New York City Still Trying to Avoid A SCOTUS Fight Over Gun Law

According to anti-gun gun activists, every law they propose is just “common sense,” “reasonable” and all about “gun safety,” not gun control. This is true whether they’re talking about banning the most commonly sold rifle in the country, making it virtually impossible to get a concealed carry license, or banning magazines over ten rounds. In New York City, gun control advocates have spent years defending a city statute that forbids legal handgun owners in the city from transporting their firearm anywhere other than a few pre-approved ranges in the five boroughs. You can’t legally take your gun to your uncle’s in Utica, or to Connecticut for a shooting competition, which doesn’t seem reasonable (or Constitutional) to me.

The Supreme Court is scheduled to hear a challenge to this law in just a few months, and now all of a sudden gun control advocates are scrambling. The very same gun control advocates who’ve been defending the law are now desperately trying to avoid the Supreme Court ruling on the legality of the statute. A few weeks ago a hearing was held to make some changes to the law, and the state legislature quickly followed suit, all in an attempt to get the lawsuit thrown out because it’s been mooted. The city’s now sent two letters to the high court asking that the case be dismissed, or at least returned to lower courts to decide if the case is now moot.

Changes to the city’s rules, the city explained, will allow licensed gun owners to transport their guns to, among other places, second homes and shooting ranges outside New York City. Those rules went into effect on July 21. And on July 16, the city continued, New York Governor Andrew Cuomo signed a bill that changes state laws to allow licensed gun owners to transport their handguns to other places – again, such as second homes, shooting ranges and shooting competitions – where they are legally allowed to have them.

Of course, Governor Cuomo and lawmakers in Albany haven’t suddenly realized that this NYC statute violates the constitutional rights of residents. Neither have any New York City council members or Mayor Bill de Blasio. They (along with their allies in national gun control groups like Brady, Giffords, and Everytown/Moms Demand Action) are simply terrified that the Supreme Court will rule against them, and in the process establish a precedent that could mean bad news for many other gun control laws around the country.

Will the Supreme Court acquiesce and send the case back down to lower courts? Perhaps, but it’s not a certainty. As Paul Clement, the attorney representing the New York State Rifle and Pistol Association in its challenge to the NYC law, recently reminded justices, there’s no reason to believe New York City and lawmakers at the state level wouldn’t change the law once more if the case were thrown out.

Moreover, a party asserting that its own actions have mooted a case has “the ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” That heavy burden should be heavier still where, as here, a defendant’s about-face is unabashedly motivated by a desire to deprive this Court of jurisdiction to review the defendant’s actions. There are particularly strong reasons to doubt the sincerity of any claim that the City has forever changed its errant ways here given respondents’ declaration that they have no intention of taking any position before this Court on the constitutionality of the rules that they have changed. Indeed, the procedural irregularity of respondents’ actions to date makes plain that their goal is not just to try to moot this case, but to do everything they can to avoid ever having to take a definitive position on those issues. It is hard to understand why respondents are so reluctant to take any position on the questions on which this Court granted certiorari if they have no intention of resuming the challenged conduct or materially similar conduct in the future.

Clement notes something very important. The city of New York has yet to offer up any sort of defense of the law, at least to SCOTUS. It vigorously defended the law at the trial court level and the U.S. Court of Appeals for the 2nd Circuit. Now that the high court is set to hear the case, suddenly the city’s attorney Richard Dearing doesn’t seem interested in defending the law at all.

The case is moot, Dearing argued, because the “new city regulation gives” the challengers “everything they have sought in this lawsuit. The new state law, upon signature by the governor, will make the case doubly moot.” Dearing asked the justices to send the case back to the lower court with instructions to dismiss it. If the court does not do so, Dearing noted, the city “will file a brief on the designated due date maintaining in greater detail that the case is moot.” The city does not intend, Dearing made clear, to address the merits of the challengers’ claim.

If anti-gun activists and their political buddies really believed this law was commonsense, reasonable, and constitutional, they wouldn’t have changed it. They wouldn’t be doing everything they can to try and stop the Supreme Court from hearing this case. They would be eagerly anticipating oral arguments this fall, instead of freaking out over the possibility.

This isn’t the first time gun control activists and their legislative allies have turned tail and run from a fight over gun laws. After the federal 7th Circuit ruled that individuals have a right not just to keep arms, but to bear them as well, the anti-gun forces decided to not to appeal the case, afraid of the risk of setting a nationwide precedent if the Supreme Court ruled against them as well. When the D.C. Court of Appeals ruled that requiring someone to demonstrate “good cause” before obtaining a concealed carry license was unconstitutional, the anti-gun side again took the loss rather than appeal the decision to the highest court in the land.

The anti-2A forces are clearly not eager to defend these laws before SCOTUS. We’ll know soon enough what the court plans to do with New York State Rifle and Pistol Association v. City of New York, but even if the court decides not to hear this case, there are plenty more in the pipeline. In fact, SCOTUS has been holding a case dealing with New Jersey’s carry laws since May. If the court did send the New York case back down to the trial court or 2nd Circuit, they could pick up this case put it on the schedule relatively quickly. Based on past precedent, I can’t help but wonder if gun control activists would then be willing to change the state’s incredibly restrictive carry laws instead of defending them before the highest court in the land. I wouldn’t be that surprised, actually. If they did, however, those changes would only last as long as gun control activists believed SCOTUS was a check on their unconstitutional ideas. Once those activists believed the high court was on their side, their willingness to change their unconstitutional laws would vanish faster than you can say “come and take them.” Hopefully, the Supreme Court sees through the transparent plans of the gun control activists and will move ahead with the New York City case.