Supreme Court seems hesitant to rule on defunct gun law

Case is first test of how far the justices might extend gun rights outside the home

Gun safety advocates arrive holding letters spelling “gun safety” in front of the Supreme Court before the start of oral arguments in the Second Amendment case NY State Rifle & Pistol v. City of New York, NY, on Monday. (Bill Clark/CQ Roll Call)

The Supreme Court heard the first oral argument about Second Amendment rights in almost a decade Monday, and most of the justices didn’t appear inclined to jump back into the contentious social debate over gun control laws.

The court has long avoided major cases that address the extent to which Congress or state lawmakers can pass laws that restrict firearms, since 5-4 rulings in 2008 and 2010 that found an individual right to possess a firearm at home for self-defense.

The case heard Monday centers on a strict New York City law about transporting firearms from the home to shooting ranges or second homes that are outside the city, a first test of how far the justices might extend gun rights outside the home.

But that city law has been repealed and a new state law means the city couldn’t enforce it. That left most of the argument Monday about whether the Supreme Court should even make a decision about whether it violates Second Amendment rights.

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The justices are expected to make a decision before the end of the term at the end of June.

Questions from four justices on the liberal wing of the court made clear that they thought the petitioners had already got everything they wanted in the lawsuit.

Justice Ruth Bader Ginsburg asked, “So what’s left of this case?” And Justice Sonia Sotomayor said that the gun rights advocates bringing the case are “asking us to opine on a law that’s not on the books anymore.”

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And Chief Justice John G. Roberts Jr. did not ask any questions about the merits of the law, but only sought clarity about what would happen in the future.

Roberts asked whether any violations of the repealed law would be used against gun owners in the future, such as prejudice in any way in qualifying for permits to have a gun in their home.

Richard Dearing, the attorney arguing on behalf of New York City, assured the court that there would be no consequences from the repealed law. “The city is committed to closing the book on that rule,” Dearing said.

An attorney for the gun owners, Paul Clement, argued that the New York State law didn't give them everything they wanted and they still want the Supreme Court to find the old law unconstitutional.

Clement said the gun owners still want a court injunction that makes clear three things: The city is prohibited from future enforcement of the repealed law, that violations of the repealed law won’t be used in future licensing decisions, and safeguards that gun owners can make stops on their way to and from a gun range or second home.

Justice Brett M. Kavanaugh, the newest member of the court whose history on the bench suggests he could press the court to become more active on gun control issues, did not say anything during the hour of arguments.

Neither did Justice Clarence Thomas, who has criticized the Supreme Court’s hands-off approach that left lower courts with the last word on gun restrictions.

Justices Samuel A. Alito Jr. and Neil M. Gorsuch asked questions that decried New York City’s efforts to avoid the Supreme Court review by changing the law after the high court had agreed to decide if it was constitutional.

Gorsuch called it “Herculean, late-breaking efforts” to make the case moot, and that there are still unsettled questions about whether gun owners can stop for coffee or a bathroom break on their way to the range.

Dearing responded that the city does not plan to bring enforcement actions against gun owners who stop for coffee or the bathroom on their way to a gun range.

And Dearing said that the question of what is a “reasonably necessary” stop while transporting a gun to the range would have to be litigated first at lower courts, since it is a different question than what the gun owners in this case sought.

Alito and Gorsuch did not appear satisfied by Dearing’s answers.

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