In a gun-rights case being watched closely in education circles, some conservatives on the U.S. Supreme Court seemed inclined on Monday to expand the scope of the Second Amendment to protect gun rights outside the home, but it was unclear whether there was a majority ready to go that far.
At least two members of the court—Justices Samuel A. Alito Jr. and Neil M. Gorsuch—suggested they were likely to rule on the merits of the case even though New York City had eliminated a challenged restriction on transporting firearms outside the city. More-liberal members of the court suggested the case before them was moot because the city had changed its regulation.
Meanwhile, the court’s newest member, Justice Brett M. Kavanaugh, whose views on the Second Amendment drew considerable attention during his confirmation hearings last year, said nothing during the hourlong argument in New York State Rifle & Pistol Association v. City of New York (Case No. 18-280).
As the justices heard arguments, a rally led by gun control advocates took place on the sidewalk and street outside the court. Among those scheduled to speak were Randi Weingarten, the president of the American Federation of Teachers; and Aalayah Eastmond, a survivor of last year’s mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla.
Education organizations and groups that have formed in direct response to school shootings of recent years, such as the March for Our Lives Action Fund and Everytown for Gun Safety, filed friend-of-the-court briefs in support of New York City, urging the justices to take account of school violence and to not expand the scope of gun rights protected by the Second Amendment.
These groups do not want the court to retreat from language in the landmark 2008 Second Amendment decision upholding gun possession in the home, District of Columbia v. Heller, that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” were presumptively constitutional.
Mass school shootings were not mentioned during Monday’s arguments, in which Alito made one of the few broad points about gun rights.
“Unless a total ban on taking it to a firing range would be consistent with the Second Amendment, it follows that the Second Amendment, under at least some circumstances, protects the possession of a handgun outside the home,” Alito said. “Isn’t that correct?”
Richard P. Dearing, a lawyer for the city only grudgingly agreed with him. He said it was important to look at the matter in the context of New York City’s “premises” gun license.
“When you look at a premises license, and not speaking about the Second Amendment at large or writ large, but the premises license specifically, the only proper lens to look at the question through is whether the restriction impinges on effective use of the handgun in the home,” Dearing said.
Meanwhile, liberal members of the court did not come to the rescue of the former New York City regulation as much as suggest that the matter was settled by the elimination of that rule, which barred the transport of guns outside city limits to places such as shooting ranges and second homes, even when they were locked and unloaded.
“So what’s left of this case?” Justice Ruth Bader Ginsburg said. “The [challengers] have gotten all the relief that they sought. They can carry a gun to a second home. They can carry it to a practice range out of state.”
Paul D. Clement, the lawyer for several New York City gun owners and the association, which is the state affiliate of the National Rifle Association, said relevant changes in state and city law did not give the challengers all they sought, such as a declaration that the former transport ban violated the Second Amendment.
“We would also be entitled to an injunction that did three things,” Clement said. “One, prohibit future enforcement of the transport ban; second, prevent the city from taking past conduct in violation of the ban into account in licensing decisions; and, third, an injunction that safeguard[ed] our right to transport meaningfully such that it wouldn’t be limited to ‘continuous and uninterrupted” transport.”
The fact that New York City did not eliminate from its regulation a requirement that the transport to a site such as a shooting range be “continuous and uninterrupted” led to several sharp questions for Dearing. Could the gun owner stop to get coffee or use the restroom? Could he stop to visit his mother for about an hour?
“The city’s enforcement position is that coffee stops, bathroom breaks are entirely permissible,” Dearing said. Stopping for gas and food would be the same.
“I hadn’t considered the mother or mother-in-law example before,” Dearing said. “I think that’s going to need to play out in the state courts.”
Among the current members of the court, Chief Justice John G. Roberts Jr., Justice Clarence Thomas, and Alito were in the majority in the Heller decision. Thomas in a 2017 dissent from a denial of review said the lower courts were treating the Second Amendment “as a disfavored right.” Gorsuch joined that opinion.
Ginsburg and Justice Stephen G. Breyer had joined the dissent in Heller. Their newer colleagues in the liberal bloc, Justices Sonia Sotomayor and Elena Kagan, appeared to agree that the New York City case was moot.
The city “has thrown in the towel,” Sotomayor said to Clement. “You’re asking us to opine on a law that’s not on the books anymore.”
A decision in the case is expected by late June.
A version of this news article first appeared in The School Law Blog.