
second home (id.). They did not present any
evidence of financial or administrative costs
associated with obtaining a premises license for a
second home (id. at 14-15). They did not present
any evidence that that the City facilities are
inadequate to provide the necessary opportunities
for target practice or that the firing ranges outside
the City are significantly less expensive or more
accessible than those in the City (id. at 21-22, 28).
And they did not even allege that practicing with
their own handguns provides better training than
practicing with a rented gun of like model (id. at
28-29). Thus, the Rule survived Second
Amendment review (id. at 29).
The court similarly applied established
precedents in analyzing petitioners’ Commerce
Clause and right to travel claims. The court found
that the Rule does not facially discriminate against
interstate commerce because it does not prohibit a
premises licensee from patronizing an out-of-state
firing range or going to out-of-state shooting
competitions: it only prevents them from doing so

10

 with the handgun licensed to their New York City
residence (id. at 31). And any conceivable
discriminatory effect would be justified by the
Rule’s demonstrated public safety rationale (id. at
32). Likewise, because the Rule directly governs
only activity within the City in order to protect the
safety of the City’s residents, any incidental
extraterritorial effect does not render the rule
unconstitutional (id. at 33-34).
The court also rejected petitioners’ argument
that the Rule violates their fundamental right to
travel (App. at 35). Finding that petitioners can
travel wherever they like, they simply cannot do so
with the specific handgun licensed to their City
residences, the court concluded that any incidental
impact of this restriction on travel is not of any
constitutional significance (id. at 35-36). 4
REASONS FOR DENYING THE PETITION
There is no reason for the Court to grant review
in this case. Petitioners do not argue that this case
presents a split in authority that requires
resolution. Nor do they claim that the issues here
are recurring. Indeed, they openly paint the
challenged rule as a “one-of-a-kind prohibition”
4

In a ruling that the petition does not challenge, the court
rejected petitioners’ claim that the Rule violates their First
Amendment right to expressive association (id. at 36-39).

11

 (Pet. at 1-2) with “no analog in any other
jurisdiction” (id. at 9).
Instead of claiming the case presents any circuit
split or important recurring question, they argue
that it is somehow emblematic of a national trend
of disregard for Second Amendment rights (Pet. at
22). But the assortment of judicial decisions and
local laws they cite do not demonstrate any such
trend (id. at 22-26). And petitioners fail to explain
how review of this case would meaningful address
such a trend or clarify matters for lower courts.
In any event, the Second Circuit did not err
here. The court of appeals carefully reviewed
petitioners’ constitutional claims and correctly
concluded that they lack merit. To the extent that
petitioners seek review on the grounds that the
Second Circuit misapplied properly stated rules of
law, this argument is both mistaken and not a
proper ground for review.
A. The petition reduces to a request for casespecific error correction.
1.

Petitioners claim no circuit
split and admit the case is
“one-of-a-kind.”

Petitioners do not even purport to argue that
the decision below has created a conflict among the
federal courts of appeals requiring resolution by
this Court (Pet. at 21-26). And the only circuit split

12

 identified by Amici Curiae States (Br. at 5-7)
concerns an issue that is not presented here: the
right to carry a handgun in public for the purpose
of self-defense outside the home. This case, by
contrast, accepts as a given New York State’s
concept of the premises handgun license. It solely
challenges the City’s rule authorizing limited
transportation of a handgun under that license.
There is no circuit split on that question.
Petitioners also acknowledge that the issue in
this case is narrow and will not recur. They openly
cast
the
City’s rule
authorizing limited
transportation of a handgun under a premises
license as a “novel,” “one-of-a-kind” regulation with
“no analog in any other jurisdiction” (Pet. at 1, 2, 3,
9, 10, 14, 21). And they likewise describe the
Second Circuit’s decision as an “extreme outlier”
(id. at 3, 11, 21). Petitioners thus effectively
concede that a ruling in this case would not resolve
any issue of nationwide importance or provide
meaningful guidance to lower courts in deciding
other such issues.
2.

Petitioners’ digression into
dissimilar issues from other
cases does not warrant review
in this case.

Instead of identifying a split of authority or
recurring issue of nationwide importance,
petitioners contend that the Second Circuit’s
decision reflects a trend in which governments and

13

 courts are disregarding Second Amendment rights
and diluting the heightened scrutiny standard in
the Second Amendment context (Pet. at 21-22). But
the hodgepodge of laws and decisions they cite do
not bear out any such pattern (id. at 24). And
petitioners do not explain how review of this case
would reverse this pattern if it did exist.
Petitioners first rely on mistaken facts to try to
find a mini-pattern in the City of New York’s own
gun laws. They claim that “only the City” would
enact the challenged transport limitations, as well
as a separate rule prohibiting loading more than
seven rounds of ammunition into a ten-round
magazine (Pet. at 9). But the City did not adopt the
second rule; the State of New York did. And
petitioners fail to mention that the Second Circuit
itself struck down that state-level prohibition,
applying intermediate scrutiny. New York State
Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 264 (2d
Cir. 2015).
Nor do the cases petitioners cite from other
circuits lend support to their argument that the
courts
are
routinely
disregarding
Second
Amendment
rights
and
disrespecting
the
heightened scrutiny standard. Indeed, petitioners’
first example of this supposed trend is a Seventh
Circuit decision that, applying “a more rigorous
standard” than intermediate scrutiny, invalidated
Chicago’s stringent firing range regulations under
the Second Amendment (Pet. at 22 (citing Ezell v.
City of Chicago, 651 F.3d 684 (7th Cir. 2011) and

14

 Ezell v. City of Chicago, 846 F.3d 888 (7th Cir.
2017)).
In the decision below, the Second Circuit did not
quarrel with either Seventh Circuit ruling; rather,
the court fully assumed their correctness (App. at
18-20). The Second Circuit distinguished those
rulings from the issues before it, because the first
Seventh Circuit case involved a flat ban on firing
ranges within the City of Chicago (coupled with a
requirement that applicants obtain firearms
training in order to obtain a license), and the
second
involved
highly
restrictive
zoning
regulations that approximated a ban in practice
(App. at 18-20). By contrast, as the Second Circuit
pointed out, petitioners here have never claimed
that the number of firing ranges within New York
City reflects anything other than the play of
market forces (id. at 20n11). 5
Petitioners then turn to a series of purported
examples that all involve taxes or fees imposed on
5

Petitioners mistakenly try to compare (Pet. at 13, 17) the
number of firing ranges in New York City to the number of
Texas abortion providers discussed by the majority in Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The
number of ranges in the City reflects market demand, not the
effects of any challenged regulation, as was the case in Whole
Woman’s Health. Petitioners also ignore that the State of
Texas is more than 500 times larger than New York City in
geographic size (and has more than triple the population).

15

 firearms purchasers, which this case does not. They
refer to a Ninth Circuit case concerning a fee
collected from firearms purchasers to be used for
firearms-related regulatory and enforcement
activities (Pet. 22-23). Petitioners’ counsel here also
represented the plaintiffs there, and argued that
the constitutionality of the fee should be analyzed
under this Court’s First Amendment fee
jurisprudence, not traditional Second Amendment
intermediate scrutiny. See Bauer v. Becerra, 858
F.3d 1216, 1224 (9th Cir. 2017), cert. denied, 138 S.
Ct. 982 (2018). 6 That distinct case supplies no
reason to grant certiorari in this one.
Petitioners (at 23-24) cite two additional local
laws imposing minimal taxes on the purchase of
firearms and ammunition. See Cook County, IL,
Firearm Tax Ordinance §§ 74-665, et seq. (effective
April 1, 2013); Seattle, WA, Ordinance 124833
(adopted August 21, 2015) . But neither supports
granting review here. An intermediate Illinois state
court upheld the Cook County ordinance against a
Second Amendment challenge, holding that it did
not impede petitioners’ ability to exercise their
Second Amendment rights in any meaningful way.
6

The Ninth Circuit concluded that the fee is reasonably
related to the government’s stated interest in improving
public safety by disarming individuals who are prohibited
from owning or possessing firearms and thus, survived
intermediate scrutiny under either the Second Amendment or
First Amendment fee jurisprudence. Bauer, 858 F.3d at 1227.

16

 Guns Save Life, Inc. v. Ali, No. 2015-CH-18217,
Circuit Court of Cook County, Illinois, County
Department, Chancery Division, (August 17,
2018). 7 The plaintiff evidently did not appeal the
case further.
And the Seattle ordinance was not even
challenged on Second Amendment grounds; the
challenge instead claimed that the ordinance was
preempted by Washington state law. The state’s
highest court rejected that preemption challenge.
See Watson v. City of Seattle, 401 P.3d 1 (Wash.
2017). Petitioners fail to establish that questions
regarding taxes on gun or ammunition purchases
warrant or are ripe for the Court’s review, let alone
that they warrant review in this case presenting no
taxation issue at all.
Finally, reaching even further afield, petitioners
argue that the Second Circuit adopted a “firearms
exception” to the Commerce Clause that, they
predict, is likely to influence the Ninth Circuit’s
eventual ruling in a challenge to a California law
regulating the sale of ammunition that is presently
pending in federal district court (Pet. at 24). See
7

The court noted that, even if the tax implicated the Second
Amendment it would survive scrutiny because it is
substantially related to the important government interest in
public safety. Guns Save Life, Inc. v. Ali, No. 2015-CH-18217,
Circuit Court of Cook County, Illinois, County Department,
Chancery Division, (August 17, 2018).

17

 Rhode v Becerra, 18-cv-802-BEN, 2018 U.S. Dist.
LEXIS 178746 (S.D.Cal. October 17, 2018). But the
California law directly prohibits the sale of
ammunition by out-of-state vendors and permits
the imposition of a fee on the sale of their
ammunition by in-state-vendors. Cal. Penal Code
§ 30312. The City’s premises handgun license rule
does neither. It did not require a “firearms
exception” to the Commerce Clause for the Second
Circuit to conclude that the City’s Rule does not
violate the Commerce Clause. And even if the two
cases did present similar issues, petitioners’
references to a potential future ruling from the
Ninth Circuit would only show that the Court
should await further percolation before considering
whether a grant of certiorari was warranted.
Petitioners’ discussion covering a hodgepodge of
distinct decisions and laws does not provide any
reason to grant review here.
B. In any event, the Second Circuit did not
err.
Even leaving aside the petition’s failure to
identify a basis for granting certiorari, petitioners
are mistaken in asserting that the Second Circuit
departed from established precedents in its
decision here. The Circuit resolved petitioners’
Second Amendment, Commerce Clause, and right
to travel claims by applying established law to the
City’s “one-of-a-kind” rule.

18

 In evaluating petitioners’ Second Amendment
claim, the Second Circuit correctly recognized that
the core right protected by the Second Amendment
is the right to possess a handgun in the home for
the purpose of self-defense. McDonald v. City of
Chicago, 561 U.S. 742, 791 (2010); District of
Columbia v. Heller, 554 U.S. 570, 636 (2008).
The Court also correctly recognized that the
City’s premises handgun license rule does not
substantially
burden
petitioners’
Second
Amendment rights. The challenged rule does not
prohibit Colantone from obtaining a license to
possess a handgun for self-defense at his second
home. And Colantone presented no evidence about
the costs, either financial or administrative,
associated with obtaining a license and handgun
for his second home (see App. at 15). At bottom, his
claim reduces to the assertion that those who are
able to own two homes should not have to own two
handguns as well.
Nor does the challenged rule burden any
protected right to acquire and maintain proficiency
in the use of licensed handguns. Petitioners can
maintain proficiency in the use of their handguns,
either by live-fire training or shooting competitions
at any of the seven NYPD-approved shooting
ranges that currently exist within the City, at
target ranges or shooting competitions elsewhere,
or by other means. And notwithstanding their
complaints about a “paucity of inconvenient in-city
shooting ranges” (Pet. at 10; see also id. at 5, 8, 11,

19

 13, 16, 17-18), petitioners never offered any
evidence that the City ranges are inadequate to
provide necessary opportunities to practice
shooting or that ranges outside the City are
cheaper or more accessible (App. at 22, 28). Indeed,
the court of appeals noted that there are “ample
facilities” for live-fire training and practice
available in the City “within reasonable commuting
distance” from the homes of all residents (id. at 23).
And to the extent that petitioners would prefer to
practice at ranges outside the City, although they
now suggest that practicing with a rented gun of
like model would impair their ability to maintain
proficiency in the use of their own handgun, they
did not even allege as much in their complaint (Pet.
at 16-17; App. at 28-29). The Rule does not impose
a substantial burden on petitioners’ core Second
Amendment right (App. at 21, 23).
Because the Rule does not severely burden or
even meaningfully impact the core of the Second
Amendment right, the Second Circuit analyzed the
Rule under intermediate scrutiny (App. at 24). This
is consistent with the approach taken by a majority
of courts of appeals. See, e.g., NRA v. McCraw, 719
F.3d 338, 348 (5th Cir. 2013) (law prohibiting 18-to20-year-olds from carrying handguns in public);
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.
2013) (law requiring a “good and substantial
reason” for issuance of a handgun permit);
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96-97
(2d Cir. 2012) (law requiring a showing of “proper
cause” to obtain a concealed carry permit); Heller v.

20

 Dist. of Columbia (Heller II), 670 F.3d 1244, 125658, 1261-62 (D.C. Cir. 2011) (laws imposing
registration requirements on all firearms and
banning assault weapons and large-capacity
magazines); United States v. Reese, 627 F.3d 792,
802 (10th Cir. 2010) (law prohibiting possession of
all firearms while subject to a domestic protection
order); United States v. Marzzarella, 614 F.3d 85,
97 (3d Cir. 2010) (law effectively prohibiting
possession of firearms with obliterated serial
numbers); United States v. Skoien, 614 F.3d 638,
641 (7th Cir. 2010) (law prohibiting domestic
violence misdemeanants from possessing firearms).
The court of appeals also correctly held that the
Rule survives intermediate scrutiny. The City
presented a “detailed affidavit” of former
Commander of the License Division, Andrew
Lunetta in support of the Rule’s public safety
rationale (App. at 26). Lunetta explained the need
to be able to effectively monitor and enforce the
limits on the transport of handguns in public by
individuals who have only a premises license, and
not a carry license (id. at 26-27). The federal
government reached the same (not opposite, see
Pet. at 2, 14)) conclusion in the federal Firearm
Owners Protection Act. That statute authorizes
only individuals with a carry license, not those who
hold a premises license, to transport locked and
unloaded handguns between States where they
hold carry rights. 18 U.S.C. § 926A.

21

 The City’s restrictions on a premises licensees’
ability to transport his or her handgun improves
the City’s ability to monitor and enforce the limited
circumstances under which premises licensees can
possess a handgun in public (App. at 27). The City’s
evidence documenting the difficulties in doing so
when premises licensees were previously allowed to
transport their handguns to shooting ranges
outside the City supported that rationale (id. at 2728). Lunetta explained that, under the prior rule,
licensees had been caught traveling with loaded
firearms, transporting firearms nowhere near an
authorized range or at an hour when no range in
the City was open, and were taking their firearms
on airplanes (id.). By restricting premises licensees
to NYPD-authorized ranges, the NYPD can verify
whether a premises licensee transporting a
handgun in public is, in fact, transporting the
handgun to a firing range.
Petitioners are incorrect in arguing that the
City’s Rule undermines any public safety rationale
by forcing individuals to leave handguns in vacant
homes (Pet. at 15-16). A public safety risk would
exist only if law-abiding gun owners are not
responsibly storing their guns The NRA’s own rules
advise gun owners to store guns unloaded and in a
place that is not accessible to unauthorized
persons. See https://perma.cc/ZN9B-WCGW (NRA
gun safety rules). And amici contend that
individuals who voluntarily obtain a handgun
license tend to be strongly law-abiding (Brf. of
Amici Curiae Eastern States Sheriffs’ Association,

22

 et al. at 1, 6, 8, 15-18). The presence of responsibly
stored firearms in temporarily vacant homes does
not detract from the substantial fit between the
Rule and its public safety rationale.
Thus, to the extent that the Rule burdens
petitioners’ Second Amendment rights, the Second
Circuit properly concluded that it is sufficiently
related to the City’s compelling government
interest in protecting public safety by being able to
effectively monitor and enforce the City’s rules
governing the possession of handguns in public
(even if locked and unloaded) by individuals who
did not obtain or apply for a carry license (App. at
29).
The Second Circuit also properly applied this
Court’s precedents to petitioners’ dormant
Commerce Clause and right to travel claims. As the
Second Circuit recognized, both of these claims rest
on the same faulty premise: that petitioners have a
constitutionally protected right to transport the
handgun licensed to their New York City residence
to shooting competitions, firing ranges, or homes
outside the City. Even petitioners cannot find any
authority suggesting that they have any such right
(Pet. at 17-21).
Petitioners are incorrect in arguing that the
Rule violates the dormant Commerce Clause by
prohibiting them from patronizing shooting ranges
outside the City with the handgun licensed to their
City residence. Unlike C&A Carbone, Inc. v. Town

23

 of Clarkstown, 511 U.S. 383 (1994), on which they
rely, the Rule does not deprive out-of-state
businesses of access to a local market. Contrast
C&A Carbone, 511 U.S. at 384 (invalidating local
ordinance requiring that all waste within its
jurisdiction be processed at a local waste processing
plant before leaving jurisdiction). Petitioners are
free to patronize ranges outside the City or State.
And in both New York and New Jersey they can
patronize ranges with rented or borrowed guns.
N.Y. Penal Law §§ 265.20(7), (7-a), N.J. Stat.
§ 2C:58-3.1. The Rule does not clearly discriminate
against interstate commerce under the Court’s
Commerce Clause precedents.
Nor does the Rule have an impermissible
extraterritorial effect (Pet. at 19). It restricts
transportation of a gun licensed to a New York City
residence within the City. At the most, the only
commerce the Rule could be said to control beyond
the City’s boundaries is the ability to patronize a
shooting range outside the City with a gun that, by
definition, is licensed to a City residence. But this
is not a constitutionally protected right. Nor did
Congress opt to protect it in enacting the Firearms
Owners Protection Act. See supra at 21. And again,
petitioners can, in fact, patronize such ranges with
rented or borrowed guns. The Rule has no
impermissible extraterritorial effect. See Pharm.
Research & Mfrs. of Am. v. Walsh, 538 U.S. 644,
669 (2003).

24

 Finally, even if petitioners were, as they allege,
deterred from travelling to shooting competitions
outside the City because they prefer to use their
own gun in such competitive events, this would not
constitute a denial of the right to travel. Not
everything that deters travel burdens that
fundamental right. See Attorney Gen. of New York
v. Soto-Lopez, 476 U.S. 898, 903 (1986) (plurality
opinion) (state law implicates right to travel when
it actually deters such travel, when impeding travel
is its primary objective, or when it uses any
classification which serves to penalize exercise of
that right). Where, as here, the Rule’s effect on
petitioners’ willingness to exercise their right to
travel is only incidental—a minor restriction on
travel, imposed to further the City’s significant
interests in ensuring public safety—it does not
amount to the denial of a fundamental right. See
Zablocki v. Redhail, 434 U.S. 374, 388 (1978)
(finding fundamental rights only implicated by
government actions that, at a minimum,
“significantly interfere” with the exercise of right).
Ultimately, the challenged rule does not force
petitioners to choose between two fundamental
rights. It neither infringes upon their Second
Amendment rights nor on their fundamental right
to travel. It only restricts their ability to transport
firearms that are specifically licensed for
possession and use inside their New York City
residences through the City for the purpose of
bringing them to shooting ranges or homes outside
the City. That is not a fundamental right. And

25

 unlike golf clubs and musical instruments (see Pet.
at 20-21), firearms present public safety risks that
the City has a legitimate interest in protecting
against. Limiting their possession and use in public
minimizes the risk of gun violence. See, e.g.,
Kachalsky, 701 F.3d at 94-95 (recognizing danger to
public safety posed by handguns in public).
Accordingly, in reaching its decision, the Circuit
neither carved out a “firearm exception” to the
right to travel or the dormant Commerce Clause
nor departed from this Court’s Second Amendment
jurisprudence, as petitioners claim. For these
reasons, too, the decision does not warrant review
by this Court.

26

 CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Counsel for Respondents
RICHARD DEARING*
SUSAN PAULSON
New York City Law
Department
100 Church Street
New York, NY 10007
(212) 356-2500
rdearing@law.nyc.gov
*Counsel of Record

27