U.S. Supreme Court may sidestep a big Second Amendment fight 

By: - December 2, 2019 3:48 pm

Demonstrators rally outside the U.S. Supreme Court, which heard arguments in 2019 on a gun rights case out of New York. (Robin Bravender/ States Newsroom Washington Bureau)

WASHINGTON — A high-profile gun rights case argued before the U.S. Supreme Court on Monday might be dismissed with little fanfare.

The justices heard an hour of arguments in the case that challenges now-defunct New York City gun restrictions. The case has been billed as the biggest gun rights lawsuit in a decade, with the potential outcome of broadly knocking down local gun restrictions.

But the case may be tossed out on procedural grounds, allowing the justices to avoid digging into the thornier legal issues over the scope of the Second Amendment. That would mark a victory for gun control advocates wary that the court’s conservative majority could dramatically expand gun rights.

The dispute centers on a New York City regulation banning the transport of licensed, locked and unloaded handguns to a home or shooting range outside city limits. In the face of legal challenges, the city has since changed its regulations to remove the travel restrictions.

Democratic Virginia Attorney General Mark Herring joined other state attorneys general in August, asking the justices to dismiss the case as moot because the restrictions had been rescinded. Several of the justices appeared to agree with that argument.

“You’ve got what you want now,” Justice Sonia Sotomayor told the lawyer representing gun owners in court on Monday. She said the plaintiffs were asking the justices to rule in a case where the other side “has thrown in the towel.”

Justice Ruth Bader Ginsburg also questioned, “What’s left of the case?” now that the regulations have been changed.

Paul Clement, the lawyer representing gun owners challenging the rule, insisted that his clients hadn’t gotten everything they wanted. He expressed concerns that the new rule on the books in New York City remains overly restrictive and doesn’t make it clear that his clients could stop for coffee, for example, while transporting their guns. He also warned that his clients could be held responsible for previous violations of the regulation that’s no longer on the books.

Clement accused New York City of struggling to make the case go away by overhauling its regulations after the Supreme Court agreed to hear it, for fear of losing.

Richard Dearing, the attorney representing New York City, said the change to the policy was an example of government working well by responding to concerns brought up in litigation. He told the justices that coffee stops and bathroom breaks were permissible under the new rules.

Chief Justice John Roberts, who could represent the swing vote on the ideologically divided court, asked whether gun owners’ past violations of the previous regulation could be used against them; Dearing assured him that they would not.

Justice Brett Kavanaugh — a conservative nominated by President Donald Trump to replace the centrist Justice Anthony Kennedy — didn’t ask questions in the gun rights case. His confirmation was seen as a significant shift on the court toward limiting gun regulations.

Other conservative justices didn’t appear likely to want to throw the case out on procedural grounds.

“They didn’t get all that they wanted,” Justice Samuel Alito said of the gun owners in the case. “They wanted a declaration that the old law was unconstitutional, period.”

Justice Neil Gorsuch, another Trump appointee, also pointed to concerns about New York City’s new gun regulations. “Why isn’t there a live controversy remaining?” he asked.

If the court does decide the case on its merits, Herring and the other state attorneys general in their brief urged the Supreme Court to protect states’ “sovereign prerogative to enact and implement legislation that advances their compelling interest in promoting public safety, preventing crime, and reducing the negative effects of firearm violence.”

In August, Virginia Democrats in the U.S. House of Representatives also signed onto a brief urging the court to uphold New York City’s policy and to reject “attempts to ratchet up the scrutiny courts apply to gun safety regulations.” The brief was signed by Virginia Reps. Don McEachin, Gerald Connolly, Jennifer Wexton, Bobby Scott and Don Beyer.

The court will issue an opinion in the case, New York State Rifle & Pistol Association, Inc. v. City of New York, before the term ends next summer.

Gun rights proponents are anxious about this case in part because the court hasn’t taken a Second Amendment case in over a decade, said Timothy Zick, a professor at William and Mary Law School.

The New York case represents a vehicle for getting an answer to the question: “How are lower courts supposed to be deciding gun regulation cases?” Zick said.

The justices’ line of questioning on Monday suggests that at least four justices and maybe more were thinking this may not be the right case to answer that question, he added.

But “even if this case is mooted — and we may not find that out for a while — they’re likely to take another gun case. … There are plenty of cases right behind it in the pipeline.”

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Robin Bravender
Robin Bravender

Robin Bravender was the States Newsroom Washington Bureau Chief from January 2019 until June 2020. She coordinated the network’s national coverage and reported on states’ congressional delegations, federal agencies, the White House and the federal courts. Prior to that, Robin was an editor and reporter at E&E News, a reporter at Politico, and a freelance producer for Reuters TV.