right to travel

As Washington State Department of Licensing v. Cougar Den illustrates, not all 5-4 Supreme Court cases involve high-profile, controversial issues where the Justices are divided on ideological lines.

In this case the Supreme Court held 5-4 that a treaty forbids the State of Washington from imposing a tax upon members of the Yakama Nation that import fuel.

An 1855 treaty between the United States and the Yakama Nation reserves to the Yamakas “the right, in common with the citizens of the United States, to travel upon all public highways.” A Washington statute taxes fuel importers who bring large quantities of fuel into the state by ground transportation. Cougar Den is a wholesale fuel importer owned by a Yakama member that transports fuel by truck from Oregon to Yakama-owned gas stations in Washington. Cougar Den argued the treaty preempted the tax.

After turning down countless petitions challenging state and local restrictions on guns the U.S. Supreme Court has finally agreed to review the constitutionality of a gun law. In New York State Rifle & Pistol Association Inc. v. City of New York, New York the Supreme Court will 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 allows residents to obtain a “carry” or “premises” handgun license. The “premises” license allows a licensee to “have and possess in his dwelling” a pistol or revolver. A licensee may only 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.

The issue in Washington State Department of Licensing v. Cougar Den Inc. is whether the “right to travel” provision of the Yakama Nation Treaty preempts Washington’s tax and permit requirements for importing fuel.

Article III of the Yakama Nation Treaty of 1858 states that “the right of way, with free access from the same to the nearest public highway, is secured to [the Yakama]; as also the right, in common with citizens of the United States, to travel upon all public highways.”