Supreme Court declines to make 2nd Amendment ruling in New York gun case

The case was the first gun rights case the Supreme Court agreed to hear since the retirement of former Justice Anthony Kennedy, and the addition of Justices Neil Gorsuch and Brett Kavanaugh to the court. (J. SCOTT APPLEWHITE/AP-FILE)

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On Monday, a 2nd Amendment challenge to a New York City gun ordinance fizzled in the Supreme Court but conservative justices looked poised to expand gun rights in future cases. The Supreme Court sidestepped its first major case on the Second Amendment in nearly a decade Monday by ruling that New York City's repeal of a transportation restriction on gun owners rendered the case closed. The vote appeared to be 6-3, although it was an unsigned, two-page opinion. Three conservative justices dissented in a 31-page rebuttal, arguing that the court should strike down the restriction to make clear that it infringed on the right to bear arms.

In a brief unsigned opinion the high court said, the New York case was moot because the city had repealed an ordinance that barred licensed gun owners from carrying their weapons across town or outside the city. Their permits allowed them to have a gun at home but not to travel with it. The high court's action signaled a turning point in the lengthy battle by the National Rifle Association and other groups to convince the justices that the Second Amendment is a second-class right in need of their support. Now they likely will turn their attention to other cases challenging state and local restrictions that are in the pipeline. It’s only the latest disappointment for 2nd Amendment advocates. For a decade, they have tried and failed to get the Supreme Court to rule squarely on whether gun owners have a constitutional right to carry a firearm with them in public. Monday’s decision revealed that at least four justices are ready to rule for expanded gun rights. Justices Clarence Thomas and Neil M. Gorsuch joined a 31-page dissent written by Justice Samuel A. Alito Jr. wrote in New York State Rifle & Pistol Assn. vs City of New York, this is not moot. The city violated petitioners’ 2nd Amendment right, and we should so hold. Kavanaugh wrote a short concurring opinion to say that while he agreed with the majority that the case was moot he also agreed with the conservatives on the need to clarify and expand gun rights. He share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald referring to the rulings in 2008 and 2010 that struck down city bans on private hand guns in Washington D. C. and Chicago. The court should address that issue soon perhaps in one of the several 2nd Amendment cases with petitions for certiorari now pending before the court.

The court appears poised to rule in their favor at some point, because the confirmation of Associate Justice Brett Kavanaugh in 2018 strengthened its conservative majority. But New York's liberal city and state governments, along with gun control groups, thwarted the latest effort by repealing the objectionable rule.

As an appeals court judge, Kavanaugh wrote a dissent arguing that Washington’s ban on semi automatic rifles violated the 2nd Amendment. That leaves Chief Justice John G. Roberts Jr. holding the deciding vote in future gun cases. He joined the 5-4 rulings that held residents had a right to have a gun at home for self-defense. But since then, the court has repeatedly refused to go further and rule on whether the 2nd Amendment protects a right to carry a gun in public or to own a semiautomatic weapon. The chief justice is inclined to avoid rulings on major issues if the court is not required to intervene, and he apparently saw no need to decide a far reaching constitutional question challenging an ordinance that been repealed. New York, California and other liberal states continue to enforce restrictions on who can carry guns in public and under what circumstances. And the justices have repeatedly refused to strike down those laws. Hannah Shearer, litigation director for the Giffords Law Center to Prevent Gun Violence, said, the decision to dismiss the case as moot is a victory for the rule of law and common-sense constitutional gun safety laws. It rejects the NRA’s invitation to use a moot case to enact its extreme agenda aimed at gutting gun safety laws supported by a majority of Americans. Ilya Shapiro, a lawyer for the libertarian Cato Institute said, faulted the court for not issuing a decision. She agree with the dissenters lament that the city of New York has effectively hoodwinked the Supreme Court. After the Court abdicated its duty to explain the scope of the 2nd Amendment for over a decade allowing judicial resistance to the enforcement of 2nd Amendment rights to build it has now told states and cities that opportunistic lawyering can allow that constitutional disobedience to continue, And we see yet again that Justice Kavanaugh, while probably solid on the merits is quite cagey on procedural and docket questions, going along with chief justice’s project to kick as many cans down the road as possible. The justices sent the New York case back to lower courts to decide whether the gun owners who brought suit may seek damages for the time when they were denied the right to travel with their firearms.