On today’s Bearing Arms’ Cam & Co., I’m joined by Tom King, executive director of the New York State Rifle and Pistol Association. The 2nd Amendment group is at the center of a case challenging a New York City gun law that the U.S. Supreme Court will consider in conference tomorrow. At question is whether or not the challenge to the law is now moot, since both New York City and the state of New York have both changed their laws in an attempt to avoid scrutiny by the Supreme Court.
Gun control activists are desperate to keep SCOTUS away from another case dealing with the right to keep and bear arms. Five Senate Democrats wrote an unfriendly “friend of the court” brief threatening to pack the court if justices proceed with the case, and pundits have proclaimed that a court ruling in favor of gun owners could make New York City a more dangerous place. What the anti-gun crowd is really worried about is the fact that this case represents two big opportunities for 2nd Amendment supporters, because justices will have a chance to weigh in on the many appellate courts around the country that have upheld gun control laws under the vague legal standard of “intermediate scrutiny”, as well as potentially address the right to possess arms outside of the home (the New York City law being challenged deals with the transportation, not the carrying of firearms, but it would still be the first SCOTUS decision dealing with possession of firearms outside of the home).
It’s possible the Supreme Court will do nothing with the case at tomorrow’s conference, but my guess is that we’ll see a decision by SCOTUS pretty soon. Just a couple of weeks ago the Court went ahead and scheduled oral arguments in the case for December 2nd, so the two sides need to know quickly if in fact those arguments are going to take place.
There’s obviously a chance that SCOTUS does decide this case is now moot, though plaintiffs contend that even with the changes to city and state law some of their challenges haven’t been mooted. As attorney Paul Clement argued a few months ago, the city still says it’s illegal for non-residents to transport firearms into or through the city.
“Of course, even if (contrary to fact) the new laws were so unequivocally accommodating of petitioners’ constitutional claims so as to eliminate any immediate controversy, the unilateral and voluntary nature of the changes, along with their undisguised purpose to frustrate this Court’s review, would justify injunctive relief to foreclose the possibility that the City could return to its ways. Especially given the City’s ongoing regulation of constitutionally protected conduct through its licensing regime, the possibility of “effectual” injunctive relief is obvious. Indeed, the carve-out in the state law confirms that the City maintains an undiminished interest in prohibiting the transport of lawful handguns and has yielded only when and to the extent necessary to attempt to foreclose this Court’s plenary review. In short, everything about this case confirms not only that a live controversy remains, but the wisdom of this Court’s admonition that post-grant maneuvers designed to defeat the Court’s exercise of discretionary review ‘must be viewed with a critical eye.'”
Even if SCOTUS does moot this case, there are still plenty of other cases for justices to choose from. A case called Rogers v. Grewal, challenging New Jersey’s policies for concealed carry licenses, has been in conference for several months now. It’s possible that the Supreme Court could moot NYSRPA v. New York City and decide to hear the Rogers v. Grewal case at the same time, which would send gun control advocates into an even bigger panic than the one they’re engaged in right now. In recent years, anti-gun activists convinced Illinois politicians and local lawmakers in Washington, D.C. to adopt “shall-issue” concealed carry laws rather than appeal court losses to the Supreme Court. Would they be able to convince lawmakers in New Jersey to revamp the state’s concealed carry laws to try and moot another case? I highly doubt the legislature would play along, and I can’t see Governor Phil Murphy signing any “shall issue” bill even if it did get to his desk. One way or another, SCOTUS is going to decide another 2nd Amendment case before long, and there’s not much gun control activists can do about it besides stomp their feet, threaten the court, and try to change their unconstitutional laws to avoid seeing them struck down.
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