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Posted on 04/27/2020 7:26:35 AM PDT by TexasGurl24
In the District Court, petitioners challenged a New York City rule regarding the transport of firearms. Petitioners claimed that the rule violated the Second Amendment. Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim. See 883 F. 3d 45 (CA2 2018). We granted certiorari. 586 U. S. ___ (2019). After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint. App. 48. Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot. Petitioners now argue, however, that the new rule may still infringe their rights. In particular, petitioners claim that they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City responds that those routine stops are entirely permissible under the new rule. We do not here decide that dispute about the new rule; as we stated in Lewis v. Continental Bank Corp., 494 U. S. 472, 482–483 (1990): “Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. See, e.g., Deakins v. Monaghan, 484 U. S., at 204; United States v. Munsingwear, Inc., 340 U. S. 36, 39–40 (1950). However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 415 (1972).” Petitioners also argue that, even though they have not previously asked for damages with respect to the City’s old rule, they still could do so in this lawsuit. Petitioners did not seek damages in their complaint; indeed, the possibility of a damages claim was not raised until well into the litigation in this Court. The City argues that it is too late for petitioners to now add a claim for damages. On remand, the Court of Appeals and the District Court may consider whether petitioners may still add a claim for damages in this lawsuit with respect to New York City’s old rule. The judgment of the Court of Appeals is vacated, and the case is remanded for such proceedings as are appropriate.
His vote, along with Alito, Thomas and Gorsuch will be enough to grant cert.
Roberts didn't say anything. Roberts is a problem.
Kavanaugh’s concurrence is very short:
I agree with the per curiam opinion’s resolution of the
procedural issues before us—namely, that petitioners’
claim for injunctive relief against New York City’s old rule
is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of
Appeals and the District Court on remand.
I also agree with JUSTICE ALITO’s general analysis of Heller and McDonald. Post, at 25; see District of Columbia v.
Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561
U. S. 742 (2010); Heller v. District of Columbia, 670 F. 3d
1244 (CADC 2011) (Kavanaugh, J., dissenting). And I
share JUSTICE 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.
The key part of Justice Alito’s opinion are here:
This is what Thomas, Kavanaugh and Gorsuch are now on record as having agreed with.
I proceed to the
merits of plaintiffs’ claim that the City ordinance violated
the Second Amendment. This is not a close question. The
answer follows directly from Heller.
In Heller, we held that a District of Columbia rule that
effectively prevented a law-abiding citizen from keeping a
handgun in the home for purposes of self-defense constituted a core violation of the Second Amendment. 554 U. S.,
at 635. We based this decision on the scope of the right to
keep and bear arms as it was understood at the time of the
adoption of the Second Amendment. Id., at 577–605, 628–
629. We recognized that history supported the constitutionality of some laws limiting the right to possess a firearm,
such as laws banning firearms from certain sensitive locations and prohibiting possession by felons and other dangerous individuals. See id., at 626–627; see also McDonald,
561 U. S., at 787, 904. But history provided no support for
laws like the District’s. See 554 U. S., at 629–634.
For a similar reason, 38 N. Y. C. R. R. §5–23 also violated
the Second Amendment. We deal here with the same core
Second Amendment right, the right to keep a handgun in
the home for self-defense. As the Second Circuit “assume[d],” a necessary concomitant of this right is the right
to take a gun outside the home for certain purposes. 883
F. 3d, at 58–59. One of these is to take a gun for maintenance or repair, which City law allows. See §5–22(a)(16) Another is to take a gun outside the home in order to transfer ownership lawfully, which the City also allows. §5–26(j).
And still another is to take a gun to a range in order to gain
and maintain the skill necessary to use it responsibly. As
we said in Heller, “‘to bear arms implies something more
than the mere keeping [of arms]; it implies the learning to
handle and use them in a way that makes those who keep
them ready for their efficient use.’” 554 U. S., at 617–618
(quoting T. Cooley, Constitutional Law 271 (1880)); see also
Luis v. United States, 578 U. S. ___, ___ (2016) (THOMAS, J.,
concurring in judgment) (slip op., at 3) (“The right to keep
and bear arms . . . ‘implies a corresponding right . . . to acquire and maintain proficiency in their use’”); Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011) (“[T]he core right
wouldn’t mean much without the training and practice that
make it effective”).
It is true that a lawful gun owner can sometimes practice
at a range using a gun that is owned by and rented at the
range. But the same model gun that the person owns may
not be available at a range, and in any event each individual gun may have its own characteristics. See Brief for Professors of Second Amendment Law et al. as Amici Curiae
10–12; see also App. 51, 56, 59 (referencing differences
across ranges and shooting competitions). Once it is recognized that the right at issue is a concomitant of the same
right recognized in Heller, it became incumbent on the City
to justify the restrictions its rule imposes, but the City has
not done so. It points to no evidence of laws in force around
the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits. The
City argues that municipalities restricted the places within
their jurisdiction where a gun could be fired, Brief for Respondents 18, and it observes that the Second Amendment
surely does not mean that a New York City resident with a
premises license can practice in Central Park or Times
Square, id., at 21. That is certainly true, but that is not the question. Petitioners do not claim the right to fire weapons
in public places within the City. Instead, they claim they
have a right to practice at ranges and competitions outside
the City, and neither the City, the courts below, nor any of
the many amici supporting the City have shown that municipalities during the founding era prevented gun owners
from taking their guns outside city limits for practice.
B
If history is not sufficient to show that the New York City
ordinance is unconstitutional, any doubt is dispelled by the
weakness of the City’s showing that its travel restriction
significantly promoted public safety. Although the courts
below claimed to apply heightened scrutiny, there was
nothing heightened about what they did.
As noted, the City relied entirely on the declaration of Inspector Lunetta, but this declaration provides little support. See supra, at 9–10. Some of what Inspector Lunetta
asserted was simply not relevant to the justification for
drawing a distinction between trips to a range in the City
and trips to a range in a neighboring jurisdiction. For example, he stated that persons holding premises licenses “do
not always transport their firearms in a locked box carrying
ammunition separately, as required by NYPD rules,” but
the issue in this case does not concern the storage of a gun
on the way to a range. App. 77–78. Similarly, he declared
that “[p]remises license holders have not demonstrated
proper cause to carry a concealed firearm in public,” id., at
78, but the question before us is not whether petitioners
have the right to do what they could if they had carry licenses.
Other statements actually undermine the City’s public
safety rationale. Thus, the fact that prosecutors typically
do not bring even misdemeanor charges against licensees
who carry a weapon in violation of the limitations of their licenses, ibid., does not suggest that the City regards violations as presenting a particularly significant threat to public safety.
When all that is irrelevant is brushed aside, what remains are the three arguments noted earlier. First, Inspector
Lunetta asserted that the travel restrictions discouraged licensees from taking their guns outside the home, but this
is a strange argument for several reasons. It would make
sense only if it is less convenient or more expensive to practice at a range in the City, but that contradicts the City’s
argument that the seven ranges in the City provide ample
opportunity for practice. And discouraging trips to a range
contradicts the City’s own rule recommending that licensees practice. Once it is recognized that a reasonable opportunity to practice is part of the very right recognized in
Heller, what this justification amounts to is a repudiation
of part of what we held in that decision.
Second, Inspector Lunetta claimed that prohibiting trips
to out-of-city ranges helps prevent a person who is taking a
gun to a range from using it in a fit of rage after an auto
accident or some other altercation that occurs along the
way. And to bolster this argument, Inspector Lunetta asserted that persons who have met the City’s demanding requirements for obtaining a premises license are just as
likely as anyone else to use their guns in a fit of rage. App.
77. If that is so, it does not reflect well on the City’s intensive vetting scheme, see supra, at 4–6, and in any event, the
assertion is dubious on its face.
More to the point, this argument does not explain why a
person headed for a range outside the City is any more
likely to engage in such conduct than a person whose destination is a range in the City. There might be something to
the argument if ranges in the City were closer than those
just outside its borders, but the City never attempted to
show that. The courts below were incurious about the va-lidity of Inspector Lunetta’s assertion, and given the location of the City’s seven ranges, the assertion is more than
dubious.12
Inspector Lunetta’s final justification for the travel restrictions was only marginally stronger. It goes like this.
Suppose that a patrol officer stops a premises licensee and
finds that this individual is carrying a gun, and suppose
that that the licensee says he is taking the gun to a range
to practice or is returning from a range. If the range in
question is one in the City, the officer will be better able to
check the story than if the range is outside the officer’s jurisdiction. App. 79–80.
How strong is this argument? The City presumably has
access to records of cases in which licensees were cited for
unauthorized possession of guns outside the home, and it
failed to provide any evidence that holders of target licenses
had used their right to practice at out-of-city ranges as a
pretext. And it is dubious that it would be much harder for
an officer to check whether a licensee was really headed for
an out-of-city range as opposed to one in the City. If a licensee claims to be headed for a range in the City, the officer can check whether the range is open and whether the
individual appears to be on a route that plausibly leads to
that range. But how much more difficult would it be to do
the same thing if the range is in one of the counties that
border New York City or across the Hudson River in New
Jersey? A phone call would be enough to determine the
range’s operating hours, and the route would still be easy to determine: There are only a few bridges and tunnels to
New Jersey and just a few main thoroughfares to the neighboring New York counties. A court conducting any form of
serious scrutiny would have demanded that the City provide some substantiation for this claim, but nothing like
that was provided or demanded.
Would the situation be much different if the individual
claimed to be headed home from a range? Once again, it
would not be difficult for the officer to check whether the
range was or recently had been open. And it is not at all
apparent that determining whether a licensee was on a
route to his or her residence would be any harder if the
range at which the licensee claimed to have practiced was
outside the City.
Inspector Lunetta’s declaration stated that ranges in the
City are required to keep a record of everyone who practices
there, and therefore if a person claims to be coming from a
city range, the officer could easily check that story. But the
declaration does not state that ranges in nearby jurisdictions do not keep similar records.13 It should have been
easy enough for the City to check, and a court engaged in any serious form of scrutiny would have questioned the absence of evidence, but no substantiation was provided or demanded below.
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.
The court is holding at least 10 2nd Amendment cases (Pena v Horan, Mance v Barr, Rogers v Grewal, Gould v Lipson, Ciolek v. New Jersey, Cheeseman v Polillo, Worman v Healey, Malpasso v Pallozzi, Culp v Raoul, Wilson v Cook County). There are two challenges to assault-weapons bans, several carry-related cases, a challenge to the federal interstate handgun sales ban, and non-resident permit ban cases in that mix.
Kavanaugh apparently wants to take up one of these cases. I think Gorsuch, Alito and Thomas will join him.
Roberts is the open question.
Thank you for posting all that.
When I was in high school 66-67-68 in Lincoln Park, Michigan we had a state-of-the-art 3 gyms (main and auxiliary) on each side. Underneath was a dirt track, batting cages, weight room, wrestling room, archery range, pistol range. Next to it was an olympic-sized swimming pool with the different platforms for divers. Some weeks our gym class was in the pistol range learning safety and technique. Some Detroit Tigers (baseball not zoo) would come there to work out in the offseason.
Those were the days, my FRiend. #fortunate
OUTSTANDING post. Thank you. 535++++ vs 330 MILLION? How did Hitler, Stalin, Mao, Fidel, Hugo do it?
“Roberts is a problem,” is right! You just cannot trust some of these black robed knuckleheads at all. That Obamacare tax that wasn’t a tax travesty shines a spotlight on his empty soul.
Yet the USSC has allowed a total mess to develop in the states. The monkey is on their back, but unlike all other incorporations they are just to damned scared to do the right thing. Another bunch of true cowards. Won’t even back up their own decisions. Pathetic.
So the city was proven wrong, thanks to NYSRPA
Amazing that the repeal of Obamacare hinged on two people - John McCain, who campaigned on getting rid of it, and supposedly conservative Roberts, who came up with the bird-brained “tax” idea.
“true cowards” and sophisticated, nuanced, clever, long-game traitors BUMP!
This Ping List is for all things pertaining to infringes upon or victories for the 2nd Amendment.
FReepmail me if you want to be added to or deleted from the list.
More 2nd Amendment related articles on FR's Bang List.
He didn't have to say anything, he record speaks for itself. An amicus brief by Democratic Senators said that they would be very upset if the Court struck down NYC's law. That's enough to intimidate Chief Justice Penaltax. After the Democrats' angry reaction to Citizen United he's been afraid to cross them again. This decision is simply another example of his cowardess.
2A is quite clear.
All of our gun groups are involved in this case. NYSRPA was lead, we have a few more pending cases.
Cuomo and BeBlasio are frightened that if we win this they lose much of the control they want to increase.
We are all trying to digest this but agree, Roberts is a problem. Another loser from Buffalo.
Four of the justices are not cowards. They are brave Leftists holding back the tide of Constitutionalism that is threatening all the Left has accomplished in the last 70 years to increase state power, undermine the checks and balances of the Republic, and destroy key social institutions and norms.
Four of the current justices have some moral standing to fight for the life of the Republic and a return to limitations on government power.
Roberts is a coward.
It is clear that SCOTUS has been waiting for a split before jumping back into a 2A case. I’m not surprised that this particular case was ruled moot especially since Roberts is trying to maintain that the courts are apolitical. However, it is becoming clear that there is a desire to take a 2A case since the issue is now considered “ripe” with so many lower courts ignoring much if not all of what Heller and McDonald held with respect to 2A. With or without a true split a case will eventually be heard and most likely next term.
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