Yesterday’s Supreme Court decision declining to rule in a New York gun case initially seems like a non-event. The majority held that the case had been rendered “moot” when the city repealed the offending restriction on gun rights, but its three most conservative justices—Alito, Gorsuch, and Thomas—screamed foul.
A close look at their dissenting opinion highlights the Court’s impending expansion of gun rights. There they accused the majority, which included their usual allies, Justice Brett Kavanaugh and Chief Justice John Roberts, of being taken in by a legal sleight of hand. They also announced their support for a very broad reading of the Second Amendment and argued that the New York law was unconstitutional.
Advocates of gun control may claim victory because the Court did not reach the merits of the New York case. But the issue that divided the Court’s conservative justices was not whether to radically expand the protections of the Second Amendment, but when and how to do so.
Like the effort to prohibit abortion, the effort to expand gun rights, even during the health and economic crisis caused by COVID-19, is very much alive and well.
The case decided yesterday was brought by the New York State Rifle and Gun Association which claimed that an ordinance prohibiting licensed gun owners from transporting their guns out of the city, for example, to shooting ranges or to second homes, violated the Second Amendment’s guarantee of a right to bear arms. It also claimed that it violated the Commerce Clause as well as the right to travel.
This case had seemed destined to be the most important gun rights case in a decade. Moreover, it looked like it would be a vehicle for the Court to strictly limit gun regulations. In an effort to ward off that outcome, New York City repealed the offending regulation in June 2019.
Not surprisingly, the case attracted considerable attention from gun rights enthusiasts as well as advocates of strict gun control. And a group of liberal senators filed a strident friend of the court brief asking the Court to dismiss the case.
Their brief offered a broad and unprecedented indictment of the Court’s conservative majority and accused the five justices appointed by Republican presidents – the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Thomas—of pursuing a “political project” and being in league with the National Rifle Association and other pro-gun groups.
In the past, conservative justices and their allies went out of their way to assure citizens that they were not partisans in judicial robes. Reacting to the Warren Court’s string of liberal decisions, they regularly criticized so-called judicial activism and warned about the tendency of judges to play an expansive role in addressing controversial cultural and social issues or to “legislate” from the bench. They supported a modest role for the courts, strict construction of the law, and originalism.
They also praised what Yale law professor Alexander Bickel once famously called “the passive virtues.” Noting that Supreme Court justices are appointed rather than elected, Bickel argued that they should interfere as little as possible in the democratic political process and zealously guard the court’s legitimacy in the face of what he labeled a “counter-majoritarian difficulty.” He urged judges to avoid involving themselves in political questions by invoking doctrines like the one the Court used yesterday.
During his confirmation process, Chief Justice Roberts allied himself with this brand of legal conservatism. Like Bickel, he called on justices to pay particular attention to the Court’s institutional standing and legitimacy. And he joined the court majority in refusing to use the New York case to reach new judgments about the Second Amendment issues. His restraint is notable, but it may be more exceptional than a guide to future Court attitudes toward expansions of Second Amendment rights.
The dissenting opinion authored by Justice Alito may in fact give a better indication of the future of gun rights. It eschewed judicial modesty and argued that the fact that New York City had given those who brought the case exactly what they wanted was of no great significance.
Alito insisted that because there were remedies that the plaintiffs might seek, or might get, if the Court reached the merits of the case, it was not moot. Alito brazenly claimed that judges only should refuse to rule on the merits if it is “impossible for a court to grant any effectual relief whatever to the prevailing party.” The italics were his, calling attention to his desire to stretch the Court’s jurisdiction to its limits.
He accused New York of manufacturing mootness “in order to evade review” and warned that similar things might happen on other issues near and dear to the Court’s conservative justices. To make sure that his message was abundantly clear, Alito openly speculated about what states might do to manufacture mootness in cases involving abortion and reproductive rights.
Finally, Alito took the unusual step of announcing how he would have ruled on the merits of the New York gun regulation. As he put it, “the City ordinance violated the Second Amendment. This is not a close question.”
While Supreme Court precedent recognizes the right of governments to regulate aspects of gun possession and use, including places where guns may be legally transported or possessed, Alito found that 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.”
But, in the end, it is not only Alito’s vigorous dissent that should be a warning to gun regulation’s supporters. That warning also is found in Justice Kavanaugh’s concurrence in the Court’s decision where he intimated that there would be a bright future for supporters of gun rights.
While agreeing that the New York case was moot, he signaled his sympathy for Alito’s desire to aggressively scrutinize regulation of guns. Additionally, Kavanaugh joined Alito in criticizing federal and state courts for failing to vigorously protect gun rights.
He went out of his way to reminded his readers that the Court’s judicial conservatives would get another chance to expand gun rights “soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
The Supreme Court was right to turn aside the New York case. But when a day of reckoning next comes in the national debate about gun control, the Court’s conservative bloc has shown that it will be even more determined to have its way.
Alexander Bickel’s brand of judicial restraint plays little role in their thinking, despite what may have been said during confirmation hearings. But Bickel’s point was that voters should be given wide latitude to decide on the key issues of the day. Choosing presidents who will appoint justices who do not believe that the Second Amendment gives every American an unimpeded right to own and use guns is something that voters may yet come to see as a priority.