On January 22 of this year, the United States Supreme Court agreed to hear its first 2nd Amendment case in nearly a decade. The case is New York State Rifle and Pistol Assn. vs. New York and it concerns the New York City ordinance that barred a legal handgun owner from taking it outside the city.
That odd bit of regulatory gymnastics centered on the fact the City has two types of handgun permits: carry permits (which are still nearly impossible to obtain) and “premises” permits- a permit to keep a handgun in a home. For New York City “keep” has a definite connotation: according to the NYPD, the owner of a “premises” permit may carry a pistol -unloaded- to a shooting range in the city -but not a range outside it.
Since the Supreme Court agreed to hear the case, the City of New York has essentially been trying to “walk back” that regulation. That, unfortunately, isn’t because they’ve seen the silliness of their argument - they haven’t.
They’ve been trying to avoid having to argue what former U.S. Solicitor General Paul Clement (arguing for the New York State Rifle and Pistol Assn) called “an extreme, unjustified and irrational restriction on 2nd Amendment rights…There is absolutely no evidence that transporting an unloaded firearm, locked in a container separate from its ammunition, presents a material public safety risk.”
Since the Supreme Court agreed to hear the case, New York City has modified it. But not to address the error in the law.
They don’t want to face the risk of having to argue a more significant question: whether the 2nd Amendment protects carrying a gun in public.
That’s a test no one on the pro-restriction side of the argument would be excited about having to take.
It’s been nearly nine years since the Court has heard a case concerning restrictions on guns. And it was an open secret the high court - in that configuration - wasn’t excited at having to decide issues related to the right to keep and bear arms.
But things have changed since the Heller and Chicago decisions - including the makeup of the Supreme Court itself.
Justice Kavanaugh worked on the federal appeals court in Washington. There, he dissented from a ruling that upheld the District’s ban on semiautomatic rifles, arguing the weapons were “in common use nationwide and should therefore be deemed as protected under the 2nd Amendment.”
Today, Kavanaugh’s vote has significantly more clout.
New York City has tried to argue that there’s no need for the SCOTUS to hear the case because they’ve already modified the law, making the case irrelevant.
To that end, they tried to convince the court the question was moot.
In other words, there was no need to hear the case because there is no longer any actual controversy. It’s the basis behind the old lawyer’s argument “there’s no there there.”
Yesterday, the Supreme Court of the United States issued their Orders of the Court- Term Year 2019- their disposition of cases before them. There, at the bottom of page 10, was a simple declaration:
18-280 NY STATE RIFLE & PISTOL, ET AL. V. NEW YORK, NY, ET AL.
The Respondents’ Suggestion of Mootness is denied. The
question of mootness will be subject to further consideration at
oral argument, and the parties should be prepared to discuss it.
In other words, the Court still regards the case to be worth “further consideration” -at least to the point of calling for oral arguments. Their statement “…and the parties should be prepared to discuss it” leaves no wiggle room for misinterpretation.
I asked Alan Gottlieb of the Second Amendment Foundation if the decision to hear oral arguments was the big deal I suspected. His first response: “a very big deal.”
“We are delighted the Supreme Court will move this important case forward,” he told me, “The SAF has filed an Amicus brief in support of overturning this egregious attempt to infringe on the right to Keep and bear arms.”
“We are confident,” he said, “that the high court will rule in favor of Constitutional Second Amendment Rights.”
It will definitely make the effort to listen to the arguments. And most experts agree it is time for clarification on the Second Amendment well beyond the broad-brush opinions given in both the DC and Heller cases. Where the “experts” disagree is how large a philosophical shift the court has undergone since Justice Kavanaugh became the second judge appointed by President Trump.
Looking at a couple of the more progressive “news” sites yesterday, it became pretty obvious they -like New York- aren’t excited at this new SCOTUS.
“The Supreme Court hears its first case on Monday, October 7,” wrote Elie Mystal at thenation.com, “Progressives would be better off if the justices stayed home.”
Hope she’s right.
Looks like time to update my Supreme Court credentialing.
— Jim Shepherd