Analysis of City’s Supreme Court Brief in New York State Rifle & Pistol Assn v City of New York

supreme court new york rifle and pistol association v new york city

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By LKB

After two unsuccessful efforts to have the Supreme Court delay its briefing deadline, last night New York City filed its brief in the New York State Rifle & Pistol Association case. It’s pretty much what we expected, yet still manages to reach new levels of chutzpa. I’m not going to discuss everything that’s in the brief, but as I see it, here are the highlights.

NYC’s main argument, of course, is that because both it and the New York State Assembly have now “changed” the law that’s being challenged, the case is moot and therefore the Court is powerless to decide it.

Not surprisingly, however, the brief simply ignores the arguments made in NYSR&PA’s tour de force response to this claim; primarily, that changes to a law made after a writ of certiorari is granted (especially where the intent of the change in the law was unambiguously to evade the Supreme Court’s review of it) must be viewed very critically. Of course nothing prevents those parties from simply changing their mind and restoring the law in question if the Court did, in fact, dismiss the case as moot.

While NYC had previously indicated that it would refuse to brief the merits of this case because of its mootness assertions (a threat that was, in my view as a federal appellate attorney, insanely unwise), it nevertheless did address the merits of the case (albeit with the constant refrain that the case is moot and the Court should therefore not reach the merits).

First, the City argues that its rules prohibiting transport of firearms do not actually interfere with any Second Amendment right at all. This argument seeks to cabin the Second Amendment right as being solely to possess a weapon in one’s home – but nowhere else – and that this narrow right to possess weapons in the home does not require recognition of a right to train as any part of that right.

Indeed, NYC argues that because there are a grand total seven ranges at which NYC residents can go to train, its restrictions “did not meaningfully impair petitioner’s ability to train.”

Imagine if NYC were to similarly assert that because it had seven designated free speech zones in the City, it could therefore prohibit assemblies anywhere else. Or that because there were seven abortion clinics in the City, it could forbid any more.

In support of its argument, the City makes an extended review of various historical laws that provided where and how militia training would be conducted, and thus asserts that regulations on where training can occur are in fact historically recognized. That argument ignores, of course, that such laws merely regulated where weapons could be discharged within their jurisdiction, and said nothing about prohibiting the transportation of weapons to areas outside of it.

Second, the City argues that its regulations satisfy “means-ends” scrutiny, and do not involve treating the Second Amendment as a less-favored constitutional right. The City’s argument here is that intermediate scrutiny is appropriate for Second Amendment cases, and because of NYC’s “unique” position as the most densely populated place in the country, it has a good reason to regulate firearms more strictly and should therefore be allowed to do so.

This is the nub of the case: whether a right recognized as “fundamental” by the Supreme Court can nevertheless be disregarded if a state or locality claims to have a good reason to do so.  If intermediate scrutiny is the test, the right is indeed second class, as Justice Thomas has repeatedly pointed out. If the test is strict scrutiny – as I believe a majority of Supreme Court justices are now leaning – then this whole argument collapses.

Besides the Second Amendment issues, the Supreme Court also granted review on whether the City’s restrictions violated the “dormant commerce clause” (which holds, essentially that the states and localities cannot regulate interstate commerce, because that power is given only to Congress) or the right to travel.

On the commerce clause issue, NYC first argues that because the “safe passage” provision of the Firearms Owners Protection Act (“FOPA”) conditioned the right to transport firearms across state lines on it being legal to do so in the states where the trip begins and ends, that somehow indicates that Congress authorized local regulation such as NYC’s. I find this argument to be exceedingly weak.

It is one thing for a state to regulate activities that occur solely within its own borders. It is quite another for a local government to explicitly forbid the interstate transportation of firearms — which was the whole point of FOPA in the first place.

More importantly, it is particularly galling for NYC to cite FOPA as a purported justification for its regulations, when NYC has flagrantly and openly refused to recognize or obey FOPA’s “safe passage” provisions in the first place. I hope that at oral argument, one of the Justices questions NYC’s counsel about its well-documented refusal to obey this law.

Next, NYC argues that the dormant commerce clause challenges apply only to activities that favor local commerce and disadvantage out-of-state actors, and the appellate record lacks any evidence of any actual disadvantage to any out-of-state actor or favoring of in-state ones. Here, I think NYC probably has a point, and this is why I’ve never been fond of the dormant commerce clause challenge to the NYC law.

Finally, NYC argues that its regulations did not implicate the right to travel, because nothing in them actually prohibited an individual from entering or leaving the state – only what its residents can have in their possession when they do.

Again, as I read current law on the right to travel, I think NYC probably has the better of this argument – the right to travel has been interpreted pretty narrowly, and I do not see the current Court stretching to expand that implicit constitutional right.

In conclusion, I think NYC is giving it the old college try, but on the heart of this case – the appropriate level of scrutiny for Second Amendment cases – it knows it is going to lose.

Let’s hope so….

comments

  1. avatar Green Mtn. Boy says:

    NYC and state along with the entirety of the civilian disarmament crowd are worried and hopefully they have much to worry about in a ruling,hopefully they are Effed .

  2. avatar MICHAEL A CROGNALE says:

    Roberts will be the key here. He found “new law” in his Obozocare ruling. I don’t trust him.

    1. avatar BatPenguin says:

      I agree Roberts is the new Kennedy.

      1. avatar NH Guy says:

        Actually, he’s the present day incarnation of Souter.

        1. avatar readingishard says:

          Before trashing Roberts you should actually go and read the court documentation. This case, from the beginning, has been very clear that this case is NOT about the actual NYC laws but having the court use this as a vehicle to apply ‘strict scrutiny’ under the second amendment. The fact that court accepted this case with this being the blatantly obvious point is enough for me to say the writing is on the wall and this is going to be a huge W. Like a win we have never had before. Meanwhile people are running around with their hair on fire worrying about ‘new laws’. Those are all crumbs that will be wiped away when this decision comes through for us.

          Do some reading and actually look at the documentation before making uninformed comments. We always like to use that against the anits – give us FACTS like we provide to you. The same should occur in situations such as this. Read documentation, get the facts, from an opinion and then post something. ugh

    2. avatar Green Mtn. Boy says:

      Roberts is a proven weak link,what would one expect from a Bush appointee and Kavanaugh is worrisome,pray for our Constitution to come out on top.

      1. avatar PATRON49IFT says:

        Anyone who has spent more than ten minutes in NYC knows it is a shite hole of epic proportions. This has nothing to do with the folks living there aside from how they vote. No, the real problem is the politicians inhabiting that city. They are each crazier and more WOKE than the next. They seem to have no concern for the normal, average citizen trying to get to and from work every day and raise their families free from torment by the aggressive parasites who panhandle and harass them relentlessly. Not to mention the unrelenting street crime and petty indignities they must endure on a daily basis. Since the ‘stop and frisk’ program was dismantled, gun crime of all sorts has skyrocketed. Those who can leave have left; the others have to endure.

  3. To argue that the Second Amendment is anything but a sacred, indestructible and individual right is philosophical fraud. Americans have the right to both keep and bear military arms. I am Craig S.Andersen, Attorney at Law and I approved this message.

    1. avatar Johnny Go Lightly says:

      NYC argues explictly that “training” is not part of the 2A. So you can sit home and rub your gun but bring it out of the house to shoot makes you a criminal. Gotta love how brazen they are…

      1. avatar neiowa says:

        I wonder if NYC would have a problem with a dozen guys of The Central Fing Park Militia drilling on their village green. With Brown Bess or with ARs, take your pick.

        1. avatar Green Mtn. Boy says:

          M 4 and M16 the modern Brown Bess,train away boys.

    2. avatar Matthew says:

      If you ever run for office you have my vote. The rest of your platform is entirely irrelevant.

    3. avatar Ralph says:

      I am Ralph, retired NYC attorney, and I couldn’t agree with you more.

    4. avatar Cadeyrn says:

      This implicates the “bear” part of the clause which is where gun control proponents hang their hat. Just as free speech can be required to comply with “reasonable” restrictions as to time, place and manner, so to would they argue that transportation should have “reasonable” restrictions.

      Of course, the actual law being challenged makes it impossible to “bear” arms in any normal sense of the word. It is so narrowly proscribed by NY that it renders the right meaningless. The average citizen simply cannot bear arms in any realistic fashion in NY. It is this point which needs to be hammered home. Could one be said to enjoy free speech in only seven places in the City and be prohibited from carrying otherwise prohibited literature anywhere other than to or from those specific locales for the weekly book club meeting?

      No, we need to insist that this neglected right, this disfavored stepchild of the Constitution be afforded the same dignity as the rest of the Bill of Rights. Infringements must be strictly scrutinized and struck down where they damage the rights of the People.

  4. avatar Alan says:

    Concerning ANY case that so obviously involves the most basic of civil and constitutional rights, STRICT SCRUTINY is the ONLY acceptable level of scrutiny. By the way, with reference to the “push and shove” that is seemingly involved, when are the vaunted Oral Arguments going to be heard?

    1. avatar Mark N. says:

      Most likely sometime late this fall. Orals, last I heard, had not been scheduled yet, but most other cases have, so the odds are it will be at the end of the arguments calendar.

  5. avatar Hannibal says:

    The fact that they are arguing the “merits” of the case should be enough to convince a jurist that this is a purely tactical change in the law to seek mootness.

    1. avatar Mark N. says:

      Nah, they would be fools not to. I am sure their attorneys told them that there is no way in hell they should let the case go to argument on a record that argues only for strict scrutiny with no rebuttal from them. This is not the time to put all of their eggs in one basket.

  6. avatar Grunt49 says:

    Time for a nationwide American Militia.
    Libturds are out of control.

    1. avatar TommyGNR says:

      I’m with you.

      1. avatar SGT Preston says:

        Ditto, brothers in arms.

    2. avatar Mark says:

      2A is the right of the people, not the militia.

      1. avatar TommyGNR says:

        The people are the Militia. A Militia is a military organization made up of private citizens (which were in widespread use at the time the 2nd was framed). The main motivation for the 2nd amendment was to make sure that the people would be able to do what they had just done (resist and defeat an professional army that was being used by a tyrannical government to oppress them) in the future.

  7. avatar Mark N. says:

    “More importantly, it is particularly galling for NYC to cite FOPA as a purported justification for its regulations, when NYC has flagrantly and openly refused to recognize or obey FOPA’s “safe passage” provisions in the first place. I hope that at oral argument, one of the Justices questions NYC’s counsel about its well-documented refusal to obey this law.”

    I am shocked that they opened this door, as it allows Respondents to argue federal pre-emption in their brief, which as far as I know, was not raised below.

    1. avatar Geoff WWJWD - "What would John Wick do?" PR says:

      “I am shocked that they opened this door, as it allows Respondents to argue federal pre-emption in their brief, which as far as I know, was not raised below.”

      Is that potentially good or bad for our side?

      1. avatar LKB says:

        It’s nonsense. FOPA preemption isn’t even remotely implicated by this case (and NYC is the Respondent).

  8. avatar Draven says:

    My analysis of their brief is NYC saying “Please don’t take away our expensive permit and registration system! We need to keep those filthy proles from getting firearms!”

  9. avatar IN Dave says:

    @LKB another great write up. I love reading you contributions to this story. In fact when something is written about this case I look to see if you wrote and and it not I scan the comments to see if you commented on it. So far you have not disappointed in reading the tea leaves. In your opinion, what’s the chance of the Supreme Court saying “nice try but we are moving ahead with this case”? 50/50? Can you do a write up some time on the appeal court/ Supreme Court process with some of the common legal terms that most of us hear but do not fully understand?

    1. avatar LKB says:

      Thanks.

      I book the odds on the Court biting on the mootness claim as slim. IMO, the conservative wing of the Court is unlikely to go for it, and even Kagen and Breyer may well be offended by such a blatant attempt to game the cert process. (A younger Ginsberg would also have been, but she’s gone around the bend. Sotomajor is, well, what she’s always been . . . hopeless.) Note how quickly and forcefully the Court slapped down NYC’s efforts to delay briefing on the mootness issue.

      1. avatar Anymouse says:

        Sotomayor around the bend? But ATF Director nominee Canterbury told the Senate she had an impeccable 2A record.

      2. avatar lookingahead says:

        I too enjoyed the quickness that the court smacked down their request for additional time. Which obviously was not needed because they didn’t write that 69 pages response since that request was rejected. It was sitting waiting to be submitted. Just proves the fact(for the 10th time) they are just using delay tactics because they have finally realized the implications of a loss here.

        I am honestly appalled by all the 2a supporters I speak to who have never heard about this case. Meanwhile they are going nuts over the low hanging fruit that will be wiped away if/when this perseveres.

  10. avatar Robert Messmer says:

    How is New York City, under the old law, telling the residents you may not take your weapon out of the city NOT restrictive of travel? You are, normally, a citizen of your state until you have established legal residency somewhere else. So if you want to move out of New York City to Florida, you are told you either have to turn your weapons over to the police {government taking without due process or compensation} OR you must remain in New York City against your will. Seems pretty restrictive to me.

    1. avatar Hannibal says:

      NYC operates under a bizarre “home rule” system that allows it to have its own set of laws for inhabitants aside from state law. This is particularly galling as state law is largely dictated by politicians from NYC thanks to its population. In any case, this is why someone in upstate NY can have a carry permit after going through a ridiculous amount of red tape (set up by NYC politicians!) but the moment they cross into one of the boroughs, that permit is worth nothing and they’re a criminal if they possess a firearm (as defined by NY law).

      1. avatar Geoff WWJWD - "What would John Wick do?" PR says:

        Has ‘home rule’ ever been challenged on its constitutionality?

    2. avatar PRK543 says:

      According to this (https://suffolkpd.org/Portals/59/scpd_pdfs/formsandreports/PDCS-4021.pdf) Even if you move out of NY state, you still have to notify the State/ County of your new address. So you are still “registered” even if you leave the state.

      “6. If I plan on moving out of state, how can I legally transport my firearms to my new home?
      Federal Law allows you to transport your firearms during your final move, unloaded and stored in a location not readily accessible to any occupant in the vehicle. Within ten (10) days of said move you must notify this office of your new address, telephone number and the disposition of all your registered handguns. We strongly recommend you check with local authorities before you relocate to determine what licensing laws you must comply with, if any.”

      1. avatar Big E says:

        Talk about chutzpa!?! If I were I that position I would send them a letter with 2 words in large font. First word begins with “F” and the second word ends with “u”.

  11. avatar TFred says:

    Question for the author.

    In his dissent of Heller II, Kavanaugh talks of a “Text, History, and Tradition Test.” From an article posted at the Volkh Conspiracy during his confirmation hearings, we have this:

    “In Judge Kavanaugh’s view, “gun bans and regulations” should “be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances…” He did not think judges should “re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right.” In his view, Heller had been clear that Second Amendment cases should be decided “based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.””

    https://reason.com/2018/07/09/judge-kavanaugh-and-the-second-amendment/

    If I’m reading this right, that blows strict scrutiny out of the water. What do you think?

    1. avatar LKB says:

      The “text, history, and tradition” formulation (THT) takes a different analytical track than the well-trod strict or intermediate scrutiny tests. It could be applied to be much more pro-2A than even strict scrutiny (e.g., handgun bans could never even get to first base), but as you intimate it is squishy enough to potentially be a source of mischief.

      The reason I doubt the full court will embrace the THT test is that, unless you accept the position that 2A rights have second class status (which I do not believe a majority of the current court is willing to do), then you are announcing a new test for assessing challenges to *all* fundamental rights — in other words, if they are going to say the THT test applies to 2A rights, then it must also apply to 1st, 4th, 5th, 8th, and even 14th Amendment challenges. That would be a thermonuclear bomb in constitutional law, with all sorts of unknown/unintended consequences. It’s just too big a step.

      What you *may* get is a plurality decision, where there are five votes to nuke the NYC regs, but only 3-4 votes for doing it by applying strict scrutiny, 1-2 for doing it by THT, and the 4 usual suspects in favor of allowing the NYC regs to stand. But just because Kavanaugh articulated THT in a dissent in Heller II, and said that as a squishy dodge in his confirmation hearings, doesn’t mean he’ll go for it when push comes to shove.

      1. avatar TFred says:

        Thank you very much for the reply! I guess it’s probably a safe assumption that either way, NYC and the State of New York are terrified!

        1. avatar SAFEupstateFML says:

          Coumo is passing any gun laws he can asap and is having mini meltdowns on various public and radio appearances advocating for nationwide SAFE act……. he may be a bit nervous.

      2. avatar TFred says:

        “unless you accept the position that 2A rights have second class status”

        Would it be safe to assume that such a strategy would be apparent in the briefings we have seen to this point, if the plaintiffs were thinking of trying that route?

        It’s not hard to see that Justice Thomas is already sold on the idea.

        1. avatar LKB says:

          Thomas, Alito, and Gorsuch are definitely on the warpath over this, with Thomas as the War Chief. Roberts and Kavanaugh will, I suspect, get on the train, but Roberts may pull rank and assign himself the opinion and water it down a bit. We’ll see . . . I really wish Thomas will be the writing Judge on this one.

        2. avatar TFred says:

          🙂 I find myself following SCOTUSblog at the end of each term, hoping that the liberal justices are writing all the unanimous opinions! There is probably a name for this emotional roller coaster, but I haven’t come up with it yet!

  12. avatar GS650G says:

    No surprise really. Now we see if the supreme court lives up to its name

  13. avatar Pete says:

    Ideally, the state could prohibit taking your money with you if you left the state.
    You can leave the state, but your money stays.

    1. avatar No one of consequence says:

      IIRC, California already tried a variant of that, when it tried taxing retirees’ income even when they had moved out of state, on the grounds that they had earned that retirement income while living in CA.

    2. avatar Hannibal says:

      NJ does this with bridge tolls and NY does a pretty good job of it with property taxes.

  14. avatar HP says:

    At this point, I think it would be best if NYC seceded from the United States. That entire city is functioning as it’s own repugnant liberal fiefdom, and damn near everything that comes out of it effects not only the rest of New York State, but the entire country in a negative manner. This pathetic, craven attempt to weasel out of the Supreme Court’s purview is a perfect example of the abject bottom feeders that run that swollen dystopia. Vile cowards and charlatans, the whole lot of them.

    1. avatar Jim Bullock says:

      From time to time NYC threatens to secede from the rest of the state, offended by our ingratitude toward their rule, only to pull back when we say “OK, let’s do this.”

      NYC makes one set of rules for itself, and another set of “state” rules for the rest of us. Unsurprisingly, when they realize that “seceding” they would no longer get to inflict their will on us, it gets less fun.

  15. avatar Ton E says:

    Be still my heart!! SCOTUS not ignoring the commerce clause!!!

  16. avatar DCChristian says:

    As to the “militia” arguments, the militia at the founding of the nation was mostly men who had become proficient with the best arms of the day that they could afford. The skills that largely won our independence were developed while protecting their families and hunting for food. So bearing arms really hasn’t changed that much. If states or cities limit gun possession or use until they’re essentially no longer “arms”, it would be like limiting free speech to the extent that you can’t use actual words or communicable ideas; so as free speech is no longer free or even speech, “arms” under NYC’s restrictions are made to be no longer arms, but paperweights. Hopefully SCOTUS will gradually understand that the 2A means what it says. And I hope SCOTUS expresses some righteous indignation at NYC’s thumbing their noses at the law and the court by this end-around mootness tactic.

  17. avatar Alan1018 says:

    Actually I think the dormant clause would apply in the instant case as NYC is refusing to allow it’s citizens to do business with entities outside of the seven (7) in the city.

    1. avatar LKB says:

      Unfortunately, DCC caselaw pretty much requires a showing that the state action had the affect of (1) advantaging in-state actors, and/or (2) disadvantaging out-of-state actors. E.g., a (hypothetical) state law that says that cars manufactured in the state can be sold without paying a sales tax, but sales of cars mfgd outside of the state must not only include sales tax but also an import duty would plainly be unconstitutional under the DCC — such a law both advantages the in-state actors (car manufactures in the state) while discriminating against out-of-state actors (car manufacturers outside of the state).

      In NYSR&PA, there doesn’t appear to be any evidence that the law did that. The closest I can see would be a claim that because NYC residents can only take their weapons to one of the seven in-town ranges, the law favored those businesses over out-of-state ranges (say, in NJ) where NYC residents might otherwise go. However, that’s pretty thin, especially in light of the fact (apparently in the record, if NYC’s brief is accurate) that the NJ ranges offered rental guns, and so NYC shooters could have used those ranges had they wanted to (albeit not with your regular gun).

      (Mind you, I’m not defending the NYC position; just pointing out that I don’t think the DCC argument is going to get NYSR&PA over the line.)

      1. avatar TX_Lawyer says:

        Also, isn’t Thomas anti DCC, and he’d be a necessary vote to get to five?

        1. avatar LKB says:

          Yup:

          “I continue to adhere to my view that the negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.”
          McBurney v. Young, 133 S.Ct. 1709, 1721 (2013) (THOMAS, J., concurring)

  18. avatar changeacoming says:

    “But because the Court has not acted on the
    City’s Suggestion of Mootness and has directed it to
    file a brief on the merits, the City also provides an
    argument that its former rule was valid under each
    of the constitutional provisions at issue here.”

    That was my favorite part. We removed the laws and we should moot the case, but here is why we are still right. Yeah that definitely shows the city wouldn’t go down the same path. It like they can resist being snarky and dbags even though this is for all the marbles. The marbles are OURS!!!!!!

  19. avatar barnbwt says:

    So much struggling against a ruling that we all know is destined to be both narrow & cowardly. 10$ says SCOTUS finds that restricting usage to 7 ranges is unconstitutionally confining…and sets the minimum number of usable locations at 10.

    1. avatar LKB says:

      I’ll take that bet. Care to increase your wager?

      1. avatar TX_Lawyer says:

        I’d be willing to take that bet as well, but wouldn’t be so sure the spirit of the wager, of a very limited opinion, is wrong. Kavanaugh and Roberts have had the opportunity to decide the issue before but have demurred. They’re very squishy. I was hoping Kavanaugh would be hardened by his confirmation experience, but I don’t think it changed his philosophy at all. However, federal appellate law isn’t my area of expertise.

        It’s always annoyed me that a case on an important issue makes it all the way to the SCOTUS, and they punt the issue with a narrow ruling. If the issue is important enough for the Supreme Court to hear, it’s important enough to decide.

  20. avatar Bierce Ambrose says:

    State laws so good they don’t impact them as wrote them.

    Kinda like laws that make it harder to own a gun — no problem for the rich, idle, or connected who wrote them.

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