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.
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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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