Supreme Court to Hear Arguments in the first Second Amendment Case in Nearly a Decade; But Will SCOTUS Rule on the Merits?

The purpose of this post is to inform casual observers of the Court-or those who do not typically pay attention to the Court-who may be interested in what the Supreme Court has to say about one of the most important cases this term. The point is to explain the facts of the case, who is involved, what their argument is, and the consequences of whatever the Supreme Court’s decision may be. The intention is that this post is explanatory and objective. The goal is not for the reader to know what I think about the case or how I’d like the Court to rule on them. If I explain things well enough, the reader may form their own opinion on what they’d like to see happen in the case.

The Second Amendment of the Constitution says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For a long time, many have wondered what the hell does that mean? Nobody really knows. All we know is that in the 2008 case DC v. Heller, the Supreme Court held that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Two years later in McDonald v. City of Chicago, the Court held that the Second Amendment’s right to keep and bear arms for the purpose of self-defense is applicable to the states through the Fourteenth Amendment. That is known as the incorporation doctrine, in which a constitutional doctrine through which the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. The Court also clarified that the Second Amendment is not unlimited and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…” So the Supreme Court has ruled pretty narrowly on the Second Amendment and they haven’t set a standard or test for lower courts to follow either, like there are standards when deciding on an abortion law, the Commerce Clause, the Taxing Power, etc.

New York State Rifle & Pistol Association Inc. v. City of New York, New York

* Facts of the Case: The State of New York law prohibits the possession of firearms without a license. To obtain a handgun license, an individual must apply with a local licensing officer-which, in New York City, is the police commissioner. The premises license is specific to a particular address, and the handguns permitted by the license may not be removed from that address except in limited circumstances prescribed by law. One such circumstance is to “transport his/her handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, and in a locked container, the ammunition to be carried separately.” All small arms ranges/shooting clubs authorized under the rule are located in New York City. Three individuals with premises licenses sought to transport their handguns to shooting ranges and competitions outside New York City-which is prohibited by the rule. One of the individuals sought to transport his handgun between the premises in New York City for which it was licensed and his second home in upstate New York-which the rule also prohibits. The three individuals and petitioner New York State Rifle & Pistol Association filed a lawsuit in federal district court, asking the court to declare the city’s restrictions unconstitutional. The District Court and Second Circuit Court of Appeals sided with the City of New York. New York State Rifle & Pistol Association appealed to SCOTUS.

* The Who: The petitioner is the New York State Rifle & Pistol Association. They are being represented by Paul Clement, the former Solicitor General for George W. Bush from July 2004-June 2008. The respondent is the City of New York. The City is being represented by Richard Dearing, the Chief of the Appeals Division of the NYC Law Department. On October 15 the Supreme Court granted the United States’ request to participate in oral arguments. Noel Francisco, the Solicitor General, will represent the United States in court.

* Legal Question: Does a New York City rule banning the transportation a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violate the Second Amendment?

* Context: In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to have a handgun at home for self-defense. Two years later, the justices made clear that this right also applies against state and local governments. Since then we haven’t heard from the Court on the issue. In January 2019 the Court granted certiorari in this case. Some Justices are eager to rule on a new Second Amendment case and have been for a while. Justice Clarence Thomas dissented in a June 2017 announcement by the Court that it would not take up a case which asked whether the Second Amendment entitles individuals to carry handguns outside the home for self-defense, including concealed carry when open carry is forbidden by state law. In the dissent he wrote the following: “The Court’s decision to deny certiorari in this case re­flects a distressing trend: the treatment of the Second Amendment as a disfavored right… The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its pre­ferred rights.” Justice Neil Gorsuch joined that dissent. Justice Thomas’s public irritation continued in 2018 when he dissented from a Supreme Court announcement that it would not review a challenge to California’s 10-day waiting period for gun purchases. In the dissent, he wrote that the Court has “granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment-even though our jurisprudence is much more developed for those rights” and because of that “The right to keep and bear arms is apparently this Court’s constitutional orphan.” Relatively soon after the Supreme Court announced they’d take up this case in January 2019, the City reversed the regulation in an effort to render the case moot, likely due to concern the Court would strike down the law. On October 7, the Court refused to dismiss the case on mootness grounds and simultaneously announced the question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it. Earlier this month the Court ordered the United States to file a short brief explaining its position on the mootness controversy by November 15. The Court ordered the petitioner and the respondent to file short briefs explaining their position on the mootness question by November 20.

Explaining the Mootness Controversy: A party before the Supreme Court arguingthe case is moot and effectively pointless to continue is highly unusual, to be sure. Their argument is as straightforward as can be: they changed the regulation to satisfy the petitioner, therefore the case should go away. So some of you, regardless of your position on gun control laws or whether the definition of the Second Amendment should be expanded, might wonder why the case is moving forward if the City reversed the regulation. There are a few exceptions to the so-called mootness doctrine-I’ll only explain the two that the plaintiffs advance in their argument. One such exception is called “voluntary cessation,” in which though a government entity stops enforcing an allegedly illegal act, it could, in theory, resume the supposedly illegal action after litigation has ended. This is why a federal court may maintain jurisdiction in a case in which a law, especially if it poses a major constitutional question, was reversed. The Association believes “voluntary cessation” is applicable and also asserts the law was only repealed in an effort to avoid the Supreme Court from reviewing it, which is probably true. Another exception to the mootness doctrine is when there are claims for damages. Even if a law stops continuing, parties seeking damages for past illegal conduct may seek monetary compensation. The Solicitor General’s brief argues claims for damages might be available, though the challengers never mentioned their intention to seek damages in the original brief. (Based on my understanding, the United States’ argument that monetary damages may be available appears pretty weak, especially since there isn’t much evidence in the record that the parties who sued wanted damages. The “voluntary cessation” argument put forth by the Association is solid.)

* Arguments from the City of New York:

1. They claim the new state law and amendments from the City render the case moot. To quote their brief, “There is no longer an Article III case or controversy here because the new state law and city rule give petitioners everything they have sought in this lawsuit.” In their November 20 brief on the question of mootness they write, “The Court has never embraced reasoning remotely like this to save a case from mootness and should not do so for the first time now,” referring to the monetary damages argument brought forth by the United States. Dearing reminds the Court that “When the City filed its suggestion of mootness, it emphasized that petitioners sought only ‘declaratory and injunctive relief’” and that the petitioners never intended to seek damages, implying the United States’ argument makes no sense. They also wrote that the Supreme Court has never allowed a party to add a claim for monetary damages later on when them or another party involved in the suit never previously claimed that.

2. Failing that they argue the “text, history, and tradition show that the former rule did not impinge on conduct within the scope of the Second Amendment.” They quote the landmark Heller decision from 2008 saying the Second Amendment does not protect a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Based on that they say of course an individual can’t make their own shooting range in Central Park, for example. They argue the “text, history, and tradition… all confirm that the ability to train may be subject to reasonable regulation as to location,” and claim Heller does not describe a right to engage in firearm training. Much of the rest of the City’s argument is them rattling off various cities and states requiring firearm owners to be licensed and undergo some form of training. The City also argued the former rule did not violate the petitioner’s right to possess a handgun for self defense in his home outside city limits. They said transport of a firearm between homes, from colonial times through the twentieth century, “has always been subject to incidental burdens like those imposed by the City’s former rule.”

3. The former rule withstands a means-end scrutiny test, which essentially amounts to asking whether the government shows a sufficient justification for the challenged law. According to an Albany Law Review article, “the Supreme Court has not specified a particular level of scrutiny or other means-ends test that should govern Second Amendment issues, although Heller did declare that the right must be protected by something more demanding than mere rational basis scrutiny.” Rational basis is the lowest form of scrutiny and means a statute or ordinance must have a “legitimate state interest,” and there must be a rational connection between the statute’s/ordinance’s means and goals. Therefore, the City argues intermediate scrutiny-defined as “furthering an important government interest” and the law “must do so by means that are substantially related to that interest”-is acceptable and that the former rule survives that test. The City argues the former rule survives intermediate scrutiny because, to quote their brief, “petitioners have failed to show that the former rule substantially burdened Second Amendment rights because it neither meaningfully impaired their ability to train nor prevented them from having a handgun at a second home.”

* Arguments from New York State Rifle & Pistol Association:

1. This case is not moot because the argument that monetary damages is possible and that voluntary cessation principles apply because it’s not out of the realm of possibility the City could restart the policy at a later date. Another point they make is the City only altered the regulations which were specifically targeted by the petitioners but that the remaining regulatory scheme is intact and that is unconstitutional. Mr. Clement writes “understanding just how much discretion City licensing officials enjoy, and just how intrusively they regulate, underscores that the risks of recurring violations and the need for effectual relief are real,” inferring the City holds too much discretion in determining who may acquire a firearm. Even though, as the Association notes in their brief, they do not specifically seek damages, they write to affirm the United States position that they “have never foresworn damages.”

2. The Association argues the City violates the right to keep and bear arms. The Association argues the City ignores “an implied right to train in order to make the explicit right to keep arms for self-defense meaningful.” The Association claims the conduct that the transport ban severely restricts is protected by the Second Amendment and they argue the Second Amendment’s right to keep and bear arms is not strictly confined to the home, which means they are asking the definition of the Second Amendment made in Heller be expanded. They use the City’s words against them in their argument that the right to keep and bear arms is not a homebound right and they say the City never refutes that, which is true.

3. The Association argues intermediate scrutiny test is not enough and believes strict scrutiny is the correct standard. Strict scrutiny is typically used when a fundamental right is violated or when a suspect class-race, national origin, religion, and alienage-is involved. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and the law must be narrowly tailored to achieve that interest. It is a very high burden to meet. The Association argues “if the Second Amendment is to be treated like other rights enshrined in the Constitution, then the appropriate level of means-end scrutiny is strict scrutiny.” They argue the City’s objectives for the law-”public safety” and making it easier for the City to enforce the ban on carrying loaded firearms in public-are not narrowly tailored to further either goal. The Association closes by saying when the government wants to attack a constitutional right, it must “…present more than anecdote and supposition” ( City of Los Angeles v. Alameda Books).

* Arguments from the United States:

1. The case is notmoot because the petitioners could seek damages. The Solicitor General writes “Petitioners have brought their lawsuit under 42 U.S.C. 1983, a statute that authorizes courts to award ‘damages to compensate persons for injuries that are caused by the deprivation of [their] constitutional rights.’”

2. When arguing the City’s former rule violates the Second Amendment, the Solicitor General’s brief states, “the ordinary, common-sense meaning of the term ‘bear arms’ includes the transportation of arms outside the home.” He further argues the Appeals Court misread Heller to mean the core “of the Second Amendment is the ‘right to keep and use firearms in self-defense in the home,’” when, in fact, he points out Heller states, “the individual right to possess and carry weapons in case of confrontation.” A valid argument the United States poses is a comparison to a Tennessee Supreme Court ruling. A law passed in the 1800s by the Tennessee legislature resulted in an “‘absolute prohibition’ on the carrying of pistols ‘publicly or privately, without regard to time, or place, or circumstances-even from [one’s] home to a gunsmith to be repaired.’” But the Tennessee Supreme Court ruled that violated the state Constitution’s right to “keep arms.” The Solicitor General argues this transport ban by the City of New York is analogous to the law passed by the Tennessee legislature and if that was unconstitutional then this should be unconstitutional, too. The United States also correctly claims that the Court, in Heller and in McDonald, never said the right to keep and bear arms is limited to the home.

3. The Solicitor General also argues this transport ban, like the handgun ban in Heller, is nearly a complete prohibition because “it all but eliminates their ability to trans- port their firearms outside their homes” except for a handful of places, all of which are within city limits. Solicitor General Francisco writes that the narrow exceptions granted in the City’s former rule show how sweeping the ban actually is. For example, he writes that “A firearm owner who holds a premises license may transport his handgun to firing ranges in the City, designated hunting grounds, and gunsmiths, but nowhere else” and that though individuals may obtain a carry license, the license is available in “extremely limited circumstances.” The Solicitor General concludes by arguing though there were “minor exceptions” in the handgun ban in the Heller case, the Court treated that law as a complete prohibition. He believes the Court should do the same here. The Solicitor General also writes that lower courts have recognized a right to keep and bear arms for self-defense includes the “right to acquire and maintain proficiency in their use.” He argues the phrase “a well-regulated militia” in the Second Amendment implies “nothing more than the imposition of proper discipline and training.”

* Possible Rulings and its Ramifications: Obviously the Court could determine the case is moot and throw it out. On Bloomberg Law’s “Cases and Controversies” podcast, constitutional law professor Josh Blackman believes though “governments can get in trouble for changing their regime to try to avoid review by federal courts,” he said it appears “the City has more or less changed its rules to make it impossible it change it back, and the State has evolved as well. So I don’t think there’s a chance that this law is reanimated.” Blackman later explained on the podcast that if the Court dismisses a case as moot it also takes 5 votes. The difference is in this scenario, he said, is there is no published opinion. The Court simply issues a one sentence order dismissing it, and it’s possible a Justice could issue a dissenting opinion from the denial (Justices Thomas and Gorsuch, I’m looking at y’all). Blackman concluded this procedural explanation by saying he expects a dismissal shortly after the case is argued and that they don’t need to hold onto this case to determine the scope of the Second Amendment because there are other cases percolating that are “far more meaningful.” Or SCOTUS could find it not moot and given the current composition of the Court, it seems unlikely they’d side with the City of New York. Brett Kavanaugh replacing Justice Kennedy is significant because he is thought to have a more expansive view of the Second Amendment than Kennedy ever did. There is a lot of speculation that in the Heller case from 2008, Justice Scalia had to soften language in his opinion in order for Justice Kennedy to join it. If the Court rules it is not moot, it seems unlikely they’d side with the City and the Supreme Court would be poised to expand the definition of the Second Amendment. However, this case is strange because the former law was so specific in that it required an individual to have a special permit to transport a firearm outside the home and keep it locked and disassembled in the car. Even if the Court sides with the Association, it’s not clear that’d answer questions featuring more common and salient gun control laws which pose Second Amendment questions that aren’t as specific as this case. So essentially this case could be a big deal or it could be nothing. *shrug emoji.*

* Timeline/logistics for this case: Oral arguments are set for Monday, December 2. The Justices will (likely) vote on and discuss the case in their private conference on Friday, December 6. If a majority decide the case is moot, that could happen relatively soon after oral arguments occur. A ruling on the merits would take a while and a decision would probably not be handed down until June 2020. The United States was granted 10 minutes of oral argument time, the New York State Rifle & Pistol Association will have about 15 minutes of oral argument time, and the City of New York will have about 25 minutes of oral argument time.

Originally published at on November 30, 2019.

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