N.Y. gun rules

New York City re­scinded lim­its af­ter jus­tices took the matter

The Washington Post - - FRONT PAGE - BY ROBERT BARNES

The Supreme Court heard its first Sec­ond Amend­ment case in a decade, but the matter may turn out to be moot.

The Supreme Court heard its first Sec­ond Amend­ment case in a decade Mon­day, but there were in­di­ca­tions that the jus­tices may no longer think they have a case to de­cide.

The con­tro­versy in­volves nowre­scinded re­stric­tions unique to New York City about whether ci­ti­zens who have a li­cense to keep a gun in their homes may trans­port them to fir­ing ranges out­side of the city or to a sec­ond home in the state.

Af­ter the Supreme Court took the case to de­cide whether those re­stric­tions vi­o­lated the con­sti­tu­tional right to keep and bear arms, the city got rid of them. Then the state of New York passed a law that would keep them from be­ing reen­acted.

The un­stated pur­pose of both the city and state ac­tions might have been to make the case moot and deny con­ser­va­tives on the court a chance to ex­plore whether there is a right to carry a gun out­side the home.

It was the first time the court had con­sid­ered the lim­its of gun re­stric­tions with­out re­tired jus­tice An­thony M. Kennedy, who played the piv­otal role be­tween con­ser­va­tives and lib­er­als on such cases. Both sides of the gun con­trol is­sue said the in­nocu­ous sound­ing case car­ried great po­ten­tial for change.

The ar­gu­ments Mon­day sug­gested that New York would have had trou­ble de­fend­ing the old reg­u­la­tions. But most of the hour-long dis­course was con­sumed with ques­tions about whether the court still has a live con­tro­versy be­fore it, a re­quire­ment for ren­der­ing an opin­ion.

The court de­nied New York’s ear­lier plea to dis­miss the case as moot. It said it would con­sider the ques­tion af­ter ar­gu­ment.

Jus­tice So­nia So­tomayor said New York has “thrown in the towel,” and the plain­tiffs now are “ask­ing us to opine on a law that’s not on the books any­more.”

Jus­tice Ruth Bader Gins­burg asked Paul D. Cle­ment, the Wash­ing­ton lawyer rep­re­sent­ing the New York State Ri­fle and Pis­tol As­so­ci­a­tion, the Na­tional Ri­fle As­so­ci­a­tion af­fil­i­ate that brought the ac­tion: “So, what’s left of the case? The pe­ti­tion­ers have got­ten all the re­lief that they sought.”

Cle­ment said the case was still alive — the new re­stric­tions do not make clear whether his clients could be harmed for mak­ing a stop for cof­fee or to use the re­stroom while trans­port­ing their un­loaded weapons to a shoot­ing range, for in­stance — and he said they might be hurt in ap­ply­ing for li­censes be­cause of past vi­o­la­tions of the old law.

More­over, “if we pre­vailed in the district court be­fore these changes in the law, we would have been en­ti­tled, of course, to a dec­la­ra­tion that the trans­port ban is and al­ways was un­con­sti­tu­tional.”

But the tenor of the ar­gu­ments sug­gested Cle­ment would need all five con­ser­va­tives on board to keep the case on track. The most closely watched was Chief Jus­tice John G. Roberts Jr., and the only ques­tions he asked seemed meant to re­as­sure him­self that the plain­tiffs would not suf­fer if the case was de­clared moot.

Richard P. Dear­ing, rep­re­sent­ing the city of New York, told the court that the city would not un­der­take “any pros­e­cu­tion or ac­tion” based on the now-re­pealed reg­u­la­tions.

“Is there any way in which any vi­o­la­tion could prej­u­dice a gun owner?” Roberts asked. Dear­ing said no.

“Is there any way in which a find­ing of moot­ness would prej­u­dice fur­ther op­tions avail­able to the pe­ti­tion­ers in this case, for ex­am­ple, seek­ing dam­ages?” Roberts asked.

Again, Dear­ing said no, and added more as­sur­ance there would be no “col­lat­eral con­se­quences” to those who brought the case.

The Trump ad­min­is­tra­tion had weighed in on the side of the chal­lengers. Deputy So­lic­i­tor Gen­eral Jef­frey B. Wall said the case was still alive be­cause of the pos­si­bil­ity that the plain­tiffs in the case could seek dam­ages for hav­ing their rights vi­o­lated by the old trans­port ban.

He faced skep­ti­cal ques­tion­ing from the lib­er­als. Gins­burg noted that the plain­tiffs had never asked for dam­ages, and won­dered if the so­lic­i­tor gen­eral had “ever asked this court to al­low such a late in­ter­jec­tion of a dam­ages ques­tion to save a case from moot­ness?”

Wall an­swered: “I don’t know of any case in which it’s di­rectly come up or we’ve weighed in on it.”

Sev­eral of the court’s con­ser­va­tives did not seem sat­is­fied with Dear­ing’s rep­re­sen­ta­tions. Jus­tices Sa­muel A. Al­ito Jr. and Neil M. Gor­such looked for ways the case might still be wor­thy of a de­ci­sion on its mer­its and seemed clear they would find the old re­stric­tions un­con­sti­tu­tional.

Al­ito asked Dear­ing if the peo­ple of New York were less safe now that the city no longer had the reg­u­la­tions it had de­fended as nec­es­sary in the district court and at the U.S. Court of Ap­peals for the 2nd Cir­cuit. Both ruled for the city.

When Dear­ing said no, Al­ito asked: “Well, if they’re not less safe, then what pos­si­ble jus­ti­fi­ca­tion could there have been for the old rule, which you have aban­doned?”

Jus­tice Brett M. Ka­vanaugh, who re­placed Kennedy, did not ask a ques­tion, nor did Jus­tice Clarence Thomas, as is the lat­ter’s cus­tom.

In the past, Thomas, joined by Gor­such, has crit­i­cized the court for not tak­ing more cases to build out the right to in­di­vid­ual gun own­er­ship the Supreme Court rec­og­nized in 2008 in District of Columbia v. Heller. Lower courts have mostly said the de­ci­sion al­lows state and lo­cal gun con­trol mea­sures if they can be de­fended as pro­tect­ing the public’s safety.

Cle­ment said it was im­por­tant for the court to use the case to send a mes­sage.

“The way the lower courts have in­ter­preted Heller is like text, his­tory and tra­di­tion is a one-way ratchet,” Cle­ment said.

“I think this court should reaf­firm that text, his­tory and tra­di­tion es­sen­tially is the test and can be ad­min­is­tered in a way that pro­vides real pro­tec­tion for Sec­ond Amend­ment rights.”

Gor­such seemed dis­turbed by the “her­culean, late-break­ing ef­forts to moot the case” and keep the court from mak­ing such a rul­ing.

But Dear­ing said the pe­ti­tion­ers should not be up­set that the city has con­ceded, nor should the court.

The case is New York State Ri­fle and Pis­tol As­so­ci­a­tion v. City of New York.

[email protected]­post.com

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.