The U.S. Supreme Court has dismissed as “moot” a lawsuit challenging a New York City gun regulation, thus disposing without a substantive ruling of the first major 2nd Amendment case the court had taken in over a decade, New York State Rifle & Pistol Association Inc. v. City of New York.

The decade-long absence of 2nd Amendment cases had particularly upset Justice Clarence Thomas, who wrote in in February 2018, when the Court refused to hear a case challenging a California mandatory 10-day waiting period. Justice Thomas wrote in dissent:

If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case….

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have 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.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari….

The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

We have covered NYS Riflease since the court initially agreed to take the case in January 2019, Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions:

The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions.

Some of the Justices, and other commentators, have lamented the failure of the Court to take 2d Amendment cases….

The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York.

The Petition for Certiorari described the Question Presented:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

After the case was accepted and extensively briefed by the parties and dozens of groups filing Amicus (friend of the court) briefs, N.Y. City tried to avoid a decision on the merits by changing the law, which it claimed in a July 22, 2019 Suggestion of Mootness. The New York State Rifle & Pistol Association argued that under long-standing principles, a party cannot moot a case and thereby manipulate the judicial system

NYC was joined by a group of Democrat Senators, led by Sheldon Whitehouse (RI), who crudely threatened the court with restructuring if it didn’t dismiss the case as moot, Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record.

I would not be surprised if Whitehouse substantially drafted the Brief himself. As we have documented here for a decade, Whitehouse is extremely pejorative towards his political opponents, who invariably are portrayed as bad people with bad motives….

Whitehouse’s attacks on Brett Kavanaugh during the confirmation hearings were demeaning and absurd, Senator Sheldon Whitehouse grilled Brett Kavanaugh about a high school yearbook fart joke. Seriously.

So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy….

The closing paragraph was at best a thinly-veiled threat (emphasis added):

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Despite Whitehouse’s threats, the court did not immediately dismiss, the case, but rather, scheduled oral argument with one of the issues to be argued being the mootness claim.

Based on the oral arguments about mootness, it seemed that the case would be dismissed as moot, 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. (TranscriptAudio)

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….

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….

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?

While oral argument doesn’t necessarily predict a result, in this case it did.

The Supreme Court in a per curiam opinion, dismissed the case as moot. (A per curium opinion means it is not authored by any particular Justice but is more of a consensus, a format often used on procedural matters.)

Excerpts from the Opinion:

After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. App. 48. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot….

Petitioners also argue that, even though they have not previously asked for damages with respect to the City’s old rule, they still could do so in this lawsuit. Petitioners did not seek damages in their complaint; indeed, the possibility of a damages claim was not raised until well into the litigation in this Court. The City argues that it is too late for petitioners to now add a claim for damages. On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City’s old rule.The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.

Justice Kavanaugh wrote a concurring opinion agreeing the the case was moot, but joining the dissent as to the necessity for the Supreme Court to consider lower court disregard of Heller and McDonald, suggesting additional 2nd Amendment cases should be taken by the court:

I agree with the per curiam opinion’s resolution of the procedural issues before us—namely, that petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.

I also agree with JUSTICE ALITO’s general analysis of Heller and McDonald. Post, at 25; see District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010); Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (Kavanaugh, J., dissenting). And 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 wrote a dissent, joined by Gorsuch and Thomas, disagreeing that the case was moot and excoriationg the manipulative tactics of NYC:

By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced….

In the District Court and the Court of Appeals, the City vigorously and successfully defended the constitutionality of its ordinance, and the law was upheld based on what we are told is the framework for reviewing Second Amendment claims that has been uniformly adopted by the Courts of Appeals.1 One might have thought that the City, having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal….

Regrettably, the Court now dismisses the case as moot. If the Court were right on the law, I would of course approve that disposition. Under the Constitution, our authority is limited to deciding actual cases or controversies, and if this were no longer a live controversy—that is, if it were now moot—we would be compelled to dismiss. But if a case is on our docket and we have jurisdiction, we have an obligation to decide it….

Thus, in this case, 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. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). “‘As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Ibid. (emphasis added).

Respondents have failed to meet this “heavy burden.” Adarand Constructors, Inc. v. Slater, 528 U. S. 216, 222 (2000) (per curiam) (internal quotation marks omitted). This is so for two reasons. First, the changes in City and State law do not provide petitioners with all the injunctive relief they sought. Second, if we reversed on the merits, the District Court on remand could award damages to remedy the constitutional violation that petitioners suffered.

The dissent took note of the threats by the Democrat Senators:

Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal. Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (internal quotation marks omitted).

One of the main downsides of this outcome is that Sheldon Whitehouse will feel emboldened to threaten the judiciary in the future. Whether his threats had an actual impact is hard to know, but clearly that was his intent. Whitehouse is a classic bully, he senses weakness, and Roberts is the weak link.

The silver lining is that at least four of the Justices (Kavanaugh, Alito, Gorsuch, and Thomas) likely will vote to take another 2nd Amendment case, or more than one.


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