The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Supreme Court heard oral argument in NYS Rifle and Pistol Association v. City of New York. Certiorari was granted in February 2019. After the grant, New York City repealed the challenged provisions of the premise license law. Subsequently, New York State enacted a law that made it impossible for New York City to reenact the challenged provisions. I discuss the background of this case in a Federalist Society SCOTUSBrief video.
Prior to oral argument, I predicted that the Supreme Court would dismiss the case as moot. My prediction has not changed after reading the transcript.
No "Collateral Consequences"
Chief Justice Roberts will likely cast the deciding vote. He did not ask any questions of Paul Clement, who represented the plaintiffs, or of Deputy Solicitor General Jeff Wall. He asked a few questions of Richard Dearing, who represented New York City.
First, Roberts asked if "there [is] any way in which any violation" of the repealed ordinance in the past "could prejudice a gun owner" in the future? Dearing replied, "Not that I can think of. The city is committed to to closing the book on that old rule and we're not going to take it into effect." Second, Roberts followed up, and asked, "Is there any way in which a finding of mootness would prejudice further options available to the Petitioners in this case, for example, seeking damages?" Dearing didn't think so. He stated that the Plaintiffs "never made any allegations related to damages" prior to the grant of certiorari. Dearing also stated that the Plaintiffs had never asserted that "past violations" could prejudice them in the future.
At that point, Justice Gorsuch interjected. He asked if there would be any "collateral consequences to anyone for violating the city's prior ban, any kind of collateral consequences." Dearing replied that there wouldn't be.
Chief Justice Roberts asked one final question. Would anyone be "prejudiced in any way, for example, with respect to qualifying for a premises license under the new law" based on violating the old law." That is, would violating the old law justify the denial of a new license? Dearing replied that no would be prejudiced. Roberts asked no further questions.
This representation reminded me of a similar colloquy from NFIB v. Sebelius. Solicitor General Verrilli represented that there were no "collateral consequences" for going uninsured. From pp. 179-180 of Unprecedented:
But if there was no mandate, what would happen if a person failed to purchase insurance? Justice Sotomayor asked the solicitor general whether there was any "collateral consequence for the failure to buy" health insurance—that is, would there be any criminal penalties for not buying insurance? The solicitor general responded, emphatically, "No." The only consequence would be that the person would have to pay a tax. . . .
Verrilli then offered an important "representation" to the Court on how the Obama administration viewed the law. This representation proved pivotal. The "only consequence" of not having health insurance was the "tax penalty." Verrilli noted that the government "made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the Treasury Department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty." In other words, there was no mandate or legal requirement to buy insurance, despite the statute stating that there was such a requirement.
Roberts's saving construction in NFIB relied on this representation:
While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26,2012).
I think New York persuaded the Chief that there are no possible "collateral consequences" for past violations, and this controversy is no longer live. Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed to agree with New York. There are at least five votes for this position. What about the newest member of the Court? Justice Kavanaugh was silent. He did not say a word.
DIG or Decide?
If a majority of the Court agrees that the case is moot, there are two options going forward. First, the Court could simply dismiss the petition as improvidently granted at the December 6, 2019 conference. (This move is known as a DIG.) We would learn of the dismissal with the next release of orders, probably on December 9, 2019. These sorts of dismissals are unsigned. Justices can register their dissents from the DIG.
The upshot of this approach is that the Court could add another Second Amendment case to its docket, with an argument scheduled for March or April. Indeed, there are many gun cases that are fully briefed, that have been hanging in SCOTUS purgatory for months. There was obviously some appetite to weigh in on the Second Amendment, after nearly a decade of silence following McDonald v. Chicago. A quick DIG would allow the Justices to address another live case now.
Second, the Court could issue a signed opinion to explain why the controversy is moot. That decision would take some time to prepare, and would likely occasion a written dissent. The Court's mootness doctrine is quite muddled. Perhaps the Court could clean up the doctrine. However, this case is a terrible vehicle. The facts of this case are so unique. I'm not sure these specific conditions--the City repealed the ordinance, and the State prevented its re-enactment--would ever recur.
Mooting the Case
I can see one or more possible dissents. Justice Gorsuch seemed to accept Dearing's representation about the lack of collateral consequences. But on three occasions, he asked if there was some "delta" (that is, difference) between the relief the plaintiffs currently have, and the relief that could be awarded with a permanent injunction. Gorsuch may go along with the Chief here. Though, he was far more cynical about New York's post-certiorari strategy. He chastised the City's "herculean, late-breaking efforts to moot the case." Clement twice used the phrase "post-certiorari maneuvers." Wall used the term "post-grant maneuvering."
Justice Alito was, by far, the most critical of New York's strategy. He suggested that it is unfair to hold the Plaintiffs to a precise pleading standard, and demand "specific allegations in the complaint to defeat a claim of mootness that the plaintiffs had no reason whatsoever to anticipate until after we granted certiorari and the city decided to try to moot this case." He added "how could any plaintiff possibly have anticipated" they would need to seek damages "until you took the quite extraordinary step of trying to moot the case after we granted review?
Dearing replied, that the New York "state legislature has passed a new State law here," not New York City. Alito interjected, "Yeah. And did the city have nothing to do with the enactment of that law?" Dearing said that the City "supported the law," but there was nothing nefarious about this support. The new law was "a good thing, not a bad one. The government should respond to litigation, should assess its laws or other -or political subdivisions' laws when they are challenged." Dearing made a similar point earlier: "it's a good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." Justice Breyer likewise found New York's strategy was praiseworthy: "I don't think it's bad when people who have an argument settle their argument."
Text and History
There were a few colloquies about the merits. Paul Clement made a broader point of how the lower courts have approached the Second Amendment. He explained that the lower-courts have only used history to uphold laws; not to declare them unconstitutional:
The way the lower courts have interpreted Heller is like text, history, and tradition is a one-way ratchet.
If text, history, and tradition sort of allow this practice, then they'll uphold the law. But if text, history, and tradition are to the contrary, then the courts proceed to a watered-down form of scrutiny that's heightened in name only.
And I think this Court should reaffirm that text, history, and tradition essentially is the test and can be administered in a way that provides real protection for Second Amendment rights.
Jeff Wall presented a similar argument:
If I could turn to the merits for just a minute, I think all that the Petitioners are asking for, and it's a fairly modest ask, is for the Court to reiterate what it said in Heller, that the lower courts have been correct in starting with text and history and tradition, but they have created, as Mr. Clement said, this sort of asymmetry where they find that history and tradition can give a thumbs up to a law but not a thumbs down.
Justice Sotomayor was extremely skeptical about the Plaintiff's historical-based approach. She stated that the Court does not use such a framework in the First Amendment context:
In what other area, constitutional area, the First Amendment in particular, have we decided any case based solely on text, history, and tradition?
This seems sort of a made-up new standard. And I thought Heller was very careful to say we don't do that. We treat it like any other constitutional provision. And if I analogize this to the First Amendment, which is what Heller suggested we should do, this seems to me to be a time, place, and manner restriction. It may not pass any of the standards of scrutiny, but, if you're looking at a First Amendment right to speak, it's never absolute. There are some words that are not protected. We're going to have a different fight about that at some point. Or there are some weapons that are not protected, just like there might be some words that are not protected.
The emphasized sentences look like an aside about future battles to come. We can speculate about what "words" she is talking about. Justice Sotomayor's Iancu v. Brunetti dissent suggested that "one particularly egregious racial epithet" should not be protected by the First Amendment.
We know under the First Amendment that there are time, place, and manner restrictions that a government can impose on the basis of safety and other things. On the basis of safety, you can't have a demonstration at will. You need a permit, and you have to have certain equipment and certain protections and certain things.
So, if I treat it in that way, we might have a fight about whether text, history, and tradition permits a time, manner, and place restriction of this type, but I don't know why that's a free-standing test.
Jeff Wall replied:
I understand the requirement that you carry the gun unloaded or that you do it in a locked container. But a ban is not a time, place, or manner restriction. And in determining which category it falls into and what's permissible, Heller said you start with text, history, and tradition.
And the Court commonly does that, even under the First Amendment with respect to categories, the Fourth Amendment for a search, the Seventh Amendment for the jury trial right. Heller just says you start here. And starting here, I think this is a straightforward case. There is no historical analogue and a contrary tradition.
Justice Alito asked Dearing how the Court should review gun control laws.
JUSTICE ALITO: Well, how should -what methodology should the courts use in approaching Second Amendment questions?
If they conclude that text and history protect a --the text and history of the Second Amendment protect a particular activity, is that the end of the question or do they then go on and apply some level of scrutiny?
Dearing replied that history plays some role in the inquiry:
MR. DEARING: I think --I think, first, we look --we look to history and determine whether history answers the question one way or the other, whether it's constitutional or unconstitutional. . . .And in a significant number of cases, history will not speak with one voice or conclusively on that subject and then the right step is to move on to an assessment of justification and fit under a means and scrutiny approach.
Justice Alito also seemed to suggest that the now-repealed law was completely irrational, because it never actually promoted public safety:
JUSTICE ALITO: Mr. Dearing, are the --are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?
MR. DEARING: We --we --no, I don't think so. We made a judgment expressed by our police commissioner that --that it was consistent with public safety to repeal the prior rule and to move forward without it.
JUSTICE ALITO: Well, if they're not less safe, then what possible justification could there have been for the old rule, which you have abandoned? …
JUSTICE ALITO: So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?
I don't expect the Court to address the merits. Justice Breyer, if he is so inclined, may perpetually dissent from Heller. At one point, Dearing described Heller. Breyer said that he still did not agree:
MR. DEARING: If history conclusively shows that the restriction is impermissible, then I --I think --as in Heller, Heller is an example of that phenomenon. Heller determined without consulting means and scrutiny, that the --that the law in question sort of went to the core of and destroyed, in essence, the -the --the --the Second Amendment right and, therefore, was --and more severe than any -any historical, any analogous or prior law and its degree of burden on the Second Amendment -
JUSTICE BREYER: No -
MR. DEARING: --right.
JUSTICE BREYER: --you're supposed to do there, because you're correctly stating the views of some judges.
MR. DEARING: Right.
JUSTICE BREYER: And some judges had an opposite view.
MR. DEARING: I'm aware --I'm aware of that, that's correct.
My hometown of Staten Island was also referenced several times:
JUSTICE ALITO: Why will they have to work harder? Somebody who lives in midtown is stopped and --with a gun and the officer says, where are you going? I'm going to a firing range in Jersey City, which is right across the river.
That's tougher than, I'm going to a firing range in Staten Island. And I think three of your seven ranges are in Staten Island; am I right?
MR. DEARING: Two --two are in Staten Island. JUSTICE ALITO: Two are in Staten Island?
MR. DEARING: I think it is a little bit tougher but of course the --the person may not say Jersey City either.
JUSTICE ALITO: All right. How about somebody who lives in the north Bronx says, I'm going across the border to Westchester County. That's tougher for you to --to look into than,
yes, I'm going all the way to Staten Island?
MR. DEARING: Well, still the --still what happens in Staten Island is within the Police Department's jurisdiction.
Growing up, I was not even aware Staten Island had any shooting ranges.