Associate Justice Samuel Alito issued a lengthy rebuttal of the Supreme Court’s decision to discard a significant Second Amendment case.
After the high court issued an unsigned 6-3 decision on Monday to dismiss New York State Rifle & Pistol Association Inc. v. City of New York, a case involving New York City banning transportation of firearms outside its city, the conservative judge crafted a 30-page long dissenting argument that asserted the case was live and unconstitutional.
“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced,” Alito began, joined by Associate Justices Clarence Thomas and Neil Gorsuch.
In 2002, New York state passed a variety of gun laws regulating firearm transportation and possession but amended its laws in summer 2019 after the Supreme Court decided to review the case. Though New York City argued for the constitutionality of its old ordinance to the District Court and the Court of Appeals, it also changed its rules to permit petitioners to transport guns to homes and ranges outside city limits, asserting the case ought to be declared resolved.
“One might have thought that the City, having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal,” Alito wrote.
Despite the changes, lawyers for the New York State Rifle Association argued the case was still alive because updated restrictions do not provide legal clarity in the event a firearm-licensed citizen would make an elective stop, including using a public restroom or entering a coffee shop, while transporting his unloaded weapon.
Alito agreed with the petitioners’ argument, objecting to the idea the case was resolved.
“In order for this to happen, a case must really be dead, and as noted, that occurs only “‘when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot,” Alito wrote, later adding that if the case were moot, the court could also award damages for deprivation of rights.
Later in his dissent, the conservative justice posed a hypothetical question to the court invoking abortion, asking if the liberal justices would declare a comparable case moot.
“A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” Alito asked.
“Suppose the court, following the precedent set by today’s decision, holds that the case is moot, and suppose that the woman brings a second case challenging the new law on the same ground,” he wrote. “If the State repeals that law and replaces it with one requiring certification by two doctors, would the second suit be moot? And what if the State responds to a third suit by enacting replacement legislation demanding certification by one doctor?”
Alito then presented an argument to say that the state of New York violated the Second Amendment rights of petitioners.
“Petitioners do not claim the right to fire weapons in public places within the City. Instead, they claim they have a right to practice at ranges and competitions outside the City, and neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice,” Alito wrote.
“In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type. 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. And once we granted review in this case, the City’s public safety concerns evaporated. We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern,” Alito continued.
Chief Justice John Roberts joined the court’s liberal minority, Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan, in the decision. Associate Justice Brett Kavanaugh, President Trump’s most recent nominee to the high court, concurred with the majority opinion but said objections raised by conservative justices ought to be noted in future cases.
“This case is not moot. The City violated petitioners’ Second Amendment right, and we should so hold. I would reverse the judgment of the Court of Appeals and remand the case to the District Court to provide appropriate relief. I therefore respectfully dissent,” Alito concluded.
