Did New York City Just Punk SCOTUS on a Second Amendment Case?

Did New York City Just Punk SCOTUS on a Second Amendment Case?
A view of the Supreme Court in Washington, Monday, Nov. 11, 2019. (AP Photo/Susan Walsh)

Based on a hearing earlier this week, it seems as though the Supreme Court will decline to hear a challenge to a New York City gun control restriction because the city had already repealed it. According to NBC News, the defunct NYC ordinance “said residents with the proper permit could take a handgun outside the home to a city shooting range, provided it was unloaded and in a locked container.” However, “the gun could not be taken beyond the city limits.”

I’m a simple man, so to me that reads an awful lot like an infringement on the right to keep and bear arms, and something SCOTUS should certainly look at. But the restriction, passed in 2008, was repealed in June after the Supremes had agreed to hear the case. Furthermore, the state assembly followed with a law forbidding local governments from enacting any similar restriction. As a result, the court now seems less interested in a ruling than it once was.

Justice Ruth Bader Ginsburg, apparently awake through Monday’s entire proceeding, asked, “What’s left of this case?” And Justice Sonia Sotomayor said, “You’re asking us to take a case in which the other side has thrown in the towel and opine on a law that’s not on the books anymore.” Justice Neil Gorsuch asked if the surviving restrictions aren’t enough to keep the case alive, and Chief Justice John Roberts was told No when he asked if violations of the old law could be used against current gun owners. Neither justice Brett Kavanaugh nor Clarence Thomas said anything.

So although there’s no way to tell for sure what SCOTUS will do until SCOTUS actually rules, right now it seems like they’ll let this hot potato drop.

But is that exactly what New York City wants?

In his recent newsletter, David French argues that “New York’s legal changes were obviously designed to evade review.” [Emphasis added]. French conjectures that if POTUS punts, “there would nothing preventing New York from tightening its new laws and then daring a new plaintiff to endure years more of litigation.” Remember, the since-repealed act stayed on the books for 11 years before the city repealed it, and only then under threat of SCOTUS action.

French says he found SCOTUS’s seeming disinterest “troubling,” because as SCOTUSblog’s Amy Howe put it, “Alito and Gorsuch were the only justices who spoke up as staunchly opposed to dismissing the case as moot,” and two out of nine votes is a poor start at building a solid pro-2A ruling. In the meantime, absent a definitive decision from the Supremes, New York City is free to devise new restrictions on lawful gun owners — and to impose years of legal expenses and uncertainty on Second Amendment advocates.

With luck, three more justices will see through NYC’s antics and decide with Alito and Gorsuch that even a moot law is worth a ruling. Failing that, maybe New York gun owners will get their next day in court no later than 2031 or so.