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The Supreme Court heard oral argument today in New York State Rifle & Pistol Association v. City of New York and… it’s going to be okay. This is the first gun case the Court has heard in a decade. In the last one, D.C. v Heller, Justice Antonin Scalia invented an entirely new gun right: A personal right to keep a firearm in the home for self-defense. Many were worried that the Court might use NYS Rifle to create a new gun right for outside the home. But there seemed to be little appetite at oral argument to do that.
Instead, the case will likely turn on mootness. New York State had a permitting regulation that the gun lobby complained about. Likely fearing what an aggressive, conservative Court would do to the very concept of state regulations of firearms, New York changed the law. Still, the gun lobby pressed its case. Shockingly, the Supreme Court agreed to hear it, but today was all about how they probably shouldn’t have. From CNBC:
Paul Clement, who argued on behalf of three gun owners in New York and a state affiliate of the National Rifle Association, argued that the case was still active because his clients could potentially seek monetary damages in the future.
Clement also argued that even under New York’s new regulations, his clients could still be penalized if they did not travel directly to a firing range outside the city, such as if they stopped for coffee.
But Richard Dearing, an attorney for New York, said that the city guaranteed that gun owners would not be prosecuted for such stops. And he said that any challenge to the new regulations would have to be argued in a future battle.
“There may be a controversy here. But it’s a new controversy that will have to be litigated in a new case,” Dearing said.
Justices Samuel Alito and Neil Gorsuch seemed hot to get to the merits of the case, instead of mootness. But alleged attempted rapist Brett Kavanaugh pulled a Clarence Thomas and rendered himself mute during the arguments. Arguably, this case isn’t even in front of the Court without Kavanaugh. I’m guessing he was the fourth vote to grant cert in this case. But his unusual silence suggests that even he is unsure if this is the right case to upend the regulator power of the states.
Don’t be fooled, there will be a case this Court will find to continue its pro-death reading of the Second Amendment. This just never seemed like the right one. Not with John Roberts, who loves to punt cases, still there as a critical fifth vote.
I still can’t tell you why the Court decided to hear such an obviously moot issue. And, therefore, I could still be surprised by the ruling. But, based on the readout from oral arguments, it sure seems like the moot case will be ruled moot, perhaps with Alito writing some kind of threatening concurrence warning states that any attempt by the states to protect themselves from gun violence will be met with retribution from the Supreme Court.
For now, I consider this bullet, dodged.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.