The U.S. Supreme Court last week took another pass on deciding a case that could have helped to clarify proper Second Amendment analysis and bring defiant lower courts into line.
An unsigned opinion issued on April 27 remanded the NRA-backed case of New York State Rifle and Pistol Association, Inc. v. City of New York (NYSRPA v. NYC) to the lower courts without addressing whether the regulations challenged in the case violated the right to keep and bear arms.
The court held that because the challenged laws had been changed after it decided to hear the case, the original dispute was moot. Any residual challenges to the new laws, according to the court, would have to be decided in the lower courts with an amended complaint and additional development of the evidentiary record.
At issue in the case was whether the Second Amendment allowed New York City to prohibit licensed handgun owners from transporting their guns, locked in a case and unloaded, outside the city for lawful purposes.
The two purposes specifically mentioned in the plaintiffs’ complaint were traveling to a second home in New York and to ranges outside the city for practice or competition. Nevertheless, the plaintiffs also claimed that the Second Amendment requires “unrestricted access to gun ranges and shooting events in order to practice and perfect safe gun handling skills.” And their complaint requested not only the ability to leave the city with their lawfully licensed handguns but “[a]ny such further relief as the [c]ourt deems just and proper.”
Notwithstanding the fact that it had argued for years in the lower courts that the regulations were necessary to protect public safety, New York City abruptly changed its tune after the Supreme Court agreed to hear the case.
The city subsequently admitted that the challenged regulations had no bearing on public safety and changed the rules to allow licensees to take their guns to ranges, competitions, and second homes outside municipal limits. Nevertheless, the changes specifically required that the licensees had to travel “directly” between their residences and the permitted destinations and that any portion of the trip within the city itself had to be “continuous and uninterrupted.”
The state legislature also amended the state’s handgun licensing statute to specifically authorize New York City licensees to undertake a “direc[t]” trip to a range or competition outside the five boroughs.
The majority’s dodge in refusing to resolve the case on the merits generated two additional opinions, one concurring and one dissenting.
Justice Brett Kavanaugh (appointed by President Trump in October 2018) agreed with the majority that the original dispute was moot and that further proceedings should occur first in the lower courts.
But Kavanaugh wrote separately to underscore that he agreed with a dissent written by Justice Samuel Alito as it pertained to the methodology of resolving cases under the court’s precedents in District of Columbia v. Heller and McDonald v. City of Chicago. He added: “I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
Justice Alito’s dissent, joined by Justice Neil Gorsuch (appointed by President Trump in April 2017) and in part by Justice Clarence Thomas, criticized the court for “permit[ing] our docket to be manipulated in a way that should not be countenanced.”
He also took his colleagues to task for failing to correctly apply the court’s precedents on mootness. “[I]n this case,” Justice Alito wrote, “we must apply the well-established standards for determining whether a case is moot, and under those standards, we still have a live case before us.”
Alito specifically mentioned the undefined qualifications of “direct” trips and “uninterrupted” travel. This, he noted, would not permit the “unrestricted access” to which the plaintiffs claimed they had a right, as it would seemingly prohibit breaks for gas, food, or coffee necessary to reach destinations that might be several hours away. It would also suppress the plaintiffs’ ability to engage in other lawful conduct during their trips, such as picking up a friend along the way or stopping for a visit or a trip to the store.
Thus, Alito concluded, the court had jurisdiction to decide whether the supposed relief provided by the new state and city laws adequately addressed the deprivation of rights raised by the plaintiffs.
Alito also noted that a decision on the merits of the Second Amendment claim would have allowed the plaintiffs to recoup attorney’s fees and damages.
Instead, the city – at taxpayer expense – gamed the system by forcing the plaintiffs to spend millions to press their claims through seven years of litigation, only to claim at the last moment that the dispute had been resolved without a Supreme Court decision that the city had actually violated the plaintiffs’ rights.
Alito illustrated the effect of the court’s decision by comparing it to a hypothetical in which “a city council, seeking to suppress a local paper’s opposition to some of its programs, adopts an ordinance prohibiting the publication of any editorial without the approval of a city official.” If the paper challenged the rule, “arguing the First Amendment confers the unrestricted right to editorialize without prior approval,” its claim would not be moot just because the city changed its mind to allow editorials on all of its programs but one.
Alito went on to analyze the merits of the plaintiffs’ Second Amendment claims.
The meaningful exercise of that right, Alito noted, requires an opportunity for the owner of a gun to “take [the] gun to a range in order to gain and maintain the skill necessary to use it responsibly.” The city’s restrictions therefore affected a core aspect of the Second Amendment right to keep a handgun for self-protection.
The city would accordingly have to justify its rules restricting that right with reference to some historical precedent dating back to the adoption of the Second Amendment. But it had entirely failed to do so. “[N]either the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice,” Alito wrote.
In more encouraging news, however, the Supreme Court quickly signaled that it may be considering another Second Amendment case “soon” as Justice Kavanaugh put it in his concurrence. A popular court-watching blog reported on Tuesday that by the end of the day on which the court had issued its opinion in NYSRPA v. NYC, it had also distributed 10 additional Second Amendment cases to be considered during a Friday conference on which new cases the court may hear.
Three of these cases are NRA-supported challenges, including two that concern “may-issue” permitting schemes and the right to bear arms in public for self-defense (Rogers v. Grewal and Malpasso v. Pallozzi ) and one challenging a ban on popular semiautomatic firearms (Worman v. Healy). On Wednesday, counsel for the plaintiffs in Rogers filed a supplemental brief explaining why that case is optimal to correct the improper analysis being applied by lower courts in Second Amendment cases.
It takes the votes of four justices to decide to hear a case. Between Kavanaugh and the three dissenters in NYSRPA v. NYC, it seems very likely there is sufficient concern about the lower courts’ dismissive and erroneous treatment of the Second Amendment for these justices to try again to take remedial action.
News on the court’s decision whether to hear any of the 10 cases could come as early as next week, perhaps as early as Monday morning, May 4. As always, your NRA will keep you apprised of all late-breaking developments.