WASHINGTON — The Supreme Court said Monday that it would not decide what would have been its first decision on the scope of the Second Amendment in almost a decade, finding that New York City’s repeal of the gun control regulation under challenge had made the matter moot.
When the court agreed to hear the case, the possibility of such a ruling alarmed gun control proponents, who urged New York City officials to repeal the regulation. The city did so, and state lawmakers later enacted a law that seemed to make it impossible for city officials to change their minds.
James E. Johnson, New York City’s corporation counsel, said the court’s ruling was “just right.”
“The court properly recognized that the only claims the petitioners ever brought no longer present a live case, because the challenged city rule no longer exists,” Johnson said in a statement. “The question is, in a word, moot.”
The majority opinion was unsigned and just two pages long. Justice Samuel Alito, joined by Justice Neil Gorsuch and, for the most part, Justice Clarence Thomas, issued a 31-page dissent. It said that the case was not moot and that the regulation flatly violated the court’s Second Amendment precedents.
But the court is very likely to agree to hear a new Second Amendment case soon. It takes four votes to add a case to the court’s docket, and Justice Brett Kavanaugh, in a concurring opinion, indicated that he was ready to join the three dissenting justices in voting to grant review in one of what he said were “several Second Amendment cases with petitions” awaiting action from the court.
Kavanaugh wrote that he agreed with Alito that lower courts may not be properly applying the Supreme Court’s Second Amendment precedents. “The court should address that issue soon,” he wrote.
The New York City regulation, which appeared to be unique in the nation, had allowed residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city. But it prohibited them from taking their guns to second homes and shooting ranges outside the city, even when the guns were unloaded and locked in containers separate from ammunition.
The Supreme Court seemed unlikely to uphold the law and its decision in the case would have given it an opportunity to elaborate on the scope of Second Amendment rights.
The majority did not address that issue, but the three dissenting justices did. The regulation, Alito wrote, violated the Second Amendment. “This is not a close question,” he wrote. “The answer follows directly from Heller.”
In that 2008 decision, District of Columbia v. Heller, a five-justice majority established an individual right to keep guns in the home for self-defense, imperiling gun control laws around the nation. But aside from one follow-up case in 2010, the court has not said more on the scope of that right.
Exactly what the Second Amendment protects has been in dispute ever since, partly because Justice Antonin Scalia’s majority opinion in the Heller decision included an important limiting passage that was almost certainly the price of Justice Anthony Kennedy’s fifth and deciding vote in the case.
“Nothing in our opinion,” Scalia wrote, “should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Since the Heller decision, lower courts have largely upheld state and local gun control laws.
The new case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, was brought by the association and three city residents. The challengers had lost in U.S. District Court in Manhattan and in the 2nd U.S. Circuit Court of Appeals, where a unanimous three-judge panel had ruled that the ordinance passed constitutional muster under the Heller decision.
In his dissent, Alito accused the city of litigation gamesmanship in attempting to make the case moot after the court granted review. He added that the case was an easy one.
“The city’s travel restriction burdened the very right recognized in Heller,” he wrote. “History provides no support for a restriction of this type. The city’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing.”
“And once we granted review in this case,” he continued, “the city’s public safety concerns evaporated. We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”
The majority, in its unsigned opinion, left open the possibility that a lower court could yet revive the case.
In particular, the majority said that it declined to rule on a challenge to the amended regulation, which the plaintiffs said still violated the Second Amendment by forbidding gun owners “to stop for coffee, gas, food or restroom breaks on the way to their second homes or shooting ranges outside of the city.” The city disputed the interpretation of the new regulation.
The question, the majority said, should be addressed by the appeals court.