During the term that begins this fall, the Supreme Court is expected to consider its first potentially important Second Amendment case since 2010. The case involves New York City's tight restrictions on transportation of legally owned guns, which the city modified in the hope of rendering the case moot after the Court agreed to hear a challenge to them. New York Times columnist Linda Greenhouse, who was the paper's Supreme Court reporter for three decades, is hoping the justices will decide not to hear the case after all. Her argument is not legal but political, which is puzzling in light of the Supreme Court's responsibility to enforce constitutional guarantees.
On its face, New York State Rifle & Pistol Association Inc. v. City of New York poses a narrow question, since it involves a policy that the plaintiffs describe as "an extreme outlier" and a "one-of-a-kind prohibition." New York City is (or was) unique in dictating that gun owners may take their weapons out of their homes, even when they are unloaded and locked in a container separate from the ammunition, only when traveling to and from gun ranges within the city. New Yorkers were not allowed to take their guns to ranges, second homes, or shooting competitions outside the city.
The U.S. Court of Appeals for the 2nd Circuit upheld that policy last year, concluding that it did not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment right of expressive association. But after the Supreme Court decided to take up the case, the city revised its regulations to allow transportation of guns to second homes, ranges, and shooting competitions outside the city. It urged the Supreme Court to drop the case in light of that change.
The plaintiffs argue that the new policy does not make the case moot, noting the Supreme Court's "well-grounded skepticism of voluntary cessation of unlawful conduct." The city, they say, still maintains its "unwavering view that the ability to transport a licensed handgun is a matter of government-conferred privilege, rather than a constitutional right." The plaintiffs object to aspects of the new rules, noting that "the revised regulations demand continuous and uninterrupted transport (forbidding a stop at a gas station or coffee shop en route), require written permission before a handgun can be taken to a gunsmith, and preclude transport to a summer rental house." And they point out that "the City's revised rules, unlike a judicial declaration that the longstanding rules are and always have been unconstitutional, do nothing to prevent the City or another jurisdiction from using past non-compliance as a basis for denying future licenses."
Assuming the Supreme Court does not decide the case is moot, Greenhouse notes, it could overturn New York City's rules without setting a precedent that would cast doubt on other forms of gun control. But the case could provide an opportunity to clarify the level of scrutiny that courts should apply to restrictions on gun rights as well as the extent to which the Second Amendment applies outside the home. Greenhouse thinks the justices should leave those questions unresolved because many Americans support new gun control legislation as a response to mass shootings.
If that seems like a non sequitur, that's because it is. "The sound of gunshots is still ringing in the country's ears," says the subhead above Greenhouse's column. "Do the justices hear it too?" She is hoping that Chief Justice John Roberts, who along with former Justice Anthony Kennedy, seems to have been leery of Second Amendment cases, will hear the gunshots and join the Supreme Court's liberal wing in deciding that the challenge to New York's regulations is moot.
"We do know that Chief Justice Roberts is acutely conscious of the tides swirling around the Supreme Court and lapping dangerously at the walls that are supposed to insulate it from politics," Greenhouse writes. "Does it bother him that the partisan divide in public opinion about the court is wide and growing wider, as demonstrated in a Pew Research Center poll last week? What does he make of the fact that firearms regulation is rising rapidly on the political agenda in the wake of the mass murders in El Paso and Dayton, Ohio?"
If the Supreme Court starts clarifying the limits that the Second Amendment imposes on gun control, Greenhouse worries, "the political branches will effectively lose the ability to enact what the emerging political consensus deems to be common-sense regulations." That would be bad, she thinks, because it would "pre-empt debate and turn the politics of gun regulation over to the judges."
This formulation is completely backward. If the Supreme Court is supposed to be insulated from politics, why should it be consulting polls and political agendas before deciding whether to hear a case? Those factors have absolutely nothing to do with the question of whether New York's regulations are constitutional or the question of whether the case is moot. It is the Supreme Court's job to override the "political consensus" when the resulting policies violate the Constitution.
If voters and politicians were clamoring to restrict "hate speech" in response to the mass shooting in El Paso, which seems to have been motivated by an anti-Hispanic and anti-immigrant ideology, would Greenhouse advise the justices to stay out of the way? Would she want the Supreme Court to reject an apposite First Amendment case because it might "pre-empt debate" by making it clear (once again) that criminalizing racist speech would be unconstitutional?
To give you an idea of the considerations that Greenhouse thinks should sway the court, she cites a March for Our Lives brief that "incorporates the voices of nine young people who have experienced gun violence." She says "their stories are heart-rending, but that's only part of the point." When it comes to the issues before the Supreme Court, the emotional resonance of experiences with gun violence is not a point, or even part of one, that the justices should be considering.
"The brief's real message lies in the description of the political activity that each young person has undertaken as part of an effort to reset the country's approach to guns," Greenhouse writes. She quotes what she takes to be the nut of the brief's argument: "The court's ruling here must not deprive them of their hope and their ability to effect change through the political process." Yes, it must, to the extent that the change they are trying to achieve conflicts with the Constitution in a way that the New York City case might clarify.
It is bad enough that gun policy is driven by raw emotional appeals that defy logic. It would be fatal to the Second Amendment if judges who are charged with defending the Constitution succumbed to the same demagoguery. But I guess that's the idea.