For years, the National Rifle Association and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits. Justice Clarence Thomas has been among members of the court who have complained that lower courts are treating the Second Amendment’s right to “keep and bear arms” as a second-class right.
The lawsuit in New York began as a challenge to the city’s prohibition on carrying a licensed, locked and unloaded handgun outside the city limits, either to a shooting range or a second home.
Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights from a court with two new justices, Neil Gorsuch and Brett Kavanaugh, both appointees of President Donald Trump.
Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.
“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.
But those moves failed to get the court to dismiss the case, although the justices are likely to ask at arguments about whether there’s anything left for them to decide.
Paul Clement, who represents three New York residents and New York’s National Rifle Association affiliate challenging the transportation ban, said in an email that among the reasons the case remains alive legally is that the court frowns on tactical moves of the sort employed by the city and state that are meant to frustrate the justices’ review of an issue.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
https://www.tampabay.com/florida-politics/buzz/2019/11/29/desantis-is-reshaping-floridas-courts-with-the-federalist-societys-help/
ReplyDeleteYour welcome.
Sounds like they will punt based on mootness.
ReplyDeleteSeems right.
Conclusion: It's OK to violate your civil rights as long as you know lower Circuits will side with you. But if the SCOTUS takes up the argument, the Gov't can just rescind the infringing law and walk away with no consequence of any kind?
ReplyDeleteJustice Altio cut to the core here:
ReplyDeleteJUSTICE ALITO: Mr. Dearing, are the
-- are people in New York less safe now as a
result of the enactment of the new city and
state laws than they were before?
MR. DEARING: We -- we -- no, I don't
think so. We made a judgment expressed by our
police commissioner that -- that it was
consistent with public safety to repeal the
prior rule and to move forward without it.
JUSTICE ALITO: Well, if they're not
less safe, then what possible justification
could there have been for the old rule, which
you have abandoned?
The transcript of the OA is here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-280_j4ek.pdf
I'm not sure the gamesmanship by New York City and State -- rescind the old law, and implement a new one with a new set of infringements, only AFTER the SCOTUS granted cert -- is going to get the respondents the punt for mootness that they seek. Read the OA and do the arithmetic and I don't think the betting would be very clear at this point.
If it does, that in itself will be awfully bad news: We're the state legislature. We pass Law A that impermissibly restricts an exercise of an enumerated right. We know it isn't the narrowest means available to effectuate a compelling state interest, but we don't care. We want the speech or the assembly or the religious practice or whatever it may be restricted to suit us. Citizens sue over the law and, five years and $$$$ later, we land in front of the Supremes. We rescind Law A, rearrange and revise it ever so slightly, pass it anew as Law B, and cry "Moot!" Whereupon the citizens can be pleased to go and sue again if they like. Rinse and repeat.
It's not just cynical, it would cut the guts out of meaningful judicial review.