© 2019 State and Local Legal Center

New York State Rifle & Pistol Association Inc. v. City of New York, New York

In an amicus brief in New York State Rifle & Pistol Association Inc. v. City of New York, New York the State and Local Legal Center (SLLC) urges the Supreme Court to not apply strict scrutiny to regulations of guns carried in public.

In this case the Supreme Court agreed to decide whether New York City’s ban on transporting a handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel. The Second Circuit held the law is constitutional on all accounts.

A New York City administrative rule allowed residents to obtain a “carry” or “premises” handgun license. The “premises” license allowed a licensee to “have and possess in his dwelling” a pistol or revolver. Among other restrictions, a licensee was only allowed to take his or her gun to a shooting range located in the city. Challengers want to bring their handgun to their second home and to target practice outside the city.

As of July 2019, New York City and the State of New York allow premises licensees to transport handguns through the City to take them to shooting ranges or second homes located outside the City. New York City has filed a motion to the Supreme Court arguing the case is moot because “the new statute and regulation give [the challengers] everything they have sought in this lawsuit.” The Supreme Court hasn’t yet ruled on the mootness motion.

In 2008 in District of Columbia v. Heller, the Supreme Court held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” In Heller the Supreme Court didn’t confront the scope of the right to carry firearms outside of the home.

If the Supreme Court rules on the constitutionality of New York’s old premises rule the case will most likely be decided based on what level of Second Amendment scrutiny the Supreme Court applies. If the Court applies “strict scrutiny” the rule will almost certainly be struck down. To pass strict scrutiny a challenged government regulation must be “narrowly tailored to advance a compelling interest.”


Applying intermediate scrutiny, the Second Circuit held the old rule was “substantially related to the achievement of an important governmental interest.” It sought to “protect public safety and prevent crime.” And the court agreed with the former Commander of the License Division that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.”


The SLLC amicus brief urges the Supreme Court to consider the fact that “law enforcement personnel who encounter armed individuals in public will often be uncertain whether the firearms are being carried for a constitutionally protected purpose” when they rule in this case. The brief notes that “[r]ather than endorsing rigid tiers of scrutiny, Heller focused on the character of the burden that the District’s ordinance imposed.” Finally, the brief argues that New York’s former (and current) premises rule is constitutional because it only imposes a modest burden on those who wish to “bear” arms in public places.

Lawrence Rosenthal, Chapman University, Fowler School of Law wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

County of Maui, Hawaii v. Hawaii Wildlife Fund

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court will decide whether groundwater is subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA). The State and Local Legal Center (SLLC) filed an amicus curie brief arguing that it shouldn’t be.

Maui County injects treated wastewater from wells into the groundwater. Some of the treated wastewater reaches the Pacific Ocean. The Hawaii Wildlife Fund sued the County arguing it was required to obtain a NPDES permit for these discharges.

Per the CWA, a party must obtain a NPDES permit if it discharges a pollutant from a point source to a navigable water. Wells are point sources and the Pacific Ocean is a navigable water. But the treated wastewater in this case doesn’t go directly from the well to the ocean. It is conveyed through groundwater. The Ninth Circuit assumed without deciding groundwater isn’t a point source or navigable waters.

The Ninth Circuit held that the CWA requires Maui to get a NPDES permit in this case. It concluded that the discharges in groundwater are point source discharges because “nonpoint source pollution” excludes, for example, roadway runoff that isn’t “collected, channeled, and discharged through a point source.” Here the pollutants are collected in wells. According to the lower court, they are also “fairly traceable” from the point source to the navigable water and reach the navigable water at “more than de minimis levels.”

The SLLC amicus brief provides a number of examples of discharges from water supply, sanitation, and flood control services which will require NPDES permits under the Ninth Circuit’s theory. Obtaining such permits will be costly and unnecessary. The brief explains how the NPDES permitting process is a poor match for regulating groundwater because is it designed to regulate surface water only. Finally, the brief argues that the “text, structure, and legislative history of the Clean Water Act demonstrate Congress's intent to leave the regulation of groundwater to the states.”

J.G. Andre Monette, Shawn Hagerty, and Rebecca Andrews of Best Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, International City/County Management Association, and the International Municipal Lawyers Association.