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Supreme Court debates whether gun restrictions case is still worth considering

  • Author: Robert Barnes, The Washington Post
  • Updated: December 2, 2019
  • Published December 2, 2019

WASHINGTON - The Supreme Court heard its first Second Amendment case in a decade Monday, but there were indications that the justices may no longer think they have a case to decide.

The controversy involves now-rescinded restrictions unique to New York City about whether citizens who have a license to keep a gun in their homes may transport them to firing ranges outside of the city or to a second home in the state.

After the Supreme Court took the case to decide whether to those restrictions violated the constitutional right to keep and bear arms, the city got rid of them and the state of New York passed a law that would keep them from being re-enacted.

The unstated purpose might have been to make the case moot, and deny conservatives on the court to expand the right to carry a gun outside the home.

The liberal justices said Monday that the court no longer had a live controversy before it, a requirement for making such a decision.

"What's left of the case?" Justice Ruth Bader Ginsburg asked Paul Clement, the Washington lawyer representing the New York State Rifle and Pistol Association, which brought the action.

Justice Sonia Sotomayor said New York has "thrown in the towel" and the plaintiffs now are "asking us to opine on a law that's not on the books anymore."

The court denied New York's earlier plea to dismiss the case as moot. It said it would consider the question after argument.

Clement said the case was still alive - the new restrictions don't make clear whether his clients could be harmed for making a stop for coffee or to use the restroom while transporting their unloaded weapons to a shooting range, for instance - and he said they might be hurt in applying for licenses because of past violations of the old law.

But Chief Justice John Roberts, the most closely watched conservative justice in the case, asked questions only of New York's lawyer, Richard Dearing.

Would the plaintiffs be disadvantaged in any way if the case was declared moot, Roberts asked, such as seeking damages for having their rights harmed, or being prosecuted for past infractions.

Dearing said that would not happen.

Other conservatives on the court did not seem so satisfied. Justices Samuel Alito and Neil Gorsuch looked for ways the case might still be worthy of a decision on its merits, and seemed clear they would find the old restrictions unconstitutional.

Justice Brett Kavanaugh did not ask a question nor did Justice Clarence Thomas, as is the latter's custom.

In the past, Thomas, joined by Gorsuch, has criticized the court for not taking more cases in order to build out the right to individual gun ownership the Supreme Court recognized in District of Columbia v. Heller. Lower courts have mostly said the decision allows state and local gun control measures if they can be defended as protecting the public’s safety.