Supreme Court focuses on repeal of New York City gun restrictions that could moot Second Amendment case
WASHINGTON – The most significant Second Amendment case to reach the Supreme Court in nearly a decade appeared to fizzle somewhat Monday as the justices focused on whether a restriction’s repeal makes the issue moot.
Chief Justice John Roberts and a silent Associate Justice Brett Kavanaugh emerged as the likely wild cards in the debate over a New York City rule on transporting legally owned guns that has been replaced.
Because the city no longer blocks firearms owners from taking their guns to shooting ranges or second homes outside the city, the court’s four liberal justices seemed inclined to declare the case closed. But several conservative justices said it remains unclear what’s allowed and what is not.
“They didn’t get all that they wanted,” Associate Justice Samuel Alito said in reference to the gun owners who brought the case. While coffee and bathroom breaks apparently are allowed en route to specified locations outside city limits, he said, “It must be a direct trip. It can’t include an hour spent with your mother.”
The court’s liberal justices said that’s a question for another day. As things stand now, Associate Justice Sonia Sotomayor said, “the other side has thrown in the towel.”
“You’re asking us to opine on a law that’s not on the books anymore,” Sotomayor said.
Earlier: Court may expand Second Amendment rights despite repeal of disputed gun restrictions
While the New York City rule was an outlier among gun control restrictions, the high court’s willingness to hear the case signaled the potential for a blockbuster ruling that extends gun rights outside the home, or one that makes local and state limitations harder to justify.
Both Paul Clement, the lawyer for the New York State Rifle & Pistol Association, and Jeffrey Wall, the Justice Department’s principal deputy solicitor general, began their turns at the lectern by citing “text, history and tradition” to defend Second Amendment rights. Wall said lower courts have used that to give “thumbs up” to restrictions.
The “text, history and tradition” phrase is one that Kavanaugh used as a federal appeals court judge when dissenting from a ruling that upheld the District of Columbia’s ban on semi-automatic rifles and its firearms registration requirements. That seemed to indicate he would favor expanding gun rights, but his position on whether the new case remains ripe was unclear Monday.
Supporters of gun control and firearm safety measures hold a protest rally outside the Supreme Court as the court hears oral arguments in State Rifle and Pistol v. City of New York, NY, in Washington, D.C., on Monday, December 2, 2019. (Photo: SAUL LOEB, AFP via Getty Images)
If the court declares the case moot, there are more cases in the pipeline, including challenges to permitting requirements for carrying firearms in public in New Jersey and parts of Massachusetts. A federal appeals court struck down Washington, D.C., restrictions in 2017, creating a split among lower courts that eventually may get the Supreme Court’s attention.
Backed by the National Rifle Association and the Trump administration, the challengers to New York’s abandoned restrictions are hoping the high court takes a stand this time. That would give them a chance to win the biggest Second Amendment victory since landmark rulings a decade ago affirmed the right to keep guns at home for self-defense.
Since its 2008 and 2010 rulings striking down gun restrictions in the District of Columbia and Chicago, the court has refused to hear dozens of cases challenging lesser limits on who can own what types of guns, where they can be taken, what requirements must be met and more. During that time, lower courts have resolved more than 1,000 Second Amendment cases, upholding many gun control measures.
New York City’s rule barred licensed handgun owners from taking their guns beyond its five boroughs, even to second homes or shooting ranges. Federal district and appeals courts upheld the 18-year-old rule.
Gun control groups such as Brady, Everytown for Gun Safety and the Giffords Law Center to Prevent Gun Violence lobbied for the city and state to eliminate the rule rather than test it at the more conservative Supreme Court. They feared a decision that would expand public carry rights elsewhere, including to nine states that give law enforcement officials discretion to deny licenses: California, New York, New Jersey, Massachusetts, Maryland, Connecticut, Rhode Island, Delaware and Hawaii.
Rather than fight it out in court, the city repealed the rule, and the state replaced it with a statute that permits the previously banned transportation of firearms. But Clement argued that the city could reinstate the restrictions, while gun owners still could be at risk for past violations and for what Alito called “non-direct” transporting of firearms.
Wall, representing the federal government, raised a different reason to keep the case alive: protecting gun owners’ right to seek damages for prior restrictions.
Associate Justice Neil Gorsuch cited “a delta of relief that’s been denied” and wondered why the case should not be allowed to go forward “despite Herculean, late-breaking efforts” to have it removed from the docket.
Roberts, who has become the court’s most likely swing vote following last year’s retirement of Associate Justice Anthony Kennedy, asked New York City’s lawyer, Richard Dearing, whether declaring the case moot would harm gun owners in any way.
Dearing’s answer: No.
Asked Associate Justice Ruth Bader Ginsburg: “What’s left of this case?”
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