A divided Supreme Court declared on Monday that a Second Amendment challenge to a New York City gun law was made moot by the city and state’s last minute move to change the law in question. The 6-3 ruling saw Chief Justice John Roberts and Justice Brett Kavanaugh siding with the liberal wing of the court, while Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the opinion, arguing that the decision “permits our docket to be manipulated in a way that should not be countenanced.”
In an unsigned opinion, the majority opinion declared that once New York City had changed its law forbidding the transportation of legally owned pistols to any place other than a range in the city, the plaintiffs in essence won their case.
After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.
In a separate concurrence, Justice Kavanaugh agreed that the change by New York City and the state legislature mooted the case, but noted that he still has concerns that lower courts aren’t taking the Second Amendment seriously.
And I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
In the dissenting opinion, Justices Alito, Gorsuch, and Thomas argued that despite the fact that the law in question had been changed, the Court still needed to weigh in on the issue.
Regrettably, the Court now dismisses the case as moot. If the Court were right on the law, I would of course approve that disposition. Under the Constitution, our authority is limited to deciding actual cases or controversies, and if this were no longer a live controversy—that is, if it were now moot—we would be compelled to dismiss. But if a case is on our docket and we have jurisdiction, we have an obligation to decide it. As Chief Justice Marshall wrote for the Court in Cohens v. Virginia, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”
Thus, in this case, we must apply the well-established standards for determining whether a case is moot, and under those standards, we still have a live case before us. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ ‘As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’”
This is a disappointing decision, and one that will likely lead to more anti-gun jurisdictions playing the same legal games that New York City did; defending the law in court right up to the point that the Supreme Court may strike it down. Of course, as Justice Kavanaugh noted, the Court is currently considering several other Second Amendment-related cases in conference, and most of those deal with far bigger issues than New York City’s ban on transporting pistols outside the city limits. There are challenges to New Jersey and Maryland’s concealed carry laws requiring applicants show “good cause” before they can be approved, for instance, and if the Court agreed to hear one of those cases, lawmakers might not be so willing to change the laws in order to avoid a Supreme Court ruling.
We’ll have more on the decision later today here at Bearing Arms, including reaction from Second Amendment advocates, but in the meantime you can read the opinions here.