Will SCOTUS moot its big 2nd Amendment case? An analysis of oral arguments

Will SCOTUS moot its big 2nd Amendment case? An analysis of oral arguments

Many Second Amendment supporters were excited this month for the Supreme Court to hear New York Rifle & Pistol Ass’n v. City of New York, the first major Second Amendment case since 2010.

But now, with oral argument behind us, it looks likely, although not certain, the case will be considered moot.

The Justices spent a majority of their time asking about mootness during the Dec. 2, 2019 oral argument, the first Second Amendment argument before the Court since McDonald v. Chicago was argued on March 2, 2010. (Transcript, Audio)

This disappointed those of us who hoped to see the Justices dive into the merits of the case, and the unconstitutionality of the City of New York’s firearms regulation.

After six years of defending New York City’s prohibition on transporting certain, registered firearms outside of city limits for any reason, city officials amended the regulation as soon as the Supreme Court agreed to hear the case. Quite clearly, New York City officials were concerned they may lose, and decided to stop fighting and start running.

New York City’s attorneys contended that, by amending the regulation, the Petitioners bringing the case had gotten everything they asked for, and the Supreme Court didn’t need to decide the case after all. When this happens, the case is generally called “moot”—meaning there is no longer an issue that needs to be resolved by a court.

Even further, New York State passed a law essentially preventing any city from enforcing such a regulation. A twist to further avoid any question about a return to the old transportation prohibition.

The Petitioners disagree. They argue there are still nuances to their injuries that were not resolved by the changed New York City regulation. They contend that they still fear prosecution under the old regulation, prejudicial decisions when undergoing new license applications for admittedly violating the old regulation, and, most importantly, the exceptions in the new regulation.

In October, the Supreme Court told the parties to be “prepared to discuss” mootness at oral argument. Indeed, that was primarily what the Court was interested in.

Paul Clement, representing New York State Rifle & Pistol Association, started his argument by focusing on the merits of the Second Amendment issues, but about two-minutes into his argument, Justice Ginsberg asked the first question, refocusing the argument on mootness.

JUSTICE GINSBURG: But, Mr. — Mr. Clement, the city has now been blocked by a state law, and the state has not been party to these proceedings. The state says: City, thou shalt not enforce the regulations. So what’s left of this case? The Petitioners have gotten all the relief that they sought. They can carry a gun to a second home. They can carry it to a fire — to a practice range out of state.

After this question, the next 16 minutes of Mr. Clement’s argument was almost completely focused on the mootness question. A charge led predominately by Justices Ginsburg and Sotomayor with a Justice Kagan or Justice Breyer question thrown in from time to time. Notably, not a single conservative Justice asked Mr. Clement a question. The line of questioning was completely dominated by the more progressive Justices.

New York Rifle has a few interesting takes on why the case should not be considered moot, but the best focused on the language of the new regulation. The new regulation allows residents to transport their registered firearms as long as that travel is “continuous and uninterrupted.”

Mr. Clement’s issue here was clear. If the Petitioners had won at the district court, or even if they had settled, they clearly wouldn’t have agreed to the “continuous and uninterrupted” language. The old regulation is unconstitutional and if it had been found to be unconstitutional, the entirety of the ordinance would have been unenforceable. It would not have resulted in a slightly weaker prohibition.

Once argument turned to the United States Solicitor General’s office, the trend of focusing on mootness continued. As telegraphed in the United States’ letter filed with the Court last month, Mr. Wall, arguing on behalf of the United States, focused on the idea that, even though the Petitioners never sought damages, they could seek damages, and therefore the case should remain live.

Again, the questioning was dominated by the progressive Justices, but this time, Justice Gorsuch also seemed to take issue. Specifically, Justice Gorsuch took issue with Mr. Wall’s apparent dismissal of the Petitioners argument regarding the “continuous and uninterrupted,” language.

JUSTICE GORSUCH: . . . [W]hy isn’t the dispute still alive from the old law if that’s a form of relief they would have sought and is still, despite the new law, being denied them? Isn’t that a classic definition of relief that was sought but now still – despite herculean, late-breaking efforts to moot the case, still alive?

Overall, none of the Justices who asked questions seemed persuaded by the United States’ argument against mootness based on unrequested, but available, damages.

About 10 minutes into Mr. Wall’ argument and over 25 minutes in overall, we see the first real question about the merits of the Second Amendment issue that has drawn so much attention to this case in the first place—the text, history, and tradition test.

JUSTICE SOTOMAYOR: I’m sorry, can I go back to that question? In what other area, constitutional area, the First Amendment in particular, have we decided any case based solely on text, history, and tradition?

The text, history, and tradition test is the test set down by the Supreme Court in Heller as the appropriate means of evaluating a challenge based on the Second Amendment. It was also applied by the Supreme Court in McDonald v. Chicago and has been almost completely ignored by every lower court since. The text, history, and tradition test states that if a law is unconstitutional if it violates the text of the Second Amendment and does not comport with any historical (pre-Second Amendment, i.e. 1791) or traditional (immediate post-Second Amendment) law or regulation.

Mr. Wall, at the end of his argument, tries to defend the test, but does so with an odd point. Mr. Wall states that the Court “starts with,” the text, history, and tradition, but doesn’t clarify where he believes the Court should go from there. In reality, under Heller, the text, history, and tradition test is the entirety of the analysis. There is no second step. Do not pass go. Do not collect $200.

Once Richard Dearing, on behalf of the City of New York, began his argument, then there was a shift from the Justices asking the questions, but not in the line of questioning. Whereas Justices Ginsberg and Sotomayor led the charge against Mr. Clement and the Petitioners, Justice Alito and Chief Justice Roberts led the charge at Mr. Dearing and the City of New York.

Justice Alito, who was the author of the Supreme Court’s McDonald v. Chicago majority opinion, focused specifically on the scope of relief, as Justice Gorsuch had:

JUSTICE ALITO: But let’s go to something . . . beyond a coffee stop or a bathroom break. Suppose they had prevailed under and obtained a judgment that the old law was a violation of the Second Amendment, and suppose that after that, one of the plaintiffs had made a trip to a firing range in, let’s say, New Jersey and, while there, decided to stop to visit his mother for a couple of hours to take care of a few things for her. Would there be any law that that would violate?

The idea underlying this question is the same as the argument that Mr. Clement presented and the issue that Justice Gorsuch focused on. If the Petitioners had won below, there would be no law in effect, not a weaker law in effect. There is a nuance here that seems to be the only real way the Court may determine that case is not moot.

Notably, while Justice Alito was concerned with the scope of the new regulation, Chief Justice Roberts was concerned with the potential for prejudice against the parties involved:

CHIEF JUSTICE ROBERTS: Is there – is there any way in which any violation could prejudice a gun owner?

And, when Justice Gorsuch followed up on the Chief Justice’s question, and it appears there may be a small glimpse of the case remaining alive, Mr. Dearing slams the door:

JUSTICE GORSUCH: No, I’m wondering — you’re — you’re representing the city, and so I’m asking the city’s representative here . . . that the city — that there will be no collateral consequences from the city to individuals who violated the prior ban?

MR. DEARING: Absolutely correct, there will be none.

JUSTICE GORSUCH: All right.

JUSTICE GINSBURG: And you’re making that representation to this Court?

MR. DEARING: I’m making that representation to this Court on the record on behalf of the City of New York.

Justices Alito and Gorsuch continue to sound concerned about New York City’s maneuvering after the fact, but overall, it seems unlikely that the case will not be mooted.

So what happens next?

There are three ways that the case can move forward. First, the case could be considered not to be moot by at least five Justices, who would then rule on the merits of the case and issue a controlling opinion on the Second Amendment. This seems the least likely outcome.

Second, the Justices could debate mootness, take a few months, and issue a full opinion detailing why the case is moot. Likely, this opinion would come out near the summer of 2020.

Third, the Court could dismiss the case as improvidently granted. This approach presents an upside for those of us that are waiting for the Supreme Court to finally address the non-compliance of the lower courts to Heller and McDonald.

If the Court were to dismiss the case as improvidently granted, that decision would be issued faster. This could leave the Court with time to grant review of one of the many other pending Second Amendment cases before the Court — cases that don’t suffer from similar procedural issues. It would also give the Court time to hear argument before the end of its 2019-2020 term.

This outcome would offer the most positive way forward, while avoiding the biggest issue of proceeding with and deciding this case — legitimacy. If the Supreme Court moves forward and decides this case on the merits, it will certainly be attacked as illegitimately deciding a moot case simply for the “political” motive of rendering a Second Amendment decision.

Overall, a number of the Justices clearly expressed a willingness, if not a need, for the Supreme Court to make a decision on a Second Amendment case. Even if the Court determines that New York State Rifle & Pistol Association v. City of New York is moot, there are a number of other Second Amendment cases pending that the Court ought to address in the near future.

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Cody J. Wisniewski (@TheWizardofLawz) is an attorney with Mountain States Legal Foundation. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions. He is the co-author of an amicus brief filed before the Supreme Court in the case New York State Rifle & Pistol Association v. City of New York.

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