New York City’s Dishonest Attempt to Squelch a Gun-Rights Lawsuit

Last January, the Supreme Court agreed to hear a Second Amendment challenge to a New York City law that, among other restrictions, prohibited residents from taking their handguns outside the city. The Court was gearing up to rule on what would be the first Second Amendment case decided in a decade. But ever since, the city has been working feverishly to prevent the Court from hearing it. After all, the case would clarify the scope of the Second Amendment, and the gun control crowd certainly doesn’t want that — at least not from the current Court.

But this is about much more than guns. If the city’s sneaky attempts to avoid accountability are rewarded, other rights will suffer too.

At the core of New York’s shady actions are the legal concepts of “justiciability” and “mootness” — limits on the federal courts’ ability to hear cases. For a case to be justiciable, it must involve a “live” case or controversy. For example, if a state passed a law banning bumper stickers, and you sued, asking the Court to strike down the law as violating the First Amendment, the case would be moot if the state repealed its law before your case was heard.

But there are certain situations where the courts won’t consider a case moot. After all, a government could keep violating people’s civil rights and avoid having its laws overturned by simply repealing the law just to enact it again later.

This is precisely the type of situation New York City has manufactured: It’s backing off now, presumably planning to wait until the Supreme Court’s makeup is more favorable. Almost as soon as the Supreme Court agreed to hear the case, the city reversed course on a law it has spent decades defending tooth and nail and requested that the Court delay the case to allow the city time to remove the rule. Originally, the city planned to have the police make a rule change — not even overturning the law. But the Court denied this request and, suspecting what the city was up to, several lawyers (including me) made sure, in amicus briefs, to address the city’s bad-faith attempt to escape the Court’s grasp.