This morning, the Supreme Court will hear argument in NYSRPA, the Second Amendment challenge to a now-repealed New York City rule that prohibited individuals holding a premises license from taking their gun outside of the City (with limited exceptions). It is the first oral argument in a Second Amendment case since March 2, 2010. When NYSRPA granted in January, there was a debate about whether the Court took the case to strike down an outlier law—much like the ones it struck down in Heller and McDonald—or to make a broader ruling on the scope of the Second Amendment and the methodology lower courts should use moving forward. But things changed this summer when the City repealed the challenged rule; New York State, which is not a party, also changed the law so that the City could not reenact the challenged rule even if it wanted to. The debate changed from one about the breadth of the potential ruling to one about whether there would (or should) be a Second Amendment ruling at all.
In any event, here’s what I’m watching for in the arguments today:
- How quickly the questioning turns to mootness and how focused the justices appear to be on that issue as opposed to the merits
- Whether the justices press the Solicitor General on the theory that the mere possibility of nominal damages suffices to keep a case from mootness—and on the SG’s rejection of petitioners’ other theories for why the controversy remains live
- Whether the justices look like they agree with the petitioners’ view that there’s something suspect about statutory changes if such changes seem designed to moot a case
- Whether the justices appear to believe there’s a widespread problem with how lower courts are interpreting and applying Heller or whether the now repealed law (and lower court ruling) is an outlier
- What kind of purchase the text, history, and tradition test appears to get from the justices
- What signals we get from the new justices who were not around when Heller and McDonald were decided about their views of the scope of the Second Amendment