AP Photo/Manuel Balce Ceneta
Back in the days before the Heller decision came down, a pro-gun group was worried. It feared that the court would decide very differently and set gun rights back generations.
In fairness, it wasn’t a slam dunk kind of thing. There was a lot of anxiety that the Court would rule the other way, that handgun bans would be declared constitutional and we’d start to see more and more of them throughout the nation.
The National Rifle Association tried to subvert that by pushing for Congress to overturn the D.C. gun ban.
Now, New York City is trying the same tactic. This time, it knows the Court will side against the city. The only real question is how broadly will the Court rule on the matter of gun control. As such, the Big Apple wants to subvert the ruling by changing the law and thus short-circuiting the Supreme Court’s decision before arguments are even heard.
And gun rights activists don’t want to let them off the hook.
In January, the court agreed to hear a Second Amendment challenge to a New York City gun regulation. The city, fearing a loss that would endanger gun control laws across the nation, responded by moving to change the regulation. The idea was to make the case moot.
The move required seeking comments from the public, in writing and at the hearing. Gun rights advocates were not happy.
“This law should not be changed,” Hallet Bruestle wrote in a comment submitted before the hearing. “Not because it is a good law; it is blatantly unconstitutional. No, it should not be changed since this is a clear tactic to try to moot the Scotus case that is specifically looking into this law.”
David Enlow made a similar point. “This is a very transparent attempt,” he wrote, “to move the goal post in the recent Supreme Court case.”
The New York Times story spends a fair bit of time focusing on where this particular tactic came from, of course. After all, New York City taking a lesson from the NRA is interesting to its readers.
However, it’s also important to note that the NRA wasn’t successful in this and, for once, that was a good thing. Heller certainly worked out well for all pro-gun folks. I suspect even the NRA is happy with how that worked out.
The thing is, I think New York City is right about how this case will shake out. The Court is probably more conservative and, by extension, more likely to rule in favor of the Second Amendment, especially in a case where the law is beyond ridiculous. The city is going to lose this one, and we all know it. The problem is, how badly will it lose?
Pro-gun voices in the city don’t want to see this law changed for a damn good reason. They know that the Court will overturn it.
The question is, if New York City does repeal the law, what happens to the case? As the Times points out:
The court has said the “voluntary cessation” of government policies does not make cases moot if the government remains free to reinstate them after the cases are dismissed. But formal changes in laws may be a different matter.
To hear the plaintiffs tell it, the court should not reward cynical gamesmanship.
“The proposed rule making,” they wrote, “appears to be the product not of a change of heart, but rather of a carefully calculated effort to frustrate this court’s review.”
I hope the Court hears the case either way. The truth is, even if the law is changed, that doesn’t mean it can’t return just as easily. In a city like New York, the difference between “voluntary cessation” of a policy and a formal change of law is a mere formality. Just as a cessation of a policy can change after the fact, a law can be reinstated as well.
That is unless the Court rules on the matter.