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A Loss or a Win? Reassessing New York State Rifle & Pistol Ass’n v. City of New York

A Loss or a Win? Reassessing New York State Rifle & Pistol Ass’n v. City of New York

We could have an authoritative Second Amendment opinion by the end of this year, or early next.

https://www.youtube.com/watch?v=3KVqaIaeRpA

A lot has been said in a short period of time about the Supreme Court’s opinion handed down in New York State Rifle & Pistol Ass’n v. City of New York just a week ago.  Most gun rights supporters are frustrated. Many accuse Chief Justice Roberts of caving to pressure.  Some consider the case to be a complete loss.  In reality, it is just the opposite.

New York Rifle is a case in which the New York Rifle & Pistol Association challenged New York City’s “premises license” scheme.  The city required residents to have a premises license to keep a firearm in their home for self-defense, but completely prohibited them from taking those firearms outside city limits.  People with premises licenses could not bring their firearms to a second home, a range, or a shooting competition outside city limits.

New York City’s law clearly violated the Second Amendment, but for six years, the city defended its law—claiming it was necessary for public safety.  New York’s justifications rang hollow.  If they didn’t prohibit people from travelling with weapons, how could they know if people were going to a range, or up to nefarious means?  Worse, if someone were travelling with a weapon, New York was certain that instances of road rage would immediately escalate to a shootout.  The city had no evidence to support any of this, simply the declaration of a single law enforcement officer.

When the Supreme Court granted certiorari to review the merits of the case in January 2019, it was the first time the Court had done so in a Second Amendment Case since 2010.  Naturally, many gun rights advocates were excited the Court was revisiting the issue—especially given the makeup of the Court.

Justice Alito authored the 2010 McDonald v. City of Chicago opinion, which both Chief Justice Roberts and Justice Thomas joined (they all joined Justice Scalia’s 2008 majority opinion in D.C. v. Heller).  Justice Gorsuch has joined a number of Justice Thomas dissents from denials of certiorari in Second Amendment cases.  And Justice Kavanaugh authored the well-known Heller II dissent, advocating for direct application of the Heller Court’s text, history, and tradition test, when D.C.’s enacted several restrictive gun control laws after its loss in Heller.

Many, however, now feel that the Court wrongfully failed to rule on the merits of the New York Rifle case.  Some feel that the Court, or specifically Chief Justice Roberts, caved to political pressure.

I want to explain why that’s the wrong conclusion to take away from the Court’s decision.

First, the only party that caved in this case was the City of New York.  Let’s not forget, the city essentially repealed its travel prohibition.  Not only did the city lighten its restrictions, New York State passed a law preventing the city from reverting to its old ways.

People who possess a premises license in the city can now transport their firearms to homes, shooting ranges, or competitions outside city limits.  The firearm must be kept unloaded and locked and, according to New York’s counsel, the owner can make “reasonably necessary stops in the course of travel.”  The open question is what stops are reasonably necessary.

Today, there is less gun control in New York City than there was this time last year.  That is a win.  Is it perfect?  No, but a win is a win.

This case also highlights the bad faith of New York City, the gun control movement, and a group of senators who decided to threaten the Supreme Court.  New York City’s successful evasion of review comes with the heavy price of its clear gamesmanship.

New York City had defended its law for 6 years, claiming it was absolutely necessary for public safety and only backed down, changing the challenged law, after the Supreme Court agreed to review the merits of the case.  The city also asked for an extension of time to file its response brief, clearly in order to buy time for the legislature to propose, and then adopt, the new law.

Justice Alito asked, at oral argument: “[A]re people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” New York counsel’s answer was, predictably, unsatisfying.  Counsel said New Yorkers were not less safe, but failed to reconcile that with New York’s earlier arguments that the law was necessary for public safety.

It’s highly unlikely the Court will forget New York City’s bad faith any time soon.

Most importantly, rendering this case moot avoids a practical pitfall—legitimacy.  There are only two binding Supreme Court opinions analyzing the Second Amendment (three if you count Caetano v. Massachusetts).

If New York Rifle were decided on the merits, you can bet that every time the gun rights movement cited it as binding authority, the gun control movement would question its legitimacy.  Given that almost every circuit court in the nation already fails to follow Heller and McDonald, which did not have underlying factual issues, it is apparent that circuits would use this to avoid following New York Rifle.

True, we need the Supreme Court to authoritatively weigh in on the issue—it hasn’t done so since 2010.  But, in an area with such limited precedent, the last thing we need is an opinion that would be questioned for years.

Plus, this isn’t the end of the road.

Immediately after the Supreme Court issued its per curiam opinion declaring the case moot, the Court recirculated 10 separate Second Amendment cases pending before it.  This is not a coincidence.  In fact, I predicted itin December after oral argument.

Justice Alito wrote a dissent in New York Rifle, joined by Justices Thomas and Gorsuch, where he expressed concern about the Court’s ultimate decision, especially since many federal and state courts are failing to follow Hellerand McDonald.

Justice Kavanaugh, in his concurrence, echoed the concerns of Justice Alito, and went on the state: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari new pending before the Court.”

Four Justices are enough to grant certiorari, and Chief Justice Roberts was in the majority in both Heller and McDonald.  Without the procedural issues, that sets up a 5-4 majority on the merits of a “clean” Second Amendment case.

On May 4, 2020, the Court recirculated those 10 pending Second Amendment cases.  Court watchers will note that recirculation greatly increases the likelihood that the Court ultimately decides to hear the case.  Further, because of the COVID-19 pandemic’s disruption of the Court’s procedure, the Court will need time to consider upcoming scheduling difficulties.  Several cases that were supposed to be argued this term will now be argued next, which will constrain the number of new cases the Court can hear in its 2020-2021 term.  Recirculating is a good thing, not a bad one.

The Court’s next conference is on May 14, 2020, with orders likely being issued on May 18, 2020.

All things considered, it is highly likely that the Supreme Court will grant review of one of the many Second Amendment cases before it in May.  Even with scheduling difficulties, the case could be briefed over the summer and then argued when the Court opens for its 2020-2021 term.

We could have an authoritative Second Amendment opinion by the end of this year, or early next.

In the grand scheme of the movement, that is not long.  We’ve waited 10 years for the next Supreme Court opinion on the Second Amendment. Surely, we can wait a little while longer if it means having a case that isn’t marred—rightly or wrongly—by procedural questions.

 —————-

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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Comments

UnCivilServant | May 5, 2020 at 7:08 am

New York State passed a law preventing the city from reverting to its old ways.

Which it can now quietly repeal and resume the unconstitutional crusade against the citizendry. Until the courts slap aside the unSAFE act and the “May Issue” nonsense, we will not have had a victory.

The Friendly Grizzly | May 5, 2020 at 7:12 am

We could have an authoritative Second Amendment opinion by the end of this year, or early next.

With the present composition of the court, that is a real roll of the dice. I trust Roberts as far as I can through an automobile; the three sisters’ votes are obvious, and, Kavanaugh? I just don’t know.

    Both Roberts and Kavanaugh have given every sign of being pro-2A and none of being weak on it. Kavanaugh is a Kennedy acolyte, and at his confirmation he made it very clear that he regards Casey as the guiding precedent on how to apply precedent. If this is what he truly believes, and he’s consistent on it, then I expect him to be bad on abortion but good on the RKBA.

Great post. The procedural aspect of SCOTUS cases are very puzzling to us non-lawyers.

Does recirculating mean that the chief is soliciting agreement among the justices for hearing a case, among an assortment of cases?

If you get everything you ask for, but you are still unhappy, you should have asked for more!

They got everything that they asked for – the prayer for relief was, unfortunately, flawed. To be fair, no one thought NYC would try so hard to moot the case either.

But a win is a win… Not only will the bad faith be remembered, but the city was quick to cave in the face os a parade of horribles, which means the next laundry list of harms wont be believed.

A Second Amendment opinion? Perhaps. Authoritative? Not likely. The Court doesn’t do authoritative, it obfuscates, it waffles, it perpetuates, it loves itself.

So, according to the logic of the court, if I rob a bank and then offer to return the money when the cops show up my case is moot?

    David Jay in reply to MarkS. | May 5, 2020 at 9:01 am

    Only if the State passes a new law saying that you can’t rob another bank. /s

    fscarn in reply to MarkS. | May 5, 2020 at 9:13 am

    Not quite. The point which the author is making is that a solid, no-corners-cut ruling, where strict scrutiny must be used for all 2A cases, is in the long run the best kind of ruling to have.

    Because of the cheap tacit employed by NYC to moot the case, the NY Rifle case was no longer a perfect case within the meaning of the Constitution’s Article III, section 2.

    Milhouse in reply to MarkS. | May 5, 2020 at 9:31 pm

    You still committed the crime. Giving the money back doesn’t retroactively undo the crime.

    Passing an unconstitutional law is not a crime, and in any case the city wasn’t charged with it, and couldn’t be. The only question before the court was whether this purported law was or was not valid, and thus whether it could or could not be enforced. Obviously the answer is that it was not a law, and could not be enforced. But now that the law no longer exists there was no question for the court to answer.

    And a court cannot give an opinion when there is no case before it. That is fundamental. Advisory opinions are strictly unconstitutional.

      bhwms in reply to Milhouse. | May 6, 2020 at 9:40 am

      Isn’t there some dictum of law where trying to render the case moot by doing what NYC did does not change the validity of the suit, because they could just change it again? Isn’t that what NYS Rifle & Pistol tried to argue?

      I missed the details and outcome of that aspect.

        Milhouse in reply to bhwms. | May 6, 2020 at 11:13 am

        No, there is no such doctrine. (I assume that’s what you meant to write.) Rendering a case moot is a perfectly valid tactic, and it’s used regularly.

    Milhouse in reply to MarkS. | May 5, 2020 at 9:35 pm

    If the plaintiffs had thought to ask for damages for the loss of their rights, the case would still have been live, and the court could have ruled on it. But they neglected to do that; they should ask their lawyers why.

“New York City’s law clearly violated the Second Amendment”

This would mean a group of NYC lawmakers and others either deliberately violated their Oath of Office or are ignorant about what the Second Amendment clearly states, correct? If they are ignorant, checks/balances demands the City Attorney step in, educate and advocate for the Constitution, not for the legislative/executive branch of the government’s political agenda.

What happens when a patrol officer deliberately violates his/her Oath and tramples on someone’s Constitutional Right/s? What happens to DA’s who do the same? Public Defenders and defense attorneys and judges likewise are bound to follow the Constitution. If they don’t there are repercussions. But throw the title “legislator,” “governor” or “attorney general” in front of some schmucks name and the Constitution be damned?

Getting pretty sick of it, to be honest.

    Milhouse in reply to CKYoung. | May 5, 2020 at 9:58 pm

    Several answers are needed here, because there are several basic errors.

    1. There is no such crime as “violating one’s oath”. Nobody can ever be charged with such a thing. When a policeman knowingly violates someone’s constitutional rights he can be charged with a crime, and also sued by the victim, only because after the Civil War Congress made a law making it a crime and allowing such suits. Before then a policeman who falsely arrested you could be charged with kidnapping, just like anyone else who did so, but there was no such crime as “violating rights under color of law”. It did not exist. Congress has still not made any law against “violating an oath of office”, so there is still no such crime.

    2. DAs, when doing their job, have absolute immunity and cannot ever be charged or sued for a prosecutorial action even if they knew it was unlawful.

    3. There is no requirement that a city even have an attorney, and certainly there is no requirement that legislators educate themselves. No court can ever instruct a legislature to learn the law, or to hire an attorney to teach its members the law.

    4. The judicial branch has no authority over the legislative branch whatsoever; it cannot order the legislature to make a law, or enjoin it from making one, and it certainly can’t punish legislators for anything they do in their capacity as legislators. On the federal level that’s in the constitution.

    5. When a court strikes down a law it is not telling the legislature anything. It is simply saying “as far as we’re concerned this is not a law, and if someone comes before us charged with breaking it we will not entertain those charges”. That’s all. The legislature is entitled to its own opinion, and is entitled to pass any laws it thinks constitutional, even if the courts disagree; it’s just that those laws can’t be enforced, because the only way to do so is in the courts, and the courts won’t do it.

      bhwms in reply to Milhouse. | May 6, 2020 at 9:55 am

      Not that there aren’t rogue judges & justices who try to exercise legislative powers.. (Missouri v Jenkins for example, and yes, I get that the Judge was led by the 8th circuit and conflicting SCOTUS opinions. Still…)

      But just about everything Milhouse has posted here is factually accurate. We have our differences of opinion, but why the downvotes on facts?

You go out hunting and in front of you there is a 12 point buck oblivious to your presence. Next to the buck there is a quail.
You shoot the quail and go home claiming “A victory is a victory.”
No, it is not.

Hearing the NYC case would not have prevented SCOTUS from reviewing other 2nd Amendment cases. A win with the instant case may not have been comprehensive, but it would have made it clear that certain types of restrictions on firearms ownership are not permitted. Then the court could have moved on to more substantive issues concerning the same right by hearing additional cases.

If it’s true that the court will have a 5-4 balance in favor of the 2nd Amendment cases on future firearms cases, that means it would have had a similar balance on the NYC case. An advantage squandered, in this instance.

The “legitimacy” argument fails because it would apply to any other critical case heard by the court, so it’s a non-starter. The court can’t allow how the opposition will spin the situation to prevent it from hearing critical cases.

American Human | May 5, 2020 at 12:01 pm

It is sad, though, that there should be so much confusion here, after 200+ years, on the meaning of the 2nd Amendment. Is there as much confusion about the others?
In order to make points everyone needs to couch their opinions in the past and shroud them in Latin phrases.
So much for the plain language meaning of a simple phrase written in English 230 years ago.
Courts and judges have, for decades, interpreted the plain language of laws so that they mean something completely different than what the writers intended.

The Court has been dodging the 800# gorilla in the 2nd Amendment room forever. The 2nd Amendment is quite possibly the most clearly written part of the US Constitution. It clearly states that the government(s) may not infringe [regulate] on the right of the people to keep [own] and bear [manually possess] arms [including but not limited to firearms and their components]. Therefor, a strict interpretation of this amendment would make ANY law, which restricts the possession of a firearm unconstitutional. Since the 1930s, the SCOTUS has been unconstitutionally rewriting the 2nd Amendment to include a variety of exceptions which do not appear anywhere in the amendment nor are inferred anywhere in the Constitution. If the People want to amend the amendment to include exceptions to the prohibition in the 2nd Amendment, there is a mechanism in place to do that. It is NOT the job of the courts to rewrite the Constitution.

The Court should have addressed the years of Constitutional violation in this case, rather than duck the issue once again. The resulting decision should have been a total no-brainer. If any justice voted against ruling the NYC actions to be unconstitutional, they should be impeached for misfeasance.

    Barry in reply to Mac45. | May 5, 2020 at 8:47 pm

    Exactly.

    Trying to pretend this case wasn’t “clean enough” is just silly. As stated, nothing prevents the court from taking further cases.

    What the court did, was to allow states to create unconstitutional laws, that last for years (6 in this case), and then when coming before the court, strike them down and pass some new 2nd amendment restrictions that are unconstitutional for another period of years.

The *millisecond* after we get a Dem supreme court, NY State will toss that restriction and put this exact same law back into place.

The Supreme Count is not the final word on what is or is not constitutional in the US. They are the head of only one of three branches of the federal government. The Constitution is the final word set up by the people for the federal government as a whole. When the people determine that the government is not serving their interests, they are empowered to remove or change it. “A well-regulated [self-regulated, with elected officers] militia, being necessary to the security of a free state” means that it is the militia, the armed people, that are the final word. Not an opinion agreed to by one of the three branches of our creation and hireling government. So, if the militia decides that, e.g., the State of Virginia, is violating our rights, it is up to us to correct the situation by force of arms, if necessary. The matter, once the militia has decided, is not justiciable.

    Milhouse in reply to ray. | May 5, 2020 at 10:12 pm

    That is nonsense. Insurrection and sedition are crimes, and nothing in the constitution authorizes them. The second amendment does not authorize insurrection, it merely preserves the possibility of it happening anyway, by forbidding the federal government from taking the most obvious measure to prevent it. It can still arrest people for it, and throw them in prison or execute them for it, and it can even disarm them once they’ve attempted it; it just can’t disarm people in advance just because it’s afraid they may commit it.

    So long as the USA and its courts continue to exist, a militia that “corrects the situation by force of arms” will be convicted in those courts and will end up in prison or on the gallows. The only way the militia could avoid that is by successfully overthrowing the entire USA and abolishing its courts, and establishing their own. What they did would still be against US law, it just wouldn’t matter any more because there’d be no USA to care, exactly as if China were to conquer the USA and impose its own laws.

      bhwms in reply to Milhouse. | May 6, 2020 at 10:47 am

      You were fine up until China. A leftist revolution would be crushed quickly by armed Americans.
      The reality in this fantasy is that the only way an insurrection would work and be successful would be if enough people thought the government had become destructive to the ends of preserving individual liberty to the point where they won’t stand for it anymore. The intent at the end would have to be to restore the Constitutional balance, before the country slides into oblivion like the French Revolution and many others throughout history. Hypothetically.

      The reality in the reality is that I don’t think Americans today have the fortitude and education to be able to pull it off. The leftists have successfully taken over education (unConstitutionally), parents have ceded the education of their kids to the state, and the state removed Civics, Economics, and other important subjects from the curriculum. In many places, the important stuff has been replaced by what amounts to SJW training. (“Mmm Mmm Mmm. Barack Hussein Obama. He said that all must lend a hand, To make this country strong again, Mmm, mmm, mm!”) They don’t know their heritage, and they don’t know what they’ve lost – so why would they fight for it? Those that are willing to fight are a small minority.

Cody suggests that if the Court takes a case in part to establish and uphold the principle that late evasions cannot moot important issues that have been brought before the Court, that weakens the ruling in the case on grounds that it is still kinda moot. Sorry but that is beyond asinine.

    Milhouse in reply to AlecRawls. | May 5, 2020 at 10:14 pm

    No, it’s correct, because such a decision would be invalid. A court cannot decide a moot case. It has no such authority. Any decision it purports to issue is not a judicial decision, just as an unconstitutional law is not a law. Thus lower courts would feel free to ignore it.

      AlecRawls in reply to Milhouse. | May 5, 2020 at 10:24 pm

      “such a decision would be invalid.”

      SCOTUS says what is valid. It is the SUPREME Court, and no the lower courts cannot ignore its rulings.

      Milhouse in reply to Milhouse. | May 5, 2020 at 10:35 pm

      Only when they are rulings. Advisory opinions are not judicial rulings, and the lower courts are free to ignore them.

Gringosuave | May 5, 2020 at 6:43 pm

It is beyond foolish to think this is a win. The amount of time and money spent by gun-rights activists have now been squandered as we need to challenge the premises permit from square one in the second circuit. The premises permit still exists, citizens are still heavily regulated on their travel with guns, according to the law they can in fact be arrested for making short stops on their trips. The permit itself still costs hundreds of dollars and take months to be issued. The case sets a dangerous precedent for evasion review not just for gun-rights cases but for other violations as well. Municipalities and states have been shown exactly what to do to evade review for invalid laws that they will obviously put back in place when the high court becomes friendly once again. Sheldon Whitehouse and his band of subversives have now been vindicated for making open threats and successfully intimidating the chief justice and Kavanaugh. I guess Capable Of Repetition, Yet Evading Review is only reserved for first-class rights like abortion, and not for bastard rights like guns. We should stop sugar coating this, it is a loss. The only thing NYSRPA proves is that gun rights are disfavored in the courts.

    Milhouse in reply to Gringosuave. | May 5, 2020 at 10:29 pm

    Capable of repetition yet evading review means the law still exists but the plaintiffs are no longer breaking it, and by it nature nobody would ever be breaking it long enough for the courts to review it.

    Let’s be clear: the issue before the court was not whether they city could make such a law, but whether it could enforce it. Not court can tell a legislature what laws it may make; it can only tell an executive what laws it may enforce. So long as the law still existed the plaintiffs had a case, because its existence deterred them from exercising their constitutional rights. Now that it no longer exists it can’t do that, so there’s no case.

    What you’re asking is for courts to entertain cases just on the off chance that a legislature might take it into its head to make an unconstitutional law. You’re asking for me to be able to sue the state because I’m afraid it will one day pass a law banning circumcision, and I want the court to head that possibility off at the pass. And that’s the very definition of an advisory opinion.

    I understand and share the frustration that the city could so easily slip out of it. But that’s how the law has to be. What I don’t understand is why the plaintiffs didn’t ask for damages; because it seems to me that if they had then the court would still have something to decide.

      Gringosuave in reply to Milhouse. | May 5, 2020 at 11:55 pm

      That is false. Capable of Repetition, Yet Evading Review need only for the plaintiffs to reasonably expect to be subjected to the regulation again. New York State and New York City are the same den of vipers and were able to coordinate delays in the process in order for New York State to wag it’s finger at New York City to say not to do that again. When Democrats have a friendly court composition the law will return and return in a rapid fashion. This also falls cleanly into voluntary cessation. What we’re asking is for courts to entertain the constitution because we know these laws serve no purpose other than to discourage gun ownership while having zero public safety benefit. What the court has done here is make a mockery of the litigation process for political purposes. They’ve justified every single shameful action by the gun control lobby and left Heller/McDonald to the dustbin of jurisprudence. Roberts and Kavanaugh should be ashamed of what they’ve done.

        Milhouse in reply to Gringosuave. | May 6, 2020 at 12:28 am

        Sorry, you’re just wrong. Plaintiffs cannot reasonably expect to be subjected to legislation that does not currently exist — how much more so to legislation which under current state law can’t exist. If a court anticipating the possibility of future legislation is not an advisory opinion, pray tell me what is!

        “Capable of Repetition, Yet Evading Review” means under current legislation. It covers only situations where under the law as it stands people situated similarly to the plaintiffs are constantly finding themselves in the same situation in which the plaintiff was when she initiated legal action, and yet those situations are by their nature so fleeting that they’re unlikely to last long enough for judicial review.

        In the original case for which this doctrine was first enunciated, the government was regularly issuing temporary but illegal orders. By the time any case could come up for judicial review that specific order would have expired, but many other such orders would still be in effect. Had the law authorizing such orders been repealed, the case would have been dismissed.

        Ditto for Roe v Wade. Had Texas repealed its law the case would have been dismissed as moot.

    Milhouse in reply to Gringosuave. | May 5, 2020 at 10:35 pm

    PS There is no question that had Texas repealed the law against abortion, Roe v Wade would have been dismissed. The facts that other states had similar laws, and that Texas could have made another such law, would not have saved it. It was only not moot because the law was still in force, and still being enforced against other people, so the basic question before the court still needed an answer.

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