In a case being watched in the education community, the U.S. Supreme Court on Monday sidestepped a potentially major ruling on gun rights under the Second Amendment.
The court ruled 6-3 that a challenge to a New York City regulation barring the transport of registered firearms outside the city was moot because the city and New York state had changed relevant laws.
But the three dissenters said the case was not moot and that they would have struck down the city’s original transport restriction as inconsistent with the right of “ordinary Americans” to keep and bear arms as found in the landmark 2008 case, District of Columbia v. Heller.
In New York State Rifle & Pistol Association v. City of New York (Case No. 18-280), education organizations and groups formed in response to school shootings in recent years had filed friend-of-the-court briefs urging the justices to take account of school violence and to not expand the scope of gun rights protected by the Second Amendment.
Those groups expressed relief at the procedural outcome of the case and the fact that the court did not expand Second Amendment rights at this time.
The March for Our Lives Action Fund, a gun control group that formed after the 2017 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., tweeted a reaction that referred to its brief, which highlighted the stories of numerous students affected by gun violence in schools, and the pro-gun rights efforts of the National Rifle Association.
“We rallied. We filed an amicus brief. We fought back against the NRA’s attempt to roll back our progress. And we won,” said the tweet.
But the victory may be short-lived. Justice Brett M. Kavanaugh joined the majority outcome in the case, but wrote a concurrence that saying he shared the concern expressed in the dissent by Justice Samuel A. Alito Jr. that some lower federal and state courts may not be properly applying Heller.
“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,” Kavanaugh wrote.
Eric Tirschwell, the managing director of Everytown Law, an affiliate of a gun-control group formed after the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., said that Kavanaugh had written an “extreme” opinion supporting an expansive view of the Heller decision while on the federal appeals court in Washington.
“But it’s far too soon based on what we’ve seen come out today” to determine how Kavanaugh would vote on the merits of a gun rights case, Tirschwell said.
A Crowded Metropolis
The New York City case involved a former city regulation that barred the transport of licensed handguns outside the city limits, such as to shooting ranges or second homes. The regulation was challenged by the New York State Rifle & Pistol Association, which is the state’s NRA affiliate, as well as several individuals with licensed handguns, as a violation of the Second Amendment.
Two lower federal courts upheld the regulation, and the Supreme Court granted review. After the high court did so, New York City amended the rule to allow the transport of licensed guns, and New York state made a relevant change in state law to the same effect. The city then urged the justices to dismiss the appeal as moot because the challengers had gotten all the legal relief they had sought.
President Donald Trump’s administration backed the NRA affiliate, arguing in a brief that New York City’s former ban “subjects adults to more severe restrictions than Congress considered necessary for children, and it subjects the entire city to more severe restrictions than Congress considered necessary for school zones.”
But New York City argued that people in the densely populated metropolis “travel to, near, and around a staggering concentration of sensitive places such as schools, day-care centers, government buildings, playgrounds, and places of worship.”
Education and gun-control groups urged the court not to retreat from its statement in Heller that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” were presumptively constitutional.
“This court should reject any constitutional standard ... that would inhibit the ability of state and local legislatures and school boards around the country to grapple with how to best protect students from the threat of gun violence,” said a brief by the National Education Association.
The court issued a per curiam, or unsigned, opinion holding that the challengers’ claims with respect to the old New York City regulation were moot. It sent the case back to the lower courts for them to consider whether the challengers could add a claim for damages under the old rule.
Alito, in a dissent joined in full by Justice Neil M. Gorsuch and in most part by Justice Clarence Thomas, suggested that New York City was being rewarded for manipulating the appellate review process, since it vigorously defended the old law until the high court granted the challengers’ appeal.
Alito cited several Supreme Court decisions involving school districts to suggest that the challengers, if they succeeded on the merits, would have been eligible for nominal damages.
Alito went on to say that in his view the old New York City restriction on transporting guns violated the Second Amendment.
“As we said in Heller, ‘to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use,’” Alito said.
“The city’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing,” Alito said. “And once we granted review in this case, the city’s public safety concerns evaporated.”
Some of the cases awaiting potential review by the Supreme Court deal broadly with the right to carry weapons in public, which could have implications for the recent movement to allow teachers and other education personnel to carry weapons in the schools.
“The issue of public carry may attract the court’s attention as there is a circuit split on that,” said Hannah Shearer, the litigation director of the Giffords Law Center to Prevent Gun Violence, which also filed a brief in the case backing gun regulation.
A version of this news article first appeared in The School Law Blog.