Monday, April 27, 2020
In a brief per curiam decision, the United States Supreme Court has declared the controversy in New York State Rifle & Pistol Association Inc. v. City of New York, New York moot.
Recall from our discussion of the oral argument that there was a substantial mootness question: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Recall also that a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to the New York City regulation regarding "premises license" for a handgun. Under the former 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge. The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City.
The Supreme Court's decision vacates that previous Second Circuit judgment.
Dissenting, Justice Alito, joined by Gorsuch, and in part by Thomas, argued that the mootness determination was incorrect and "permits our docket to be manipulated in a way that should not be countenanced." After a discussion of the mootness question, Alito's dissent proceeds to the merits, arguing that the New York City ordinance violated the Second Amendment, which "is not a close question," following "directly from" District of Columbia v. Heller (2008) and later discussing McDonald v. City of Chicago (2010). Alito wrote:
In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City’s public safety concerns evaporated.
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.
In a brief concurring opinion, Kavanaugh stated he shared Alito's
concern that some federal and state courts may not be properly applying Heller and McDonald. 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.
In terms of "proper" application, recall that the Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit. Recall that in 2015, in New York State Rifle & Pistol Ass'n v. Cuomo, the Second Circuit developed a rubric, similar to the methodologies employed by other circuits. (SCOTUS denied certiorari in that 2015 case). The first inquiry in this rubric is whether the Second Amendment is applicable. If it is, then the court determines the level of scrutiny. And finally, the court would apply that level of scrutiny. The Second Circuit in this case had concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right." It held the NYC law satisfied intermediate scrutiny.
Importantly for now, the methodology for determining what level of scrutiny should be applied in Second Amendment challenges remains unresolved by the Supreme Court.