Bench Memos

Law & the Courts

The Second Amendment Day of Reckoning Is About to Dawn

(Jonathan Ernst/Reuters)

The ballyhoo over the U.S. Supreme Court’s tiptoe around a Second Amendment decision this week might be a gun control celebration a little too soon.

The Supreme Court ruled this week in New York State Rifle & Pistol Association v. City of New York that changes made after the Court granted certiorari (agreed to hear the appeal) to the City of New York’s onerous ordinance and regulations rendered the case “moot.” That’s the ordinance that burdened the ability of the city’s gun owners to travel with lawfully owned, unloaded, and locked firearms to destinations outside the city.

While the result may be disappointing to Second Amendment advocates, the silver lining is that a Second Amendment day of reckoning may be dawning.

Justice Samuel Alito wrote a well-reasoned dissent, which Justices Neil Gorsuch and Clarence Thomas (mostly) joined, for why the case is not moot. He wrote, “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”

Justice Alito observed that one would have expected the City of New York to continue to forcefully defend its law, as it had in lower courts. “But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case,” he continued. “Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.”

Justice Alito noted that the Court has “been particularly wary of attempts by parties to manufacture mootness in order to evade review.” Regrettably, that is exactly what the City of New York successfully did in this case.

Had the Court reached the merits of the plaintiffs’ Second Amendment claims, the dissenting justices, at least, would have held the City’s ordinance violated the Second Amendment, calling it “not a close question.”

The true importance of the case, however, is not the fact that the City of New York dodged a proverbial bullet, but rather what Justice Alito and Justice Kavanaugh had to say about how the lower courts have applied the Court’s holding in Heller and McDonald.

Heller and McDonald

The Court has shied away from taking challenges to states’ attempts to limit the right to keep and bear arms. Proponents of individual rights hoped the City of New York case would break the logjam, as the Supreme Court hasn’t decided a case on these issues since 2008 with the Heller decision and 2010 with the McDonald decision.

“Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed,” Justice Alito wrote. “We have been asked to review many of these decisions, but until this case, we denied all such requests.”

In discussing how the plaintiffs’ Second Amendment claims were handled, Justice Alito wrote, “Although the courts below claimed to apply heightened scrutiny, there was nothing heightened about what they did.” He concluded his dissenting opinion by noting, “We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”

This frustration among the justices that the Court is treating the Second Amendment as a second-class right isn’t new. Justices Thomas and Gorsuch vented their frustration with the Supreme Court’s refusal to grant review in the Peruta v. California case in 2017. In his dissent, Justice Thomas wrote the case “reflects a distressing trend: their treatment of the Second Amendment as a disfavored right.” He added, “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”

A year later, in dissenting from a denial to grant certiorari in Silvester v Becerra he said, “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message . . . this Court declared [in McDonald] that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

Time Has Come

Justice Kavanaugh, while departing from Justice Alito on the procedural issue of mootness claim in his concurring opinion, agreed with Justice Alito’s general analysis of the misapplication of Heller and McDonald by the lower courts. “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court,” Justice Kavanaugh wrote. These words may prove to be prophetic.

The same day the Supreme Court sidestepped the City of New York case, it scheduled for conference ten pending Second Amendment cases to decide whether to grant certiorari and hear those appeals. These cases arguably involve more important and substantial Second Amendment issues than the City of New York case. Several of these cases challenge restrictions on where an individual can carry a firearm outside their home. Three cases challenge more industry-specific issues. The National Shooting Sports Foundation, the firearm industry trade association, filed amicus briefs in support of the two plaintiffs. Those cases include:

Mance v. Barr — a case which a Washington, D.C.-based couple is challenging the federal interstate handgun transfer ban on Second Amendment grounds after they were prohibited from purchasing two firearms from a Texas federal firearms licensee without going through D.C.’s only licensed firearm retailer. NSSF’s brief argues the Second Amendment right to keep and bear arms, including handguns, does not stop at your state’s border. The federal ban on interstate handgun sales is not narrowly tailored to the professed government compelling interest. The ban unreasonably infringes upon the Second Amendment rights of individuals who are otherwise qualified to purchase handguns and violates their Fourteenth Amendment right to equal protection under the law.

Worman v. Healey — a Second Amendment challenge to Massachusetts’ ban on commonly owned modern sporting rifles. NSSF’s amicus brief argues that lower courts disagree on what standard of review applies and the standards articulated by five circuit courts of appeal are unconstitutional. The First, Second, Fourth, Ninth, and D.C. Circuits have all ruled that “intermediate scrutiny” should apply to laws of this sort. The Seventh Circuit chose to apply the standard of which gun control laws were in place when the Bill of Rights was ratified. NSSF argues that the “intermediate scrutiny” standard has no grounding in the Second Amendment and gives judges unlimited discretion to approve and disapprove firearms regulations. NSSF further argues that lower courts are relegating the Second Amendment to a second tier right, despite its clear and unambiguous proscription of government overreach.

Threats and Tantrums

The City of New York decision offers more than just a glimpse into the Court’s appetite to finally taking more Second Amendment cases. It also foreshadows the lengths to which those who are crowing over the dismissal might react when the Supreme Court takes up one or more of these pending reviews.

A prominent brief supporting the City filed by Senators Sheldon Whitehouse (D., R.I.), Mazie Hirono (D., Hawaii), Richard Blumenthal (D., Conn.), Richard Durbin (D., Ill.), and Kirsten Gillibrand (D., N.Y.)  threatened the Court with political consequences. “The Supreme Court is not well. And the people know it,” the senators’ brief reads. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

Justice Alito made it clear the Supreme Court’s integrity, and that of the senators who confirm justices, was on the line.

“United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed,” Justice Alito wrote. “If the Court did not do so, they intimated, the public would realize that the Court is ‘motivated mainly by politics, rather than by adherence to the law,’ and the Court would face the possibility of legislative reprisal.”

The attacks on the court then presage what can be expected. Senate majority leader Mitch McConnell (R., Ky.) anticipated as much when he reassured the Supreme Court that judicial integrity would be respected under his watch in a letter which garnered the signatures of 52 senators.

The same senators who threatened the Supreme Court smeared Justice Kavanaugh with unfounded, unsubstantiated, and unproven claims of violent criminal misconduct. One can imagine what will happen if the Court were to grant certiorari in these more far-reaching Second Amendment cases. In addition to being unprofessional, bordering on sanctionable for the senators admitted to the Supreme Court, it probably was not the wisest move. It clearly didn’t sit well with Justice Alito.

The ballyhoos heard now could well become gnashing of teeth and wails of frustration. Hopefully, a day of reckoning is coming for the Second Amendment.

Editor’s Note: This piece originally identified the Fifth Amendment as guaranteeing equal protection under the law from state infringement. In fact that is a Fourteenth Amendment guarantee. It has been corrected.

Lawrence G. Keane is the senior vice president of government relations and public affairs and general counsel for the National Shooting Sports Foundation, the firearms and ammunition industry’s trade association.

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