Our correspondent, LKB, is a member of the Supreme Court Bar and arrived outside the Supreme Court building at 3:40am to line up for a place in the courtroom to hear the arguments in New York Rifle & Pistol Association v. City of New York.
That dedication got him the first place in line, right in front of attorneys for Everytown for Gun Safety and the Brady Campaign.
LKB called me and dictated his impressions of the proceedings, which follow. He’ll be writing up a more complete account of the arguments later today.
The courtroom was packed for the arguments. There were only about 30 seats available for members of the Supreme Court bar and about 50 for the general public available after all of the plaintiffs, respondents, press and invited guests were seated.
As to the claim that the case is moot now that the City has repealed the law in an effort to sidestep the case, Chief Justice Robert expressed skepticism, asking the City’s attorney why the Court should believe the City’s promise not to enforce or prosecute violations of the old law. He also asked if violations could result in the non-renewal of home permits.
Throughout the arguments, as is their practice, Justices Thomas and Kavanaugh were silent. Gorsuch and Alito, however, attacked the mootness claim.
Even the liberal Justices’ arguments seemed to stretch in order to support a finding of mootness given the City’s transparent attempt to dodge the case.
The NYSRPA was represented by Paul Clement who, arguing the merits of the underlying case, began by stating that under the text, history and tradition of the Second Amendment, New York City’s law prohibiting transport of home-permitted handguns is clearly unconstitutional.
Justice Sotomayor argued that text, history, and tradition is a made-up standard that isn’t clearly applicable in this case. Justices Kagan and Ginsburg argued that the City’s limited home permitting of handguns doesn’t affect the transport of firearms…that’s regulated by the city’s carry permits.
On the other side, Justice Alito won a major concession from the City’s attorney. The city’s case is based on the need to protect New Yorkers from crime. Alito asked if crime had been impacted since the law was repealed. The attorney conceded that it hadn’t.
Alito then asked the City’s attorney if an outright prohibition on transport outside the home would be a violation of the Second Amendment. The attorney said it would. Alito then asked if the City’s home permit, then, includes an implicit right to transport a firearm outside the home. The attorney conceded that it did.
This is important because the City’s case has been based on their argument that there is no right to keep and bear arms outside the home. The admission that such a law would violate the Second Amendment explicitly undermines the City’s case.
From LKB’s reading of the tea leaves based on the questions and arguments, he believes that the votes to declare the case moot aren’t there. The motion to kill the case will probably lose by a 5-4 vote.
As for the merits of the underlying case, Alito and Gorsuch were clear skeptics of the constitutionality of the law. Thomas and Kavanaugh, while silent, have made their positions widely know and should be counted on to vote against.
The question, then, comes down to Chief Justice Roberts. He only questioned attorneys on the mootness question and seemed to be solidly against dropping the case on that basis.
As to the merits, questions from Justice Ginsburg suggesting analysis of the case under intermediate scrutiny and conceding no safety issue with regard to the law might have been intended to give Roberts a way to send the case back to the circuit court without ruling on its constitutionality.
Whether Roberts will take that opportunity or fall in line with Thomas, Alito, Gorsuch and Kavanaugh is the $64,000 question.