Rounds

News and notes on guns in America

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Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh look on during a State of the Union address. [Doug Mills/The New York Times via AP, Pool]

Supreme Court Watchers See Chief Justice as Possible Fifth Vote to Dismiss Major Gun Case

On December 2, the U.S. Supreme Court heard about an hour of oral arguments in New York State Pistol and Rifle Association v. City of New York, in which the petitioners argue that a restriction that prevented licensed gun owners from taking their firearms out of the five boroughs of New York City violated the Second Amendment. After the Supreme Court took the case in January, the city repealed the restriction in an effort to avoid a broader ruling. But the court opted to hear arguments nonetheless.

The session’s transcripts give some hints about how the justices view the case. Liberal justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor focused many of their questions on whether the case is still valid. “You’re asking us to opine on a law that’s not on the books anymore,” Sotomayor told the petitioners. Meanwhile, members of the court’s conservative majority, Samuel Alito and Neil Gorsuch, suggested that the case had merit despite New York City’s “herculean, late-breaking efforts to moot the case,” as Gorsuch put it. Chief Justice John Roberts, part of the court’s conservative bloc but seen by many as the swing vote, posed questions suggesting he could join the liberals.

While it’s impossible to say which way that court will rule, most observers thought the arguments make it likely the case will be dismissed. Below you’ll find a sampling of reactions from legal experts, analysts, and journalists:

Adam Winkler, professor of constitutional law at the UCLA School of Law: “All the signs suggest the court may declare this case moot,” Winkler tells The Trace. “Five justices focused intently on the mootness issue, including Kagan, Breyer, Sotomayor, Ginsburg, and Roberts. Yet even a ruling that this controversy is moot will not stop the Court from eventually expanding Second Amendment protections. There are numerous Second Amendment cases waiting in the wings and the justices are likely to take one next term. It is likely only a matter of time before the court makes it harder for gun safety reforms to survive Second Amendment challenges.”

Adam Liptak, New York Times Supreme Court reporter: “The Supreme Court’s first Second Amendment case in nearly a decade may not result in a ruling of any particular consequence, judging from questioning at arguments on Monday that focused largely on whether the repeal of a New York City law made the case challenging it moot,” he wrote.

Adam M. Samaha, Inez Milholland professor of civil liberties at the NYU School of Law: “The mootness position did at least as well as expected at oral argument this week. That issue involves limits on federal court power that are designed to be nonpartisan and neutral as to various rights claims. One’s enthusiasm or doubt about the claimed right is not supposed to matter. However realistic it might be to assume that feelings about rights may influence judgments about the limits of judicial power, at least sometimes those issues can be separated. And the Court might well illustrate how to maintain integrity for these judicial limits in this case. When a state statute repudiates a city rule, broadly and without an expiration date on the rollback, a challenge to the city rule is moot. In any event, as of now, no jurisdiction in the country has the rule that was challenged in this lawsuit. It’s not even clear that any other jurisdiction has ever had such a transport restriction.”

Amy Howe, Supreme Court reporter and SCOTUSblog contributor: “The gun owners argued that the rule violated their right to ‘keep and bear arms’ under the Constitution’s Second Amendment. But it’s not clear that the justices will reach the merits of the gun owners’ complaint. Instead, it seemed possible (although far from certain) that they could throw out the case because the dispute is now moot – that is, no longer a live controversy – after the city repealed the rule last summer,” she wrote. The justices will vote this week, but Howe cautions that “even if a majority believes that the case is moot, we may not know for some time, because a ruling on mootness would almost certainly be accompanied by an opinion (and a dissent) explaining the justices’ views.”

Dan Zimmerman, managing editor, The Truth About Guns: “Justice Alito won a major concession from the City’s attorney,” the gun rights blogger noted. “The city’s case is based on the need to protect New Yorkers from crime. Alito asked if crime had been impacted since the law was repealed. The attorney conceded that it hadn’t. Alito then asked the City’s attorney if an outright prohibition on transport outside the home would be a violation of the Second Amendment. The attorney said it would. Alito then asked if the City’s home permit, then, includes an implicit right to transport a firearm outside the home. The attorney conceded that it did. This is important because the City’s case has been based on their argument that there is no right to keep and bear arms outside the home. The admission that such a law would violate the Second Amendment explicitly undermines the City’s case. From [Truth About Guns correspondent] LKB’s reading of the tea leaves based on the questions and arguments, he believes that the votes to declare the case moot aren’t there.”

David Kopel, research director at the Independence Institute and adjunct professor at the University of Denver’s Sturm College of Law: “Obviously the four Justices who are hostile to the Second Amendment were for mootness,” Kopel tells The Trace, referring to Breyer, Ginsburg, Kagan, and Sotomayor. “The exchanges [between Chief Justice John Roberts and Richard Dearing, the attorney representing New York City] might indicate that Roberts agrees, but that strikes me as a possibility, and far from certain.”

Eric Ruben, assistant law professor, Dedman School of Law at Southern Methodist University: “Regardless of whether the Justices declare NYSRPA moot, the fact that it even got this far is significant,” Ruben tells The Trace. “This case signals a Supreme Court willing to reenter the Second Amendment fray, 10 years after the last oral argument in a gun-rights case. Important issues — like the constitutionality of assault weapon bans and public carry restrictions, not to mention the crucial question of what judicial standard of review applies in Second Amendment cases — could come before the high court sooner rather than later.”

J. Adam Skaggs, chief counsel and policy director at Giffords Law Center to Prevent Gun Violence: “The unanimous narrative coming from the Supreme Court press corps is that it’s likely there are at least five votes to dismiss the case as moot, and with Justice Kavanaugh not uttering a single word in the argument, it’s possible there could be six. It may be a closer call than that, but it certainly appears to be the case that Justices Alito and Gorsuch (and presumably Thomas) very much want to keep the case and reach the merits, and it is equally clear that the four liberal justices adamantly feel that the case is moot,” Skaggs tells The Trace. “So the prevailing wisdom that the Court will dispose of the case as moot may well be true — but, critically, even if it does, that’s not likely to be the end of the Second Amendment story. The court has numerous fully briefed Second Amendment cases in the wings and several more in the pipeline, and the pressure from the conservative wing of the Court to wade back into the Second Amendment waters is not going away.”

Robert Barnes, Washington Post Supreme Court reporter: “The Supreme Court heard its first Second Amendment case in a decade Monday, but there were indications that the justices may no longer think they have a case to decide,” he wrote. “After the Supreme Court took the case to decide whether those restrictions violated the constitutional right to keep and bear arms, the city got rid of them, and the state of New York passed a law that would keep them from being reenacted. The unstated purpose of both the city and state actions might have been to make the case moot and deny conservatives on the court to expand the right to carry a gun outside the home.”

Steven Mazie, who covers SCOTUS for The Economist: Alito and Gorsuch are “champing at the bit to expand Heller,” he tweeted, referring to the 2008 Supreme Court decision that established an individual right to bear arms. “Specifically, they seem to want to expand the right so it applies outside a gun-owner’s home, rather than simply within the home, as Heller provided,” he added. “But headway on that line of thought was limited by all the mootness talk.”