Justices Could Skirt Second Amendment in Gun Rights Case

The U.S. Supreme Court recently heard oral arguments in New York State Rifle & Pistol Association Inc. v. City of New York, New York. The case, which involves a constitutional challenge to a New York City ordinance that banned transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits, could result in a landmark Second Amendment ruling. However, it is also possible that the Court could dispose of the case without reaching the merits.

Facts of the Case

New York City prohibits city residents from possessing a handgun without a license. The only license the City makes available to most residents is a “premises” license that allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city.

The plaintiffs sought to remove handguns from the licensed premises for the purposes of going to shooting ranges and engaging in target practice outside New York City. Another plaintiff also sought to transport his handgun to a second home in upstate New York. These plaintiffs, along with the New York State Rifle & Pistol Association, filed suit in the Southern District of New York, seeking a declaration that the restrictions imposed by the gun control law were unconstitutional and an injunction against its enforcement.

The district court determined that the rule “merely regulates rather than restricts the right to possess a firearm in the home and is a minimal, or at most, modest burden on the right.” The Second Circuit Court of Appeals affirmed. Applying intermediate scrutiny, the court held: “The burdens imposed by the Rule do not substantially affect the exercise of core Second Amendment rights, and the Rule makes a contribution to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposes on Second Amendment interests.”

The Supreme Court granted certiorari in January, agreeing to consider the following question: “Whether the 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.”

Oral Arguments

The Court held oral arguments on December 2, 2019. The city urged the justices to dismiss the case, arguing that because it repealed the ban this summer and the state had also changed its laws to prohibit such restrictions, the gun owners no longer have standing to pursue the suit.

With regard to mootness, Chief Justice John Roberts asked the city’s attorney Richard Dearing if “there [is] any way in which any violation” of the repealed ordinance in the past “could prejudice a gun owner” going forward? Dearing replied, “Not that I can think of. The city is committed to closing the book on that old rule and we’re not going to take it into effect.”

Justice Neil Gorsuch followed up with a similar inquiry, asking if there would be any “collateral consequences to anyone for violating the city’s prior ban, any kind of collateral consequences.” Dearing replied no. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan seemed to agree with the city’s mootness argument.

Justice Samuel Alito questioned whether it was unfair to require the plaintiffs to plead “specific allegations in the complaint to defeat a claim of mootness that the plaintiffs had no reason whatsoever to anticipate until after we granted certiorari andthe city decided to try to moot this case.” He added “how could any plaintiff possibly have anticipated” they would need to seek damages “until you took the quite extraordinary step of trying to moot the case after we granted review?

Much less time was devoted to whether the city’s ban ran afoul of the Second Amendment. However, there was some debate around what standard should be applied to such cases. Paul Clement, who represented the plaintiffs, characterized the lower court’s use of historical context as a one way street. “If text, history, and tradition sort of allow this practice, then they’ll uphold the law. But if text, history, and tradition are to the contrary, then the courts proceed to a watered-down form of scrutiny that’s heightened in name only.”

Justice Sotomayor did not buy into the historical standard. “This seems sort of a made-up new standard. And I thought Heller was very careful to say we don’t do that,” she said. “We treat it like any other constitutional provision.”

Should the justices quickly reach a consensus that the case is moot, they can move to dismiss the petition as improvidently granted. That would potentially allow the Court to consider another Second Amendment case this term.