Second Amendment advocates are reacting with disappointment, dismay, and a little cautious optimism to the Supreme Court decision that mooted a Second Amendment challenge to a New York City gun law regarding the transportation of lawfully owned pistols.
I had the chance to talk with the executive director of the New York State Rifle & Pistol Association about the case brought by the group against New York City for today’s Bearing Arms’ Cam & Co, and as you can imagine, he’s not happy. Tom King says the decision by SCOTUS tells him we have a “legal system, not a justice system,” and even though the Supreme Court ruled that the case is moot because New York City changed the law in question and gave gun owners and the NYSPRA what they were asking for, King is not convinced. He believes that the Court has now given the green light for other anti-gun jurisdictions to play the same legal game as New York City; defending the law in court right up to the point that the Supreme Court agrees to hear the case, then changing the law just enough to avoid judicial scrutiny by the highest court in the land.
Alan Gottlieb of the Second Amendment Foundation, on the other hand, is a little more optimistic. On today’s program, he tells me that the Supreme Court is actively weighing four cases brought by the organization, and believes that it’s unlikely that the jurisdictions being sued are unlikely to change their laws to avoid Supreme Court scrutiny.
In all, there are close to a dozen Second Amendment cases that are in a holding pattern at the Supreme Court, dealing with everything from carry laws in states like New Jersey and Maryland to California’s microstamping law. Friday afternoon, the Supreme Court distributed all ten cases to justices to consider in conference on Friday. That’s a good sign that Justice Kavanaugh may get the wish he expressed in his concurring opinion today; that the Court take a Second Amendment case sooner rather than later to ensure that lower courts stop their flagrant misreading of the Heller and McDonald decisions.
It takes four justices to agree to hear a case, and based on today’s dissenting opinion by Justices Alito, Thomas, and Gorsuch, along with Kavanaugh’s own opinion, we should have the votes on the Court to take one or more of the cases that will be considered on Friday. Which case, or cases, the Court may take up is still an open question, but a likely candidate is Rogers v. Grewal. That challenge to New Jersey’s “good cause” requirement for concealed carry licenses has been sitting in conference for months now, and the question raised in the case is one that lower courts have disagreed about; whether or not the right to keep and bear arms extends outside of the home. The 3rd Circuit Court of Appeals ruled that New Jersey’s law doesn’t violate the Second Amendment, while the 7th Circuit Court of Appeals ruled a few years ago that a complete ban on the carrying of firearms in Illinois was an infringement of the Second Amendment.
Theoretically, New Jersey doesn’t have a total ban on carrying firearms, but the odds of actually obtaining a concealed carry license are astronomically high. If the average resident can’t lawfully carry a firearm, argues the plaintiffs in Rogers, then the right to bear arms isn’t just being regulated, it’s being infringed.
Be sure to check out the entire show above for more analysis from King, Gottlieb, and myself, and stay tuned. We could learn as early as next Monday whether or not the Supreme Court will take up one of the cases under consideration.