Law & the Courts

New York City’s Dishonest Attempt to Squelch a Gun-Rights Lawsuit

A man inspects a handgun at the National Rifle Association annual meeting in Indianapolis, Ind., April 28, 2019. (Lucas Jackson/Reuters)
The Supreme Court could clarify the scope of the Second Amendment. The city would rather it didn’t.

 Last January, the Supreme Court agreed to hear a Second Amendment challenge to a New York City law that, among other restrictions, prohibited residents from taking their handguns outside the city. The Court was gearing up to rule on what would be the first Second Amendment case decided in a decade. But ever since, the city has been working feverishly to prevent the Court from hearing it. After all, the case would clarify the scope of the Second Amendment, and the gun-control crowd certainly doesn’t want that — at least not from the current Court.

But this is about much more than guns. If the city’s sneaky attempts to avoid accountability are rewarded, other rights will suffer too.

At the core of New York’s shady actions are the legal concepts of “justiciability” and “mootness” — limits on the federal courts’ ability to hear cases. For a case to be justiciable, it must involve a “live” case or controversy. For example, if a state passed a law banning bumper stickers, and you sued, asking the Court to strike down the law as violating the First Amendment, the case would be moot if the state repealed its law before your case was heard.

But there are certain situations where the courts won’t consider a case moot. After all, a government could keep violating people’s civil rights and avoid having its laws overturned by simply repealing the law just to enact it again later.

This is precisely the type of situation New York City has manufactured: It’s backing off now, presumably planning to wait until the Supreme Court’s makeup is more favorable. Almost as soon as the Supreme Court agreed to hear the case, the city reversed course on a law it has spent decades defending tooth and nail and requested that the Court delay the case to allow the city time to remove the rule. Originally, the city planned to have the police make a rule change — not even overturning the law. But the Court denied this request and, suspecting what the city was up to, several lawyers (including me) made sure, in amicus briefs, to address the city’s bad-faith attempt to escape the Court’s grasp.

Right now, the city’s main hurdle is the “voluntary cessation” doctrine. Essentially, the Court won’t let the government wriggle out of a case just because it stopped its abuse at the eleventh hour. Indeed, the Supreme Court has said that, in these situations, it should be clear the defendant is not “free to return to his old ways” because there’s “a public interest in having the legality of the practices settled.”

The city knew its half-hearted attempts to squirm out of the case weren’t working, so they took some more extreme measures. Enter Democratic New York senator Brian P. Kavanagh.

Kavanagh sponsored Assembly Bill A7752, preempting city laws on the transportation of firearms. The bill flew through the state legislature. By July 3, it was headed to the desk of Governor Andrew Cuomo, who will, of course, sign it.

You might notice that something seems off about a Democratic state senator sponsoring a bill loosening firearm restrictions, that law speeding through a Democrat-controlled legislature, and then a feverishly anti-gun governor stamping it with approval. The city knew a change in state law to preempt the city gun law, something the anti-gun crowd has consistently fought against, was the only way to strengthen the city’s mootness argument. This is merely a case of the city and state colluding to keep the Court from settling the matter once and for all.

The attorney for New York City even submitted a strongly worded letter to the Supreme Court, asserting that, no matter what the Court or opposing counsel thought, the case was moot. The letter threatened that if “this Court prefers to allow [the case] to play out, respondents will file a brief . . . maintaining in greater detail that the case is moot. [The City does] not intend to address whether the Constitution entitles [lawful New York gun owners] to transport their firearms.” In other words, the city is daring the Court to proceed and promising that, if it does, New York will make the case as messy as possible for the conservative wing of its justices.

New York’s government knows its dealing is underhanded — but the city doesn’t care. It likely knows its laws were unconstitutional, too. The attempt to moot the lawsuit is, and always has been, a scam against the American people.

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