New York City Might Avoid Making Second Amendment History

A man inspects a handgun at the NRA annual meeting in Indianapolis, Ind., April 28, 2019. (Lucas Jackson/Reuters)

We gun nuts have long had our eyes on New York State Rifle & Pistol Association v. New York City, a challenge to one of the Big Apple’s myriad limits on firearm ownership. The Supreme Court heard oral arguments on the case yesterday, and hopes run high for the new conservative majority — but the litigation could still end with a whimper.

Until recently, New Yorkers with “premises” licenses were hardly allowed to leave the house with their guns. They couldn’t even bring their weapons, locked and unloaded, to a second home, or to a shooting range outside the city. That would take a carry license, which is effectively impossible to get in New York without friends in high places.

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The new case challenges those transportation limits, giving the Court a chance to start fleshing out the rules it laid down in Heller and McDonald about a decade ago. These opinions struck down some of the country’s worst gun bans but offered relatively little guidance about what other kinds of gun-control laws were allowed, especially laws regulating gun possession outside the home.

But New York saw the writing on the wall and made a tactical retreat. After the High Court agreed to hear the case, the city gave premises-license holders a somewhat broader ability to travel with their weapons, and the state government passed a law to keep the old policy from coming back. No one thinks these lawmakers have seen the light; they know they will lose before a conservative Court, thus setting a nationwide precedent, and would rather wait to fight the gun issue sometime in the future, with more liberal justices.

The legal aspect of this strategy is that for a court to weigh in on an issue, there has to be a live case or controversy. If the dispute has been settled by other means out of court, it’s “moot.” However, because we don’t want to allow governments to strategically stop and restart their unconstitutional conduct, they have to show they won’t resume their abuses once the case has been disposed of.

That issue took up a lot of time at oral argument. New York City has ended the policy and vows not to punish anyone for previous violations, and, as additional insurance that the abuse won’t continue, the state has banned it too. What’s left to argue?

There are a few ways the Court could decide there’s still a controversy here — those challenging the law could seek damages for past abuses, or the justices could make much of the fact that the new, revised rules don’t make all the concessions that the challengers could plausibly have won in court. But it’s far from clear that all five conservative justices can get behind these rationales, and unlikely any of the liberals would lend a hand.

Josh Blackman predicts the Court will find the matter moot, with at least John Roberts joining the liberals. If he’s right, there are two different ways this could play out. One, the Court could take the time to issue a written decision on the matter, ideally in a way that clarifies mootness doctrine for future cases. Or two, it could dismiss the case as “improvidently granted” and take up a new Second Amendment case almost immediately.

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