Supreme Court Punts on NYSRPA Gun Case; Schedules Numerous Other Gun Cases for Consideration

Monday morning the Supreme Court released its much anticipated decision in the NYSRPA v. City of New York. In a 6-3 ruling, with the court's liberal wing along with Chief Justice John Roberts and Justice Brett Kavanaugh in the majority, the Court decided that the case had become moot because of legal maneuvers by the city and state governments to change the offending laws they had successfully defended at the district and circuit court levels.

Still issues to decide in NYSRPA case

Dissenting Justices Samuel Alito, Neil Gorsuch and Clarence Thomas disputed the case's mootness and also decried the fact that the Supreme Court was allowing the City and State of New York to play games with citizens' Second Amendment rights with no consequences.

In the District Court and the Court of Appeals, the City vigorously and successfully defended the constitutionality of its ordinance, and the law was upheld based on what we are told is the framework for reviewing Second Amendment claims that has been uniformly adopted by the Courts of Appeals. One might have thought that the City, having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal. [footnotes omitted]

The justices also pointed out that the case was not properly moot because the city's updated law requires the locked-container transport of a firearm to be "directly" between their home and the gun range or competition where the gun is to be used. The practical effect of that word and how it may be defined when district attorneys get their hands on it is unclear. During oral arguments, the lawyer representing the City of New York suggested that stopping for gas, coffee or a bathroom break would be acceptable. But could not identify a boundary line that would result in prosecution.

At argument, counsel told us that the new rule allows “bathroom breaks,” “coffee stops,” and any other “reasonably necessary stops in the course of travel.” Tr. of Oral Arg. 36, 64. But the meaning of a “reasonably necessary” stop is hardly clear. What about a stop to buy groceries just before coming home? Or a stop to pick up a friend who also wants to practice at a range outside the City? Or a quick visit to a sick relative or friend who lives near a range? The City does not know the answer to such questions.

Based on all this, we are left with no clear idea where the City draws the line, and the situation is further complicated by the overlay of State law. The new State law appears to prevent the City from penalizing any “direc[t]” trip to a range or competition outside the City, but the State law does not define that limitation. The petitioners wanted to enter competitions in upstate New York more than a five hour drive from the City. Could they stop along the way? And if so, for how long? The State has not explained its understanding of this limitation, and in any event,  prosecutorial decisions in New York are generally made by the State’s 67 elected district attorneys. See Haggerty v. Himelein, 221 App. Div. 2d 138, 144–145, 644 N. Y. S. 2d 934, 940 (1996). The bottom line is that petitioners, who sought “unrestricted access” to out-of-city ranges and competitions, are still subject to restrictions of undetermined meaning.

Numerous 2nd Amendment Cases that were on hold to be considered Friday

The good news is that many of the Second Amendment cases that had been put on hold in the months since the Court agreed to hear the NYSRPA case have been moved back on the Court's conference schedule for this Friday, April 1.

Those cases had been on hold because some Second Amendment advocates and court watchers (and maybe even some Supreme Court justices) had believed that a decision on the merits of NYSRPA would result in a standard of review for Second Amendment cases that would cause (hopefully) lower courts to have to re-judge many of the cases in favor of a much more expansive reading of Second Amendment rights.

We should know reasonably soon if the Supreme Court is going to clear up much of the conflicting rulings on Second Amendment rights that have pitted various circuit courts against each other. Included in the cases being considered are Worman v. Healy on Massachusetts' "assault weapons" ban, Rogers v. Grewal on New Jersey's "good cause" for issuing carry licenses, and Gould v. Morgan on Massachusetts' "good cause" for carrying a firearm among others.

Choosing any of these cases, or several, could be a positive sign that Justice Kavanaugh's concurrence calling for the Court to clarify it's Second Amendment jurisprudence after a decade of neglect is genuine.

Is Chief Justice John Roberts the new squish?

Based upon recent dissents, appellate history and the like, it is clear that there are four justices (Alito, Kavanaugh, Clarence Thomas and Gorsuch) who are eager to rein in some of the ludicrous lower court rulings that have thumbed their noses at the landmark Heller decision and turned the Second Amendment into, in Justice Thomas' words, "a second-class right."

It's also clear that liberal justices Sonia Sotomayor (who lied at her confirmation hearing when she said the 2nd Amendment conferred an individual right), Stephen Breyer, Ruth Bader Ginsberg and Elena Kagan would vote to turn the Second Amendment into a nullity at the first opportunity. There is little doubt that had a President Hillary Clinton nominated Justice Antonin Scalia's replacement, then it is likely that Heller would've already been overturned.

Which leaves us looking at a 5-4 decision when next the Supreme Court rules on a substantive Second Amendment case with Chief Justice John Roberts as the swing vote. There is a consensus among court watchers that at least part of the reason the Supreme Court was silent on Second Amendment matters for so many years after deciding McDonald v. Chicago in which the Second Amendment was incorporated to bind the states as well as the federal government, was that then-Justice Anthony Kennedy had gone soft when it came to the "bear" portion of the amendment's right to "keep and bear arms."

Today the biggest question mark is Roberts. Roberts has appeared to too often put going along to get along ahead of the clear letter of the law, most famously ruling Obamacare's requirement that you purchase a product (health insurance) from a private company or be fined was a "tax."

In today's ruling, there was the appearance of buckling under to a threat from several Democratic senators who vowed to pack the court if they didn't get a favorable ruling in the NYSRPA case.

The Supreme Court's gun jurisprudence won't be a definitive factor in the 2020 election, since any Supreme Court decision on the subject will not come before 2021. But if gun-rights voters want to be sure of the Second Amendment's continued relevance in the years to come, another four years of President Donald Trump will likely be necessary.