The Supreme Court seemed unlikely Monday to be heading for a major ruling on Second Amendment rights after hearing courtroom arguments in a dispute over a New York City gun restriction — a law no longer on the books.
Because New York repealed the law after the Supreme Court agreed to hear the case, the city argued that the case should be dismissed as moot because there's nothing left to fight over. Based on the comments by the justices Monday, it did not seem that a majority was willing to keep the case alive and rule on the broader gun rights issue.
Since declaring in a 2008 case from Washington, D.C., that the Second Amendment provides a right to keep a handgun at home for self-defense, and then clarifying that the right applies nationwide, the court steadfastly declined to take up any other gun rights cases. The court's willingness to consider this one, even though the law at issue was recently repealed, had gun rights advocates hoping it could lead to a ruling about the right to bear arms outside the home.
Advocates of gun control, by contrast, feared that the court's new conservative majority might produce a decision that the National Rifle Association could use to roll back many of the 300 local gun restrictions enacted since the Sandy Hook Elementary School shooting in 2012.
They were especially concerned that Justice Brett Kavanaugh, who succeeded Justice Anthony Kennedy, might make the court more willing to revisit the Second Amendment issue. But Kavanaugh said nothing during Monday's argument.
The New York ordinance that gave rise to the case said residents with the proper permit could take a handgun outside the home to a city shooting range, provided it was unloaded and in a locked container. But the gun could not be taken beyond the city limits.
Three residents challenged the provision, saying they wanted to take their firearms outside the city to gun ranges, shooting competitions and second homes. They argued that the law violated their Second Amendment rights and said transporting an unloaded gun in a locked container did not pose any significant safety risk. Two lower courts rejected their claims and upheld the law.
After the Supreme Court agreed to take up the case, the city repealed the ordinance and the New York State Legislature passed a law prohibiting local governments in the state from enacting similar restrictions. The court's more liberal members signaled that they now considered the dispute a dead letter.
"What's left of this case?" Justice Ruth Bader Ginsburg asked.
"You're asking us to take a case in which the other side has thrown in the towel and opine on a law that's not on the books anymore," Justice Sonia Sotomayor added.
Paul Clement, a Washington, D.C., lawyer appearing for the gun owners, said the city laws that remain in effect are still restrictions on the right to take a gun outside the home. He said those laws would make it illegal, for example, to stop for coffee or gas up the car on the way to an out-of-state gun range.
Justice Neil Gorsuch asked why that isn't enough of a limit on gun rights to keep the case alive.
But Richard Dearing, a lawyer for the city, said no one would be punished for taking such brief breaks. "They are entirely permissible."
Chief Justice John Roberts asked if violations of the old law could be used against current gun owners, and Dearing said no.
If, as seemed likely Monday, the court dismisses the case as moot, the Second Amendment issue will undoubtedly return, as challenges to gun permit requirements, bans on assault weapons and high capacity magazines, and restrictions on open carry work their way through the lower courts.
The court will issue its decision by late June.