All For Naught? Supreme Court Indicates Gun Case May Be Moot

Dec 3, 2019
Originally published on December 3, 2019 7:10 pm

For the first time in 10 years, the U.S. Supreme Court has heard a major gun-rights case. But the drumroll of anticipation seemed to fade, as the debate in the high court Monday focused almost exclusively on whether the case should be dismissed as moot.

At issue was a New York law that allowed New York City residents to have a permit for a gun at home but barred them from transporting the gun elsewhere except to seven New York City shooting ranges. Three handgun owners who had such "premises licenses" challenged the law as a violation of their Second Amendment right to bear arms because they could not transport their guns to shooting ranges and competitions outside the city or to second homes.

"So what's left of this case?"

The problem for those gun owners was that New York state and New York City abandoned the challenged law this year after the Supreme Court said it would review it.

"New York City and New York state actually gave them everything that they had asked for before this argument," said New York City corporation counsel James Johnson after the argument. "That was made very plain in this argument today."

Indeed, it was, and the court's liberals drove home the point.

Justice Ruth Bader Ginsburg pointedly asked: "So what's left of this case?"

Justice Sonia Sotomayor piled on: You're asking [the court] to decide a case "in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint."

Can you transport a gun and stop for coffee?

But lawyer Paul Clement, representing the gun owners, fought back. He argued that the new regulations for New York City still permit only "continuous and uninterrupted" gun transport within the city. That, he suggested, might put in doubt a stop for coffee or a bathroom break.

Justice Stephen Breyer didn't take that argument seriously, saying he doubted that any police officer would arrest someone for stopping for coffee.

Representing the Trump administration, Deputy Solicitor General Jeffrey Wall tried to argue that the case is still alive because the plaintiffs could be awarded damages.

Ginsburg came to bat again, pointing out that the gun owners never asked for damages. Has "the solicitor general ever asked this court to allow such a late interjection of a damages" claim to save a case from being thrown out as moot? she asked.

Wall conceded he knew of no such case.

That is the "democratic process"

Next up to the lectern was Richard Dearing, who serves as deputy counsel for the city of New York. He emphasized that this lawsuit challenged a premises license, not a carry license. A premises license, he noted, is granted for the home only, though it must allow certain limited transport of the licensed handgun.

Dearing said that the plaintiffs asked only for specified additional transport of these guns and that the city in the end gave the handgun owners everything they had asked for.

That the city changed its laws, he suggested, "is a good thing, not a bad one. The government should respond to litigation, should assess its laws ... when they are challenged." That, he said, is the "democratic process."

"So then why is this case moot?"

But suppose that, in addition to stopping for a cup of coffee, the gun owner stops to visit his mother for a couple of hours, posited Justice Samuel Alito. "Would there be any law that would violated?"

Dearing replied that those kinds of questions were never at issue when the old law was challenged.

"So then why is this case moot?" wondered Alito. "Because [the plaintiffs] didn't get all that they wanted," he insisted. "They wanted a declaration that the old law was unconstitutional, period."

Dearing replied that the plaintiffs framed the case they brought; they asked for a court order that allowed them to transport handguns to shooting ranges outside the city and to homes outside the city. And they got what they asked for.

With Alito and Justice Neil Gorsuch overtly seeking to blunt the city's mootness argument, at the end of the day the question was where the rest of the court stood.

Justice Clarence Thomas, a forceful advocate for gun rights, asked no questions, as usual.

Justice Brett Kavanaugh has a far more gun-friendly record than the justice he replaced last year, Justice Anthony Kennedy. But Kavanaugh, too, asked no questions.

New York City is committed to "closing the book" on its old law

Chief Justice John Roberts asked just a few questions, and only of the city of New York's lawyer. He wanted to know if the city could deny a premises gun license to the plaintiffs in this case because they had admitted to previously violating the law.

"Is the city committed to closing the book on that old rule?" asked Roberts.

Yes, replied lawyer Dearing, noting that the plaintiffs have already had their licenses renewed twice since challenging the old New York law.

Only once on Monday did any justice directly address the question posed by the original New York case: whether the city's justification for its regulations were constitutional. Alito asked, "Are the people of New York City and state less safe now" under the new law than they were under the previous law that was challenged?

"No, I don't think so," replied Dearing. "We made a judgment, expressed by our police commissioner, that it was consistent with public safety to repeal the prior rule."

Alito pounced. "So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?"

Dearing replied that the new regulations — allowing for more transport of premises licensed guns — will make enforcement more difficult. But he said it is still doable.

That hardly appeased Alito, but organizations advocating stricter gun laws were breathing easier. Their relief may be only temporary.

With Kavanaugh replacing the more moderate Kennedy, there now seems to be a conservative majority on the court — justices who will in the future treat gun regulations with far more suspicion than in the past. And even if that day does not come this term, more test cases are waiting in the wings.

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