Supreme Court Punts Second Amendment Case back to Lower Courts

Dean Weingarten in front of  the Supreme Court of the United States

The long awaited ruling on the New York State Rifle & Pistol Association v. City of New York, was issued on 27 April, 2020.  The Supreme Court resolved almost nothing.  The Court held the case was moot, because the City of New York and the State of New York changed their law, so as to prevent the Court from ruling on the case. The Court merely maintained the unsatisfactory status quo of the Second Amendment in the lower courts.

This is exactly what those who oppose a meaningful Second Amendment demanded of the Court.

Here is a brief summation of the history of the case. Seven years ago, in 2013,  the suit was brought against the City of New York and the License Division, by several individuals and the New York State Rifle & Pistol Association.

The restrictions on the exercise of Second Amendment rights were, and are, extreme. A carry license is nearly impossible to obtain without political connections. A premise license is slightly less difficult, but still involves large expenses and commitments of time and energy, and may be denied for a host of minor reasons.  Only about 1.29% of city residents have been issue handgun licenses. People who have premises licenses were not allowed to take their handgun outside the city. The lawsuit asked the court find the law unconstitutional. From the dissent on April 27, 2020:

According to the complaint, the City, by limiting licensees like petitioners to the seven ranges in the City, imposed a serious burden on the exercise of their Second Amendment right. App. 36. 

The amended complaint’s prayer for relief sought an injunction against enforcement of the travel restriction, as well as attorney’s fees, costs of suit, declaratory relief . . . and “[a]ny such further relief as the [c]ourt deems just and proper.” Id., at 47–48 (emphasis added).

The City of New York argued the restrictions did not infringe on the Second Amendment. They argued the restrictions were absolutely necessary for public safety.

 The District Court agreed.

The plaintiffs appealed to the 2nd Circuit Court of Appeals.

The Court of Appeals in the Second Circuit agreed with the City of New York.

The plaintiffs appealed to the Supreme court. During this entire period, the City of New York held the law was absolutely necessary for public safety and did not infringe on the Second Amendment at all.

The Supreme Court decided to hear the case, by granting a writ of certiorari, the usual way.

The tactic of the City immediately changed. Faced with a near certainty the law would be found unconstitutional, they changed the law as little as they believed necessary to prevent the court from hearing the case, convinced the state legislature to back them up with a change in state law, and argued the case was now moot (no longer a live controversy).

In oral arguments, they admitted the law was not really necessary for public safety at all.

The Supreme Court initially refused to accept the case was moot, but with the recent decision, finally bowed to political pressure from the left.

The Supreme Court has avoided nearly all substantive Second amendment cases for a decade.

Justice Kavanaugh concurred with the decision, but said the court should address the issue by taking another of the several Second Amendment cases which have been appealed to the Supreme Court ( the plaintiffs have petitioned for a writ of certiorari).

Some of those cases are: Wilson v Cook County, Culp v Raoul, Malpasso v Pallozzi, Worman v Healey, Cheeseman v Polillo, Ciolek v. New Jersey,  Gould v Lipson, Rogers v Grewal,  Mance v Barr, and Pena v Horan, according to a discussion on freerepublic.com.

Three justices, Alito, Gorsuch, and Thomas, strongly dissented. They denied the case was moot. Their argument is persuasive.

The dissent documents the intense pressure placed on the court from the left and leftist politicians. Justice Alito, in the opening paragraph of the dissent, writes this:

By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.

The dissent details how the City of New York placed extreme burdens on the ability of legal gun owners in New York to attend shooting competitions, to use ranges, in short, how it infringes on basic Second Amendment rights.  

By ruling the case as moot, the court removes the potential for the petitioners to claim attorney’s fees under 42 U. S. C. §1988. 

Many of the cases decided by the Supreme Court are intensely political. The Court has, with its decisions, removed and weakened many of the checks and balances which were built into the Constitution to limit the power of the government, and to protect the rights of the citizenry. This weakening became increasingly strong as multitudes of progressive judges transformed the court during and since the administration of Franklin Delano Roosevelt. Progressive philosophy holds the Constitution is and should mean whatever the justices on the court wish it to mean for political expediency.

Some have claimed the Supreme Court showed cowardice by finding the case moot after bringing it all the way through oral arguments. It seems silly to do so, after the Court earlier refused to rule the case as moot. This can be explained by the political structure of the current court.

The Supreme Court is split on protecting Second Amendment rights. Once again, the Court has stalemated before addressing current infringments on the exercise of those rights.

It is not generally cowardice which we are seeing, but an intense struggle between a progressive view of the Constitution and the originalist and textualist vision of accepting the Constitution as written.

Four of the justices on the Supreme Court, Justices Stephen Breyer, Ruth Bader Ginsburg , Sonia Sotomayor, and Elena Kagan are, from a leftist standpoint, and the standpoint of the old, mainstream, progressive media, heroically and desperately working to hold back the tide of originalism, which would return a semblance of the rule of law back to the Constitution and the Republic.

Three justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, are in the vanguard of restoring the rule of law and a Republic of limited power. Justice Brett Kavanaugh admits it is necessary, although he sided with the majority on this case.

Chief Justice Roberts is the one who appears to be vacillating with the winds of pressure from the media and leftist politicians.

The Left fears numerous Supreme Court decisions, which fly in the face of a common sense reading of the Constitution and the Bill of Rights, will be struck down.  They fear the efforts of 70 years of progressives to shape a Progressive Constitution will be brought to ruin. They fear the 100 year old "progressive project" will be destroyed.

The progressive left desperately hopes the coronavirus will work to defeat President Donald Trump in the 2020 elections. It is likely no Second Amendment case will be heard until after the 2020 election. 

Delay, delay, delay. It is a desperate attempt by the Left to hold onto progressive power.

Who knows? President Trump may be defeated, and more progressives appointed to the courts. A war may happen. Justice Ginsberg may live until the end of President Trump's second term. For those who remember the old tale, the horse may learn to sing.

Meanwhile, the infringements of Second Amendment rights continue. Lives are ruined by unconstitutional laws; the march toward a Brave New World, where the only freedoms protected by the Court are those approved of by Progressives, as long as they approve of them, stays in place, and may even advance a halting step or two.

To paraphrase the Left, objective conditions have changed. The old, technological realities which gave the progressives virtual control over the flow of information in the United States, and thus, political power over most politicians, are crumbling. A majority of people no longer find the old, established progressive media, credible. More people are finding ways to access multiple sources of information, which often contradict the narratives the old, elite, progressive establishment uses to maintain its power.

Change is here. The best hope to keep our freedoms is to support the Constitution and the rule of law.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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