Bench Memos

Law & the Courts

Alito Dissent: Second Amendment Challenge to NYC Gun Laws Not Moot

In a one-paragraph per curiam opinion today in New York State Rifle & Pistol Ass’n v. City of New York, the Supreme Court stated that the petitioners’ claim for declaratory and injunctive relief with respect to New York City’s “old rule” regarding the transport of firearms is moot and that their challenge to the City’s new rule, as well as any claim for damages under the old rule, should be addressed in the first instance by the lower courts on remand.

In a lengthy dissent, Justice Alito, joined by Justice Gorsuch and for the most part by Justice Thomas, objected to the Court’s disposition and would have ruled in favor of petitioners on their Second Amendment challenge. Here are some interesting excerpts (citations omitted) on the mootness question:

[T]his case is not moot because the amended City ordinance and new State law do not give petitioners all the prospective relief they seek. Petitioners asserted in their complaint that the Second Amendment guarantees them, as holders of premises licenses, “unrestricted access” to ranges, competitions, and second homes outside of New York City, and the new laws do not give them that.

The new City ordinance has limitations that petitioners claim are unconstitutional, namely, that a trip outside the City must be “direc[t]” and travel within the City must be “continuous and uninterrupted.” Exactly what these restrictions mean is not clear from the face of the rule, and the City has done little to clarify their reach. At argument, counsel told us that the new rule allows “bathroom breaks,” “coffee stops,” and any other “reasonably necessary stops in the course of travel.” But the meaning of a “reasonably necessary” stop is hardly clear. What about a stop to buy groceries just before coming home? Or a stop to pick up a friend who also wants to practice at a range outside the City? Or a quick visit to a sick relative or friend who lives near a range? The City does not know the answer to such questions.…

Consider where acceptance of the argument adopted by the per curiam leads. Suppose that a city council, seeking to suppress a local paper’s opposition to some of its programs, adopts an ordinance prohibiting the publication of any editorial without the approval of a city official. Suppose that a newspaper challenges the constitutionality of this rule, arguing that the First Amendment confers the unrestricted right to editorialize without prior approval. If the council then repeals its ordinance and replaces it with a new one requiring approval only if the editorial concerns one particular city program, would that render the pending lawsuit moot and require the paper to commence a new one?

Or take this example. A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit? Suppose the court, following the precedent set by today’s decision, holds that the case is moot, and suppose that the woman brings a second case challenging the new law on the same ground. If the State repeals that law and replaces it with one requiring certification by two doctors, would the second suit be moot? And what if the State responds to a third suit by enacting replacement legislation demanding certification by one doctor?

Mootness doctrine does not require such results. A challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged. And that is the situation here.

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