Bench Memos

Law & the Courts

New York City Is Still Running from Supreme Court Review of Gun Laws

(Leah Millis/Reuters)

This past January, the Court granted review in New York State Rifle & Pistol Association v. City of New York, the Supreme Court’s first Second Amendment case in nearly ten years. The case addresses NYC’s statute prohibiting the transportation of handguns outside of city limits.

After review was granted, and in an apparent attempt to render the lawsuit moot and escape Supreme Court review, NYC decided to run instead of fight.

On July 3, 2019, NYC tried to file a letter with the Supreme Court informing the Court that NYC officials were in the process of changing the underlying transportation regulations. The change would allow license holders to transport their handguns outside of city limits to other homes or nearby shooting ranges — exactly the relief requested by Petitioners in the underlying case. The letter specified that NYC was moving forward with the amendments and that there was also going to be a change at the state level.

In a particularly brazen move, completely ignoring the questions presented to be answered by the Supreme Court, NYC told the Supreme Court that should the Court require the city to file a brief by its current deadline, the city would refuse to actually address those questions and would only discuss why the city believes the case is moot.

On July 8, 2019, the Supreme Court did not accept the letter for filing either because the city failed to follow the appropriate procedure or because of Petitioners’ objection.

NYC hasn’t stopped running though. Now they are trying a new tactic. Attempting to address the rejected letter, on Monday NYC filed a Suggestion of Mootness with the Court. NYC claims that because the transportation prohibition statute has been amended, the case before the Court is moot and the Court should not address the merits of the Second Amendment challenge.

NYC also requested additional time to file its brief, in order to give the Court “breathing space for the Court to determine how it wishes this case to proceed, if at all.”

In reality, the Suggestion of Mootness is a clear sign that NYC will do whatever it can to avoid Supreme Court review.

The underlying case was filed by Petitioners in March 2013 — more than six years ago. Over those six years, NYC has vehemently defended its handgun transportation ban, through almost every level of judicial review. In fact, NYC was successful at both the District Court and the Second Circuit. The city even opposed the Supreme Court granting review in this case, specifically stating NYC believed the Second Circuit “carefully reviewed petitioners’ constitutional claims and correctly concluded that they lack merit.”

If that were the case, why wouldn’t NYC be willing to defend its handgun transportation ban before the Supreme Court?

Theoretically, it is possible that NYC officials have, after six years and a countless amount of taxpayer dollars spent on litigation, finally read and understood the Second Amendment and realized the error of their ways.

But let’s not fool ourselves here.

Most likely, city officials realize that they can’t win at the Supreme Court and are trying to preemptively cut their losses before they set “bad precedent” for the gun control movement across the nation. Given the Supreme Court’s nearly decade-long silence on the topic, this case has the potential to bring the lower courts back in line with the Supreme Court’s treatment of the right to keep and bear arms in Heller and McDonald.

Let’s not forget, there are other Second Amendment petitions sitting on the Justices’ desks, such as Pena v. Horan, that could easily be granted should this case be mooted.

In any event, the question remains, will the Supreme Court agree that the case is now moot? Or will the Court refuse the city’s clear attempt to evade review.

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