Supreme Court Hears Gun Rights Case But Likely Won’t Rule On Merits

For the first time in nearly a decade, the Supreme Court heard a significant Second Amendment case, but it is unlikely to rule on the merits of the case.

The Supreme Court heard oral argument yesterday in its first real Second Amendment case in a decade, but the odds are we will not be getting a substantive ruling in the case due to the fact that the law being challenged is no longer on the books:

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The controversy involves now-rescinded restrictions unique to New York City about whether citizens who have a license to keep a gun in their homes may transport them to firing ranges outside of the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.


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.

Josh Blackman has a detailed overview of the oral argument, and Amy Howe summarizes the argument at SCOTUSBlog:

Arguing on behalf of the gun owners, former U.S. solicitor general Paul Clement told the justices that the text and history of the Second Amendment make clear that the city’s transport ban was unconstitutional. Complaining that the city has “struggled mightily to make this case go away,” Clement spent much of his time at the lectern fielding questions about whether the court should decide the Second Amendment question at all.

Justice Ruth Bader Ginsburg led the way, asking Clement what was left of his case, if his clients had already received everything they wanted. Justice Sonia Sotomayor echoed Ginsburg’s concern. She told Clement that he was asking the justices to take a case “in which the other side has thrown in the towel” and “opine on a law that’s not on the books anymore.”

Clement maintained that there is still a live controversy for the justices to tackle because, if his clients had prevailed in the district court, they would have asked for a declaration that the transport ban was unconstitutional and an order that would not only bar the city from enforcing the ban in the future, but also would prohibit it from considering past violations of the ban in future licensing decisions. Moreover, Clement added, the new scheme only allows continuous and uninterrupted travel outside the city, which means that gun owners can’t make stops for coffee or to use the restroom. More broadly, Clement continued, allowing a government to moot a case after the Supreme Court grants review would set a bad precedent.

Jeffrey Wall, the deputy solicitor general who argued on behalf of the United States in support of the gun owners, agreed with Clement that the text and history of the Second Amendment “condemn” New York City’s transport ban. But like Clement, Wall spent most of his time discussing whether the case is moot. Just over two weeks ago, the federal government told the justices that the case is not moot because the gun owners could still seek money from the city as compensation for the violation of their Second Amendment rights, and Wall reiterated that position today.

Some of the court’s more liberal justices pushed back, starting with Ginsburg, who observed that the gun owners had never asked for money damages. Justice Elena Kagan dismissed Wall’s suggestion that the gun owners’ complaint was not “focused” on money damages. “Not focused on damages is an understatement,” Kagan scoffed. “They won’t take damages.” Kagan emphasized that the gun owners had never asked for damages in any of their pleadings in the case. Only the federal government had suggested that the gun owners could still seek money damages, Kagan stressed, while at the same time it had rejected “every other theory of why this case is live.”

Justice Neil Gorsuch seemed more sympathetic, however. When Wall described the gun owners’ theory that the case is still a live controversy because of the restrictions on their ability to stop for coffee or a restroom break while traveling as a “close call,” Gorsuch asked aloud, “Why isn’t that good enough? Why isn’t there a live controversy?”

Howe goes on to note that, after spending much of the argument time dealing with the mootness issue, there was only limited discussion of the merits of the case:

There were relatively few clues as to how the justices might rule on the merits if they decide that the case is not moot, if only because so little of the argument time was devoted to the question of whether the transport ban violated the Second Amendment.

Clement suggested that the case is “straightforward,” telling the justices that the ban should be struck down because there is “no historical analogue” for this kind of rule. But Kagan saw the issue differently, observing that New York City has two different kinds of gun licenses: One, known as a premises license, confers the right to have a gun in the home, while the other confers the right to carry a gun outside the home. Your clients, she told Clement, are attacking the premises license, but why aren’t you attacking the carry-license scheme instead?

Wall similarly urged the court to adopt a test that focuses on whether a restriction on gun is consistent with the text, history and tradition of the Second Amendment, describing such a standard as following from the court’s 2008 decision in District of Columbia v. Heller. Sotomayor was dubious, dismissing it as a “made-up new standard.”

As on the mootness issue, Dearing’s toughest questions on the constitutionality of the transport ban came from Alito, who pressed him to concede that the Second Amendment protects the right to have a gun outside the home in at least some circumstances. Dearing countered that to be able to use a gun in the home effectively, the gun owner will sometimes need to be able to take the gun outside the home – for example, to a shooting range to practice. But the locations where people could practice with their guns have historically been regulated, and on this record, the transport ban passed muster. Moreover, Dearing added, although courts should start with the text, history and tradition to determine whether a particular rule violates the Second Amendment, those tools frequently will not answer the question conclusively.

When the Court decided to take this case, it was seen as a significant move given the fact that the Justices had generally stayed away from Second Amendment cases since issuing its opinion in McDonald v. City of Chicago, which applied the holding in District of Columbia v. Heller to the states, That opinion was issued nine years ago, though, and in the subsequent time the Justices had declined to accept a number of requests for appeal, most notably those dealing with rulings from the Circuit Courts of Appeal upholding the laws of states and other jurisdictions banning so-called “assault weapons” and other laws objected to by the gun rights community. On more than one occasion this led Justice Thomas, Justice Alito, Justice Gorsuch, and, when he was alive the late Justice Scalia to argue that their fellow Justices were avoiding core issues related to a Constitutional right. Because of that, the fact that the Court accepted this case for appeal was seen by many to be a sign that the Justices were ready to break their silence on the scope of the ruling in Heller/McDonald.

The Supreme Court and lower Federal Courts have generally interpreted the scope of their jurisdiction, which is set forth In Article III, Section Two, Clause 1 of the Constitution to require the existence of an “actual case or controversy” between the parties before the Court. While there are some circumstances where Courts will issue a “Declaratory Judgment,” the extent to which is able to do that is generally limited by a statutory grant of jurisdiction and has been interpreted to still require the existence of an “actual case or controversy” before the court will make any declaration of the rights of the parties. Additionally, American courts have continued to follow a rule established in British Common Law that courts should not issue advisory opinions that answer merely hypothetical questions.

It’s based on these rules that the question before the Justices in the case argued yesterday moved away from being whether or not the law being challenged violated the Second Amendment and moved to the question of whether or not there was even a case left that the court has jurisdiction to rule on. The fact that the law has been repealed argues strongly in favor of the idea that the case was moot and that the court lacked jurisdiction, and it seems apparent from the oral argument that there is likely a majority on the court that agrees with this proposition. If that’s the case, then we can probably expect a quick turnaround on this case since it would not take much for the court to draft a short opinion accepting the mootness argument whereas a decision based on the Second Amendment and Heller/McDonald would likely take months to draft.

As they say, stay tuned. In the meantime, you can read up on the underlying case at the SCOTUSBlog Information Page for the case.

Here’s the transcript of yesterday’s argument:

N.Y.S. Rifle & Pistol A… by Doug Mataconis on Scribd

FILED UNDER: Guns and Gun Control, Law and the Courts, Second Amendment, Supreme Court, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. JKB says:

    This is similar to “stop and frisk” where they don’t find anything and let you go. Well, you weren’t arrested so there no controversy over your constitutional rights being violated. Gun grabbers go through all kinds of contortions to avoid get out of a ruling their laws violate constitutional rights.

  2. This is nothing like stop and frisk.

    New York repealed the law. Therefore, there is no longer a case for SCOTUS to rule on.

  3. Teve says:

    Well, you weren’t arrested so there no controversy over your constitutional rights being violated.

    not even noon and I’ve already read the dumbest thing I’ll read all day.

  4. Daryl and his brother Darryl says:


    Well, you weren’t arrested so there no controversy over your constitutional rights being violated.

    Every comment is just that much dumber than your previous comment. Need we all watch you end up and the ultimate endpoint?

  5. Mister Bluster says:

    Well, you weren’t arrested so there no controversy over your constitutional rights being violated.

    How would you know???

    Arrest vs. Detention: How to Tell Whether You’ve Been Arrested or Detained
    It’s possible for the police to arrest you–intentionally or not–before saying that you’re under arrest.