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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

Deciding Whether to Decide—What Oral Arguments in New York State Rifle & Pistol Ass’n v. City of New York Signal for the Future of Second Amendment Law at the Supreme Court

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 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.


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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Well, the Justices themselves may be moot by June of 2020, since their refusal to enforce strict scrutiny after Heller and MacDonald is in the process of kicking off a Second Civil War in Virginia, which they will have a ringside seat for.

    jmt9455 in reply to SDN. | December 14, 2019 at 10:28 pm

    not just a ringside seat, but they may be a part of ‘target practice’…
    after the french revolution,the clergy have no fear: by the time they get finished with politicians, lawyers & judges they’ll be guillotined out!

The SCOTUS has been ducking 2nd Amendment cases since they heard McDonald v Chicago. The court will attempt to dodge any such case however they can.

Now, the problem with the argument that because the City gave in to some of the petitioners’ complaints and the State of New York passed a law making it illegal for cities to pass similar measures. The problem with this is that the laws can be changed, again, to allow those restrictions to be reinstated and the case will have to be heard again.

The point of this case was not that the restrictions placed an undue burden upon the citizenry. It challenged the basic constitutionality of the regulations themselves. This is the question before the court and it is incumbent upon the court to address that point. However, it likely will be ducked by the SCOTUS, this time.

    GWB in reply to Mac45. | December 14, 2019 at 9:07 pm

    For the lawyers, a question:
    IF the City of New York managed to pass a law in the future comprising the same sorts of infringements, given that this has already had to go to the SCOTUS, could it go straight to the top immediately? So, instead of suing again in a state court, then appealing, then to federal court, then appealing multiple times, they just send it directly to the SCOTUS?

    What would be the odds on that?

      Edward in reply to GWB. | December 15, 2019 at 12:14 am

      New law, new case.

      Exiliado in reply to GWB. | December 15, 2019 at 11:01 am

      I think that’s exactly what they are trying to do.

      SomeJamoke in reply to GWB. | December 15, 2019 at 11:14 am

      I seemed to vaguely recall from my constitutional law class, a long time ago, that voluntarily stopping unconstitutional conduct does not moot the case. Seems to me it’s pretty clear that the voluntary cessation doctrine should apply in this case, so I had to check.

      Sure enough, the case should be moot only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth Inc. v. Laidlaw Env. Svcs., 120 S.Ct. 693 (2000) (Notorious RBG writing the opinion of the Court). What are the odds that New York is going to stop harassing lawful gun owners?

      But that case was the SCOTUS deciding in favor of a bunch of lefties. Totally different from this case because reasons.

I don’t need no stinkin’ lawyer to tell me what the Second Amendment says or means. It’s plain as the nose on everyone’s face. It won’t be a smart idea to try and take away people’s guns.

I would rather not see a 2A case decided until John Robert’s vote is “moot” by another strong 2A justices is confirmed.

This resulting in innocent people locked up everywhere. A young black mother driving through New Jersey with a gun found at a traffic spot, faced a sentence to jail far beyond anything a thug would receive for walking down the street with the same in plain sight. Because they want to criminalize legally obedient citizens.
We cannot trust these judges any more.

The handwriting was on the wall when the Fourth Circus virtually reversed Heller in the MD so-called “Assault Weapon” case and the SCOTUS (then still with Kennedy on the Court) refused to hear the appeal. SCOTUS to lower courts – do whatever the Hell you want with Second Amendment cases. No need to try and make citizens in all locations of the country subject to the same interpretation of the Constitution, we don’t care about the Second and neither should you.

NY: We changed the law, so it’s not a thing anymore.
Supremes: Because you were going to lose.
NY: No, we looked it over and saw it needed changed. Not that it was wrong or anything. Oh, and since it’s changed, you don’t have to rule on it. Shoo.
Supremes: We’d like to look at it anyway.
NY: No prob. Everything’s fine. No need. Nobody has to worry about being prosecuted, so no standing.
Supremes: What about anybody who broke the law while it was still a law?
NY: Oh, we’d never prosecute somebody on that. Honest.
Supremes: Yeah, right.

    The Packetman in reply to georgfelis. | December 15, 2019 at 9:28 am

    “NY: Oh, we’d never prosecute somebody on that. Honest.
    Supremes: Yeah, right.”


    The process is the punishment …

Let me see if I get this: the government can make a law and then rescind it right before it is found to be illegal and that’s okay? That sounds abusive right there.

For any of you lawyers here: Why is it allowed that a state can place restrictions or limitations on our rights in the National Constitution? Shouldn’t our rights be the exact same everyplace within the country?

    Edward in reply to MarkS. | December 16, 2019 at 10:55 am

    You misunderstand. It isn’t the words the Founding Fathers wrote in the Constitution that matter, it’s the interpretation of those words by our Black Robed Masters which matters.

smalltownoklahoman | December 15, 2019 at 9:36 am

That “continuous and uninterrupted” requirement by the city of New York is a really asinine move. It’s a way of saying “you want to enjoy your second amendment? Fine go enjoy but don’t do anything else.” Instead of infringing on the 2nd they infringe on NYer’s ability to do basic everyday things along the way, such as stopping to use the bathroom or picking up a buddy along the way who also wanted to go to the range or just needed a ride to someplace that happens to be on your route. Spouse asked you to pick up a couple things on your way back for dinner? Nope can’t do that either! It’s the city’s way of trying to get at 2nd supporters by making their everyday lives a hassle to…. just even get done, unless they just want to risk going about doing it unarmed.

    It’s also a limit on how far you can drive to utilize a range, which would be limited by the capacity of your vehicle’s gas tank (no stops for gasoline are allowed), for one thing. And as different people own different vehicles, and these vary in tank capacity, that would seem to cause unequal treatment under the law.

We’re going to need an Amendment to the Constitution that spells out in clear English the right to own and bear arms. (guns and other weapons)

Also the right to carry said arms in public openly or concealed.

Subotai Bahadur | December 15, 2019 at 4:35 pm

They will dodge it, because the Nomenklatura know that the greatest threat to them is an armed populace who wants to regain the Constitution completely.

One other point. Read the Impeachment Report of the Judiciary just sent to Pelosi. One of the definitions of “obstruction of Congress” used by the House is now the act of going to court. If it is “obstruction of Congress” to file in Court, and elections that the Left loses are to be overturned by any means necessary . . .

Kind of limits the options of citizens, does it not.

Subotai Bahadur

Given that Trump is likely to be re-elected and then wind up appointing a couple more Supremes, I’d just as soon see them kick the can down the road for another year or two.