I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.
The big recent news from the Supreme Court on guns is, of course, the oral argument in NYSRPA that happened on Monday morning. We’ve had some initial analysis of that argument, and will have some more later on. For now, I’m updating the SCOTUS Gun Watch with other pending petitions and a new one. As I’ve noted before, if the Court does dismiss NYSPRA as moot, that decision makes it all the more likely that one of the petitions below will be granted.
Of interest on those, Paul Clement, who represented NYSRPA and argued on Monday, also represents the challengers in Rogers v. Grewal.
After reading the NYSRPA transcript and hearing the insights from numerous veteran Court watchers, I have some initial reactions to oral argument today.
First, as expected, the overwhelming majority of time during argument was spent on the question of mootness. That could have been a function of the vociferousness with which the left-leaning justices attacked the challengers’ position—with Justice Sotomayor taking an especially active role. At one point she told the challengers’ lawyer that “what you’re asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.” Justice Gorsuch and Justice Alito, on the other hand, appeared to think the case still presented a live controversy. They suggested there was controversy over the new City regulation, which permits “continuous and uninterrupted” travel to the places the challengers sought to go. Justice Kavanaugh did not ask a single question, and the Chief Justice didn’t necessarily indicate which way he was leaning. He did, however, seek assurances from the City that nothing from the old law would have any adverse consequences on petitioners.
Second, there does seem to be an appetite among some conservative justices for a rethinking of the methodology used for deciding Second Amendment cases. Justice Alito, for example, first broached the question in the second half of the argument: “what methodology should the courts use in approaching Second Amendment questions?” Counsel for the City argued that text, history, and tradition are relevant but because they do not often speak with one voice they will likely not be conclusive. Notably, the text, history, and tradition test is the one Justice Kavanaugh himself advocated when he was on the court of appeals. Under his formulation of that test,
Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.
There’s little reason to think he’s changed his mind in the intervening years since he assumed his high court seat.
We’ll have more coverage of the case this week and next as we further digest the transcript more fully. It’s also worth noting that, whatever happens with NYSRPA, there are at least half a dozen cert petitions squarely presenting Second Amendment questions waiting on action from the Court. A dismissal of NYSRPA on mootness grounds certainly makes it more likely the Supreme Court will take one of those other cases.
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
Ninety years ago today, in the December edition of American Rifleman, the National Rifle Association (NRA) published the editorial “Merry Christmas—And Gun Laws.” The editorial’s anniversary is noteworthy for two reasons. First, its publication marked the first time that the NRA provided guidance as to the types of firearms legislation the organization would and would not endorse. Second, the editorial highlights a key issue of dispute between the parties in this week’s Supreme Court case New York State Rifle & Pistol Association v. City of New York.
We’re just one week out from oral arguments in NYSRPA! And, to keep the drama high, briefing just concluded for good this past week. The City and the petitioners filed their responses to the SG’s letter brief on mootness. Next week, in addition to the normal SCOTUS Gun Watch, we’ll be doing some coverage of the arguments on Monday and throughout the week. We’ll also be joined by Nina Totenberg on Thursday, December 12th in Washington, D.C. for a discussion about the Court’s arguments and some help reading the tea leaves. (Sign up here!)
There were no new firearms law cert petitions filed this week, but some of the briefing has concluded in pending cases, teeing them up for conference scheduling. The biggest news out of today’s conference is the Supreme Court’s denial of the petition in Daniel v. Armslist, which sought to impose liability on the gun broker website for facilitating sale to a prohibited person.
[This post is part of a symposium on New York State Rifle & Pistol Association v. City of New York, hosted on SCOTUSblog and is cross-posted there.]
Joseph Blocher is Lanty L. Smith ’67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.
In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldn’t be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than they’ve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on “text, history, and tradition” and without consideration of contemporary realities of guns and gun violence. That would be a mistake.
Unlike last week, with the big news about the Court’s decision not to hear the Remington case arising from the shooting at Sandy Hook Elementary, this week was quieter. But we did get an unusual letter from the Solicitor General about NYSRPA. In that letter, filed on Friday afternoon, the SG informed the Court that, although it had previously taken no position on the mootness question, it had since determined that “[i]n the United States’ view, respondents have not established that this case is moot.” It offered to file a brief to that effect, which the Supreme Court accepted—asking for a letter brief in the next few hours. The SG obliged, arguing that the potential for prospective relief kept the case alive, but rejecting most of petitioners’ broader alternative theories that the case was not moot. [Update: I originally said the SG gave two reasons the case was not moot, but on closer read the SG really appears to argue just one core avenue, though he hedged a bit on other reasons the petitioners gave; ultimately, he rejected most of those.] The Court gave each of the parties opportunity to respond by Wednesday, November 20th at 2pm (just in time for the Thanksgiving holiday).
Here’s where the rest of the cases, mostly unchanged since last week, stand:
|Case||Ct. Below||Pet. Filed||Implicated Law/Issue||Status|
|Mance v. Barr||5th Cir.||19-Nov-18||Federal ban on out-of-state handgun purchases||distributed
|Rogers v. Grewal||3rd Cir.||20-Dec-18||NJ “may issue” public carry regime||distributed
|Pena v. Horan||9th Cir.||28-Dec-18||California’s Unsafe Handgun Act (microstamping, etc.)||distributed
|Gould v. Lipson||1st Cir.||1-Apr-19||MA “may issue” public carry regime (as implemented locally)||distributed
|Cheeseman v. Polillo||N.J.||28-June-19||NJ “may issue” public carry regime||distributed
|Ciolek v. New Jersey||N.J.||18-July-19||NJ “may issue” public carry regime||distributed
|Daniel v. Armslist||Wisc.||29-July-19||Scope of immunity for gun-broker website under Communications Decency Act||distributed for
|Remington Arms v. Soto||Conn.||1-Aug-19||Scope of gunmaker immunity under the Protection for Lawful Commerce in Arms Act||Cert Denied|
|Guedes v. ATF||D.C. Cir.||29-Aug-19||Ban on bump stocks||resp. due 4-Dec-19|
|Medina v. Barr||D.C. Cir.||30-Aug-19||Ban on felon possession under 922(g)(1) (as applied)||reply due @ 18-Nov-19|
|Worman v. Healey||1st Cir.||23-Sep-19||Ban on assault weapons and high-capacity magazines||resp. due 9-Dec-19|
|Malpasso v. Hamilton||4th Cir.||26-Sep-19||MD “may issue” public carry regime||resp. due 18-Dec-19|
|Pennsylvania v. Hicks||Penn.||27-Sep-19||How a firearm can factor into reasonable suspicion under the Fourth Amendment||reply due @ 14-Nov-19|
|Culp v. Raoul||7th Cir.||10-Oct-19||IL refusal to grant carry permits to most non-residents||resp. due 13-Jan-20|
|Matsura v. United States||9th Cir.||25-Oct-19||Unlawful possession of a firearm by a prohibited person||resp. due 29-Nov-19|
The big news from this week is that the Supreme Court denied certiorari in the case arising from the Sandy Hook massacre—Remington v. Soto. As I’ve written about (here and here), the Court might have been concerned about vehicle issues with the petition. The petition raised a question about whether the federal law immunizing gun manufacturers in most situations, the Protection for Lawful Commerce in Arms Act, applied to these facts. Because the case came up from an interlocutory ruling, there was some question about the Supreme Court’s appellate jurisdiction. But, in any event, the case may now proceed through discovery and to trial. More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.
I’ve also added one more case to the chart: Pennsylvania v. Hicks. The petition was filed a little over a month ago, but I didn’t initially include it because firearms are only tangentially involved. But, because it raises a question about how the presence of firearms affects law enforcement’s ability to conduct investigatory stops, and with increasingly loosened restrictions on public carry, I thought it worth keeping an eye on.
We also have our first briefing deadline extended into the New Year, ensuring that 2020 will bring just as much debate over guns as 2019 did.
Last week was another relatively quiet week on the gun docket. A few briefing deadlines were extended, and we got one new firearms-related cert petition this week in a case seeking GVR (grant, vacate, and remand; a form of summarily sending a case back to the lower court to consider in light of a recent Supreme Court case or other intervening change in law). That case argues GVR is warranted in light of last term’s Rehaif decision requiring the government to prove that an individual prohibited from possessing guns knew the status that made his possession unlawful (here, his particular immigration status).
One highlight for the week: the case arising from the Sandy Hook massacre—Remington v. Soto—which I’ve written about a couple of times (here and here), goes to its first conference this Friday. It’s possible, though unlikely, that we’ll hear news about the Court’s decision to hear the case or not in the orders coming next Tuesday after the conference. (Monday’s a federal holiday next week, so no orders then.) It’s more likely we’ll have to wait a little longer if the Court is inclined to hear the case as the Court increasingly relies on the practice of relisting a case for multiple conferences in the event it’s going to grant review.