WASHINGTON — 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.
“What’s left of this case?” Justice Ruth Bader Ginsburg asked. “The petitioners have gotten all the relief that they sought.”
The other three members of the court’s liberal wing made similar points. “The other side has thrown in the towel,” Justice Sonia Sotomayor told a lawyer for the challengers. “You’re asking us to opine on a law that’s not on the books anymore.”
Chief Justice John Roberts, a member of the court’s conservative majority, asked questions that seemed aimed at making sure that the case was truly moot. But two other conservatives, Justices Samuel Alito and Neil Gorsuch, appeared ready to decide the case, saying that the repeal of the law did not settle every question before the court.
Gorsuch said he was skeptical of the city’s “herculean, late-breaking efforts to moot the case.”
Justices Clarence Thomas and Brett Kavanaugh asked no questions.
The law had limited city residents who had “premises licenses” from transporting their guns outside their homes. It allowed them to take their guns to one of seven shooting ranges within the city limits, but it barred them from taking their guns anywhere else, including second homes and shooting ranges outside the city, even when the guns were unloaded and locked in a container separate from any ammunition.
Three city residents and the New York State Rifle and Pistol Association sued to challenge the law but lost in U.S. District Court in Manhattan and in the 2nd Circuit U.S. Court of Appeals. A unanimous three-judge panel of the 2nd Circuit ruled that the ordinance passed constitutional muster.
After the Supreme Court granted review, the city repealed its law, apparently fearful of a loss that could sweep away other gun-control regulations, too. For good measure, New York state enacted a law allowing people with premises licenses to take their guns to their homes and businesses and to shooting ranges and competitions, whether in the city or not.
Even the court’s more liberal members indicated that the repealed law would be problematic were it properly before the court.
“One problem with the prior regulation,” Ginsburg said, was that “if you wanted to have a gun in your second home, you had to buy a second gun.”
“And what public-safety or any other reasonable end is served by saying you have to have two guns instead of one — and one of those guns has to be maintained in a place that is often unoccupied and that, therefore, more vulnerable to theft?” she continued.
Paul D. Clement, a lawyer for the challengers in the case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, said the restrictions imposed by the ordinance were at odds with the words of the Second Amendment.
“The Second Amendment protects rights to keep and bear arms,” he said. “That latter right makes clear that the Second Amendment protects rights that are not strictly limited to the premises.”
Clement’s efforts to keep the argument focused on whether the repealed law was constitutional mostly failed. He was instead peppered with questions about whether the case was moot.
In response, he questioned a requirement in the city’s replacement law that the transport of guns to permissible places be “continuous and uninterrupted.”
Clement said his clients were entitled to a clear judicial determination of whether they would violate the new law if they stopped for coffee or a bathroom break on their way to a shooting range or a second home. That theory seemed to satisfy Gorsuch as a ground on which to say the case was not moot.
“Why isn’t that good enough?” he asked. If under both the old law and the new one the challengers could not “take their firearms locked safely to a range and stop along the way for a cup of coffee or a bathroom break,” Gorsuch said, there would seem to be a live controversy.
But Jeffrey B. Wall, a lawyer for the federal government who was arguing on behalf of the challengers, declined to endorse that argument for keeping the case alive. “It’s a close call,” he said, before adding, “In our view, that’s a new controversy that arises from the new law, not the old controversy in the old law.”
For his part, Richard P. Dearing, a lawyer for the city, said that coffee stops and bathroom breaks “are entirely permissible” under the new law.
Alito asked whether one of the plaintiffs “could stop to visit his mother for a couple of hours to take care of a few things for her” while transporting firearms.
Dearing said that question should be resolved in a fresh challenge to the new law.
Roberts asked just two questions, each seemingly intended to elicit concessions from Dearing that could allow the court to rule that the case was moot. The chief justice first asked whether the challengers could suffer negative consequences for what was unlawful conduct while the city law was in place.
“Is there any way in which any violation could prejudice a gun owner?” the chief justice asked about the old law. Dearing said no.
The chief justice then asked whether a ruling that the case was moot would stop a further lawsuit for money. Dearing said no, so long as such a lawsuit was timely and otherwise proper.
Roberts’ questions were hardly conclusive evidence of his position, but they suggested that he was thinking about how to draft an opinion ruling the case was moot.
The larger question in the case, one the court may not address, is whether lower courts have been faithfully applying its key precedent, District of Columbia v. Heller, which was decided by a 5-4 vote in 2008. The decision revolutionized Second Amendment jurisprudence by identifying an individual right to own guns, but it ruled only that the right applied inside the home, for self-defense.
Proponents of gun rights have been frustrated by lower-court rulings that have generally upheld various kinds of gun-control laws, often relying on a passage in the Heller decision that said some restrictions were presumptively constitutional.
“Nothing in our opinion,” Justice Antonin Scalia wrote for the majority in a passage that was apparently the price of Justice Anthony M. Kennedy’s fifth vote, “should be taken to cast doubt on longstanding 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.”
Scalia died in 2016, and Kennedy retired last year.
Clement urged the justices to decide the case on the merits. That would “send a very important signal to the lower courts,” he said, that some gun regulations are “unconstitutional, full stop.”