Two bits of regulatory news in New York City reminded me today of the tragedy of Icarus. The first, a gun rights case before the Supreme Court, has the city’s regulators and state’s lawmakers in a panic. The second, the recent massive expansion of the city’s already-iron-fisted rent control laws, promises a similar panic in the near future.
The gun case involves a rule that prohibits those who own pistols in the city via a “target” permit (concealed carry permits are as rare as hens’ teeth) from transporting those pistols anywhere but to one of seven in-city target ranges. That means that a permit holder cannot take his pistol out of the city, to an upstate home, to an upstate range, or elsewhere, even with proper permitting or gun rights at that destination. This rule seems a clear violation of the “safe passage” provision of the federal Firearm Owners Protection Act, but New York has long deemed itself apart from the rest of the country when it comes to restricting gun owners’ rights.
So, the government fought the lawsuit, figuring, I presume, to prevail. They did, all the way up the ladder, but the plaintiffs petitioned the Court to hear the case. At that point, I figure the city was still confident, because the Court hadn’t granted certiorari to a gun case in a decade (much to the frustration of Justice Clarence Thomas).
The panic started to set in, I also presume, when the Supremes agreed to hear the case, this past January. This is when things got interesting.
First, the city eliminated the restriction, and petitioned the Court to cancel the hearing, since the underlying matter was now moot.
When that didn’t work (there exists precedent for hearing mooted regulations on the grounds that the regulators could simply reinstate those regs whenever they want), Democratic state legislators passed a new law that ensure the city’s target permit holders can transport their guns as previously prohibited.
Yes, that’s correct. Democratic lawmakers passed a gun-rights expansion law. This is a blatant and transparent attempt to quash the case before the Court rules on it.
Why would they do that? Why give up on the rule they successfully defended through the appellate process?
The obvious answer: they fear giving the Court the opportunity to strike down more than the transportation ban.
The Court, in its Heller and McDonald decisions, affirmed that the Second Amendment protects an individual’s right to own firearms. Those cases allowed for some degree of regulation, but made it clear that restrictions that are de facto bans do not pass muster. The Court, much to gun rights advocates’ dismay, hasn’t clarified further, despite multiple opportunities to do so in the decade since the McDonald ruling.
While the Court’s allegiance to stare decisis creates a natural bias toward narrow rulings, and this case seems easily adjudicated on narrow grounds, the liberal and progressive politicians in New York appear aware that a reasonable person would consider the NY City gun restrictions in that “de facto ban” category that the Court has already declared a no-no. Their actions certainly suggest so. In scrambling to pre-empt a ruling, it’s clear they fear a broad ruling that could finally undo the century old Sullivan Act’s neutering of New Yorkers’ gun rights.
The rent control matter is more nascent. This past election, the Democrats finally took control of the state Senate, which had long been held by a razor thin margin by the Republicans. The Dems promptly gorged themselves on progressive manna. Among their “triumphs” was an extension of the rent control laws that not only made them permanent, but removed the mechanisms by which a rental unit could become unregulated. The effects on the residential real estate market are already being felt. The pols, high off their woke-success, don’t seem to care much about this.
They may have, as Icarus did, flown too close to the sun on this one. Landlords have banded together to challenge the new law, under the Fifth Amendment’s Takings Clause, which prohibits the taking of private property by the State without just compensation. In permanently binding rental units to rent restrictions, the new law has diminished the value of those units substantially, as any reasonable person would conclude. While there’s a long legal slog ahead for the plaintiffs, it’s not hard to conclude that they have a case that the Court might eventually choose to hear, presuming a lower court doesn’t rule in their favor.
It’s also reasonable to think that this case could bring the entire rent control edifice crashing down, if the Court decides to rule in an expansive way against this blatant overreach. Way back in 1922, Justice Oliver Wendell Holmes noted that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” In 2010, the Court clarified with “it is a taking when a state regulation forces a property owner to submit to a permanent physical occupation.” This newest law reeks of “permanent physical occupation.”
The Court had an opportunity to undo New York’s rent control laws back in 2012, in the case of Harmon v Kimmel, but opted not to hear the case. That this was considered a reason for renters to rejoice tells us that rent regulators fear a Court slap-down. Or, perhaps I should say “feared.” The new law is brazen, and suggests that the lawmakers didn’t bother contemplating whether it would pass court muster. I hope the Court burns the whole thing down. Rent control has done enormous harm to the availability and affordability of housing, wherever it has been instituted.
The tale of Icarus is a cautionary tragedy. His father, Daedalus, warned him against flying too close to the sun, because the wax holding his wings together would melt, and he would fall out of the sky. Icarus, arrogant and hubristic, ignored his father’s cautions, and plunged to his death.
While nothing has happened yet, these two tales of Big Progressive Government infringing on individuals’ rights may produce results that mirror Icarus’ fate. In our system of government, the Court’s job is, to put it bluntly, to slap lawmakers down when they get too greedy. As the Left becomes more progressive, more rapacious in its desire impose its will on us, and to control our lives, it should be careful in flying too close to that socialistic sun. Its disdain for the nation’s rules and restrictions on what the government is allowed to do to its citizens could burn down things it has long considered established and safe.
Today, gun rights restrictions. Tomorrow, rent control. After that…?
What happened to Icarus was a tragedy. What may happen to the Left’s infringements on our rights, on the other hand, would be a victory for liberty. And some rather tasty schadenfreude.
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So now you’ve switched thing up and you are offering advice on the progressive playbook? In the myth of Icarus I got the impression that it was a shame that he died.
Politics here is a linear struggle between two parties but designed to generally stay in balance. When either outer fringe moves farther outward, the center has to inch the other way to keep balance. For this reason, the radical left and right may be more so self-defeating than they realize.
Not remotely the first time I’ve offered advice to the Left.
For one thing, political parties are apt to change when they are in the minority.
For another, arguing for sanity is not a bad thing, no matter to which side you argue.
In this case, both laws are fait accompli. I look forward to their shredding. But, since shredding takes time, I’d prefer they didn’t write such laws in the first place.