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New York Desperately Tries to Squirm Out of SCOTUS Case


Last January, the Supreme Court agreed to hear N.Y. State Rifle & Pistol Assn’ v. The City of New York (NYSRPA), a Second Amendment challenge to a city law that prohibited virtually anyone from taking a handgun outside the city. The case was set for the 2019 term, and would be the first Second Amendment case to be decided in a decade.

Since then, the city has been doing everything in its power to “moot” the case and escape the Court, but this week it threw down the gauntlet.

Almost as soon as the Supreme Court agreed to hear the case, the city pulled a 180 on a law it has defended tooth and nail for decades, and asked the Court to delay the case to give the city time to remove the rule. The city originally planned to have the police make a rule change–not even overturning the law–to try to moot the case.

The Court denied this request and, seeing clearly what the city was up to, several lawyers, including myself, made sure to address the city’s bad faith attempt to escape the threat to its gun control law.

A case is “moot” if it does not involve a “live” controversy. Imagine, for example, if your state banned speaking the word “caribou” in public. You sue the state on First Amendment grounds. Then, as your case is set to be heard by a federal court, the state repeals the law. The federal court no longer has constitutional authority to decide the case, as it is no longer “justiciable” as laid out in Article III of the Constitution.

There are, of course, some doctrines that prevent abuses of this system. But New York City has done its homework. The Court looks down on governments that voluntarily cease unconstitutional activity ahead of judicial review. The Supreme Court has said that, in these situations, it should be clear the defendant is not “free to return to his old ways” because there is “a public interest in having the legality of the practices settled.”

The city knew their half-hearted attempts to squirm out of the case wouldn’t free them form the “voluntary cessation” doctrine, so they had to do something more extreme. Enter New York Senator Brian P. Kavanagh. Kavanagh sponsored Assembly Bill A7752 in the state senate, preempting city laws on the transportation of firearms. The bill flew through the state legislature, and by July 3, was headed to the desk of Governor Cuomo.

If something seems odd about a Democrat state senator sponsoring a bill loosening restrictions on firearms, that law speeding through a Democrat-controlled legislature, and then being signed by a feverishly anti-gungovernor, it might be because you have more than two brain cells to rub together.

A change in state law to preempt the city gun law, something the anti-gun crowd has consistently fought against, was the only way strengthen the city’s mootness argument. This sudden turn on a law the city supported ab initio, plus the sudden about-face of the state legislature, suggests nothing more or less than collusion to keep the Court from settling the matter.

With that, the attorney for New York City submitted a strongly worded letterto the Supreme Court, asserting they city’s opinion that, no matter what the Court or opposing counsel thought, the case was moot. The City dared the Court to proceed with the case, and and promised that if it does, the City will make the case as messy as possible for the conservative wing of its justices.

The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.

–from Truth about Guns

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