A Troubling Remark


Yesterday, the Supreme Court heard oral arguments in the case of New York State Rifle and Pistol Association, Inc. v. City of New York. The case challenges the constitutionality of a city gun control regulation which forbade persons with a so-called premises licenses to transport their firearms any place other than on of seven approved firing ranges within the city. They could not even be removed from their licensed premises to be taken out of town.

New York City prevailed in the case in District Court and in the Second Circuit Court of Appeals, but when the Supreme Court took the case, the City and the State of New York changed their laws and regulations in an attempt to moot the case. Under the new regime, firearms could be transported out of town for certain purpose as long as the trip was “continuous and direct.” No allowance was made for stops for fuel, meals, or overnight rest.

Both the petitioners and the United States argued that the case was not moot because the regulation was still unreasonable, and a couple of the justices seemed to favorably consider the idea that there was still a live controversy and that the City should not be able to dodge having its gun control regime tested against the standard set by D.C. v. Heller. The petitioners argued that allowing a government to moot a case after the Supreme Court accepts it for review would be a bad precedent. Speaking for the United States, the Deputy Solicitor General argued that the case was not moot because the petitioners could still seek money damages and because the text and history of the Second Amendment “condemn” New York City’s transport ban.

There was push back from the liberal justices—the most disturbing to me was a remark by Justice Sotomayor characterizing Heller as a “made-up new standard.” IANAL, but it seems to me that Antonin Scalia’s opinion clearly lays out what the Second Amendment has meant since it was enacted. Moreover, her comment seems to show a certain intellectual dishonesty. She is certainly not strict constructionist, so new standards of interpretation shouldn’t be a problem per se. I suspect that she would be all for the application of stare decisis to Rove v. Wade, so why not to Heller?

The court has been dodging Second Amendment cases recently. The justices may use mootness to punt this one. We shall see.

Meanwhile, there are more 2A cases in the pipeline.