By Lawrence G. Keane
Saturday, May 02, 2020
The ballyhoo over the U.S. Supreme Court’s tiptoe around
a Second Amendment decision this week might be a gun control celebration a
little too soon.
The Supreme Court ruled this week in New York State
Rifle & Pistol Association v. City of New York that changes made after
the Court granted certiorari (agreed to hear the appeal) to the City of New
York’s onerous ordinance and regulations rendered the case “moot.” That’s the
ordinance that burdened the ability of the city’s gun owners to travel with
lawfully owned, unloaded, and locked firearms to destinations outside the city.
While the result may be disappointing to Second Amendment
advocates, the silver lining is that a Second Amendment day of reckoning may be
dawning.
Justice Samuel Alito wrote a well-reasoned dissent, which
Justices Neil Gorsuch and Clarence Thomas (mostly) joined, for why the case is
not moot. He wrote, “By incorrectly dismissing this case as moot, the Court
permits our docket to be manipulated in a way that should not be countenanced.”
Justice Alito observed that one would have expected the
City of New York to continue to forcefully defend its law, as it had in lower
courts. “But once we granted certiorari, both the City and the State of New
York sprang into action to prevent us from deciding this case,” he continued.
“Although the City had previously insisted that its ordinance served important
public safety purposes, our grant of review apparently led to an epiphany of
sorts, and the City quickly changed its ordinance. And for good measure the
State enacted a law making the old New York City ordinance illegal.”
Justice Alito noted that the Court has “been particularly
wary of attempts by parties to manufacture mootness in order to evade review.”
Regrettably, that is exactly what the City of New York successfully did in this
case.
Had the Court reached the merits of the plaintiffs’
Second Amendment claims, the dissenting justices, at least, would have held the
City’s ordinance violated the Second Amendment, calling it “not a close
question.”
The true importance of the case, however, is not the fact
that the City of New York dodged a proverbial bullet, but rather what Justice
Alito and Justice Kavanaugh had to say about how the lower courts have applied
the Court’s holding in Heller and McDonald.
Heller and McDonald
The Court has shied away from taking challenges to
states’ attempts to limit the right to keep and bear arms. Proponents of
individual rights hoped the City of New York case would break the logjam, as
the Supreme Court hasn’t decided a case on these issues since 2008 with the Heller
decision and 2010 with the McDonald decision.
“Since then, the lower courts have decided numerous cases
involving Second Amendment challenges to a variety of federal, state, and local
laws. Most have failed,” Justice Alito wrote. “We have been asked to review
many of these decisions, but until this case, we denied all such requests.”
In discussing how the plaintiffs’ Second Amendment claims
were handled, Justice Alito wrote, “Although the courts below claimed to apply
heightened scrutiny, there was nothing heightened about what they did.” He
concluded his dissenting opinion by noting, “We are told that the mode of
review in this case is representative of the way Heller has been treated
in the lower courts. If that is true, there is cause for concern.”
This frustration among the justices that the Court is
treating the Second Amendment as a second-class right isn’t new. Justices
Thomas and Gorsuch vented their frustration with the Supreme Court’s refusal to
grant review in the Peruta v. California case in 2017. In his dissent,
Justice Thomas wrote the case “reflects a distressing trend: their treatment of
the Second Amendment as a disfavored right.” He added, “For those of us who
work in marbled halls, guarded constantly by a vigilant and dedicated police
force, the guarantees of the Second Amendment might seem antiquated and
superfluous. But the Framers made a clear choice: They reserved to all
Americans the right to bear arms for self-defense.”
A year later, in dissenting from a denial to grant
certiorari in Silvester v Becerra he said, “The right to keep and bear
arms is apparently this Court’s constitutional orphan. And the lower courts
seem to have gotten the message . . . this Court declared [in McDonald]
that the Second Amendment is not a ‘second-class right, subject to an entirely
different body of rules than the other Bill of Rights guarantees.’”
Time Has Come
Justice Kavanaugh, while departing from Justice Alito on
the procedural issue of mootness claim in his concurring opinion, agreed with
Justice Alito’s general analysis of the misapplication of Heller and McDonald
by the lower courts. “The Court should address that issue soon, perhaps in one
of the several Second Amendment cases with petitions for certiorari now pending
before the Court,” Justice Kavanaugh wrote. These words may prove to be
prophetic.
The same day the Supreme Court sidestepped the City of
New York case, it scheduled for conference ten pending Second Amendment cases
to decide whether to grant certiorari and hear those appeals. These cases
arguably involve more important and substantial Second Amendment issues than
the City of New York case. Several of these cases challenge restrictions on
where an individual can carry a firearm outside their home. Three cases
challenge more industry-specific issues. The National Shooting Sports
Foundation, the firearm industry trade association, filed amicus briefs in
support of the two plaintiffs. Those cases include:
Mance v. Barr — a case which a Washington,
D.C.-based couple is challenging the federal interstate handgun transfer ban on
Second Amendment grounds after they were prohibited from purchasing two
firearms from a Texas federal firearms licensee without going through D.C.’s
only licensed firearm retailer. NSSF’s brief argues the Second Amendment right
to keep and bear arms, including handguns, does not stop at your state’s
border. The federal ban on interstate handgun sales is not narrowly tailored to
the professed government compelling interest. The ban unreasonably infringes
upon the Second Amendment rights of individuals who are otherwise qualified to
purchase handguns and violates their Fifth Amendment right to equal protection
under the law.
Worman v. Healey — a Second Amendment challenge to
Massachusetts’ ban on commonly owned modern sporting rifles. NSSF’s amicus
brief argues that lower courts disagree on what standard of review applies and
the standards articulated by five circuit courts of appeal are unconstitutional.
The First, Second, Fourth, Ninth, and D.C. Circuits have all ruled that
“intermediate scrutiny” should apply to laws of this sort. The Seventh Circuit
chose to apply the standard of which gun control laws were in place when the
Bill of Rights was ratified. NSSF argues that the “intermediate scrutiny”
standard has no grounding in the Second Amendment and gives judges unlimited
discretion to approve and disapprove firearms regulations. NSSF further argues
that lower courts are relegating the Second Amendment to a second tier right,
despite its clear and unambiguous proscription of government overreach.
Threats and Tantrums
The City of New York decision offers more than just a
glimpse into the Court’s appetite to finally taking more Second Amendment
cases. It also foreshadows the lengths to which those who are crowing over the
dismissal might react when the Supreme Court takes up one or more of these
pending reviews.
A prominent brief supporting the City filed by Senators
Sheldon Whitehouse (D., R.I.), Mazie Hirono (D., Hawaii), Richard Blumenthal
(D., Conn.), Richard Durbin (D., Ill.), and Kirsten Gillibrand (D., N.Y.) threatened the Court with political
consequences. “The Supreme Court is not well. And the people know it,” the
senators’ brief reads. “Perhaps the Court can heal itself before the public
demands it be ‘restructured in order to reduce the influence of politics.’
Particularly on the urgent issue of gun control, a nation desperately needs it
to heal.”
Justice Alito made it clear the Supreme Court’s
integrity, and that of the senators who confirm justices, was on the line.
“United States Senators, four of whom are members of the
bar of this Court, filed a brief insisting that the case be dismissed,” Justice
Alito wrote. “If the Court did not do so, they intimated, the public would
realize that the Court is ‘motivated mainly by politics, rather than by
adherence to the law,’ and the Court would face the possibility of legislative
reprisal.”
The attacks on the court then presage what can be
expected. Senate majority leader Mitch McConnell (R., Ky.) anticipated as much
when he reassured the Supreme Court that judicial integrity would be respected
under his watch in a letter which garnered the signatures of 52 senators.
The same senators who threatened the Supreme Court
smeared Justice Kavanaugh with unfounded, unsubstantiated, and unproven claims
of violent criminal misconduct. One can imagine what will happen if the Court
were to grant certiorari in these more far-reaching Second Amendment cases. In
addition to being unprofessional, bordering on sanctionable for the senators
admitted to the Supreme Court, it probably was not the wisest move. It clearly
didn’t sit well with Justice Alito.
The ballyhoos heard now could well become gnashing of
teeth and wails of frustration. Hopefully, a day of reckoning is coming for the
Second Amendment.
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