It’s been nearly a decade since the Supreme Court has issued a ruling on the Second Amendment’s scope. But the court may have to resolve a dispute over New York City’s strict restrictions on handgun ownership before its upcoming term begins in October—this, despite the fact that state lawmakers went to great lengths to change the laws and render such a hearing unnecessary.
The case, New York State Rifle and Gun Association v. City of New York, could be a major ruling on how far cities and states can go to restrict handguns in their jurisdictions. But it stands to reveal much more about how the court’s newly-bolstered conservative majority will handle gun-control measures in the age of mass shootings, and how bold they are willing to be after many years of shying away from handing down rulings on the matter.
Earlier this year, the justices agreed to hear a challenge to New York City’s handgun regulations, which imposed strict conditions on licenses and the means by which gun owners could transport their firearms from place to place. Last month, New York officials, fearing that a high court ruling could deal a major blow to gun-control efforts across the country, repealed the restrictions at issue and asked the court to dismiss the case.
The plaintiffs, however, aren’t taking victory for an answer. They asked the court this month to reject the city’s effort to declare the case moot and, instead, hand down a sweeping ruling on the Second Amendment’s scope that legislators in New York had hoped to forestall.
It’s been quite some time since the Supreme Court has delved into the issue: D.C. v. Heller was decided in 2008 and McDonald v. Chicago followed on its heels in 2010. In Heller, by way of striking down Washington, D.C.’s handgun restrictions, the court ruled for the first time that the Second Amendment protects an individual right to bear arms. Two years later, the court applied that ruling’s logic to the states as well.
Then the court fell silent, at least when it came to guns in American life. The high court didn’t take up another Second Amendment case until this year.
It wasn’t for lack of opportunities: Federal appeals courts regularly handed down rulings on licensing requirements, bans on certain types of guns, restrictions on where and how they could be publicly carried, and more. Nor did the trend go unnoticed. “The right to keep and bear arms is apparently this Court’s constitutional orphan,” Justice Clarence Thomas wrote last year when his colleagues turned away a challenge to California’s strict waiting-period law.
Why the silence? The Supreme Court doesn’t explain why it declines to hear certain cases. Perhaps the justices—or at least a critical mass of them—felt no need to upset the lower courts’ work in interpreting Heller so far. But Thomas’s dissents, including last year’s complaint about the court’s “continued refusal to hear Second Amendment cases,” suggested that it was a conscious decision. It’s possible that the relentless tide of recent massacres stayed their hand. Six of the ten deadliest mass shootings in U.S. history took place over the past ten years.
But Anthony Kennedy’s retirement last year shifted the court’s ideological balance in a direction potentially more favorable to gun owners. And in this particular case, the regulations in question are unusually strict. New York City imposes stringent restrictions on handgun licenses, which it calls “premises licenses.” As the name suggests, the license only allows owners to lawfully possess a handgun in their own home or at one of the city’s authorized shooting ranges.
When traveling between those two locations, city regulations state the gun must be kept “unloaded, in a locked container, [with] the ammunition to be carried separately.” The regulation had no provision for lawfully transporting it anywhere else, even to another residence outside the city. That formed the core of the plaintiffs’ complaint against the city. The Second Circuit Court of Appeals ruled against them last year, adopting a deferential level of review toward the city. The Supreme Court agreed to hear the case in January.
The justices’ decision to intervene sparked a flurry of legislative activity. New York City amended its regulations to allow licensed handgun owners to transport their weapons to other locations. At the same time, New York’s state legislature passed a law to impose that requirement on every county in the state. The city filed a motion last month asking the justices to dismiss the case and send it back to the lower courts to be vacated.
At first blush, this outcome looks like an unqualified win for New York City’s gun owners. It’s practically an ideal representation of how American constitutional government should work: elected officials impose a stringent burden on a constitutional right, citizens take issue with it, they ask the courts for vindication, and the state backs down without so much as an adverse ruling. The plaintiffs in this case, however, are unsatisfied with their victory. “The City’s undisguised effort to avoid a precedent-setting loss and to frustrate this Court’s discretionary review falls short by every measure,” they told the court on August 1.
Their core complaint is that the city did not go far enough in loosening the restrictions. “There is no reason to think the state law preempts any of the objectionable aspects of the City’s regime addressed above, including the inability to stop for coffee or gas, the need for prior written permission to visit a gunsmith, and the like,” the plaintiffs argued. The court, however, granted review for a single question: “whether New York City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.” That dispute is now resolved.
Whether a case is moot is no small question. The Constitution requires the courts to only hear matters involving “cases and controversies.” American judges do not write advisory opinions when there is no dispute; the Supreme Court does not serve as a council of learned elders for society to consult at will.
Some of the gun owners’ allies went even further, asking the court to grant less deference to governments when they strategically abandon their position in the middle of litigation. “In short, there is no reason to give governmental defendants special deference when trying to pick and choose which cases reach final judgment,” The Becket Fund for Religious Liberty, a conservative legal organization, said in an amicus brief. “If anything, governments should be held to a higher standard because they have more opportunity and ability to strategically moot cases, and because the harm to the public interest is greater.”
That point is certainly well-taken, given that federal and state officials have done just that in other contexts. The Becket Fund pointed to prisoner-rights cases in Florida and Texas where state officials tried to moot claims against prisoners who hired lawyers while allowing cases brought by prisoners representing themselves to go forward. It also cited an ACLU lawsuit against the Bush administration over anti-sex-trafficking grants for a religious nonprofit that became moot when the Obama administration took office and let the contract expire; the Trump administration later reversed course.
But it is ill-fitting when a state legislature directly intervenes to resolve the underlying problem. “[The plaintiffs’] argument depends on the unstated proposition that legislative bodies should refuse to reconsider the constitutionality of their laws in the face of pending litigation, a proposition that is inconsistent with our system of constitutional democracy,” a group of legal scholars told the court in a brief this week. “Accepting that proposition would weaken legislative incentives to respond to litigation at all.”
The plaintiffs also make clear that their foe is not just the city, but also the courts that sided with it. “What makes this case so extraordinary, and such an appropriate candidate for this Court’s review, is the fact that the lower courts managed to hold that novel regime constitutional,” they argued in their brief. “That makes this an excellent vehicle not only for examining the dubious forms of ‘scrutiny’ to which lower courts are subjecting laws that burden Second Amendment rights, but for definitively laying to rest any notion that courts may treat the right recognized in Heller as a second-class right.”
There’s a tremendous irony in that stance, of course. The gun owners all but accuse the state of manipulating the judicial process to achieve a preferred outcome, then ask the court to bend things in their favor so they can write the Second Amendment decision in any event. The plaintiffs don’t want a mere victory; they want something more. The only live question in this case is whether the Supreme Court can be goaded into wanting it as well.