The lower courts sided with NYC, ruling the restrictions were valid. They did not violate the Second Amendment. Then, in January 2019, the Supreme Court agreed to hear the case for its term starting in October 2019.
New York City sought to “moot” the case
Shortly after the Supreme Court accepted the case for review, NYC changed the regulations at issue. The City was probably worried about the makeup of the Court: that the case would give the conservative Justices a chance to broaden Second Amendment rights. So while the case awaited argument, the City changed its laws to allow gun owners to travel with their handguns to shooting ranges and second homes outside of the City.
Courts aren’t supposed to take irrelevant cases. Courts don’t just hypothesize on what the law should be. Rather, they take live disputes and grant resolutions. Once NYC changed its laws to allow the plaintiffs’ requested conduct, the case is arguable not necessary anymore. It’s not a “live case or controversy.” That’s NYC’s view. After changing its laws, NYC requested that the Supreme Court rule the case “moot,” or irrelevant.
The Court refused to do so. The Justices want the parties to provide arguments both on the issue of “mootness” and on the Constitutional arguments. The Court will address mootness first because if the case it moot, the Court won’t be addressing the Constitutional arguments at all.
When a case develops a change in circumstances such that a court is no longer useful in resolving the controversy, the case is moot. One prototypical case: a college applicant argues a university discriminated against him in rejecting his application, but after the case started, the university grants the student admission and the student is about to graduate by the time the court will be addressing it. That case is moot because the student already got what he wanted.
This case looks like a prototypical case. NYC already gave the plaintiffs what they wanted, so what role can the Court play now?
The plaintiffs the Court is still needed. Ok, they say, NYC changed the law to quickly resolve certain limited situations (traveling to gun ranges and second homes outside the City), but what if I want to make a stop along the way? Maybe I need to fill up my car, or pick up a sandwich. The new NYC law would still make it illegal for me to make stops like that while carrying my handgun. The Court needs to step in and grant me a real right to travel with my gun.
Moreover (and this is a well-recognized exception to mootness), NYC only voluntarily changed the law to resolve the Supreme Court case. It could very well go back and make the same law again. The Supreme Court needs to make a real ruling clarifying that the City can’t make a law like that.
NYC continues to characterize the case as the prototypical case of mootness. The plaintiffs got what they wanted; case over.
Only if the Court sides with the gun owners on mootness may the Justices address the potential Second Amendment violation of the now-old NYC laws.
The Second Amendment
The Supreme Court has made one thing clear: The government cannot strongly restrict someone’s right to keep a gun at home and to use it for self-defense. That’s in the “core” of the Second Amendment, the Court concluded in D.C. v. Heller (2008). D.C. v. Heller invalidated a law requiring guns to be in a nonfunctional state in the home. The same decision invalidated a law placing “complete” bans on handgun ownership because handguns are the preferred type of gun for self-defense. Self-defense is clearly within the core of the Second Amendment right to “keep and bear arms.”
What about the right to travel with your gun? The 2008 Supreme Court decision didn’t give too much instruction to lower courts about how to decide other gun regulations, but federal courts around the country have pulled together a framework.
Text, history, and tradition
Federal courts look to the text, history, and tradition of the Second Amendment as a primary step in characterizing how strictly to scrutinize a challenged gun regulation. If a regulation places limits on a “core” Second Amendment right, then a court will apply “strict scrutiny,” and if a regulation places non-“core” limits on a Second Amendment right, a court generally will apply “intermediate scrutiny.” Strict scrutiny is code for: the law will be invalidated. Intermediate scrutiny means it depends on the importance of the government interest and how narrowly the challenged regulation has targeted the government interest.
The first step for the parties, then, is to argue that the NYC restrictions on traveling with a gun restrict either a super important (“core”) Second Amendment right (gun owners’ argument), or a Second Amendment right that governments may regulate within reason (NYC’s argument).