In the more than 10 years since the Supreme Court ruled that Americans have a fundamental right to keep a handgun for self-defense in the home, countless laws regulating firearms and their use have survived constitutional scrutiny.
Which is to say: The Supreme Court has been in no mood to expand or clarify the meaning of District of Columbia v. Heller, which the justices have interpreted to apply in all 50 states. Nor did the court take on any other Second Amendment cases in the decade after deciding the Heller case. Lower courts have read the Heller opinion as permitting all manner of gun-control measures, including bans on assault rifles and high-capacity magazines.
That disinterest ended in January when a newly reconfigured Supreme Court, rounded out by the addition of Justice Brett Kavanaugh, agreed to hear New York State Rifle & Pistol Association v. City of New York, a quirky case the justices heard on Monday that could soon fizzle out if sanity and common sense prevail.
Justice Kavanaugh, who had made his maximalist views on the Second Amendment more than clear as an appeals judge, had nothing to say during the hourlong hearing. His silence was curious but not surprising. He had been a justice for only a few months when the Supreme Court broke its decade-long reticence on the Second Amendment by agreeing to hear the New York City case. The rookie justice may simply be laying low.
Under the old city rule, gun owners with “premises licenses” could transport a firearm outside their homes, but only to gun ranges in one of the five boroughs. That meant a second home in upstate New York or a gun range across the Hudson River in New Jersey was off limits for a law-abiding gun owner.
The city successfully defended its regulation before a federal judge and an appeals court, which ruled that the requirement didn’t “substantially affect the exercise of core Second Amendment rights” and other constitutional rights, such as the right to travel and the First Amendment right of expressive association.
Despite those victories, city leaders changed course once the Supreme Court decided to give the case a look. The city moved to repeal the challenged regulation, and the state followed suit by passing a law that more or less gave the plaintiffs everything they wanted: The rule would disappear, and gun owners would be allowed to transport their lawful firearms beyond city limits.
“What’s left of this case?” a skeptical Justice Ruth Bader Ginsburg asked on Monday. Justice Sonia Sotomayor said to Paul Clement, who argued on behalf the challengers to the since-scrapped city rule, “What you’re asking us to do, is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.”
Since, under the Constitution, federal courts may hear only actual “cases” and “controversies,” a dispute in which the government gives the suing party what he or she seeks is considered moot. At best, deciding the case would be no more than issuing an advisory opinion, which the Supreme Court frowns on. At worst, addressing the merits would be a judicial power grab.
Neither Mr. Clement nor the Trump administration, which joined the case in May to support the challenger, voiced any qualms about asking the Supreme Court to skirt its own rules and precedents. Jeffrey Wall, a Justice Department lawyer, suggested at oral arguments that the plaintiffs could keep the case alive by amending their lawsuit and adding a request for money damages — something they’ve never asked for in years of litigation.
In a rejoinder, Justice Elena Kagan pointed out that option may be off the table this late in the game. “They’ve had every opportunity to say that they want damages, including today, and for whatever reason, Mr. Clement has, you know, basically said this case is not about damages.”
Judging by their questions, only Justices Samuel Alito and Neil Gorsuch seemed to be itching to intervene. May they remain in the minority. As Richard Dearing, the New York City lawyer who urged the court to let the case die, put it during oral arguments, “It’s a good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process.”
That could be an appealing way out of the case for the justices, who already have their hands full with a docket that includes the fate of Dreamers, abortion regulations, federal protections for gay and transgender workers and, potentially, Donald Trump’s attempts to keep his financial records out of the reach of Congress and prosecutors. Those looming decisions and their repercussions in the political arena will give the voting public plenty to talk about ahead of next year’s presidential election.
More important, New Yorkers have made their voices clear about the gun transportation ban through their elected representatives. The justices would be wise to let them have the last word.