New York State Rifle & Pistol Assn. Argues That Supreme Court Case Isn’t Moot

New York State Rifle & Pistol v City of New York

courtesy NYSRPA

The forces of civilian disarmament realized the existential threat posed to their cause when the US Supreme Court granted cert to New York State Rifle & Pistol Association v. City of New York. The City’s gross restrictions on the right to keep and bear arms were so egregious that the case gave the pro-2A Justices a perfect opportunity to expand on the Heller ruling and slap down Circuit Courts that had openly thumbed their noses at it.

The case’s threat to current gun control laws around the country was so great that the City was convinced to marginally change its law in a transparent attempt to render the case moot and avoid a devastating SCOTUS ruling.

In addition, a sympathetic and equally anti-gun New York legislature enacted a state law with a carve-out for the City that would allow them to continue to limit citizens’ ability to transport their legally-owned firearms, but do it under the new state law, something that isn’t at issue under the current Court case.

The City’s brief in answer to the petitioner’s suit is due to be filed with the Court tomorrow. It should be more than a little interesting to read. In addition, City attorneys filed a “suggestion of mootness” brief with the court in an effort chloroform the current case.

In response, NYSRPA attorneys answered with a devastating response that exposes the City’s cynical efforts to weasel their way out of what looks like a no-win situation.

Here’s the response’s introduction (edited slightly for readability).

For decades, the City of New York imposed numerous restrictions on law-abiding residents that effectively prohibited them from transporting their licensed handguns anywhere beyond seven in-city ranges. Five years ago, petitioners (three city
residents and an association representing handgun owners statewide) challenged that regime, insisting that the Second Amendment gives them a right to transport their licensed handguns to places where they can be lawfully possessed, like second homes, out-of-city ranges, and shooting competitions.

For five years, the City actively and successfully defended its regime, ultimately procuring a Second Circuit decision that eliminated meaningful protection for Second Amendment rights. Then this Court granted certiorari, and the City abruptly shifted gears, undertaking a series of extraordinary maneuvers designed to frustrate this Court’s review and obviate the City’s need even to explain itself in a merits brief.

The City’s efforts culminated in a revised regulation designed to loosen the City’s restrictions to the minimum degree necessary to render this litigation moot and a City-procured state law that actually grants the City unique authority to prevent nonresidents from transporting licensed handguns through the city.

Neither of those changes renders this controversy moot, and each vindicates this Court’s well-grounded skepticism of voluntary cessation of unlawful conduct generally and of “postcertiorari maneuvers designed to insulate a decision from review by this Court” in particular.

The City’s begrudging revisions to its restrictive transport ban reflect the City’s unwavering view that the ability to transport a licensed handgun is a matter of government-conferred privilege, rather than a constitutional right. As a consequence, the revised regulations demand continuous and uninterrupted transport (forbidding a stop at a gas station or coffee shop en route), require written permission before a handgun can be taken to a gunsmith, and preclude transport to a summer rental house.

If the City had suggested the same revisions as a proposed injunction after a loss on the merits, petitioners would have objected to them as inconsistent with their just reaffirmed Second Amendment rights. The (in)adequacy of such miserly accommodations presents no less a live controversy when the City unilaterally imposes them as a supposed mooting event.

Equally problematic, the City’s revised rules, unlike a judicial declaration that the longstanding rules are and always have been unconstitutional, do nothing to prevent the City or another jurisdiction from using past non-compliance as a basis for denying future licenses.

The City plainly has fallen far short of making it “impossible for a court to grant ‘any effectual relief whatever’” to petitioners should they prevail before this Court.

The state legislation that the City procured also fails to eliminate a live controversy between the parties. The state law leaves many disputed questions—from the propriety of coffee stops to the scope of places where handgun use is “lawfully authorized”—to local officials.

It thus does nothing to eliminate the ongoing controversy over issues such as the adequacy of the City’s rule demanding continuous and uninterrupted transport, or the possibility of localities attributing continuing consequences to past violations.

Even more troubling, the state law contains a massive carve-out that allows the City— and the City alone—to prohibit non-residents from transporting a licensed handgun into or across the city.

Thus, the City’s claim that it “no longer has any stake in whether the Constitution requires localities to allow people to transport licensed handguns to second homes or firing ranges outside of municipal borders,” SM.1, is demonstrably wrong.

Of course, even if (contrary to fact) the new laws were so unequivocally accommodating of petitioners’ constitutional claims so as to eliminate any immediate controversy, the unilateral and voluntary nature of the changes, along with their undisguised purpose to frustrate this Court’s review, would justify injunctive relief to foreclose the possibility that the City could return to its ways. Especially given the City’s ongoing regulation of constitutionally protected conduct through its licensing regime, the possibility of “effectual” injunctive relief is obvious.

Indeed, the carve-out in the state law confirms that the City maintains an undiminished interest in prohibiting the transport of lawful handguns and has yielded only when and to the extent necessary to attempt to foreclose this Court’s plenary review.

In short, everything about this case confirms not only that a live controversy remains, but the wisdom of this Court’s admonition that post-grant maneuvers designed to defeat the Court’s exercise of discretionary review “must be viewed with a critical eye.”

comments

  1. avatar Stateisevil says:

    NYSRPA and SCOTUS really know how to rearrange deck chairs on the Titanic. Yawn.

    1. avatar Jim Bullock says:

      The goal is a long way off; getting there is a game of inches.

      1. avatar Darkman says:

        The time is fast approaching. To Stop playing By the ENEMIES RULES. In Fact. ..To STOP Playing Altogether.

      2. avatar uncommon_sense says:

        Jim Bullock,

        Suppose that 60% of the population installed a duly elected government and that government declared:
        — X is a scourge that threatens the continued existence of our society
        — a new baby boom is the only solution to X
        — natural population growth will not produce the baby boom
        — women must allow government fertilization agents to rape them
        — resisting government fertilization efforts is a serious felony and will be vigorously prosecuted to the fullest extent of the law

        If that was the case and government fertilization agents began attempting to fertilize (rape) thousands of women every month, should we be good little citizens and let government mandated rape continue while our lawsuits work their way through the courts for 5+ years? Or should we go “hands-on” immediately?

        In our current situation government has declared that “gun violence” is a scourge that is an existential threat to our society and the “solution” is that all citizens must forcibly give up their firearms and their ability to effectively defend their lives. People are literally dying because of their compliance. And government has vigorously prosecuted people who do not comply. In other words government infringement of our Second Amendment right to effective self-defense is directly responsible for ruining thousands of lives every year. Why are we obligated to be good little citizens and continue to comply — and allow both violent criminals and government agents to violate us and ruin our lives?

        (Clarification: violent criminals ruin our lives when the rape, maim, and murder us. And government ruins our lives when they imprison us for 5+ years, cost us tens-of-thousands of dollars defending ourselves, and/or maim/murder us in the arrest process.)

        1. avatar DaveW says:

          The Progressive Party (1880s-1920s era) did much the same when the pushed for Prohibition in order to protect society from the impact of alcoholic beverages. At least the used the amendment process per Constitution, unlike the anti gun fore who seek to steal the right of citizens to avail themselves of the 2d Amendment… especially in light of the fact that alcohol consumption is not an enumerated right. The end result was that the people drank more booze which had no quality control to assure safety, and in the end Prohibition was repealed by means of a second amendment.

          The same Progressive Party also pushed for disarmament, a tiered tax structure to support social programs, open borders, and more. The did get part of their disarmament agenda with the National Firearms Act of 1934, and a tiered tax system which replaced the flat rate of 10% which had been applied to everyone no matter what their income.

          The left always claims “for public safety” whether factual or not. Following the NFA 1934, the Chicago gangs still used Tommy Guns and sawed off shotguns.

          The most recent CDC figures put the number of gun related deaths at: 39,773 recorded deaths from firearms in 2018 which marked an increase of more than 10,000 compared to the 28,874 deaths recorded in 1999. An estimated 14,542 people are killed in homicides with guns, according to the CDC. The steady rise of gun-related suicides also contributed to the record number. An estimated 23,854 people died from suicide using guns in 2017, compared to the 17,352 suicides by firearm recorded in 2007. The anti-gun lobby uses only the 39,773 figure, bundling both homicide and suicide together.

          a record-high for gun-related deaths in the U.S.. … 14,542 people are killed in homicides with guns, according to the CDC. Last … The steady rise of gun-related suicides also contributed to the record number.

        2. avatar Jim Bullock says:

          “Why … obligated to comply?”

          Well, there’s a bunch of philosophies of law, and theories of government that all answer that one differently.

          The silly encroachments have weight from the insensate reactions of the blob, and changing that is, well, a game of inches.

          Why comply? If we’re talking consent of the governed, current practice has gone a tad afield. If we presume natural rights, they’re more than a tad. “Cause it’ll work” isn’t much of a requirement lately. If you gave your word, maybe there’s that.

          It would be interesting to have the imposers declare the theory of government n law they’re appealing to.

          “Cause I’m smarter about what the country should be, so do as I say. Also, I have guys with guns. (Why do you think I got myself elected in the first place?)”

          At least Pres Wilson was up front about his rationale.

    2. avatar Napresto says:

      Gosh, StateIsEvil, sounds like you must have a real game-changer of a plan in mind. Well this NY gun owner, at least, is eager to benefit from the bold and non-sleep-inducing legal action you’ve got ready to go. Do tell.

  2. Its all about the Authoritarianism

    1. avatar Mark says:

      Of course. NYC has never been a liberty-loving culture.

  3. avatar Green Mtn. Boy says:

    The case is not moot,if dropped NYC and state will damn well as they please unless forced to do otherwise. It’s mootness or not isn’t even what NYC,states and the civilian disarmament syndicates fear ,their fear is loosing on much larger grounds the entire scheme of gun control Period.

  4. avatar Rusty - always carry - Chains says:

    Their largest fear is that SCOTUS will set strict scrutiny as the standard for judging infringement on 2nd Amendment court cases, and this will cause the re-litigation of much of the current anti-gun laws throughout the “peaceful gun free” workers paradise of the slave states of America.

    1. avatar Mad Max says:

      Strict scrutiny will happen. If not this case, then another.

      1. avatar IN Dave says:

        I pray that you are right but I fear that if this case is thrown out, the next case will be decided by a Supreme Court that is in the hands of the enemy.

    2. avatar Ugly95 says:

      You are more right then you know. Currently there are 2 cases SCOTUS is holding. Rogers out of NJ and Gould out of Mass. both went to SCOTUS a few weeks after this NY case. This NY case is a great vehicle for Strict Scrutiny. It is very conceivable that SCOTUS will rule in favor of SS and demand the NJ and MA cases down. This will cause an avalanche of cases to be heard by lower courts gutting gun grabbers hopes of passing new restrictions.

    3. avatar TFred says:

      “Their largest fear is that SCOTUS will set strict scrutiny…”

      Actually, if you want to know what their actual “largest fear is…” It is that the court will determine that the proper test for evaluating Second Amendment issues is the “Text, History, and Tradition Test.”

      I just learned about this myself a couple weeks ago. It got a little attention during the Kavanaugh hearings, because he mentioned it in his dissent on Heller II. From an article written on the Kavanaugh hearings, we have this gem:

      “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/

      You think “strict scrutiny” gives them nightmares? “Text, History, and Tradition” pretty much strokes them out.

      1. avatar TFred says:

        I should add here, that this issue was discussed (question and response from the author of the post) on a later article posted today. See my comment and LKB’s reply.

        https://www.thetruthaboutguns.com/analysis-of-citys-brief-in-new-york-rifle-pistol-assn-v-city-of-new-york/

  5. avatar SGT Preston says:

    Interesting that the US Constitution, which applies to every state, town and city in this country, says that this right to firearm possession and ownership, SHALL NOT BE INFRINGED. In my dictionary, this means that the government is under Constitutional command to keep their grubby hands OFF firearms completely. If the court rules justly, that’s what they will tell New York City. It is a grievous violation of the constitution for a city/town/state to tell me, an honest, law-abiding American Citizen (now retired, but still hard-working) that I must have their permission to keep and bear that which the Constitution already recognizes my God-given right to do.

  6. avatar M1Lou says:

    Keep and bear are simple terms. If you prevent me from leaving my house armed, then you are preventing me from bearing arms. If you prevent me from having my firearms at the location of my choosing, you are preventing me from keeping. Guns are property, owned by the person who purchased them. Laws like this act like the government has partial ownership of your property and can decide what you can and can’t do with that property.

  7. avatar Jim Bullock says:

    “State sponsored carve-out.”

    It’s like the rest of the state is ruled from imperial NYC, administered through their Albany field office, per their sensibilities. Sometimes the hinterlands get bugged being ruled for Manhattan’s benefit.

    NYC housing “regulations” being propagated across the state, called out explicitly that way in their PR.

    Lyft n Uber “allowed” in cool-kid down state, while the rest wait. Eventually permitted. Now assorted certifications n permissions for “independent drivers” are effectively reinstating the taxi medallion system. Next, they’ll push that out to the rest, gathering the local graft into the state apparatus.

    Of course, every county outside Gotham and their field administrative center voted *opposing* the SAFE act; resolutions of no impact on the state assembly.

    Imposing something they don’t want on those distant unwashed is a feature, not a bug. Imperial rule of captive lessers is the game.

    1. avatar HuntingtonGuy says:

      “It’s like the rest of the state is ruled from imperial NYC, administered through their Albany field office, per their sensibilities“

      And there sir, you have it in a nutshell. NYS is dominated in countless ways by the tiny land area (relative to a largely gun friendly and freedom loving state) that is NYC. Liberal mandates and seemingly endless flows of cash have always given NYC the final word on most things in NYS. The state legislature is dominated by NYC liberal Democrats based on the population of the 5 boroughs of NYC.
      As conservatives and other smart people continue the exodus from all of NYS that gravy train will begin to dry up and then NYS will be forced to reboot their allegiance to NYC.

  8. avatar Mason says:

    What is anyone doing about Hawaii’s abandonment of the 2A?
    Is this “sovereign” and dissociated state have a right to also prohibit firearms ownership?
    How do they get away with it? Sounds like Hawaii can be used as a precedent for NY’s case. That should be the next proving ground for 2A in SCOTUS. Protectorates like Puerto Rico, Virgin Islands, Midway, etc. also have ownership issues. Are they not also covered by the Constitution and Amendments by not being states?

    1. avatar Hannibal says:

      “How do they get away with it? Sounds like Hawaii can be used as a precedent for NY’s case…”

      That’s the opposite of how precedence works.

    2. avatar I Haz A Question says:

      See ‘Young v. Hawaii’

      http://michellawyers.com/young-v-hawaii/

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

      “What is anyone doing about Hawaii’s abandonment of the 2A?”

      Chill, homie. It’s being worked on. Click ‘I haz Question’s link…

  9. avatar Jay in Florida says:

    The least one can ask of the courts is that strict scrutiny applies to all past present and future laws on the 2nd. Ill settle for a 5-4 on this. Nothing less.
    The best would be to adhere to the 2nd as written. “Shall Not Be Infringed” which wont happen but would be best. Toss every law that requires permission of the state. Any F#$%^inig state.

  10. avatar GS650G says:

    Caged animals fight hardest when they know it’s almost over.
    The last three shooting events is going to galvanize them and if there are several more this month we are going to see it all boil over.

    1. avatar uncommon_sense says:

      If there are several more mass-murder events this month, that means an unknown enemy has started a guerilla war.

      If going to grocery stores and other public locations carries a significant risk of the enemy carrying out guerilla attacks with rifles, I may begin carrying my rifle to such locations — which is the exact reason that we have the Second Amendment.

    2. avatar VieteranGunsmith says:

      Liberals run our largest cities, places where the murder rates are astoundingly large, and these same people want us to be disarmed when confronted with the criminals they coddle with laws that are contrary to the public interest. There are so many instances of malfeasance in government in the cities and states dominated by liberal left wing democrats and their poorly reasoned policies that it is becoming impossible to count them. No foreign power has managed to conquer the United States, however these people may yet succeed. This cannot be allowed to happen. No amount of repressive gun control law is going to eliminate the incidents we are seeing now with active shooters preying on innocent masses of citizens because we are not doing enough to secure places where people congregate in large numbers. Merely making them gun free zones is a bad joke – criminals have no reservations about breaking any and every law written in knee-jerk reaction to these incidents. It is insane to think that restrictions on guns and ammunition will stop the determined and/or crazy from doing violence. The numbers of these multiple shootings in gun free zones tells the intelligent one thing – this is being done with more regularity and these things are planned actions, and not just some crazy getting ahold of a weapon and ammo and shooting up public venues. These people may be crazy, or not, but it is clear there is some overall plan to this, and I believe it is coming from anti-gun left wingers who will do or say anything to get what they want. This is the kind of thing that takes money. so who is financing all of these things? If the federal government is serious about stopping these events of murder and mayhem, they will investigate every one of these events with an eye on not only the shooter but who is supporting these shooters. Just like in the case of Antifa, someone is pulling the strings behind the scenes.

      We need much more hardened security in places where large numbers of people congregate so that anyone coming on scene with a weapon is detected as soon as possible. These sites should also be adequately protected with armed security so a response to an active shooter takes as little time as possible. In the time it takes for Police to react to an active shooter report, we have seen dozens of people can be wounded or killed. This is far too long for a defensive response. In every case where there was a shooting incident in progress where an armed civilian was on the scene, the shooters were stopped after a few shots.

      If the gun control extremists get their way there will not only be more of these incidents, but the death toll and numbers of wounded members of the public will keep going up. The incident in Ohio today had a perpetrator who was equipped with body armor as well as a semiautomatic weapon. The one in El Paso, Texas the day before surrendered as soon as Police arrived. Both of these people wanted to survive, so a common factor in their attack planning and execution is the will to survive the encounter. Law enforcement needs to analyze these people to find out if there is an overall organized effort to sponsor these crimes. Something is making mass shootings appealing to these people, or these people have something else in common that leads them to this kind of act. We need to find out what that is. That is more important than more laws, laws that fly in the fact of the Constitution. The liberal assertion that the Constitution is out of date is nonsense. What makes them think that there is a problem with the tenets of the Constitution is a radical viewpoint that began in the late 1800’s known as progressivism. It is a misnomer to call the repression of this political philosophy progress. Clearly, restriction of individual liberty is about as repressive as it gets.

      This country was founded on individual responsibility and self rule, not submitting to the tyrants of authoritarian government officials who make themselves into an elite class and who look at the people who elected them as dolts incapable of self rule. Woodrow Wilson outlined this in his book, The Administrator, and when he assumed the presidency later, he ran the federal government as if he were an unquestionable authority and his desires were enacted regardless of the constitution.

      Today’s liberals are the apostles of Woodrow Wilson. Read his book and you will see why I am saying this.

      1. avatar Docduracoat says:

        Veteran Gunsmith,
        That was WAY too long.
        I did not read it.
        I assume most others did not read it.
        I like what you say… just keep it short

  11. avatar Alan says:

    Re the legal gymnastics being attempted by N.Y.C., where I was raised and lived for a number of years, appropriate advice follows. Take your legalistic scams and stick them where the sun doesn’t shine. Apelate courts should view this case with the STRICTEST POSSIBLE SCRUTINY. Nothing less begins to be appropriate.

  12. avatar Phil in TX says:

    A while back, before the incident in Las Vegas, someone commented that they believed that these mass shootings were “false flag” actions, designed to drive gun control down the public’s throat, whether we wanted it or not. We most assuredly do not as evidenced by the reports stating that gun control is only supported by less than 40% of those polled. It is beginning to look to me like this person’s observation was correct. Personally, I believe that this must be being paid for by someone with great wealth. My first choice for that (dis)honor is none other than Michael Bloomberg. My second choice is George Soros. Both men have the wherewithal to accomplish their goal to push gun control due to these shootings. If it is found that this is the case, they should be held responsible and then their sentence should be death by firing squad. It would only be fitting.

    Phil in TX

  13. avatar Timothy Toroian says:

    It is not moot. The Constitutionality of what the city originally attempted must be decided or it will try it in the future.Saying it will change the law is just plain old sneaky son-of-a-bitch who will sneak up on you later when you least expect it. With something more restrictive.

  14. avatar Mr no says:

    What no one realizes is that this is only pertaining to the rotten apple scumos ticket to office. The cesspool is still in full swing. I believe that no one in the bullshit city gives 2 shit’s about anything but themselves. I also believe that it should be introduced to the Titanic…but God hates the pollution!!!

  15. avatar itsgonnahurtantis says:

    NYC attempts to moot 2a infringement case and in the meantime passes more 2a infringements. Good luck with the Supreme Court not noticing that. LOL, what are they trying to do, help our cause? LOVE IT!!!!

  16. avatar LUVITORLEEVIT says:

    I believe one of the best steps to take for NY gun owners would be to get rid of Cuomo!

  17. avatar Martin Zuniga says:

    No good tragedy goes to waste.
    Tyrannical government.

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