Aaron L. Sarro*
On January 22, 2019, nearly a decade after the United States Supreme Court issued its last Second Amendment opinion, the Court granted writ of certiorari to a petition that raised a constitutional challenge to New York City’s premises license handgun travel restrictions (the Restrictions). Amy Howe, Justices to Review New York Gun Rights Case, SCOTUSblog (Jan. 22, 2019, 12:28 PM), https://www.scotusblog.com/2019/01/justices-to-review-new-york-gun-rights-case/. The petition was filed by the New York State Rifle & Pistol Association (NYSRPA) and three resident gun owners—Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry (collectively, Petitioners). Petition for Writ of Certiorari, N.Y. State Rifle & Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280). For Petitioners, receiving writ of certiorari marked their first—albeit seemingly short-lived—victory. Adam Liptak, Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish, N.Y. Times (May 27, 2019), https://www.nytimes.com/2019/05/27/us/politics/supreme-court-gun-control.html. Despite unsuccessful litigation in both the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit, Petitioners’ likelihood of reaching the nation’s highest Court appeared all but certain; a result some consider inevitable due to the Court’s recent conservative shift. N.Y. State Rifle & Pistol Ass’n v. City of New York, 86 F. Supp. 3d 249 (S.D.N.Y. 2015), aff’d, 883 F.3d 45 (2d Cir. 2018); see Liptak, supra.
However, Petitioners encountered what may prove to be a lethal speedbump. In response to the Court’s grant of certiorari, New York City (NYC) and the New York State Legislature preemptively amended the challenged travel ban, passed a related state-wide law, and in effect abandoned the very same firearm restrictions it defended for the past four years. Robert Barnes, New York Eased Gun Law Hopeful Supreme Court Would Drop Second Amendment Case – but That Hasn’t Happened Yet, Wash. Post (Aug. 11, 2019, 7:00 AM), https://www.washingtonpost.com/politics/courts_law/new-york-eased-gun-law-hopeful-supreme-court-would-drop-second-amendment-case–but-that-hasnt-happened-yet/2019/08/10/9031682e-bab6-11e9-a091-6a96e67d9cce_story.html?noredirect=on. As NYC has asserted in several of its filings with the Court, the amendments and legislative enactments effectively resolved the entirety of Petitioners’ legal demands and substantive issues. See Liptak, supra. In turn, the Court must now make a preliminary constitutional determination: whether NYC’s amendments have rendered the present issue moot, or pursuant to Article III’s Case or Controversy Clause of the United States’ Constitution, whether the Court is permitted to decide the merits of the case. U.S. Const. art. III, § 2, cl. 1; Banes, supra.
The present case was initiated in 2015 when Petitioners filed suit against NYC and the New York City Police Department License Division. N.Y. State Rifle & Pistol Ass’n, 86 F. Supp. 3d 249, 253–54 (S.D.N.Y. 2015). In their complaint, Petitioners requested a declaration that the Restrictions were unconstitutional and sought a preliminary injunction against its enforcement. Id. Petitioners sought to invalidate certain provisions in the Restrictions that prohibited the transportation of registered, unloaded handguns outside city limits, and restricted handgun transportation within the city to strict, specified routes to and from a city-approved shooting range. Id. at 254, 257. Among other alleged constitutional violations, Petitioners argued that the Restrictions violated the Second Amendment’s right to keep and bear arms by preventing their ability to engage in target practice and depriving them of the right to protect themselves within a second home. Id. at 257, 260–61, 264.
The district court rejected each of these arguments and found that: the travel restrictions had an insubstantial effect on Petitioners’ Second Amendment rights, the Restrictions did not go to the “core” of the Second Amendment, and the Restrictions categorically fell within those that are traditionally subject to state and local government regulation. Id. at 261–63. Through application of the intermediate scrutiny standard, the court held that the travel restrictions, pertaining to both out-of-city residences and shooting ranges, were substantially related to the government’s important interest in public safety and crime prevention. Id. at 260–62 (citing 38 R.C.N.Y. §§ 5-01(a), 5-22(a)(14) (stating intermediate scrutiny requires an important government interest and that the relation between the regulation and important government interest be reasonable)). The court also categorically rejected Petitioners’ arguments that NYC’s travel restrictions violated the Firearms Owners’ Protection Act (FOPA), the right to travel, the First Amendment, and the Dormant Commerce Clause. Id. at 264, 265–66, 267.
On appeal to the Second Circuit, Petitioners similarly argued that the Restrictions’ provision on out-of-city handgun transportation violated the Second Amendment, the Dormant Commerce Clause, the First Amendment right of expressive association, and the right to travel. N.Y. State Rifle & Pistol Ass’n v. City of New York, 883 F.3d 45, 54 (2d Cir. 2018). Consistent with the district court’s ruling, the Second Circuit held that the travel ban did not touch the core of the Second Amendment, and thus, through application of intermediate scrutiny, that the Restrictions were substantially related to NYC’s important government interests in crime prevention and public safety. Id. at 64.
II. Timeline of the Present Issue
On July 3, 2019, NYC first raised its mootness argument in a letter addressed to the clerk of the Supreme Court. Amy Howe, City Tells Justices New York Gun Case is Moot (UPDATED), SCOTUSblog (July 3, 2019, 9:41 PM), https://www.scotusblog.com/2019/07/city-tells-justices-new-york-gun-case-is-moot/. In its letter NYC stated that it amended the Restrictions, albeit not yet effective, to allow handgun transportation by a licensed owner to out-of-city locations, which included second homes and shooting ranges. Id. Due to these amendments, NYC argued Petitioners received all that was asked for, and therefore, the case had become moot. Id. Furthermore, NYC stated that if it was required to file its brief on the merits, it intended to solely address the issue of mootness and would not address the constitutionality of the amended laws. Id. Although NYC’s letter was rejected for filing, it filed a subsequent Suggestion of Mootness on July 22nd, which was followed by a response from Petitioners on August 1st. New York State Rifle & Pistol Ass’n Inc. v. City of New York, New York, SCOTUSblog, https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/ (last visited Oct. 24, 2019). Shortly after, NYC requested an extension on its response to the merits of the case—the Court rejected that request. Id. Despite its previous statements to the contrary, on August 5th, NYC filed a timely brief on the merits. Id.
III. NYC’s Argument
NYC fully addressed the constitutionality of its “former rule” in its brief on the merits. See Brief of Respondent at 16-36, N.Y. State Rifle & Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280). NYC made virtually the same arguments that were successful at the district court and Second Circuit, and stated that its former rule did not violate the Second Amendment, the Dormant Commerce Clause, or the right to travel. Id. at 16, 43, 54. As for mootness, NYC continued to assert that the amendments to city and state law have given Petitioners everything they asked for. Id. at 13–14. In addition, NYC argued that it had no intention of reverting back to its former rule, and even if it attempted to, the newly enacted state laws would prohibit it. Id. at 12. Finally, and perhaps most significantly, NYC argued that under the meaning of an Article III Case or Controversy issue, its motivation for amending the challenged laws is irrelevant; therefore, the Court must remand the present case to the lower court with instructions to dismiss. Id. at 15.
IV. Petitioners’ Argument
Petitioners advanced two primary arguments in their response to the suggestion of mootness. See Petitioners’ Response to Suggestion of Mootness at 1-3, New York State Rifle & Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280). First, Petitioners claim the entirety of their demands have not been met because they have not received a declaration from the Court on the constitutionality of the Restrictions. Id. at 22. In addition, Petitioners argue the scope of the amendments are unclear. Id. at 2–3. This clarity argument was illustrated by the Petitioners’ hypothetical example that the amendments allow a gun owner to travel to an out-of-city shooting range, yet it is still illegal for the gun owner to make a coffee stop on the way. Id. Aside from such abstractions, Petitioners’ second argument, which appears most likely to succeed, is that of the Voluntary Cessation Doctrine. Id. at 23–25. Succinctly stated, Petitioners argue NYC’s “undisguised effort to avoid a precedent-setting loss and to frustrate this Court’s discretionary review falls short by every measure.” Id. at 12. Petitioners urged that NYC’s maneuvers were simply aimed to frustrate the Court’s review, and the fact that such measures were taken demonstrates the likelihood of future efforts to revert back to the previous regulations. Id. at 26.
Those anxious for the Court to hear its first Second Amendment case in the past decade do not have to wait long because the Justices, for the time being, have allowed the Petitioners’ challenge to move forward. Amy Howe, New York Gun Case to Move Forward, SCOTUSblog (Oct. 7, 2019, 12:17 PM), https://www.scotusblog.com/2019/10/new-york-gun-case-to-move-forward/. On October 7th, the Justices rejected NYC’s request for immediate dismissal and provided instructions that both parties be prepared to discuss mootness, as well as the Restrictions’ constitutionality, at oral arguments scheduled for December of 2019. Id.
*Aaron Sarro is a second-year law student at the University of Baltimore, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. This summer, Aaron interned for the Hon. Karen C. Friedman in the Circuit Court for Baltimore City and currently works as a law clerk for the Law Office of Hyatt & Goldbloom, LLC.