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SCOTUS Is Hearing Its First Big Gun Case in 9 Years. Here’s How It Might Play Out.

A constitutional scholar explains the challenge to a New York City gun restriction — and its potential to affect the right to bear arms more broadly.

On December 2, the Supreme Court will hear arguments on a major gun rights case for the first time in almost a decade. The case was brought in 2013 by the New York Pistol and Rifle Association, an advocacy group located outside of Albany, against New York City. The association argues that a New York City restriction that prevented licensed gun owners from taking their firearms outside the city violated the Second Amendment.

After the Supreme Court agreed to take the case this January, New York City repealed the relevant restriction, hoping that the high court would drop the case. It hasn’t — and could still issue a ruling with broad Second Amendment implications.

The Supreme Court has been virtually silent on gun rights since it established that the Second Amendment includes the right to bear arms in the home in District of Columbia v. Heller, a watershed decision from 2008. But its inertia has frustrated pro-gun advocates who want clarification on the many questions left unanswered in Heller: Does the Second Amendment protect the right to carry guns outside the home? What kinds of firearms are covered by the right to bear arms?

Since Heller, the court has shifted further to the right, but this doesn’t mean the petitioners will win. That’s partly because the gun restriction that prompted the suit is no longer law, which could render the entire case moot.

To help us understand exactly what New York State Pistol and Rifle Association v. City of New York means for the law, The Trace spoke to Joseph Blocher, a legal scholar who co-directs the Center for Firearms Law at the Duke University School of Law. Professor Blocher also assisted with briefing for the District of Columbia in the Heller case.

This interview has been lightly edited for clarity and length.

Olivia Li: What is this case about? 

Joseph Blocher: The Pistol and Rifle Association is suing over a restriction in New York City’s gun license that prevented gun owners from transporting their firearms outside city limits to a second home or gun range. The association says that the restriction — referred to as a  transport ban — violated the Second Amendment right to bear arms, as well as the constitutional right to travel. There are a lot of different ways this case could go, but it could end up being a pretty big deal.

How are the constitutional questions in this case different than Heller?  And how has the composition of the court evolved?

Heller was about whether there was a constitutional right to have a gun inside your home. The Supreme Court said there was, and that the core right in the Second Amendment was to keep an arm in the home for self defense.

This case, however, involves rules and conduct outside the home. Here, the court will be considering whether there is a Second Amendment right to transport your weapon from your home to another place where you have a right to have the gun, like a shooting range. The line between the home and public space has been a battle line in Second Amendment cases since Heller.

This case is also different from Heller in the sense that the court has changed a lot since Justice [Antonin] Scalia penned the majority opinion in 2008. Justice Scalia has been replaced by Justice [Neil] Gorsuch, and Justice [Anthony] Kennedy was replaced by Justice [Brett] Kavanaugh. Many people believe that Kennedy was the swing vote in Heller, and that he only agreed to sign onto Scalia’s opinion if it included language that was friendly to reasonable gun regulations. And Kavanaugh and Gorsuch are stronger on gun rights than Kennedy was. The association’s case will be heard by a much more conservative, pro-gun court.

Why hasn’t the court taken a Second Amendment case in so long? 

There weren’t enough votes to take up gun cases! You need four justices to grant cert [when the Supreme Court agrees to hear a case]. It’s likely that Kavanaugh and Gorsuch made the difference here. Before they joined, the Court declined many opportunities to hear Second Amendment cases, including ones about public carry.

But gun rights lawyers have been begging the Supreme Court for years to hear a Second Amendment case. They argue that the Supreme Court has stood idly by while lower federal courts disrespect the right to bear arms by upholding too many gun regulations. Justice [Clarence] Thomas shares this opinion. He has chided his fellow justices for not supervising lower courts on the Second Amendment.

What do the petitioners want in this case? 

The petitioners want to be able to transport their guns from within New York City limits to an out-of-city gun range or second home.

It’s clear that the association thinks this case is also about the right to bear arms outside the home, not just transport them. But New York City’s regulation only addressed the transport of guns between places. Gun rights groups have tried to attack restrictions on public carry in other cases, but the Supreme Court never wanted to get involved.

What has happened in this case up to this point? 

The association lost its case in a federal district court in 2015. And it lost again in 2018, when an appellate court ruled that New York City’s regulation was constitutional because it served New York City’s public safety goals. The association asked the Supreme Court to reconsider that decision in September of 2018.

There’s another interesting piece to this: The New York City Police Department repealed the transport ban in July of 2019. That same month, New York State passed a law that says all cities within the state must allow gun permit holders to transport their weapons to second homes or gun ranges.

If New York City repealed the law, why is this case still going forward? 

The association is saying that New York City only repealed the transport ban because it was afraid of how the Supreme Court might rule. But normally, when a person bringing a lawsuit asks for something, and she gets it, the case is over. In legal terms, this is called “mootness,” because there’s no longer an issue to resolve. Courts should not hear cases that are moot.

There are some exceptions to this rule. For example, you wouldn’t want a defendant to stop trespassing as soon as a lawsuit is filed just to get the case dismissed, only to start trespassing again. However, in this case, there’s no danger of that happening. Remember, New York State passed a law that prohibits New York City from re-instituting its transport ban.

How might the court rule? And what are some potential consequences?

There is a range of possible outcomes, but it’s helpful to think of them in two buckets. First, the court could dismiss the case as moot, because there’s nothing the court could do to put the petitioners in a better position than they’re already in. They are free to travel with firearms outside New York City. Second, the justices could say the case should live on, and they will try to figure out whether the transport ban violates the Second Amendment.

Within this second bucket, there are a few options. The court could agree with the reasoning of the lower court and hold that New York City’s regulation does not unconstitutionally burden gun rights. This preserves the status quo.

However, the Supreme Court could instead conclude that the Second Amendment protects the transport of guns to specific locations, as well as the right to bear arms in the home. But such a decision doesn’t necessarily turn the tides. The court could simply say that this particular regulation in New York City goes outside the bounds of reasonable gun laws. Because no other city has a rule like New York’s — and New York took its own law off the books — this is a narrow result that changes literally nothing on the ground.

Another option: The Supreme Court could issue a much broader ruling where the justices say that there’s a right to public carry. The Supreme Court has never before announced that the Second Amendment covers the right to bear arms in public, although most lower courts have held or assumed otherwise.

Finally, the Supreme Court could change the way lower courts analyze Second Amendment cases. Right now, when a gun rights advocate challenges a firearm law, the courts try to figure out if the gun law is specifically designed to serve public safety goals. In the association’s case, the Supreme Court could announce a much more originalist test, one that requires courts to find a particular historical basis for modern-day gun regulations. This change could make cases more difficult for governments who want to defend firearm regulations.

We talked about how the court’s composition has changed a lot since Heller. The world outside the Supreme Court has changed a great deal, too. We’ve seen an increase in mass shootings and gun violence, as well as more social activism on gun reform. Will the justices be affected by this? 

That’s a really fair question, and it’s one that comes up in every case, not just gun rights cases: How should the Supreme Court respond to public opinion, if it should at all? And I don’t think I have the answer to that. What I can say is that all of the justices in Heller recognized the problem of gun violence in the United States. Justice Scalia even wrote at the end of his opinion that gun violence was “a serious problem.” That was 2008. Sandy Hook, Orlando, Vegas, and Parkland all postdate Heller.

Who do you think will win? 

I think the New York State Pistol and Rifle Association has already won this case, because New York City repealed its transport ban. The association has gotten everything it has asked for, and that’s precisely why — I believe — the court should dismiss this case as moot, no matter what the justices think about the Second Amendment.

When will we get a decision? 

If the court dismisses the case simply because New York City already repealed the regulation, then we could get a decision very quickly. If the court actually tries to figure out whether the New York City regulation violated the Second Amendment, we’ll likely be waiting longer. But it’s really hard to say.

Do you think the Supreme Court will take more Second Amendment cases in the future? 

I think if the court dismisses this case on procedural grounds, there’s a good chance it will take another Second Amendment case soon, maybe even by the end of this term.