AP: Justices Take Up Gun Case, Though Disputed Law has Changed

New York State Rifle & Pistol v City of New York

courtesy NYSRPA

[ED: The Supreme Court will hear oral arguments in New York State Rifle & Pistol Assn. v. City of New York tomorrow. TTAG contributors LKB (a member of the Supreme Court bar) and Jeff Hulbert of Patriot Picket will be there reporting on the arguments and the surrounding protests outside the Court through the day.]

The AP is perplexed by the willingness of the Court to hear the NYSRPA case after the City changed the underlying law in a transparent effort to avoid an adverse ruling which could nullify gun control laws across the land.

By Mark Sherman, Associated Press

The Supreme Court is turning to gun rights for the first time in nearly a decade, even though those who brought the case, New York City gun owners, already have won changes to the regulation they challenged.

The justices’ persistence in hearing arguments Monday despite the city’s action has made gun control advocates fearful that the court’s conservative majority could use the case to call into question gun restrictions across the country.

Gun rights groups are hoping the high court is on the verge of extending its landmark rulings from 2008 and 2010 that enshrined the right to have a gun for self-defense at home.

For years, the National Rifle Association and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits. Justice Clarence Thomas has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.

The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.

Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.

Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.

“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.

But those moves failed to get the court to dismiss the case, although the justices are likely to ask at arguments about whether there’s anything left for them to decide.

Paul Clement, who represents three New York residents and New York’s National Rifle Association affiliate challenging the transportation ban, said in an email that among the reasons the case remains alive legally is that the court frowns on tactical moves of the sort employed by the city and state that are meant to frustrate the justices’ review of an issue.

In addition, he wrote, that “the City still views firearm ownership as a privilege and not a fundamental right and is still in the business of limiting transport and denying licenses for a host of discretionary reasons.”

In the event the court reaches the substance of the law, the city does contend that what it calls its “former rule” did not violate the Constitution. But that would seem to be a tough sell given the court’s makeup, with Gorsuch and, in particular, Kavanaugh on the court.

Kavanaugh voted in dissent when his federal appeals court upheld the District of Columbia’s ban on semi-automatic rifles.

“Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right,” Kavanaugh wrote in 2011.

Gun control advocates worry that the court could adopt Kavanaugh’s legal rationale, potentially putting at risk regulations about who can carry guns in public, limits on large-capacity ammunition magazines and perhaps even restrictions on gun ownership by convicted criminals, including people convicted of domestic violence.

“This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence.

Reflecting the possible high stakes, more than three dozen supporting legal briefs have been filed. The Trump administration, 25 mainly Republican states and 120 members of the House of Representatives are on the side of the gun owners.

A dozen Democratic-led states and 139 House lawmakers back the city. In addition, Sen. Sheldon Whitehouse, D-R.I., a vocal court critic, filed a brief joined by four Senate Democratic colleagues that asked the justices to dismiss the case and resist being drawn into what he called a political project.

Whitehouse also included a warning to the justices. “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics,’” he wrote, quoting a public opinion poll showing support for such changes.

All 53 Republican senators responded with a letter urging the court not to be cowed by the Democrats’ threats.

A decision is expected by late June.

comments

  1. avatar Stateisevil says:

    Nothingburger. Colorado’s supreme Court is about to uphold that state’s mag ban though. It’s the local stuff that matters. SCOTUS is worthless as lower courts will only obey( maybe) the exact question before the highest court.

    1. avatar FedUp says:

      Good point.
      Federal and state judges have been shitting on the Heller decision ever since it was handed down to them, and SCOTUS has repeatedly said “so what?”.

      1. avatar D.T.O.M. says:

        What New York has done is akin to breaking into a house, stealing everything inside, and trashing it as they leave. When caught, they are now trying to put back what’s left of the contents, and leave a note that reads… We good now Bill of Rights?

    2. avatar Mark Reynolds says:

      When it comes to the Colorado “supreme” court decision…you folks in Colorado KNOW what you need to do.

      1. avatar strych9 says:

        Ignore the law the same way we have been?

        Outside Denver and Boulder that law basically doesn’t exist. Even the cops openly break it.

  2. avatar Shire-man says:

    Reminds me of all those dem voters on COPS and Live PD screaming, after having been caught, lines like “but I didn’t mean to” and “I’ll give it back” always in unison with their like-minded community adding “he’s a good boy” and “it was just a little assault.”

    Something about the habitually irresponsible mindset to believe time can be reversed and actions undone.

  3. avatar James Campbell says:

    Mark Sherman from the Associated Press needs to GAFC.
    NYS violated the civil rights of EVERY NYS citizen who is POSSIBLY able to own a firearm.
    The fact that NYS changed the law when the SCOTUS decided to hear the case is NO reason to ignore this Civil Rights Violation.
    The case needs to be heard, and decided on, to set precident for similar 2nd A violating State laws in the future.
    I wonder how the demoncraps would feel if some states started banning women from voting, or the right to remain silent and rep by an attorney, or probable cause for searches…… The lawmakers need to treat the 2nd A with the same respect as all the other Amendments. This case will go a long way in accomplishing that.

    1. avatar SAFEupstateFML says:

      While you are not wrong in general (Sullivan Act, SAFE Act, etc) this case was only New York City. As bad as the state is we can leave with our guns (what’s left of them).

      1. avatar David Yarbrough is says:

        You should not have to leave New York to enjoy your constitution right to own a firearm…

        1. avatar SAFEupstateFML says:

          Funny word should, some take it as a reasonable suggestion others take it as a challenge. Our constitution was supposed to reign in the latter but here we are.

  4. avatar GeorgiaBob says:

    “This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence.

    The woman is exactly right. That is how EVERY human right should be treated. Many human rights were addressed in the Bill of Rights when this nation clearly approved constitutional limits (restrictions) on the authority of the federal government.

    Specifically the Second Amendment was written in language that made perfectly clear that the federal government has NO authority to limit, restrict, or INFRINGE upon any citizen’s right to keep and bear arms! That really is frozen in history and in our God given rights. Our rights, that are protected from the government so they cannot be changed to accommodate some fear filled socialist’s desires.

    1. avatar Green Mtn. Boy says:

      Correct,my rights don’t end where some Leftard’s Feelz begin

    2. avatar napresto says:

      The question is: how much do leftists truly believe that this case is an existential threat to their gun control ambitions vs. how much are they merely whining that this is an existential threat in order to fund raise?

      Here’s hoping it’s much more the former than the latter.

      1. avatar SAFEupstateFML says:

        Hopefully both with Bloomberg having to reallocate funds for the primary.

  5. avatar Mike Crognale says:

    “This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence.

    That’s the POINT, dumbass.

  6. avatar Hydguy says:

    “This approach to the First Amendment would treat speech rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands,” said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Speech Violence.

    Hmmmm…. they are already going down that path too..

    1. avatar SAFEupstateFML says:

      Been going on for a while I was just too complacent to notice anything was fucky till the Patriot Act and when it was drafted.

  7. avatar Darkman says:

    No confidence that the SC will do anything positive on the RTKABA front. At best it will be some kind of push. Back to lower court or narrow scope limited to NY case. At the end of the day. Relying or expecting politicians/courts to protect. What is an inherent Right in the current political climate is a “Fool’s Folly”. Keep Your Powder Dry.

    1. avatar Mark N. says:

      The Supreme Court does not take cases, other than death penalty cases, which are focused on an individual dispute. Rather, the court engages in “institutional” review to determine what policy should be applied to all cases in the entire country. That is the intended function of the Court. So I expect t hat it will set a standard of review for all 2A cases–which is precisely the one thing the liberals are most afraid of. Will it answer all questions and set 2A controversies to rest? I rather doubt it, but it may succeed in narrowing the scope of the battles yet to come. For example, California bans open carry (loaded or unloaded) in all urban areas, and the Ninth has held that concealed carry is a privilege and not a right. What will happen to those laws (and decisions) if the Supreme Court holds that there is an individual right to bear arms for the purpose of self-defense? Let me suggest that all open carry bans will fall, and open carry loaded will become a constitutionally protected right. Either that or a number of states will suddenly be passing “shall issue” concealed carry laws to protect the delicate sensibilities of the soccer moms. (Out of sight, out of mind.)

      Yes, the dispute in this particular case is small, since it applies directly only to the residents of NYC-and it is likely that the particular ordinance will be overturned. But the most important part of the decision will not be the actual holding, but how the Court gets there.

      1. avatar Ron Wegesser says:

        I have to agree – the un-Happy decision the SCOTUS is going to hand down to the dems and progressives is going to make concealed-carry a LEGAL RIGHT in ALL 50 states, and US Territories. Care to make a wager? Don’t waste your $ 💰 money CUZ I WON’T LOOSE…see you at our local stores, shops etc. either wearing my 9mm, or 40 M&P, or my .45….😂🤣😂

        1. avatar borg says:

          They will probably rule that unlicensed open carry is the protected right. Anti-gun tax payers will have no choice but to demand relaxing all concealed carry restrictions in order to not be forced to see guns as often.

  8. avatar Timothy Toroian says:

    AP can stuff it! If it was a suit to do the opposite they’d jump up and down for SCOTUS to take it.

  9. avatar Mark Reynolds says:

    So somehow my “rights” are predicated by 9 people in dresses calling themselves the “supreme” court? I don’t think so. Never have, never will. My rights are NATURAL rights that are UNALIENABLE. The only way they can be taken from me is by force and that is a VIOLATION of those rights and makes the initiator of the force a criminal or DOMESTIC enemy. SHALL NOT BE INFRINGED really isn’t that hard to understand even with an elementary school degree.

    1. avatar Mark N. says:

      Maybe they are natural rights, but it takes nine people in robes (not dresses) to keep the police from throwing your ass in jail for violating one of those laws that you believe infringe on your natural rights. There is something to be said for that. Assuming you would rather not rot in jail.

  10. avatar uncommon_sense says:

    Lower courts upheld the regulation [New York City’s prohibition on carrying a licensed, locked, and unloaded handgun outside the city limits, either to a shooting range or a second home] …

    So, that is a mere “regulation”, eh?

    Imagine a law which forbade transporting your car out of the city: after removing all the fuel, in a covered and locked trailer, even to a licensed mechanic, driving range/track, or a second home. Would that just be a “regulation”? And would that be okay since you can simply purchase a second car outside of the city for use outside of the city?

    1. avatar FedUp says:

      As a NYC resident, could you even get a permit to allow you to purchase a gun in Buffalo and keep it there?

    2. avatar Mark N. says:

      Chill, dude. Technically speaking, cities and counties enact “ordinances”, administrative agencies adopt “regulation”s to carry out an ordinance or law, and the State enacts “statutes.” That is simply what they are called.

  11. avatar enuf says:

    The case must go forward. Like most any politician from any party the New York City and State variety will always seek ways around inconvenient laws, court decisions, public opinion or Constitutional restriction upon their actions. Republican or Democrat doesn’t matter, all politicians and all political parties pull this sort of shit.

    So no, it is not a moot case. The intent to re-legislate the previous infringements back into place is so real and intense it practically hangs in the air like sewer gas.

  12. avatar Hankus says:

    Let’s just hope Roberts doesn’t end up being a turd in the punch bowel again.

    1. avatar Green Mtn. Boy says:

      Odds on that are not good,as he enjoys being the Turd in the punch bowl.

  13. avatar Serpent_Vision says:

    “even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits.” – author’s talents are wasted as a reporter rather than putting that mind-reading ability to use elsewhere.

  14. avatar Garrison Hall says:

    While I keep repeating my mantra that the 2nd Amendment means exactly what it says—and that the Supreme Court will ultimately have to decide just that—I am also not at all blind to the competitive progressive belief that our laws—all of ’em—should be subject to prevailing views of what is right and what is wrong. This of course would allow our constitutionally guaranteed rights to be reinterpreted into irrelevance, something that is essential if progressive ideas about gun-control are to become dominant. I honestly don’t know if the current Supreme Court has the integrity to protect our rights. Certainly “rights” related to and derived from our traditional ideas of liberty and freedom don’t comport well with progressive ideas of government.

  15. avatar strych9 says:

    I honestly don’t even see this as a 2A case. I see it as the city claiming legal jurisdiction over the entire world but interestingly not applying the same law within the city itself.

  16. avatar Ralph says:

    When this case is over, at least five Justices will qualify for the NFL Pro Bowl as world class punters.

  17. avatar Nanashi says:

    “Kavanaugh voted in dissent when his federal appeals court upheld the District of Columbia’s ban on semi automatic rifles.”

    And totally agreed with Hugo “KKK” Black when he said his ban on full-auto was OK because it’s traditional.

  18. avatar Sam Hill says:

    Wow, June really? I will prayfor them tonight, please join me in that prayer.
    Oh Heavenly Father, please bless scotus, and prevent them from acquiring intestinal gas and diarrhea and losing their eyesight, all at the same time. Thank you, Amen

  19. avatar borg says:

    New York violated federal FOPA law as well as constitutional law with impunity with this law. Not only did they violate the 2nd amendment and the FOPA law but in so doing they decimated the supremacy clause in the process. If the supremacy clause is allowed to be shredded by New York city than they can enact a law that disarms secret service or other armed federal agents. The last thing we need is the New York city being able to add laws that circumvent any federal laws.

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