Partial Win For Gun Regulation At Supreme Court Could Be Short-Lived

Apr 27, 2020
Originally published on April 28, 2020 1:09 pm

The U.S. Supreme Court has once again punted on the question of gun rights, throwing out as moot a challenge to New York City's strict gun regulations on transporting licensed guns outside the home.

New York City, in the name of public safety, has very strict gun regulations. It allows people to have a permit for guns in their homes, but those regulations originally barred people from transporting their guns anywhere except shooting ranges within the city. The New York State Rifle & Pistol Association challenged the regulation as a violation of the Second Amendment right to bear arms and lost in the lower courts.

But, after the Supreme Court agreed to review the case, New York state and New York City changed their laws to allow gun owners to transport their guns outside the city to shooting ranges, to competitions, and to second homes. That gave the challengers exactly what they asked for in their lawsuit, and so on Monday, the court, by a 6-3 vote, dismissed the case as moot — in short, it no longer presented a live controversy.

The unsigned opinion was joined by Chief Justice John Roberts, the court's four liberals, and Trump appointee Brett Kavanaugh.

But Kavanaugh wrote separately to stress that while he agreed with the majority on procedural grounds, he agreed with the dissenters — Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — on one key issue.

Those three said that the lower courts were using the wrong test to evaluate gun laws, a test that is far too deferential to gun regulators. The dissenters mainly argued however, that the court essentially had been gamed on the mootness question, and that the justices should have decided the case, and decided it for the gun owners.

Gun-safety advocates breathed a sigh of relief that there was no decision adverse to gun regulations. But they worry that gains they are making in some state legislatures may be taken away by a conservative court majority.

"The reality is that the gun-safety movement is winning in state houses and at the ballot box, so the NRA is turning to the court to try to change the tide," says Eric Tirschwell, managing director of Everytown for Gun Safety.

Monday's decision was the first in a major gun case in 10 years, the first since a landmark set of decisions in 2008 and 2010. In those cases, a sharply divided court ruled that the Second Amendment right to bear arms is an individual right, not a right associated with the militia, as the court had previously implied. Those decisions marked a huge victory for the NRA and other gun-rights organizations.

In the decade following that decision, however, the court did not agree to hear any of the dozens of challenges to gun restrictions in cases appealed to the court. In part because the composition of the court made outcomes uncertain.

The previous big gun cases were decided by 5-to-4 votes, with Justice Anthony Kennedy casting the fifth and decisive vote. Kennedy, according to court sources, insisted as the price of his vote on adding limiting language that likely would have resulted in some, maybe even most, gun restrictions being upheld. With neither side of the court sure how Kennedy would vote on most regulations, neither the pro-gun, nor the pro-gun-control side wanted to risk an adverse ruling.

That changed when Kennedy retired in 2018 to be replaced by Justice Kavanaugh, who has a much more gun-friendly record than Kennedy did.

Nothing Kavanaugh said in his concurring opinion Monday would dissuade anyone from thinking he has changed his mind.

Bottom line here is that when it comes to gun control, there look to be four pretty solid votes against a lot of the measures enacted in recent years after mass shootings. Specifically, laws that bar carrying weapons in public places, and bans on assault weapons and large ammo magazines. All these, plus so called red-flag laws and other measures could be in jeopardy.

The question is where Chief Justice Roberts will be on these and other gun-control questions. To date, he has never been much of a supporter of gun-control laws, but he hasn't been an outspoken opponent, either. All we really know is that he was part of the 2008 and 2010 majority that for the first time declared that the Second Amendment is an individual right, not, as the court had previously implied, a collective right that was attached to the colonial militia.

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