Oral Argument in First Gun Case to Reach U.S. Supreme Court since Heller & McDonald

Next Monday, December 2, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York, challenging the City’s nearly complete ban on transportation of firearms. We filed two amicus briefs in this case, on behalf of Gun Owners of America, Gun Owners Foundation, The Heller Foundation, Tennessee Firearms Association, Downsize DC Foundation, Downsize DC.org, Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee:

After providing gun owners great Second Amendment victories in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court has taken a pass on all of the several petitions to review anti-gun decisions over the last decade. (One of the petitions that was denied was one we filed on behalf of Jeremy Kettler dealing with the Kansas Second Amendment Protection Act.) Some speculate that no gun cases were taken during this period because the pro-gun Justices could not trust Justice Kennedy to join them. Sadly, during this period, the District Court Judges and Circuit Judges have undermined the Second Amendment in every way possible, believing themselves exempt from Supreme Court review of their decisions upholding even the most draconian gun laws.

In the Heller decision, Justice Scalia’s opinion for a majority of five justices expressly rejected the form of judicial balancing insisted on in Justice Breyer’s dissent. (The Scalia opinion rejecting balancing was the same position we advanced in our Heller merits brief.) But without adult supervision, the lower federal courts largely have embraced the Breyer dissent and rejected the Scalia majority decision in the form of what the courts have called the “two-step test.”

New York has tried mightily to derail this case. Once the Supreme Court decided to hear the case now before it, New York City, based on the changed composition of the Court, quickly figured out that it stands a pretty good chance of losing the merits, and having another pro-gun decision being handed down by the high Court. The City immediately went into damage control, trying to think up any way it could to weasel its way out of its problems and avoid the Court hearing the case.

First, New York City sought to halt briefing in the case, claiming it was considering revising the challenged laws to be one half-step less draconian. When the Court didn’t bite and allowed the case to proceed, the City changed its law, and sent an informal letter to the Court, now asking it to dismiss the case as moot — and that letter (and a response) actually were stricken from the docket by the Court. The City later filed a brief, again asking the Court to find the case moot. After receiving letter briefs, the Court denied that third attempt as well.

The Court has indicated that the mootness door is not completely shut, and the parties should be prepared to argue that issue at oral argument. It may be that the Court is at least frustrated (perhaps incensed) by a local government trying to evade review of this important issue — after dozens of briefs and likely millions of dollars spent by numerous groups and the parties — with its strategic retreat.

If the High Court reaches the merits, we are optimistic that it will strike down the unconstitutional “two-step” balancing test used widely by the lower courts to justify the most blatant and egregious infringements of a right that “shall not be infringed.”