SINCE 2008, when the Supreme Court recognised a limited individual right to bear arms in the home for self-defence, the justices have consistently ducked opportunities to expand the Second Amendment umbrella. So when the justices announced in January that they would hear New York State Rifle & Pistol Association Inc. v City of New York—a challenge to a rule barring New York City residents with “premises licences” from toting their firearms outside the city—gun-rights advocates cheered. With Justice Brett Kavanaugh having replaced the more moderate Anthony Kennedy on the court it seemed that “the right of the people to keep and bear arms” could soon be enhanced. Firearm regulations would be harder to sustain against constitutional challenges.
But after defending its rule and winning a favourable judgment at the Second Circuit Court of Appeals, New York pivoted. On July 16th, Andrew Cuomo, the governor, signed a bill permitting those with premises licences throughout the state to transport their pistols or revolvers to any other venue where they are “lawfully authorised to have and possess” them. On July 21st, the rule in New York City changed, too: licensed gun owners would now be able to pack their weapons and take them outside city limits to a second home or a shooting club. By reversing course, New York hoped, the Supreme Court would have no choice but to dismiss the case. The new regime “unequivocally allows plaintiffs to do everything they ask for”, New York City told the justices in an August filing. With “no ongoing injury” to the three aggrieved gun owners and “no ongoing interest” for New York City to defend “the constitutionality of prohibiting people licensed to possess handguns in their homes from taking their guns to second homes, shooting ranges or shooting competitions”, no live controversy remains for the Supreme Court to consider.
But the plaintiffs did not give up on the case so easily. Paul Clement, lawyer for the gun owners and firearms advocacy organisation, accused the city of “abruptly shift[ing] gears” with “a series of extraordinary manoeuvres” undertaken to “frustrate” Supreme Court review. The changes to the rule violate the “voluntary cessation doctrine”, the idea that simply refraining from unconstitutional behaviour cannot be enough to make a case moot (meaning, in this case, that it is no longer a live controversy). Anyway, Mr Clement wrote, the changes are mere “miserly accommodations”, as they still unjustifiably bar gun owners from stopping at a coffee shop or gas station on their way out of town. In a rejoinder, the city dismissed these arguments. New York’s police department could not re-impose the rule even if it wanted to: state law precludes it. And a “mere pit stop” for caffeine or petrol “does not render a route indirect” in violation of the rules.
These missives flowed into the justices’ inboxes while they were deep into their summer holidays, and no word has come down on whether New York City’s altered legal terrain will be enough to erase the case from their docket. The answer may come within weeks: on October 1st, the justices are scheduled to discuss the matter at their annual “long conference”. But in the meantime, an extraordinary pair of notes from Democratic and Republican senators, and an irascible op-ed, have lengthened the justices’ reading list.
The first epistle came from Sheldon Whitehouse, who wrote on behalf of fellow Democrats Mazie Hirono, Richard Blumenthal, Richard Durbin and Kirsten Gillibrand. The brief makes the same persuasive arguments for mootness that the city presented but couches them in unusually strident terms. Courts “do not undertake political ‘projects’”, Mr Whitehouse wrote, using the plaintiffs’ term, “[o]r at least they should not”. Citing a recent poll showing that more than half of Americans see the Supreme Court as “motivated mainly by politics”, the senators urged the justices to “decline invitations like this”. But in its next breath, the brief all but described one of the justices as a pawn of the National Rifle Association (NRA): “President Trump chose Brett Kavanaugh to break the tie” and tip the balance toward stronger gun rights, Mr Whitehouse wrote. Mr Trump’s first nominee, Neil Gorsuch, received similar treatment. And Mr Whitehouse saved his strangest line for the end: “The Supreme Court is not well. And the people know it”. If the justices press ahead and hear the New York City guns case despite its mootness, the public may call for their heads: popular sentiment will build for restructuring the Supreme Court “to reduce the influence of politics”.
Mr Whitehouse wrote these words in the days following mass shootings in Texas and Ohio on August 3rd and 4th. He was angry and apparently worried that the Supreme Court was on the verge of widening protections for guns at the very moment when greater regulation seemed necessary. He laboured to win over Chief Justice John Roberts—the court’s median vote—by citing him twice in the opening paragraph and twice again, for good measure, in the conclusion. But as Lawrence Tribe of Harvard Law School commented at the time, the brief was “inappropriately—and stupidly—threatening”. It was promptly matched by a letter to the court signed by every Republican senator. Senator Mitch McConnell assured the justices that the “political retribution” Mr Whitehouse threatened to exact would never come to pass and that all proposals to restructure or “pack” the court would fail. The justices “must not be cowed”—wrote the senator who held open a Supreme Court seat for over a year to prevent Barack Obama from filling it—“by the threats of opportunistic politicians”.
Don’t expect either party’s histrionics to move the justices when they discuss whether to dismiss New York State Rifle & Pistol Association Inc. v City of New York on October 1st. But if this opportunity for gun-rights activists to puff up the Second Amendment goes away, as it should, the NRA and its fans probably don’t have long to wait for their next shot. As Adam Winkler, an expert on the Second Amendment, said recently, there are “plenty” of other cases “waiting in the wings”. With Mr Trump’s two new appointees, he reckons, the Supreme Court has become more “gun-friendly”. Mr Winkler expects the justices to clarify that the right to bear arms extends outside the home, to scrutinise restrictive carry laws in cities like Los Angeles and Boston and to consider striking down state bans on assault weapons. “It’s only”, he says, “a matter of time.”