U.S. Supreme Court

Chemerinsky: Guns and mootness at center of Supreme Court's next big battle

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Erwin Chemerinsky. Photo by Jim Block.

Each session of oral arguments at the U.S. Supreme Court this term has at least one potential blockbuster case, and for December it is New York State Rifle and Pistol Association v. City of New York, which will be argued Dec. 2. It is a potentially enormously important case about the Second Amendment. But the law being challenged in this litigation has been repealed, and a major issue is whether the case should be dismissed as moot.

The Supreme Court and the Second Amendment

From 1791 until 2008, not one law was struck down by the Supreme Court as violating the Second Amendment. The relatively few cases addressing the meaning of the Second Amendment concluded that it protected only a right to have guns for militia service and upheld government restrictions on firearms.

In District of Columbia v. Heller in 2008, the court declared unconstitutional a 1975 District of Columbia law that prohibited ownership or possession of handguns. The court was ideologically split, 5-4, with Justice Antonin Scalia writing the majority opinion. The court held that the Second Amendment protects a right to have guns in the home for self-protection. The court was clear though, that this is not an absolute right. Justice Scalia’s majority opinion recognized that the government could regulate where guns are taken (such as prohibiting them in government buildings and schools), who has guns (such as forbidding ownership by those with felony criminal convictions or a history of serious mental illness), and what types of firearms are allowed (such as prohibiting possession of military weapons).

Two years later, in McDonald v. City of Chicago, the court held, again 5-4, that the Second Amendment applies to state and local governments through its incorporation into the 14th Amendment. Because Heller involved the District of Columbia, a part of the federal government, it required a separate case to determine that the Second Amendment limits state and local governments as well.

But the court in Heller and McDonald left open many questions. Is there a right to have guns outside the home? What test, or level of scrutiny, is to be used in evaluating government regulations? What types of regulations are permissible?

There are more than 1,000 lower court decisions addressing these and other questions since Heller. But the Supreme Court denied certiorari in every Second Amendment case since 2010 until it granted review in New York State Rifle and Pistol Association v. City of New York.

New York City’s ordinance and its repeal

New York requires a permit to own and possess a firearm. There are two main kinds of licenses in New York. A premises license authorizes a person to possess a handgun for self-defense at a home or business. A carry license authorizes a person to possess and carry a loaded handgun outside the home.

This case involves the former, premises licenses, and New York laws that prohibited licensees from transporting handguns through New York City to take them to shooting ranges or second homes located outside the city. Under these laws, those with premises licenses could take the guns outside the home for only limited purposes. A premises-license holder could transport a licensed handgun within the city to an authorized shooting range for training. Also, the premises-license holder could obtain permission from the city police department to transport the handgun out of the city for hunting purposes. Under both exceptions, the premises-license holder is required to transport the handgun in a locked container, unloaded and separate from the ammunition.

A lawsuit was filed challenging the restrictions on possession of guns outside the home as violating the Second Amendment, the right to travel, and for placing an undue burden on interstate commerce. The federal district court rejected these challenges and upheld the New York City rules and the New York state law. The New York City-based 2nd U.S. Circuit Court of Appeals affirmed.

After the Supreme Court granted certiorari, the city revised its rule. In July, the state of New York passed a law that permits premises-license holders to transport their handguns directly to second homes, shooting ranges or other authorized locations. This law provides a statewide transport rule and preempts any conflicting municipal regulation.

The city asked the Supreme Court to dismiss the case as moot. The plaintiffs are seeking only injunctive and declaratory relief, not money damages. The city says that repeal of the law gives them everything that could be gained from a favorable decision. The court, though, declined to dismiss the case and told the parties they “should be prepared to discuss” justiciability at oral argument.

The issues before the court

Obviously, the threshold question is whether the case should be dismissed as moot. The defendant city sees this as an easy question and states in its brief: “Petitioners have challenged the city’s former rule to the extent that it prevented them from taking their handguns to shooting ranges and second homes. State and city law now allow them to do both.”

But the challengers to the law disagree and argue in their reply brief that “they manifestly have not obtained everything from the unilateral and begrudging changes in city and state law that they could have gotten were this case litigated to a favorable result, with declaratory relief that the transport ban is (and always was) unconstitutional and binding, forward-looking injunctive relief. … The case is thus not moot for Article III purposes.” They say that “there is no plausible basis to reward the city’s transparent effort to frustrate this court’s discretionary review.”

If the court does not dismiss the case as moot and reaches the merits, the issues include whether the law violates the Second Amendment or the right to travel, or places an undue burden on interstate commerce. It is the Second Amendment, of course, that is the primary focus of the briefs of the parties and the many amici. Not surprisingly, there is vehement disagreement over the scope of the Second Amendment and the extent to which the government can regulate guns outside the home. Nor is there any agreement on the test the court should use in evaluating restrictions on guns.

Underlying this disagreement, as clearly reflected in the amicus briefs, are very different views about gun control and the Second Amendment. Those who favor restrictions on firearms point to their enormous toll in society. An average of 36,000 Americans are killed by guns each year—nearly 100 per day. But those who oppose gun control see it as infringing a fundamental right that is protected by the Constitution and believe that too many lower courts have made it a second-class right.

I am not sure when views about the Second Amendment became so starkly divided on ideological grounds, with the liberals favoring gun control and conservatives favoring gun rights. But that is the political reality, and it is why Heller and McDonald were 5-4 decisions. It also is why advocates of gun control hope that the Supreme Court dismisses this case on mootness grounds.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.

Updated on Nov. 27 to remove a reference to the proportion of jurisdictions that require a permit to own and possess a firearm.

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