The Supreme Court’s Second Amendment Revolution May Have to Wait

But they’re poised to strike when the right case comes along.

Gun safety advocates rally in front of the U.S. Supreme Court on Monday in Washington.
Gun safety advocates rally in front of the U.S. Supreme Court on Monday in Washington. Drew Angerer/Getty Images

All the pieces are in place for the Supreme Court to dismantle what’s left of gun control in America. Justice Anthony Kennedy, a Second Amendment moderate, stepped down, and was replaced by Justice Brett Kavanaugh, a pro-gun extremist. Donald Trump has filled the lower courts with judges who oppose any limits on firearm access. The judicial assault on gun safety laws can begin in earnest as soon as the Supreme Court issues an opinion broadening the scope of the constitutional right to bear arms. And on Monday, the court heard arguments in a case that could spark this revolution, giving judges leeway to strike down any gun restrictions they dislike.

There is only one problem: The case, New York State Rifle & Pistol Association v. City of New York, revolves around a New York City law that no longer exists. After the Supreme Court agreed to hear the case, New York City repealed the law. Not only has the city repealed the law, but New York state has since forbidden the city from ever reviving it. Moreover, the city has sworn never to take any adverse action against individuals who violated the old law. Up to that point, the city had successfully defended the law in court. But lawmakers threw in the towel as soon as SCOTUS granted review, fearing a crushing loss that would curb every other state’s ability to regulate firearms. The question for the Supreme Court, then, is whether the justices are so eager to turbocharge the Second Amendment that they will bring a dead law back to life—just to drive a stake through its heart once more.

That law, one of the strictest in the country, was designed to curtail the transportation of guns outside the home. The state currently bars public carry unless individuals can demonstrate “a special need for self-protection,” and the courts have upheld that rule. New York City, however, found that residents evaded this rule by claiming they were traveling to a shooting range when caught with guns in public. The city responded by requiring gun owners to use one of seven shooting ranges within the city’s five boroughs. Residents could not take their firearms to a shooting range, competition, or second home beyond city limits. Three New Yorkers, along with an NRA affiliate, challenged that rule as an unconstitutional constraint on the right to bear arms.

In 2008’s D.C. v. Heller, the Supreme Court declared, for the first time ever, that the Second Amendment protects an individual’s right to gun ownership; in 2010’s McDonald v. Chicago, the court applied that right against state and local governments. But then the court went quiet on gun rights: It has not heard arguments in a single Second Amendment case since McDonald. That silence frustrated gun advocates because Heller and McDonald explicitly protect only the right to bear arms “in the home.” Relying upon this language, most courts have upheld bans on public carry, enraging the NRA and its allies, as well as Justices Clarence Thomas and Neil Gorsuch.

New York State Rifle & Pistol Association was expected to be the Supreme Court’s first step toward establishing a constitutional right to carry a gun in public. It would allow the court to take the right to bear arms out of the home and into the streets, laying the groundwork for a more expansive decision down the road.

There is no real doubt that if the Supreme Court gets to the merits of this case, it will strike down the law. As an appeals court judge, Kavanaugh argued that the Second Amendment is so capacious that it even protects assault weapons; he obviously lacks Kennedy’s support for reasonable gun safety laws. But it’s unclear whether there is still any law to strike down. The Constitution allows SCOTUS to decide only live disputes; if the dispute disappears, the case is considered “moot” and must be dismissed.

New York City believes the case is, indeed, moot, because it voluntarily repealed the challenged law. The plaintiffs, along with the U.S. Department of Justice, argue that the case isn’t moot for reasons that are not very persuasive. Basically, the plaintiffs and the DOJ want a court order permanently forbidding the city from enforcing any component of the law ever again. Their demand raises an almost existential quandary: Can a court forbid the government from enforcing a law that has already been wiped off the books?

Justice Ruth Bader Ginsburg made this point to Paul Clement, who represented the plaintiffs, at the start of oral arguments. New York state, she noted, has said: “ ‘City, thou shalt not enforce the regulations.’ So what’s left of this case?” Clement insisted that the city could still revive the law or punish those who violated it before its repeal. But as Justice Sonia Sotomayor reminded Clement, “The city has forsworn any future prosecution for past violations.” Clement responded that the new regulations require “continuous and uninterrupted transport” to a second location, and that the city might still prosecute individuals who ran afoul of this rule—by, for instance, stopping for coffee. Thus, the court has a duty to issue a decision clarifying that New York City gun owners may, indeed, stop for coffee while transporting their guns.

Jeffrey Wall, the principal deputy solicitor general, promptly threw Clement under the bus. Pressed by Justice Elena Kagan, Wall rejected Clement’s claim that the “continuous and uninterrupted transport” rule kept the case alive. “In our view,” Wall told Kagan, “that’s a new controversy that arises from the new law, not the old controversy in the old law.” In other words, if the plaintiffs are concerned about the new law, they must contest it in a new lawsuit. They can’t use discontent with the new law to resuscitate their challenge to the old one.

Chief Justice John Roberts tried another angle when Richard Dearing, who represented the city, approached the lectern. He asked whether there is “any way in which any violation” of the old law “could prejudice a gun owner” today. Sure, the city won’t prosecute violators of that law. But might it restrict gun access for these violators instead? “It will not,” Dearing responded. “It absolutely will not.” Gorsuch asked Dearing to make that promise as “the city’s representative,” which he did, announcing: “I’m making that representation to this court on the record on behalf of the City of New York.” Kagan asked if he would communicate that promise to the office that licenses handguns. “Absolutely,” Dearing said. “We will communicate to them that no such consequences are to be imposed.”

In the face of this categorical guarantee, how could this case not be moot? Not a single person will be affected in any way by the old law. That is all the plaintiffs asked for—they didn’t demand damages, just a court order holding the law unenforceable. Gorsuch, along with Justice Samuel Alito, struggled mightily to avoid this conclusion. (Kavanaugh did not ask a single question.) The plaintiffs “didn’t get all that they wanted,” Alito lectured Dearing. “They wanted a declaration that the old law was unconstitutional, period.” But Alito wasn’t convincing anyone. A “declaration,” Dearing reminded, would be irrelevant when the law is already dead. Courts issue legal judgments, not papal bulls; if there’s no controversy before them, they have no business proclaiming a new constitutional command.

At the end of arguments, Alito tried to challenge Dearing on the merits. “Are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” he asked. When Dearing said no, Alito prodded him: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” But the question itself inadvertently proved why the court must dismiss this case. What justification could there have been? Why does it matter? New York lawmakers decided no justification was sufficiently compelling to keep the law around. The court has no more work to do.

Not so long ago, judicial restraint was a conservative value, and right-leaning judges encouraged the political branches to remedy potential constitutional infringements on their own. Alito appears to have tossed that principle out the window in his quest for a ruling that, at long last, extends the Second Amendment beyond the home. But Roberts may be willing to put off that revolution for the time being, especially since there are plenty of other gun cases working their way toward the court. Gun safety advocates might get a reprieve in New York State Rifle & Pistol Association. But in the process, the Supreme Court’s conservatives could send a clear message to states like New York: When the right case arrives, we are coming for your gun laws.