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    A Loss or a Win? Reassessing New York State Rifle & Pistol Ass’n v. City of New York

    A Loss or a Win? Reassessing New York State Rifle & Pistol Ass’n v. City of New York

    We could have an authoritative Second Amendment opinion by the end of this year, or early next.

    A lot has been said in a short period of time about the Supreme Court’s opinion handed down in New York State Rifle & Pistol Ass’n v. City of New York just a week ago.  Most gun rights supporters are frustrated. Many accuse Chief Justice Roberts of caving to pressure.  Some consider the case to be a complete loss.  In reality, it is just the opposite.

    New York Rifle is a case in which the New York Rifle & Pistol Association challenged New York City’s “premises license” scheme.  The city required residents to have a premises license to keep a firearm in their home for self-defense, but completely prohibited them from taking those firearms outside city limits.  People with premises licenses could not bring their firearms to a second home, a range, or a shooting competition outside city limits.

    New York City’s law clearly violated the Second Amendment, but for six years, the city defended its law—claiming it was necessary for public safety.  New York’s justifications rang hollow.  If they didn’t prohibit people from travelling with weapons, how could they know if people were going to a range, or up to nefarious means?  Worse, if someone were travelling with a weapon, New York was certain that instances of road rage would immediately escalate to a shootout.  The city had no evidence to support any of this, simply the declaration of a single law enforcement officer.

    When the Supreme Court granted certiorari to review the merits of the case in January 2019, it was the first time the Court had done so in a Second Amendment Case since 2010.  Naturally, many gun rights advocates were excited the Court was revisiting the issue—especially given the makeup of the Court.

    Justice Alito authored the 2010 McDonald v. City of Chicago opinion, which both Chief Justice Roberts and Justice Thomas joined (they all joined Justice Scalia’s 2008 majority opinion in D.C. v. Heller).  Justice Gorsuch has joined a number of Justice Thomas dissents from denials of certiorari in Second Amendment cases.  And Justice Kavanaugh authored the well-known Heller II dissent, advocating for direct application of the Heller Court’s text, history, and tradition test, when D.C.’s enacted several restrictive gun control laws after its loss in Heller.

    Many, however, now feel that the Court wrongfully failed to rule on the merits of the New York Rifle case.  Some feel that the Court, or specifically Chief Justice Roberts, caved to political pressure.

    I want to explain why that’s the wrong conclusion to take away from the Court’s decision.

    First, the only party that caved in this case was the City of New York.  Let’s not forget, the city essentially repealed its travel prohibition.  Not only did the city lighten its restrictions, New York State passed a law preventing the city from reverting to its old ways.

    People who possess a premises license in the city can now transport their firearms to homes, shooting ranges, or competitions outside city limits.  The firearm must be kept unloaded and locked and, according to New York’s counsel, the owner can make “reasonably necessary stops in the course of travel.”  The open question is what stops are reasonably necessary.

    Today, there is less gun control in New York City than there was this time last year.  That is a win.  Is it perfect?  No, but a win is a win.

    This case also highlights the bad faith of New York City, the gun control movement, and a group of senators who decided to threaten the Supreme Court.  New York City’s successful evasion of review comes with the heavy price of its clear gamesmanship.

    New York City had defended its law for 6 years, claiming it was absolutely necessary for public safety and only backed down, changing the challenged law, after the Supreme Court agreed to review the merits of the case.  The city also asked for an extension of time to file its response brief, clearly in order to buy time for the legislature to propose, and then adopt, the new law.

    Justice Alito asked, at oral argument: “[A]re people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” New York counsel’s answer was, predictably, unsatisfying.  Counsel said New Yorkers were not less safe, but failed to reconcile that with New York’s earlier arguments that the law was necessary for public safety.

    It’s highly unlikely the Court will forget New York City’s bad faith any time soon.

    Most importantly, rendering this case moot avoids a practical pitfall—legitimacy.  There are only two binding Supreme Court opinions analyzing the Second Amendment (three if you count Caetano v. Massachusetts).

    If New York Rifle were decided on the merits, you can bet that every time the gun rights movement cited it as binding authority, the gun control movement would question its legitimacy.  Given that almost every circuit court in the nation already fails to follow Heller and McDonald, which did not have underlying factual issues, it is apparent that circuits would use this to avoid following New York Rifle.

    True, we need the Supreme Court to authoritatively weigh in on the issue—it hasn’t done so since 2010.  But, in an area with such limited precedent, the last thing we need is an opinion that would be questioned for years.

    Plus, this isn’t the end of the road.

    Immediately after the Supreme Court issued its per curiam opinion declaring the case moot, the Court recirculated 10 separate Second Amendment cases pending before it.  This is not a coincidence.  In fact, I predicted itin December after oral argument.

    Justice Alito wrote a dissent in New York Rifle, joined by Justices Thomas and Gorsuch, where he expressed concern about the Court’s ultimate decision, especially since many federal and state courts are failing to follow Hellerand McDonald.

    Justice Kavanaugh, in his concurrence, echoed the concerns of Justice Alito, and went on the state: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari new pending before the Court.”

    Four Justices are enough to grant certiorari, and Chief Justice Roberts was in the majority in both Heller and McDonald.  Without the procedural issues, that sets up a 5-4 majority on the merits of a “clean” Second Amendment case.

    On May 4, 2020, the Court recirculated those 10 pending Second Amendment cases.  Court watchers will note that recirculation greatly increases the likelihood that the Court ultimately decides to hear the case.  Further, because of the COVID-19 pandemic’s disruption of the Court’s procedure, the Court will need time to consider upcoming scheduling difficulties.  Several cases that were supposed to be argued this term will now be argued next, which will constrain the number of new cases the Court can hear in its 2020-2021 term.  Recirculating is a good thing, not a bad one.

    The Court’s next conference is on May 14, 2020, with orders likely being issued on May 18, 2020.

    All things considered, it is highly likely that the Supreme Court will grant review of one of the many Second Amendment cases before it in May.  Even with scheduling difficulties, the case could be briefed over the summer and then argued when the Court opens for its 2020-2021 term.

    We could have an authoritative Second Amendment opinion by the end of this year, or early next.

    In the grand scheme of the movement, that is not long.  We’ve waited 10 years for the next Supreme Court opinion on the Second Amendment. Surely, we can wait a little while longer if it means having a case that isn’t marred—rightly or wrongly—by procedural questions.


    Cody J. Wisniewski (@TheWizardofLawz) is an attorney with Mountain States Legal Foundation. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions. He is the co-author of an amicus brief filed before the Supreme Court in the case, New York State Rifle & Pistol Association v. City of New York.


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    Gringosuave | May 5, 2020 at 6:43 pm

    It is beyond foolish to think this is a win. The amount of time and money spent by gun-rights activists have now been squandered as we need to challenge the premises permit from square one in the second circuit. The premises permit still exists, citizens are still heavily regulated on their travel with guns, according to the law they can in fact be arrested for making short stops on their trips. The permit itself still costs hundreds of dollars and take months to be issued. The case sets a dangerous precedent for evasion review not just for gun-rights cases but for other violations as well. Municipalities and states have been shown exactly what to do to evade review for invalid laws that they will obviously put back in place when the high court becomes friendly once again. Sheldon Whitehouse and his band of subversives have now been vindicated for making open threats and successfully intimidating the chief justice and Kavanaugh. I guess Capable Of Repetition, Yet Evading Review is only reserved for first-class rights like abortion, and not for bastard rights like guns. We should stop sugar coating this, it is a loss. The only thing NYSRPA proves is that gun rights are disfavored in the courts.

      Milhouse in reply to Gringosuave. | May 5, 2020 at 10:29 pm

      Capable of repetition yet evading review means the law still exists but the plaintiffs are no longer breaking it, and by it nature nobody would ever be breaking it long enough for the courts to review it.

      Let’s be clear: the issue before the court was not whether they city could make such a law, but whether it could enforce it. Not court can tell a legislature what laws it may make; it can only tell an executive what laws it may enforce. So long as the law still existed the plaintiffs had a case, because its existence deterred them from exercising their constitutional rights. Now that it no longer exists it can’t do that, so there’s no case.

      What you’re asking is for courts to entertain cases just on the off chance that a legislature might take it into its head to make an unconstitutional law. You’re asking for me to be able to sue the state because I’m afraid it will one day pass a law banning circumcision, and I want the court to head that possibility off at the pass. And that’s the very definition of an advisory opinion.

      I understand and share the frustration that the city could so easily slip out of it. But that’s how the law has to be. What I don’t understand is why the plaintiffs didn’t ask for damages; because it seems to me that if they had then the court would still have something to decide.

        Gringosuave in reply to Milhouse. | May 5, 2020 at 11:55 pm

        That is false. Capable of Repetition, Yet Evading Review need only for the plaintiffs to reasonably expect to be subjected to the regulation again. New York State and New York City are the same den of vipers and were able to coordinate delays in the process in order for New York State to wag it’s finger at New York City to say not to do that again. When Democrats have a friendly court composition the law will return and return in a rapid fashion. This also falls cleanly into voluntary cessation. What we’re asking is for courts to entertain the constitution because we know these laws serve no purpose other than to discourage gun ownership while having zero public safety benefit. What the court has done here is make a mockery of the litigation process for political purposes. They’ve justified every single shameful action by the gun control lobby and left Heller/McDonald to the dustbin of jurisprudence. Roberts and Kavanaugh should be ashamed of what they’ve done.

          Milhouse in reply to Gringosuave. | May 6, 2020 at 12:28 am

          Sorry, you’re just wrong. Plaintiffs cannot reasonably expect to be subjected to legislation that does not currently exist — how much more so to legislation which under current state law can’t exist. If a court anticipating the possibility of future legislation is not an advisory opinion, pray tell me what is!

          “Capable of Repetition, Yet Evading Review” means under current legislation. It covers only situations where under the law as it stands people situated similarly to the plaintiffs are constantly finding themselves in the same situation in which the plaintiff was when she initiated legal action, and yet those situations are by their nature so fleeting that they’re unlikely to last long enough for judicial review.

          In the original case for which this doctrine was first enunciated, the government was regularly issuing temporary but illegal orders. By the time any case could come up for judicial review that specific order would have expired, but many other such orders would still be in effect. Had the law authorizing such orders been repealed, the case would have been dismissed.

          Ditto for Roe v Wade. Had Texas repealed its law the case would have been dismissed as moot.

      Milhouse in reply to Gringosuave. | May 5, 2020 at 10:35 pm

      PS There is no question that had Texas repealed the law against abortion, Roe v Wade would have been dismissed. The facts that other states had similar laws, and that Texas could have made another such law, would not have saved it. It was only not moot because the law was still in force, and still being enforced against other people, so the basic question before the court still needed an answer.

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