The Covid-19 pandemic is altering the legal landscape. Emergency orders in many states are facing mounting pressure from civil libertarians and interested litigants. One challenge went all the way to the Supreme Court, but was defused before the justices had to weigh in. There’s no doubt that the Supreme Court’s operations are affected by the virus; it’s already extended briefing deadlines and announced plans to hold arguments telephonically. I wonder if the Court’s jurisprudence might be affected too. Will or should the Court take into account what’s been happening across the country as it decides important constitutional questions in the cases already argued this Term? What affect, if any, might Covid play in the Court’s consideration of New York State Rifle & Pistol Association?
Whether a New York City rule banning the transportation of a licensed, locked, and unloaded handgun to a home or shooting range outside city limits violates the Second Amendment, the Commerce Clause, or the constitutional right to travel.
- Paul D. Clement, for the petitioners
- Jeffrey B. Wall, for the United States, as amicus curiae, supporting the petitioners
- Richard P. Dearing, for the respondent
Background and Case Commentary
In New York Rifle & Pistol Association, Richard Dearing—arguing for the government—faced an unusual challenge: Defending the constitutionality of a gun regulation that had already been repealed and replaced by a state statute. That development almost certainly rendered the case moot, and indeed three-quarters of the oral argument focused on the question of mootness.
But some of the Justices also wanted to discuss the constitutionality of the repealed regulation and the scope of Heller’s protections outside the home—and related merits questions we address here. The repealed regulation would have effectively prevented residents of New York from transporting their weapons out of the city, for example to a shooting range or a second home. This was seemingly a unique and relatively recent rule—not the kind of “longstanding” restriction approved as “presumptively lawful” in Heller. Moreover, while the Second Circuit had, in a divided opinion, found that the regulation satisfied intermediate scrutiny, the City could offer little evidence for its effectiveness in preventing gun crime. These merits issues, lurking in the “background” of the case, have received less attention to date.
Dearing, who was making his first-ever Supreme Court oral argument (against veterans Paul Clement and Jeff Wall), did a superb job arguing that the case is moot. But the posture of the dispute made it difficult for Dearing to defend the merits of the now-repealed law or address the government’s compelling interest in regulating guns.
Justice Alito had an exchange with Dearing (at pp. 52-53 of the transcript) in which Dearing, in hindsight, might have more clearly and emphatically defended the government’s authority to adopt the now-repealed law.
The Justice asked “Mr. Dearing, are the – are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?” Dearing responded, “We – we no, I don’t think so.” Justice Alito pressed the point: “Well, if they’re not less safe, then what possible justification could there have been for the old rule, which you have abandoned?” Dearing replied that the prior rule made it easier for law enforcement to verify whether a person transporting a gun in public had a license to do so.
But then the Justice asked another follow-up—the question we address below, whether “The Second Amendment permits the imposition of a restriction that has no public safety benefit”—and Dearing yielded the premise of the question. With respect, as our proposed answer highlights, we think that Dearing could have stood his ground and defended the state’s prerogative to enact a law that might produce a “public safety benefit”—even if those benefits cannot be empirically validated.
To be clear, Dearing was focused on addressing the case’s mootness, not defending its prerogative to adopt the now-repealed regulation, and as we have observed, given the posture of the case, rolling out a more expansive account of the state interest would have been hard to do at oral argument. (With the benefit of time and space, we do so in a separate blog post here.)
That said, it does seem critical to assert that government has compelling interests in regulating guns in ways that cannot always be validated empirically, both because government needs the discretion and flexibility to respond to local circumstances and emergency conditions and because government needs to regulate in ways that preserve public confidence and trust.
New York State Rifle & Pistol Association Inc. v. City of New York on Oyez: https://www.oyez.org/cases/2019/18-280