Opinion analysis: Court sends New York Second Amendment case back to lower courts without ruling on the merits

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is moot that is, no longer a live controversy because the city changed the rule last year. But some of the courts more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case in which the justices ruled today was filed in 2013 by New York City residents who have licenses to have guns at their homes, as well as by an association of New York gun owners. The gun owners wanted to be able to take their guns to target ranges and weekend homes outside the city, but they were barred from doing so by the citys ban on the transport of licensed handguns outside the city, which was enacted in 2001.

The Supreme Court agreed to review the gun owners case in January 2019, after both a federal district court in New York and the U.S. Court of Appeals for the 2nd Circuit upheld the ban. But before the justices could hear oral argument last December, the city argued that the case should be dismissed because it had repealed the ban and the state had changed its laws. As a result, the city suggested, the gun owners had received everything that they had asked for, and the case was moot.

The justices allowed the case to move forward, but today a majority of the court sent the case back to the lower court without weighing in on the merits of the gun owners Second Amendment claims. The courts two-page opinion which was unsigned but apparently joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh explained that, as a result of the changes to state law and the citys rule, the gun owners have gotten exactly what they had asked for: They can now take their guns to a second home or a shooting range outside the city.

The court turned next to the gun owners claim that the new rule still violates their Second Amendment rights because they cant stop for coffee, gas, food, or restroom breaks en route. The court noted the citys assertion that the gun owners are allowed to make such stops and stated that, in any event, the Supreme Courts practice is not to referee that dispute but instead to send it back for the lower courts to decide. In the same vein, the court declined to weigh in on whether the gun owners can seek damages for the citys violation of their rights under the old rule when they had not previously done so, leaving that question for the lower courts as well.

Justice Samuel Alito dissented from todays decision, in a 31-page opinion that was joined in full by Justice Neil Gorsuch and in large part by Justice Clarence Thomas. Alito was sharply critical of the decision to dismiss the case as moot, arguing that his colleagues were allowing our docket to be manipulated in a way that should not be countenanced. First of all, Alito argued, the case is not moot: The gun owners had alleged that the Second Amendment gives them unrestricted access to gun ranges and vacation homes outside the city, and the new laws do not give them that. As a result, Alito reasoned, although the gun owners got most of what they wanted, they did not get all of it, and that means that the case is not dead. Moreover, Alito added, if the court were to conclude, as the gun owners request and as I believe we should, that the citys transport ban violated the Second Amendment, the district court on remand could (and probably should) award damages, which would also be enough to stave off mootness.

Addressing the merits of the gun owners claims, Alito concluded that it is not a close question whether the citys transport ban violated the Second Amendment. In his view, the transport ban involves the same core Second Amendment right at the heart of the courts 2008 decision in District of Columbia v. Heller, which held that the Second Amendment protects the right to have a handgun in the home for self-defense. The citys arguments about the extent to which the transport ban protects public safety, Alito suggested, were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And if it is true this case is typical of the way that Heller has been applied in the lower courts, Alito cautioned, there is cause for concern.

Justice Brett Kavanaugh filed a concurring opinion in which he explained that he agreed with the majority that the gun owners original claims are moot and that the new claims should be addressed first by the lower courts. But Kavanaugh also indicated that he agreed with Alitos general analysis of Heller and McDonaldv. City of Chicago, in which the court made clear that the Second Amendment applies fully to the states, and that he shares Alitos concern that some federal and state courts may not be properly applying Heller and McDonald. Kavanaugh posited that the Supreme Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

This post was originally published at Howe on the Court.