4 key exchanges as U.S. Supreme Court hears NYC handgun case

By Elizabeth Slattery | The Daily Signal

The Supreme Court heard oral argument Monday in the first major case involving gun rights in nearly a decade. A local shooting club is challenging New York City’s handgun regulations, perhaps the most restrictive and draconian in the nation.

New York’s regulations banned residents from taking their lawfully owned and registered handguns anywhere outside their homes except to one of seven gun ranges within city limits. The city prohibited residents from transporting their handguns to ranges outside the city or to any other location, including a resident’s second home.

The Supreme Court agreed to hear this case in January and added it to the 2019-2020 calendar that began in October. In the intervening months, the city revised its regulations, allowing gun owners to transport their handguns to ranges outside the city as well as to second homes.

Supreme Court of the United States

Based on their questions (which do not always reflect how a justice ultimately will vote), Gorsuch and Alito think the court should reach the merits, while Ginsburg, Sotomayor, and Breyer think the case is moot.

This course change came after six years in which the city defended its prior regime as constitutional. The city then suggested the justices dismiss the case as “moot,” but the Supreme Court proceeded with oral argument.

It was a packed house as gun control advocates protested on the plaza outside the court. Inside, former U.S. Solicitor General Paul Clement argued on behalf of the shooting club and shared time with Jeffrey Wall, the second-highest lawyer in the Solicitor General’s Office. Richard Dearing, a lawyer with New York City’s legal department, defended the regulations.

Although some justices peppered the three lawyers with questions, Justices Clarence Thomas and Brett Kavanaugh remained silent. Chief Justice John Roberts asked New York’s lawyer questions only about the issue of mootness.

Here are four key exchanges from the argument in New York State Rifle & Pistol Association v. City of New York:

1. Is This a Live Case or Controversy?

The Constitution limits judicial review to live “cases” or “controversies,” which means judges may not issue “advisory opinions” on hypothetical matters. In order for a case or controversy to be “live,” a court must be able to grant some relief to the complaining party.

Justices Ruth Bader Ginsburg and Sonia Sotomayor seized on this immediately. New York argues that it has given the shooting club members everything they want, leading Ginsburg to ask: “What’s left of this case?”

Sotomayor asserted, “You are asking us to take a case where the other side has thrown in the towel.”

But as Roberts wrote in a 2007 opinion, under the doctrine of voluntary cessation a defendant does not “moot” a case by willingly stopping the action that gave rise to litigation unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Otherwise, the government could change its laws or regulations at the 11th hour and prevent the Supreme Court from ruling. Justice Neil Gorsuch called the city to task, saying it took “herculean, late-breaking efforts to moot” the case.

On behalf of the shooting club members, Clement explained that they seek a declaration that the transportation ban is and was unconstitutional, to prevent the city from reversing course in the future.

Clement pointed out that the new regulations (which require “continuous and uninterrupted transport”) also pose issues—would members violate the new regulations if they stopped at a coffee shop or rest stop on the way to a shooting range outside the city? For this reason, he argued, the case is not moot.

2. What Happens If the Case Is Moot?

If a majority of justices is persuaded that the case is moot, several other Second Amendment cases are waiting in the wings. The justices could agree to take up another case and hear oral argument in the spring.

A quick search of the Supreme Court’s docket, for example, turned up Worman v. Healey, challenging Massachusetts’ ban on firearms and magazines that are commonly used in more than 40 states; Mance v. Barr, challenging the federal law criminalizing interstate handgun sales; and Rogers v. Grewal and Gould v. Morgan, challenging Massachusetts’ and New Jersey’s requirements that concealed-carry permit applicants show a “good reason” or “justifiable need” (aside from self-defense) for carrying a handgun outside the home.

Undoubtedly, scores of other cases are winding through the district and appeals courts across the country.

3. Does NYC’s Law Advance Public Safety?

Ginsburg balked at the city’s suggestion that under the prior regulations, residents with a second home should simply buy a second gun and leave it unattended.

“What public safety or any other reasonable end is served by [having one gun] in a place that is often unoccupied and … more vulnerable to theft?” she asked.

On behalf of the city, Dearing struggled to find an answer, noting that historically there have been “incidental burdens” similar to this.

Justice Stephen Breyer asked whether the change in regulation had affected public safety (the city’s rationale for its original regime). Dearing answered that the police commissioner determined that the ban on transporting handguns “could be repealed without a negative impact on public safety.”

Justice Samuel Alito followed up: “So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?”

Dearing again appealed to history, saying that the focus should be on “how the restriction accords with history under the Second Amendment.”

This led to a discussion of the heart of the case—whether the Second Amendment protects a right that extends beyond the home.

4. How Far Does the Second Amendment Extend?

When it decided landmark Second Amendment cases in 2008 and 2010, the Supreme Court left for another day the issue of whether the right extends beyond the home.

Alito asked Dearing, the city’s lawyer, whether he concedes that the Constitution protects “possession of a firearm outside the home under at least some circumstances.”

Dearing replied: “The Second Amendment has something to say about what effective possession in the home means. And sometimes that may mean that you need to be able to … undertake certain activities outside the home.”

That basically gives the case away, if the justices reach the merits.

But after an hour of argument, it’s unclear whether a majority of the justices thinks the case is moot. Based on their questions (which do not always reflect how a justice ultimately will vote), Gorsuch and Alito think the court should reach the merits, while Ginsburg, Sotomayor, and Breyer think the case is moot.

Preferring to play it close to the vest, Roberts asked only a few questions.

Whether or not the justices end up ruling on the merits, it likely is only a matter of time before the Supreme Court takes up another gun rights case.

The lower courts could use guidance from the Supreme Court about the scope of the Second Amendment—including what standard of review courts should use to judge restrictions on gun rights; what types of firearms, ammunition, and magazines states may prohibit; and whether states may require concealed-carry permit applicants to show a “good cause” before obtaining a permit.

In any event, this Supreme Court term is not short on blockbusters. Other cases involve abortion, the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program, and whether federal law prohibiting sex discrimination covers claims of discrimination based on sexual orientation and gender identity.

Like those cases, the Supreme Court’s ruling in the New York handgun case likely will come by the end of June.

Images courtesy of U.S. Marshals Office of Public Affairs and Supreme Court of the United States

3 thoughts on “4 key exchanges as U.S. Supreme Court hears NYC handgun case

  1. Unfortunately, this is more than just NYC, as NY State in general closely mirrors these restrictive regulations on transporting firearms. Even though under federal law there is a clause that provides safe passage by out of state gun owners to be able to transport a handgun through a “state” if the firearm is secured, out of access to the transporter and is separated from ammunition. The “passage” must be continuous without interruption, state line to state line (no stops, no overnight lodging, etc.). NY State prohibits and refuses to recognize that caveat in the federal law. If you are caught with a handgun in your vehicle, locked up or not, you are facing a felony charge and jail time. Other states also, i.e. MA, NJ, etc., also do not recognize the safe passage provision. The sad point is in this case, specific to NYC, is that these permittees have endured a draconian background check, had to justify why they need a gun, experienced long wait times and expended unreasonable permit costs to “possibly” be granted a handgun permit and then be restricted on what you can do with that gun.

    Residents of NY who have handgun permits outside of NYC cannot carry a handgun into the boroughs. To get a handgun permit in NYC takes about 12 months and up to $1200. Getting a NYC permit is iffy at best. If successful, you must purchase the firearm (at an inflated price) from one of the “several dealers” within city limits. Once you get your approval, you can take possession of your gun and then immediately transport it directly to the police department from the dealer where it is photographed (along with you) and serial number recorded. You now receive your permit and then can transport the firearm directly to your home with no stops.

    NYC and NY at large have refused to acknowledge SCOTUS’ McDonald and Heller judgements and have continuously and rigidly restricted lawful gun ownership in their state.

    Now, with their fingers about to be slammed in the door, they play the “moot” card that the suit is now meaningless and should be dismissed.

    This case needs to be heard as it affects a number of other states and municipalities across the country. Beyond that, if it is not heard, you can bet that NYC will put similar restrictions back in place under the premise that before it could ever get back to the SCOTUS it could be years, maybe decades or even that the court make-up might be more liberal and that a new President might be a supporter of restrictive gun laws.

    What gets forgotten is that the “perceived”, more liberal gun laws in Vermont, New Hampshire and Maine have historically resulted in dramatically lower crime rates, approximately 3.5x lower, than those in states like NY, MA, NJ, etc. So what is the reason for such draconian gun restrictions in NYC that aren’t working? Answer: PEOPLE CONTROL BY BUREAUCRATS! They know better than any individual. It is the old, “we are here to protect you from yourself”.

    That is how all liberals think!

  2. Hopefully, the SCOTUS reads thru this Schrade from rabid anti-gun NY City and the
    remaining parts of the state prevail !!

    So NYC will let non-citizens ” Illegals ” drive roam around the streets with “NO ” ramifications,
    but law-abiding citizens are being banned from there constitutional rights, .Liberals in Charge.

    Just think about it, Micheal ” No Gun ” Bloomberg, wants to be President !!

  3. These were a few of the highlights from my reading of the oral argument yesterday.

    The highlight of the arguments on the merits was a spectacular trap that Justice Alito sprang on the attorney for the City. Questioning him on NYC’s change of its laws, he asked, “Are people in New York less safe now as a result of the new city and state laws than they were before?”

    Clearly surprised at this seemingly out-of-the-blue question, counsel responded that they were not less safe. Alito then pressed him to concede that there was thus no actual basis for the City to claim that the transportation ban was essential to public safety.

    Counsel attempted to tap dance away from that, claiming the restriction accorded with the history of acceptable regulations under the Second Amendment.
    I expected him to respond “yes” and then just take the heat. Instead, he admitted that such a complete ban would violate the Second Amendment.

    Justice Alito then pounced: “If that’s what it means, you’re conceding that the Second Amendment protects the possession of a firearm outside the home under at least some circumstances?” Counsel again tried to tap dance away, but again conceded that was a “fair way to look at it.“

    So much for the City’s argument that Heller applies only to possession inside the home.
    According to the wording of the 2 nd. amendment any and all gun control law is un Constitutional,in fact “Shall Not Be Infringed” is the prohibition from government from any of the laws thus far.

    In my read of the arguments,nothing has changed, and things are as they have been. There is a wing of the Court (Ginsburg, Breyer, Kagen, Sotomayor) that is adamantly anti-2A and would gladly reverse Heller if they had the chance. There are four votes (Thomas, Alito, Gorsuch,Kavanaugh) with C. J. Roberts being the 64,000 dollar question,as he has in the past proven to be the weak link to a originalist court and restoring the 2 nd.amendment to a first class right along with the rest.

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