When I attended law school, the general consensus of legal scholars and the controlling cases held that the Second Amendment protected a “collective” right rather than an individual right. However, around that time, a movement was starting among conservative interest groups (with some support from conservative scholars) to push the idea that there was an individual aspect to the Second Amendment. The historical argument on this issue is murky due, in large part, to the way that cases were decided pre-1800. About a decade ago, conservatives prevailed (by a 5-4 vote) in having the Supreme Court hold that individuals did have some rights under the Second Amendment and that those rights were “incorporated” against the states by the Fourteenth Amendment. However, to get to five votes, the Supreme Court left unaddressed much of the details about the nature of the right protected by the Second Amendment.
Since the Supreme Court issued its two opinions, lower courts have been handling challenges to individual laws restricting the ability to purchase firearms — some involving the type of gun, some involving who can purchase firearms, and some involving other details. The decisions in these cases have been somewhat narrower than pro-gun activists would like. They have been hoping to get a case to the Supreme Court so that the Supreme Court could establish the legal test that will be applied in Second Amendment cases. Earlier this year, conservatives thought that they had found the perfect test case.
Last January, the Supreme Court granted review in New York Rifle and Pistol Association vs. New York, NY. The case involves a challenge to a New York city ordinance that is very restrictive on where gunowners can take their guns. (Basically, New York State has two types of permits for gun ownership — one only covers general ownership — sometimes referred to as a target license and sometimes referred to as a premises license — and the other permits carrying a weapon — a carry license. The New York City ordinance provided that people who only have the general permit can only take their gun out of their in-city home to go to an in-city gun range and could not take them to a second home outside the city or to an out-of-city gun range.) Seeing the writing on the wall, New York State passed a new gun law that essentially invalidated the New York City ordinance and New York City repealed its ordinance and passed a new one that was significantly less restrictive.
Because of the repeal of the city ordinance, a second issue arose in the case — whether the case was moot. Mootness is a legal concept related to the constitutional provision limiting courts to deciding “cases and controversies.” Court are not supposed to give “advisory” opinions when there is not actually a case and controversy. The general test for whether a case is moot is whether a party still has a live claim for relief. If the party has already received all the relief that they have requested (or could legitimately request), then the case is moot. (For example, if you sued your neighbor to resolve a dispute over the boundary line and the neighbor — instead of fighting your claim — gave you a quit claim deed conceding that dispute over the boundary line, then the case would be moot.) While New York City asked the Supreme Court to dismiss the case due to mootness over the summer, the Supreme Court declined to dismiss the case before argument, indicating that the parties should be prepared to address the issue at oral argument.
That ruling set the stage for this past week’s argument. While it would not have been surprising that some part of the argument focused on the impact of the repeal, what actually happened was surprising. In this case, there were four separate parts to the argument — the Association’s initial argument, the Solicitor General’s argument in support of the Association (the U.S. government is normally allowed to participate in an argument as an “amici” if the Solicitor General believes that a case warrants such involvement by the government), the City’s argument, and finally the Association’s rebuttal argument. Other than one brief question directed to the merits at the end of the Solicitor General’s argument, the Supreme Court did not really get to the merits of the Second Amendment claim until the middle of the City’s argument. Even then the “merits” part only represented about 40% of the City’s argument. So basically, the Supreme Court spent 80% of the time talking about whether anything remained to decide and only 20% of the time talking about the ultimate decision.
When we get the opinion in several months, of course, anything is possible. But it seemed like the Supreme Court — other than Justice Alito — was not particularly interested in opining on the validity of the old ordinance. As such, this case ended up being like that old Sherlock Holmes line from “The Hounds of the Baskervilles” that the remarkable thing is the fact that the dog didn’t bark. While some members of the Supreme Court clearly want to reach the Second Amendment (and we can expect to see another case up on the docket in the near future), my expectation is that the Supreme Court will vacate the lower court decisions. The only real issue is whether they will order the case dismissed entirely (forcing the Association to start over from scratch) or merely remand with the opportunity for the Association to amend their complaint to include allegations related to the new ordinance.
The fact that the Supreme Court is eager to reach this issue in the future is not good news for those trying to address high levels of gun violence in urban areas. And, if we could get a reasonable test from the Supreme Court that would permit reasonable, common-sense, regulations of guns, that would be a good thing. However, the odds of that seem rather slim, leaving public safety advocates with the hope that the Supreme Court will not take this issue back up in the near future.
