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Second Amendment Case May Fizzle Out at the Supreme Court

The New York Times logo The New York Times 6 days ago Adam Liptak
a group of people standing in front of a crowd: Supporters of gun-control legislation rallying in front of the Supreme Court on Monday. © Andrew Chung/Reuters Supporters of gun-control legislation rallying in front of the Supreme Court on Monday.

WASHINGTON — The Supreme Court’s first Second Amendment case in nearly a decade may not end up changing anything, judging from questioning at arguments on Monday that focused largely on whether the repeal of a New York City law made the case challenging it moot.

“What’s left of this case?” Justice Ruth Bader Ginsburg asked. “The petitioners have gotten all of the relief they sought.”

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The other three members of the court’s liberal wing made similar points. “The other side has thrown in the towel,” Justice Sonia Sotomayor told a lawyer for the challengers.

Chief Justice John G. Roberts Jr., a member of the court’s conservative majority, asked questions that seemed aimed at making sure that the case was truly moot. But two other conservatives, Justices Samuel A. Alito Jr. and Neil M. Gorsuch, seemed ready to decide the case, saying that the repeal of the law did not settle every question before the court.

Justices Clarence Thomas and Brett M. Kavanaugh asked no questions.

The law had limited city residents who had “premises licenses” from transporting their guns outside their homes. It allowed them to take their guns to one of seven shooting ranges within the city limits, but it barred them from taking their guns anywhere else, including second homes and shooting ranges outside the city, even when they were unloaded and locked in a container separate from any ammunition.

Three city residents and the New York State Rifle and Pistol Association sued to challenge the law but lost in Federal District Court in Manhattan and in the United States Court of Appeals for the Second Circuit. A unanimous three-judge panel of the Second Circuit ruled that the ordinance passed constitutional muster.

After the Supreme Court granted review, the city repealed its law, apparently fearful of a loss that could sweep away other gun-control regulations, too. For good measure, New York State enacted a law allowing people with premises licenses to take their guns to their homes and businesses and to shooting ranges and competitions, whether in the city or not.

Paul D. Clement, a lawyer for the challengers in the case, New York State Rifle and Pistol Association v. City of New York, No. 18-280, said the restrictions imposed by the ordinance were at odds with the Second Amendment.

Richard P. Dearing, a lawyer for the city, responded that the ordinance was no longer on the books, meaning that there was nothing left for the court to decide.

The larger question in the case, one the court may not address, is whether lower courts have been faithfully applying its key precedent, District of Columbia v. Heller, which was decided by a 5-to-4 vote in 2008. The decision revolutionized Second Amendment jurisprudence by identifying an individual right to own guns, but it ruled only that the right applied inside the home, for self-defense.

Proponents of gun rights have been frustrated by lower-court rulings that have generally upheld various kinds of gun-control laws, often relying on a passage in the Heller decision that said some restrictions were presumptively constitutional.

“Nothing in our opinion,” Justice Antonin Scalia wrote for the majority in a passage that was apparently the price of Justice Anthony M. Kennedy’s fifth vote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia died in 2016, and Justice Kennedy retired last year.


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