Supreme Court Not Impressed by New York City's Attempt to Maybe Moot Case

May 6, 2019


Matthew Hoy

As we reported last month, the City of New York attempted to preempt a Supreme Court decision on its draconian gun control law that prohibits a person with a premises permit from taking their firearm outside the city limits by changing the law. New York City wasn't interested in changing the law when it was upheld by the district court. It wasn't interested in changing the law when it was upheld by the circuit court.

It has only considered changing the law now that the Supreme Court of the United States has agreed to hear the case—and very likely overturn the law and set a standard for review that may make most gun control laws unconstitutional.

So, last week, New York City got its answer to its request to put everything on hold while it attempted to moot the case:

Apr 29 2019 Motion of respondents to hold briefing schedule in abeyance DENIED.

As the NYSRPA's attorneys put it in their court filing opposing the delay:

The mere potential for potentially relevant agency action is hardly cause to put a case on indefinite hold after this Court has granted certiorari. The potential for government action that may strengthen the government’s case or potentially moot the case entirely is inherent in the review of government action. This Court routinely grants certiorari despite the possibility that subsequent government action could move the proverbial goalposts or otherwise shape the issues being reviewed. If this Court routinely stayed the briefing in cases involving potential government action of that nature, it would be difficult for cases involving potentially unlawful government action to be briefed at all.

While they didn't get the case halted on the mere potential that the suit may become moot, New York City is moving forward on changing the rule. A hearing is scheduled for Friday, May 17 at 10 a.m. in the press room of One Police Plaza.

With the case moving ahead, according to the Supreme Court docket for the case, we should get the NYSRPA's brief by end of business tomorrow.

Why it matters

As we mentioned in our story last month on this case, while the main question before the court is rather mundane, what has 2nd Amendment proponents hopeful, and gun control advocates worried, is the Supreme Court setting a new standard of review for gun control laws.

Gun controllers fear "strict scrutiny."

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Strict scrutiny is often used by courts when a plaintiff sues the government for discrimination. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination.

If district and appellate courts are required to apply the strict scrutiny standard, then it is unlikely that a vast majority of gun control laws could withstand it. Almost by definition, gun control laws are not "narrowly tailored," but are instead crafted to deny 2nd Amendment rights en masse and without nuance.

Restricted Arms will continue to follow this case.

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