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WASHINGTON — The US Supreme Court on Monday decided not to rule on the latest gun rights case to come before the court, but Justice Brett Kavanaugh and other conservative justices made clear they’re ready to take up the Second Amendment again as soon as possible.
A majority of the court concluded Monday that a case challenging a New York City law that restricted the transportation of firearms had become moot because the city changed the law while the case was pending.
But in a separate one-page opinion, Kavanaugh wrote that he had “concern” that lower courts may not be applying the law correctly when it came to gun rights and that the Supreme Court should take up Second Amendment issues “soon” — a sentiment that will give hope to groups like the National Rifle Association, which supported Kavanaugh’s nomination, and worry gun control advocates who opposed him.
“I share Justice [Samuel] Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald,” Kavanaugh wrote, referring to the court’s last big Second Amendment decisions a decade ago. “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court,” he wrote.
Kavanaugh didn’t specify which cases he wanted the court to hear, but he noted that he agreed with the previous Supreme Court decisions that struck down state and local handgun bans; he highlighted a dissenting opinion he wrote in 2011 as a judge on the US Court of Appeals for the DC Circuit when he disagreed with his colleagues who upheld an assault weapons ban in Washington, DC.
On a call with reporters on Monday, gun control advocates said one major issue already teed up for the Supreme Court is whether state and local governments can ban or restrict people from carrying guns outside of their homes. The justices have yet to decide whether to hear the latest crop of cases on that issue to come up to the court. In 2017, a majority of justices voted against hearing a public-carry case from California; Justice Clarence Thomas dissented, joined by Justice Neil Gorsuch, who, like Kavanaugh, was appointed by President Donald Trump.
Kavanaugh’s 2011 dissent in the DC assault weapons ban case represented a “really extreme and dangerous view of the Second Amendment,” Eric Tirschwell, managing director of gun control group Everytown Law, told reporters. “We would be deeply, deeply concerned if that became the analysis that the Supreme Court adopted.”
Jason Ouimet, executive director of the NRA's Institute for Legislative Action, the group's lobbying arm, said in a statement that the organization would continue to press legal challenges to state gun laws. He also said they hoped New York would pay the challengers' legal costs.
"The justices’ concerns about Second Amendment infringements are real, and our membership is excited to have their rights formally vindicated before the nation’s highest court," Ouimet said.
In 2008, the court’s conservative wing ruled 5–4 in District of Columbia v. Heller that the city’s handgun ban was unconstitutional. In 2010, the court ruled in McDonald v. City of Chicago — again with a 5–4 split — that the same principles in the Heller case applied to states trying to ban handguns, too.
Since then, cities and states have passed other types of gun control laws, such as banning assault weapons and restricting public carry. Lower courts have largely upheld these laws, and the Supreme Court has declined to step in when challengers petitioned the court.
When the Supreme Court declines to rule on a case, it leaves in place the ruling from the lower court. Federal appeals courts set precedent for the regions of the country that they cover, absent a decision from the Supreme Court, which would apply nationwide.
The New York City law at issue made it illegal for residents to travel with a licensed firearm unless they were going to a shooting range in the city. That meant residents couldn’t travel with a licensed firearm outside of city limits. Gun rights advocates sued, arguing that this violated the Second Amendment. They lost at the district court and on appeal, and they petitioned the Supreme Court to intervene.
While the case was pending, however, New York changed the law to allow licensed gun owners to travel with their guns to a second home or to a shooting range outside of the city. New York’s lawyers argued that meant there was no longer an issue for the justices to rule on. The challengers tried to keep the case alive, arguing the updated law still violated their rights and that New York shouldn’t be able to avoid a Supreme Court decision on the constitutional questions by changing the law midway. The court on Monday issued an unsigned “per curiam” decision declaring the case moot; a “per curiam” opinion represents at least a majority of the court, but there isn’t a justice-by-justice breakdown.
Kavanaugh wrote separately that he agreed the case was moot. But he also wrote that he agreed with parts of a dissenting opinion that Alito issued on Monday that expressed concern with how lower courts had been ruling on gun rights in the decade since the McDonald decision.
Alito, joined by Justices Neil Gorsuch and Clarence Thomas, wrote that he would have ruled on the merits of the New York case, disagreeing that it was moot. He acknowledged that the challengers got most of what they wanted when the city changed the law, but wrote the court still could have ruled because there were some unresolved issues, such as whether gun owners could stop when traveling to one of the approved locations — to use the bathroom or get coffee, for instance. A ruling for the challengers also might entitle them to money damages from New York, he wrote.
Alito would have ruled that the New York law was unconstitutional because the right to have a gun in the home for self-defense, as spelled out in Heller and McDonald, extended to a right to take the gun out of the home to practice safely using it. Alito wrote that restricting New Yorkers from traveling with their licensed guns placed too much of a burden on their constitutional rights. He also wrote that New York had failed to prove its public safety rationale for the law.
“We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern,” Alito wrote.
Lawyers for New York and for the challengers did not immediately return requests for comment.
UPDATE
Updated with comment from Jason Ouimet of the NRA-ILA.