Justices appear cautious of expanding gun rights in NY case

The Supreme Court on Monday wrestled with whether it should revisit the scope of Second Amendment rights as the justices heard oral arguments in a case involving a New York City handgun regulation.

The city eventually changed the law before the justices heard the case, leaving them divided on whether that meant the dispute was resolved.

The court’s liberal wing appeared to have little appetite to use the case as an opportunity to reexamine the scope of gun rights in what is the first major Second Amendment case to hit the court in close to a decade.


“What you're asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief,” Justice Sonia SotomayorSonia SotomayorThe Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Sotomayor says recent changes were made because male justices interrupted female colleagues Why Latinos need Supreme Court reform MORE told a lawyer for the National Rifle Association-backed plaintiffs. “You're asking us to opine on a law that's not on the books anymore.”

Chief Justice John Roberts also asked questions during oral arguments aimed at determining whether the case was moot, but it was unclear how he was leaning.

Roberts expressed concern about whether those who violated the old law could face hurdles obtaining a gun license under the new scheme. A lawyer for New York said a past violation would have no bearing on a person's application.

Justices Samuel AlitoSamuel AlitoThe Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Sen. Whitehouse blasts Alito speech: 'You have fouled your nest, not us' Breyer: Supreme Court 'fallible,' but has served US 'pretty well' MORE and Neil GorsuchNeil GorsuchJustices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress Supreme Court low on political standing MORE, on the court's conservative wing, were the most vocal in arguing that unresolved questions for the repealed law demanded a full review from the justices. Alito, a George W. Bush appointee, pushed back on the idea that the city’s decision to rescind the handgun regulation meant the dispute was fully resolved.

“They didn't get all that they wanted,” Alito said, referring to the plaintiffs. “They wanted a declaration that the old law was unconstitutional, period.”

At issue is a rescinded New York City handgun regulation that put tight limits on licensed gun owners' ability to transport firearms outside the home. Residents could apply for a “premises” license, which allowed for the possession of a handgun in the home. 


Outside a gun owner’s specified address, however, the law granted few rights. Gun owners could carry their firearms to seven authorized shooting ranges in New York City. But transporting a gun elsewhere — even to a second home outside the city — was generally forbidden. 

The lawsuit arose after the city denied three licensed gun owners’ their request to travel with their handguns outside the city for target practice and shooting contests. Both the city and the state of New York have since changed their gun laws.

A key question headed into the arguments was whether the court would view the case as an opportunity to go further than ever before in defining the scope of the individual right to bear arms — or sidestep the Second Amendment issue altogether.

In the late Justice Antonin Scalia’s 2008 decision in the landmark District of Columbia v. Heller case, the court said the Second Amendment protects an individual’s right to keep and bear arms for self-defense. But it left key questions unanswered about the scope of the Second Amendment and how courts should determine when those rights were infringed.

Lower courts have tried to answer those questions, largely striking down strict laws but keeping most gun regulations in place.

Paul Clement, a lawyer for the petitioners, said the new New York regulations have not settled the case.

He argued that vague requirements — including that travel with a firearm be “continuous and uninterrupted” — means that licensees could unintentionally violate the new law. 

“I don't know what ‘continuous and uninterrupted’ means,” Clement said, “if it means that you can make stops for coffee.”

Among the conservative justices, Clarence ThomasClarence ThomasTwo conservatives resign from Biden's Supreme Court commission Sotomayor says recent changes were made because male justices interrupted female colleagues Why Latinos need Supreme Court reform MORE and Brett KavanaughBrett Michael KavanaughWhy Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy The Hill's Morning Report - Presented by Facebook - Biden, Democrats to scale back agenda MORE remained silent for the duration of oral arguments.

The court’s liberal wing, however, was vocal about its reluctance to reach the Second Amendment questions the case presented.

“So what's left of this case?” Justice Ruth Bader GinsburgRuth Bader GinsburgThe Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Why do progressives want to cancel women? Couric says she edited Ginsburg interview to 'protect' justice from criticism MORE asked a lawyer for the plaintiffs.

“The petitioners have gotten all the relief that they sought," she added. "They can carry a gun to a second home. They can carry it to a practice range out of state.”


Gun control advocacy groups such as the Brady Campaign to Prevent Gun Violence, hope a majority of the court coalesces around this view.

"A number of justices expressed skepticism that there is a live case that the court should consider,” said Jonathan Lowy of the Brady Campaign. “We’re hopeful that the court will dismiss this as moot.” 

The case has been closely watched by both sides in the gun debate. Gun control advocacy groups and Democratic lawmakers worried that the conservative majority on the court would use the case as an opportunity to expand gun ownership rights.

Gun rights groups saw the case as a chance for the court to lay out restrictions on gun control measures by clarifying the standard courts should use post-Heller.

The NRA in a friend of the court brief urged the justices to use the case to announce a new legal standard for gun control measures that places greater emphasis on the “text and purpose of the Second Amendment.”

Updated at 1:45 p.m.