Just over a week ago, two mass shooters murdered more than two dozen Americans in a single weekend — bringing the total number of U.S. “mass shootings” (incidents in which a person with a gun shot four or more people) to at least 251 this year.
While the nation mourns these deaths, the Supreme Court is preparing to hear a case that could gut what little remains of American gun-control laws. The case, New York State Rifle & Pistol Association v. City of New York, will be the first Second Amendment case heard by the high court in nearly a decade, and the first such case it’s heard since Brett Kavanaugh took over the seat previously held by the more moderate conservative Justice Anthony Kennedy.
It’s also a case the Supreme Court has no business hearing — or, more specifically, no jurisdiction to hear. The law in question governed where New York City residents who possess a specific kind of permit are allowed to bring their guns, but it’s no longer in effect. Indeed, the New York City licensing regime challenged in this case has since been superseded by a New York State law giving the plaintiffs the exact same relief they claim to seek from the courts.
If the Supreme Court follows the Constitution, in other words, it will dismiss this case. As a general rule, courts do not sit to give plaintiffs something that they already have. The open question is whether a Republican court eager to reshape America’s gun laws will reach beyond the judiciary’s role.
The Constitution provides that the “judicial power” extends only to “cases” or “controversies,” a requirement that limits federal courts to hearing real, live disputes between parties.
The doctrines enforcing this “case or controversy” requirement are known collectively as “justiciability” doctrines. Plaintiffs may not challenge a law unless they’ve been injured in some way by that law, a requirement known as “standing.” If a plaintiff files a lawsuit prematurely, their case may be dismissed because it is not “ripe.” If they have a legitimate dispute against a defendant, but then that dispute ceases to exist, the case is “moot.”
New York State Rifle has a mootness problem. To understand why, it’s helpful to understand some of the details of New York’s gun licensure regime.
New York State law provides for several different kinds of gun licenses. A “carry” license permits individual to carry a handgun for “target practice, hunting, or self-defense.” Meanwhile, a more restrictive “premises” license permits someone to “have and possess [a gun] in his dwelling.” People with premises licenses can also take the gun out of the home, but only for limited purposes.
Before a recent amendment, New York State law gave the city fairly broad discretion to decide what people with premises licenses could do with their guns. City residents with premises licenses could take the gun to seven firing ranges within the city, but not to similar venues outside of the city. So a few gun owners sued, claiming the right to, in the words of the appeals court that heard this case, “transport their handguns to shooting ranges and competitions outside New York City.”
After the Supreme Court announced it would hear this case, New York State amended its law to take away much of the city’s discretion. Among other things, the law now specifically permits people with premises licenses to bring their guns to “an indoor or outdoor shooting range that is authorized by law to operate as such” and to a lawful “shooting competition.”
So the state surrendered, and the plaintiffs got the relief they want. That should be the end of the case.
Indeed, the Supreme Court confronted a nearly identical case in 1986. That case, Department of Treasury v. Galioto, involved a federal firearms statute that prevented someone who had been “committed to any mental institution” from purchasing a firearm. While the case was pending — indeed, after the case was argued before the Supreme Court — Congress amended the law to lift the strict ban on selling guns to such persons (although a weaker ban still exists). Accordingly, the Supreme Court determined that the case was moot.
As it was in Galioto, so it should be in New York State Rifle. Both cases involve firearms laws amended, while a case was pending, to eliminate the legal dispute that inspired the case. If the Supreme Court follows its own precedent, New York State Rifle will be dismissed.
Conservative judges and justices spent much of the last several decades railing against decisions that read the case or controversy requirement narrowly. When the Supreme Court held, in 2007, that the Environmental Protection Agency had an obligation to address certain greenhouse emissions, Chief Justice John Roberts was livid. “Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury,” he complained, adding that he “would reject these challenges as nonjusticiable.”
Just last June, Roberts wrote for his Republican colleagues that partisan gerrymandering cases are nonjusticiable — more or less because he deemed them too difficult. The seminal Supreme Court opinion defining the limited scope of the standing doctrine was authored by Justice Antonin Scalia. Just last term, Trump-appointed Justice Neil Gorsuch lectured his colleagues on mootness in a dissenting opinion.
“This Court is not in the business of deciding abstract questions, no matter how interesting,” Gorsuch demanded, adding that “if the legal questions here are of sufficient importance, a live case presenting them will come along soon enough; there is no need to press the bounds of our constitutional authority to reach them today.”
Limiting courts’ jurisdiction, as Scalia wrote while he was still a lower court judge, prevents “an overjudicialization of the processes of self-governance.” It is one of several ways that the Constitution prevents judges from imposing their will on the two branches that actually must stand for election.
Now that Republicans have a lock on the Supreme Court, however, it’s far from clear that this belief in courts’ limited power will hold.
The groups urging the Supreme Court to ignore its longstanding mootness doctrine in New York State Rifle include not just gun owners, but prominent anti-government groups and the nation’s preeminent Christian right law firm. After all, why would you want to restrict the power of the judiciary when it’s controlled by your friends?
In fairness, there is a doctrine known as “voluntary cessation,” which allows courts to hold onto a case after the defendant voluntarily quits whatever behavior led to them being sued in the first place. It’s a sensible doctrine, because it prevents defendants from endlessly avoiding litigation by doing something illegal, and then stopping their illegal behavior for just long enough for a court to dismiss any lawsuits against them.
Yet, whatever the merits of this doctrine, it does not apply to New York State Rifle. As a group of law professors explain in an amicus brief, the defendant in this case is New York City. But a law preventing the city from restricting the activities of the plaintiffs was enacted by New York State. The issue here, in other words, is not that New York City ceased its allegedly illegal activity. It’s that a higher power stepped in and forced them to stop.
If the Supreme Court decides that federal jurisdiction should be more expansive now that Republicans have consolidated power, the impact will be widespread. To take just one high-profile example, a federal judge in Texas held that the entire Affordable Care Act must be repealed on a highly dubious legal theory. Among the many problems with this case, the plaintiffs rest their lawsuit on a claim that they were injured by a provision of the law that literally does nothing.
These plaintiffs, in other words, lack standing to bring their suit — as least as the concept of standing has long been understood.
New York State Rifle will be an early warning sign. It will tell us a great deal about whether the Republican Supreme Court will open the floodgates to aggressive uses of judicial power like this Obamacare case.
And it’s also an important case in its own right. If the Supreme Court reaches the merits in New York State Rifle, there are almost certainly five votes to dismantle much of America’s gun laws.