NY Rifle and Pistol Oral Arguments… well… sort of.
So, for the last year or so I have been teasing ya’ll with the prospect of the Supreme Court issuing a landmark decision in New York Rifle and Pistol v New York.
Last week they kinda, sorta held oral arguments in the case.
So… here is the breakdown.
First: The reason this case is important has to do with the standard of review that is used as a test to determine if a law passed by the State is an unconstitutional infringement on the Second Amendment.
To understand what this means, we need to first go back to the 2008 case of Heller v District of Columbia. This was the landmark case in which Justice Scalia stated emphatically that the Second Amendment protected an individual’s right to keep and bear arms. But, as we all know, rights are not unfettered. For example, prohibiting the utterance of “Fire!” in a crowded theater is clearly a restriction on the First Amendment right of free speech, but laws banning the act are still considered acceptable because there is a compelling state interest in protecting life, and there are no less restrictive alternatives to achieving that end.
When a right is specifically enumerated in the Constitution (like the Second Amendment), we should use the “strict scrutiny” test as articulated in the theater scenario above. When it is not a specifically enumerated right, then the test used is less taxing. The question for those rights is, “Is there a legitimate state interest, and is the suspect legislation rationally related to achieving those ends?” That question is a fairly easy threshold to achieve.
In Heller, Justice Scalia stated (inartfully expressed in my opinion) that the Second is a specifically enumerated individual right… (so far, so good)… then he wrote that “thus a rational basis approach is not appropriate.”
He could have tightened that down a bit.
Appellate courts jumped at it and essentially said, “Well… if you are not going to specifically tell us to use ‘strict scrutiny,’ we won’t… we can’t use ‘rational basis,’ so we will come up with an ‘intermediate level of review’ that magically has the same teeth as ‘rational basis’.”
Justice Thomas has opined that this was a complete misreading of Heller, and we have been waiting for a case for the Court to “set the record straight.”
It has been my belief (as well as others on both sides of the aisle, evidently) that New York was going to be just such a case.
(If you have arrived here from our newsletter, continue reading here…)
New York City enacted a fairly draconian and utterly useless law that prevented gun owners from transporting their firearms to other residences or out-of-state ranges. I won’t go into the details of the law, but suffice it to say, it is burdensome and utterly unrelated to any legitimate State interest.
When the plaintiffs sued, they unsurprisingly lost in State court. The Supremes (with justice Kavanaugh now on board shifting the balance) agreed to hear the case. Most court watchers concluded that the Supremes would be using the case to articulate a need to use a form of strict scrutiny when analyzing the Constitutional validity of a law.
Gun control advocates panicked.
They know that a higher standard of review (one used for all other specifically enumerated rights) would kill off tons of State gun-control legislation.
Their first volley was to send a threatening letter to the Court asking it not to hear the case. (Yes… democratic senators sent a letter demanding the Supremes dismiss the case as moot… more about that in a bit… than hear it on the merits. If they didn’t heed these senators’ warnings, the senators threatened to pack the court with additional justices.) It was a ham-fisted approach and threatened the independence of the judiciary.
Now, for a case to be heard by any court there needs to be an actual case.
New York, realizing what was about to happen, passed a state law rescinding the city ordinance.
“See Court… see what we did? Dismiss the case now because it is moot and stop this nonsense!”
The plaintiffs, as you can imagine, felt differently.
In the oral arguments, the liberal justices peppered the plaintiff’s counsel with questions as to why the case is not moot. The focus was on damages, and whether the imposition of damages at the conclusion of the trial would be sufficient to “non-moot” the case. Justice Ginsberg was adamant that it was not sufficient since the plaintiffs never asked for specific money damages. She was countered by Justice Gorsuch who pointed out that the plaintiffs asked for all reasonable damages the Court would allow.
When the discussion briefly (and I mean briefly) turned to the actual Second Amendment, Justice Sotomayor articulated a completely incoherent missive about what Heller actually means.
(I am totally at a loss as to how she could have butchered the reasoning of the case as badly as she did.)
Justice Ginsberg also displayed a complete lack of understanding of the difference between a premise permit in New York… (really what the case is about)… and a license to carry (aka CCW). Evidently, one can infer that she believes that everyone in New York has a concealed carry permit.
Justice Gorsuch… (who continues to be my sprit animal)… kept the discussion on track and did a fairly good job of showing the issues of mootness.
Chief Justice Roberts appears to be the wild card.
MSNBC’s Chuck Michele, and my law partner, The Learned Major Cosmo Taormina, all feel that Roberts is going to break towards the liberals and decide the case moot. This comes from a brief exchange when he asked the plaintiffs’ counsel if their ability to ultimately recover damages would be precluded by a mootness ruling. The answer was “no.”
I actually somewhat disagree with my esteemed colleagues when it comes to reading tea leaves… (though I warn you, dear reader, that my powers of prognostication have not always been spot on).
I think that the court is going to act very, very cautiously when it comes to mootness. Remember, the State passed the “mootness” legislation after the case was certified. If the case is ultimately decided as moot, the State could simply reverse itself and allow the suspect ordinance to go back into effect.
The damage to civil rights litigation, however, will be massive.
Every time a state law is challenged, and the Supremes decide to hear it, all the State needs to do is rescind and reenact; then a new challenge to the law will have to start all over again. Unconstitutional laws could go on in perpetuity under this scheme, and State counsel will be able to cite New York Rifle and Pistol as authority to do this.
Moreover, the issue of strict scrutiny as it relates to the Second Amendment is not by any means dead. There are other cases in the pipeline that the Supremes can use to answer the question once and for all.
Thus, the Court needs to weigh the benefit of saddling the country with horrendous law on mootness versus simply hearing the case and issuing a decision that is going to be inevitable anyway.
Regardless, NY Rifle and Pistol is going to establish precedent one way or another.
Steven Lieberman and Sandy Lieberman are the owners of the Artemis Defense Institute. A tactical training facility headquartered occupied California. (www.artemishq.com). Mr. Lieberman is also one of the founding partners in the Law Offices of Lieberman and Taormina LLP. Their law firm specializes in use of force, and Second Amendment defense and litigation.