The best framing Larry Tribe could pull off was to call the case “kooky,” And he’s not wrong, but naturally not for the reasons he believes. As is well known and overwhelmingly clear, New York hates guns. Well, lawfully possessed guns, anyway, and illegally possessed guns come with heart-wrenching stories, unlike those of people who jump through the hoops at One Police Plaza to comply with the law.
Despite the Supreme Court’s rulings in Heller and McDonald, there is no “right” to possess a gun in New York, and the Second Circuit has been totally fine with that. For more than a decade, the Second Circuit has made clear it’s not going to apply the law, daring the Supreme Court to do something about it. And the justices hid under their bench and let it slide.
Then came NYS Rifle & Pistol Ass’n v. City of New York. After the Second Circuit threw down the gauntlet, the Supreme Court picked it up. “Oh crap, oh crap, oh crap,” the City responded. The issue at hand, the ability for someone with a legal premises license to travel with their gun to shooting ranges and second homes outside the city was, in itself, kind of a tiny piece of the overall labyrinth of rules, regs and laws that made the exercise of Second Amendment rights by New Yorkers “kooky.”
The last thing in the world New York wanted was an unsympathetic court to scrutinize its anti-gun rules for fear that it would not only rule that the specific rule involved violated the Second Amendment, but that its anti-gun regime was pervasively unconstitutional, a morass of rules designed to burden the exercise of a fundamental constitutional right. Try to get a carry permit in New York if you’re not an ex-cop, no matter how great your need and how wonderful your character.
These restrictions may not seem very important, but that is beside the point for purposes of mootness. Nor does it matter whether, in the end, those restrictions would be found to violate the Second Amendment. All that matters for present purposes is that the City still withholds from petitioners something that they have claimed from the beginning is their constitutional right. It follows that the case is not moot. It is as simple as that.
Except it was hardly as simple as Justice Sam Alito wrote in dissent, as the per curiam majority opinion made abundantly clear.
After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.
The City tried a few gambits along the way, seeing how little it could change to create the appearance that its unconstitutional city ordinance was gone, the specific issue at hand was no longer in play and the case was moot. The plaintiff argued as hard as it could to find some crack, some claim, that was left behind to keep the controversy alive.
Petitioners now argue, however, that the new rule may still infringe their rights. In particular, petitioners claim that they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City responds that those routine stops are entirely permissible under the new rule.
Whether it was true that the new rule no longer burdened the exercise of a constitutional right remains a bit of a mystery, as it was the old rule that was the subject of cert, and the new rule wasn’t yet ripe.
We do not here decide that dispute about the new rule; as we stated in Lewis v. Continental Bank Corp., 494 U. S. 472, 482–483 (1990):
“Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. See, e.g., Deakins v. Monaghan, 484 U. S., at 204; United States v. Munsingwear, Inc., 340 U. S. 36, 39–40 (1950). However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 415 (1972).”
It’s not that the new rule will never be subject to review, but that plaintiffs will have to go back to the beginning and take a Mulligan, and lose at the district court, the circuit and, maybe, get cert again the next time around.
And despite Justice Alito’s valiant effort, the majority is right, that the case is moot, at least for the moment. New York City Council could approve the old ordinance against tomorrow, in about five minutes, or some variation on a theme to accomplish the same unconstitutional goals but with some different language or a tweak here and there.
And should the case be brought and ultimately wind its way to the Supreme Court, they could again amend and reply, “Oopsie, we bad, so we changed the law and not it’s all moot again.” This game could be played forever and ever, thus perpetually evading scrutiny of unconstitutional laws as part of an unconstitutional regime designed to circumvent the Second Amendment by any means possible.
But it’s unlikely to work out that way, with the new rule subject to challenge and ending up before the Supreme Court only to be mooted by another City Council game. First, the challenge will end up with a terrible Second Circuit ruling that will make things worse by rationalizing why a flagrantly unconstitutional rule is the most socially glorious and reasonable regulation ever, barely going far enough in suppressing constitutional rights. Second, the Supreme Court won’t grant cert the next time, leaving that bad ruling on the books and judicial review a fond memory.
The cost and effort required to pursue challenges to the deprivation of a constitutional right, only to end up with a bad circuit ruling and the Supreme’s turning the other cheek as its face gets smacked hard, makes the pursuit of these cases untenable. Since it’s about guns and the Second Amendment, this may not make you sad. But if it can happen with one constitutional right, it can happen with all constitutional rights.
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