Gun control supporters are desperate — and have already taken drastic steps — to get the Supreme Court to dismiss this case.
Sep 27, 2019, 11:50 AM UTC
Supreme Court Associate Justice Brett M. Kavanaugh waits for the arrival of former US President George H.W. Bush at the Capitol Rotunda on December 3, 2018, in Washington, DC. Jabin Botsford-Pool/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Last January, the Supreme Court announced that it would hear New York State Rifle & Pistol Association Inc. v. City of New York, the first major Second Amendment case to be heard by the Supreme Court in nearly a decade — and also the first since Justice Anthony Kennedy’s retirement shifted the Court dramatically to the right.
The case centers on an unusual — and recently changed — New York City rule that limited where gun owners with a certain kind of permit were allowed to bring their guns.
Gun control advocates, including policymakers in both New York City and the New York state legislature, fear a big loss in the Supreme Court and are desperate to make the case go away. Indeed, New York City changed their gun rules after the Supreme Court announced it would hear the case, and state legislators enacted a new law forbidding the city from bringing back the old rules — all in the hopes of obviating the need for the Court to weigh in. Because the legal controversy between the city and the plaintiffs is now over, the city asked the Court to dismiss this case as moot.
The justices are scheduled to discuss whether to dismiss the case at their October 1 conference.
New York State Rifle, in other words, is of two-fold importance. It is important because the Supreme Court’s current majority is likely to expand the scope of the Second Amendment significantly if they decide the merits of this case. But it is also important because the debate over whether to dismiss this case will offer a window into the psychology of the Court’s Republican majority.
The argument that New York State Rifle must be dismissed as moot is very strong. Should the Supreme Court move forward with the case, it will only add to fears — including fears that were recently raised by Justice Sonia Sotomayor — that the Court is bending the rules in order to achieve conservative outcomes.
A few months before his death this summer, retired Justice John Paul Stevens offered a surprisingly candid window into the Court’s internal deliberations.
In its 2008 decision in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to bear arms. The Court split along familiar ideological lines, with Kennedy joining his fellow conservatives in the 5-4 majority.
Heller, however, was hardly a total victory for advocates of gun rights. Indeed, Justice Antonin Scalia’s majority opinion is riddled with caveats. Heller suggests that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” all remain valid, as are bans on “dangerous and unusual weapons.”
In a November interview with the New York Times’ Adam Liptak, Stevens revealed that Kennedy asked for “some important changes” to Scalia’s original draft of the Heller opinion. At Stevens’s urging, Kennedy requested language stating that Heller “should not be taken to cast doubt” on many existing gun laws. Without Kennedy’s intervention, in other words, Heller may not have included the important language limiting the scope of the Second Amendment.
But Kennedy is gone. And his replacement, Justice Brett Kavanaugh, appears very eager to expand gun rights.
Shorter after Heller was decided, the District of Columbia’s government passed legislation banning semi-automatic “assault weapons” and requiring gun owners to register their firearms. Dick Heller, the lead plaintiff in the Supreme Court’s Heller decision, also led the challenge to this new gun law, and the case — Heller v. District of Columbia — was eventually heard by a panel of three Republican-appointed judges.
Two of those judges largely upheld the law in 2011 (although they called for further proceedings on the registration requirement). The third judge was Brett Kavanaugh, who claimed that “both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.” (This second iteration of the Heller litigation was never heard by the Supreme Court.)
And Kavanaugh’s dissent also went even further than that. The future justice did not simply argue that this specific DC law should be struck down. He also suggested that nearly a decade of Second Amendment jurisprudence should be tossed out.
Heller, as mentioned above, was the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to own firearms. Since Heller, moreover, the Court’s only handed down one significant Second Amendment opinion. And that 2010 opinion, in McDonald v. City of Chicago, merely held that states must comply with the same Second Amendment regime as the federal government.
The Supreme Court’s Second Amendment jurisprudence, in other words, is underdeveloped. In Heller, the majority basically hit a reset button that wiped out the Court’s prior Second Amendment decisions, which held that the “obvious purpose” of this amendment was “the preservation or efficiency of a well regulated militia,” not an individual right to bear arms.
Heller replaced this older framework with an uncertain new framework that emphasized an individual right to self-defense. But the Supreme Court has done little to develop that framework since Heller.
Yet, while the justices have largely avoided big guns cases, the lower courts cannot. And a consensus view emerged among the federal appeals courts regarding how the Second Amendment should be read.
At least 10 such courts apply what United States Court of Appeals for the Fifth Circuit Judge Stephen Higginson describes as a “two-step analytic framework.” Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review that courts typically apply in constitutional cases. “Less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”
Thus, major burdens on gun owners are especially likely to be struck down, while less consequential burdens are more likely to be upheld.
Kavanaugh, for his part, rejects this consensus framework altogether. In his 2011 dissent, he argued that the consensus view should be abandoned for a different test — “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” While it’s unclear how Kavanaugh’s test would apply in every individual case, the fact that Kavanaugh took a position well to the right of his two Republican colleagues strongly suggests that his test would invalidate more gun laws than would the consensus framework.
New York State Rifle, moreover, offers someone like Kavanaugh the perfect vehicle to upend the consensus framework because the (now repealed) rule at the heart of this case imposes only a minimal burden on gun owners.
New York offers two kinds of handgun licenses. A “carry” license permits gun owners to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a less permissive “premises” license permits a gun owner to “have and possess in his dwelling” a handgun. Premises license holders, however, may only bring the gun outside of their home for limited reasons, which include bringing the gun to seven specific gun ranges to practice shooting.
The plaintiffs in New York State Rifle, each of whom has a premises license, raise a very narrow challenge to this framework. As a federal appeals court explained, some of them “seek to transport their handguns to shooting ranges and competitions outside New York City.” One of them also owns two homes, and he wishes to be able to transport one gun between those two homes.
New York State Rifle, in other words, involves what Judge Higginson described as a “less onerous law” that governs “conduct outside of the Second Amendment’s ‘core.’” This isn’t a grand showdown over when and where people can carry guns — or whether they bring a gun into their own home. It’s a small legal dispute about little more than whether lawmakers can require certain gun owners to practice shooting at certain specified gun ranges.
And yet, this very smallness is what makes New York State Rifle so dangerous to the consensus framework. The rule at the heart of this case is the very sort of gun restriction that the consensus framework is likely to treat as insignificant. And that gives the Supreme Court an ideal vehicle to hold that judges should treat all gun laws with skepticism — even very minor ones.
All of this said, there is a strong argument that New York State Rifle must be dismissed as moot. Article III of the Constitution provides that the “judicial power” only applies to “cases” and “controversies,” meaning that federal courts may only hear live legal disputes between parties.
But New York City changed its rules to let people with premises licenses do what the plaintiffs in this case want to do. And the New York state legislature also passed a law providing that gun owners with premises licenses may bring their gun to “another dwelling or place of business of the licensee where the licensee is authorized to have and possess such pistol or revolver,” to “an indoor or outdoor shooting range that is authorized by law to operate as such,” or to “a shooting competition at which the licensee may possess such pistol or revolver consistent with” the law.
So the plaintiffs won! They asked for specific, narrow relief, and the state legislature gave it to them. There’s no longer a legal dispute between the plaintiffs and the defendants in this case, and that makes the case moot.
But a few amicus briefs submitted to the Supreme Court suggest that the case should not be dismissed under a doctrine known as “voluntary cessation.” Broadly speaking, this doctrine allows a court to continue to hear a case after a defendant voluntarily quits the behavior that led to them being sued. The point of this doctrine is to prevent a defendant from dodging lawsuits by doing something illegal, ceasing their illegal activity for long enough to dismiss any lawsuits challenging that activity, and then resuming their illegal actions as soon as the lawsuits are dismissed.
Yet, as a group of legal scholars explain in their own amicus brief, that doctrine does not apply here. The defendant in this case is New York City. But a law preventing the city from reinstating the challenged rules was enacted by New York state. It would be impossible, in other words, for the city to resume its allegedly illegal conduct because a higher power stripped the city of its ability to do so.
We could know as soon as next week whether the Supreme Court will dismiss the case — or whether it will add to Justice Sotomayor’s fears that the Court is ignoring its own ordinary procedures, in this case by finding away around the mootness doctrine.
Yet even if the case is dismissed, such a decision will only delay a reckoning on the Second Amendment. Eventually, the justices will hear a gun rights case that is not moot. And when that happens, Justice Kennedy won’t be around to inject a note of caution into the Court’s opinion.
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