Month: March 2020

By LKB

As previously reported, I had a ringside seat for yesterday’s SCOTUS arguments, and Dan posted some of my quick observations from the argument. Now that I have had a bit more time to digest things (as well as some food and sleep), I want to go into a bit more detail on how I perceived how the argument went down.

Mootness

As has been widely reported, most of the time spent during oral argument involved addressing whether New York City’s last-minute maneuver (i.e., after the Supreme Court granted cert, the City and the State changed the law in a transparent and brazen attempt to evade appellate review) rendered the case at bar moot.

Mootness is a legal doctrine that provides that when there is no longer any actual dispute between the parties for the court to decide, an appellate court should dismiss the case rather than enter advisory or hypothetical opinions. However, it is a complicated area of law that has many exceptions, many of which were discussed yesterday.

Contrary to how the media (and unfortunately some Chicken Littles in the firearms commentariat) have tried to spin the amount of time at argument that was spent discussing mootness, that fact doesn’t really mean anything. In appellate advocacy, you go into oral argument with an outline of points you would like to make…usually a very small subset of the arguments made in your briefs.

However, you are not in control of things, and your argument goes where the most active questioners on the Court want to take it. This is especially true at the Supreme Court, where the van Moltke maxim that “no battle plan survives first contact” is typically the case.

In NYSR&PA, the anti-2A wing of the Court (Ginsburg, Breyer, Kagen and Sotomayor) are all known as active questioners at oral argument, as opposed to Thomas, who almost never asks anything at all, and Roberts and Kavanaugh, who tend to ask very few.

As a result, the liberal wing of the Court dominated the time at oral argument with their questioning. However, just because they asked the most questions (and thus made the attorneys spend most of their argument answering them), that simply does not signify anything.

So, how will the Court decide the mootness issue? As I expected, Ginsburg and Sotomayor were more than willing to swallow NYC’s brazen tactical maneuver. While I thought that Kagen and Breyer might have some shred of integrity on this procedural issue (blessing this kind of post-cert gamesmanship would set a horrid precedent for all sorts of cases – especially many that those two justices typically care about), that possibility evaporated at oral argument. Both of those justices were clearly on board with letting the City get away with it in order to avoid a potential expansion of Heller.

On the other hand, both Alito and Gorsuch did not mince words about how they felt about NYC’s chicanery. Gorsuch acidly remarked on NYC’s “Herculean efforts” to evade Supreme Court review after cert was granted. Thomas and Kavanaugh asked no questions, but their positions in past cases leave me with little doubt that they are not going to vote to hold the case moot.

That leaves the deciding vote on the mootness issue with Roberts. Early media reports were crowing that Roberts’ questions indicated that he was leaning toward finding the case moot. From what I saw (and confirmed in the transcript), I simply did not see that.

The Chief Justice asked only two questions, one of which was a bit of a trap that adduced a concession from NYC’s counsel that dismissing the case as moot would prejudice the plaintiffs’ ability to seek damages for violations of their rights.  If anything, I think Roberts’ questions cut the other way on which way he may be leaning.

Additionally, if Roberts was going to wimp out on the mootness issue, I suspect he would have already done so. The Court had several earlier opportunities to dismiss the case as moot, and if he was so inclined, Roberts could have voted with the liberals and done so. He did not.

Of course, as the Obamacare decision illustrated, Roberts can certainly be a squish, and thus he could well sell us out on this issue. However, nothing I saw at oral argument supported the spin the media put on it.

Indeed, I suspect the media is pushing the “it’s going to be dismissed as moot” narrative for its own purposes (e.g., to be able to decry a Roberts “change of position” on mootness as evidence that the court is broken and needs to be packed, etc.)

LKB prediction: 5-4 denial of the motion to dismiss the case as moot. However, if we see a cert grant in the next few weeks on another 2A case — there are several being held due to the grant of cert in NYSR&PA — then all bets are off.

The Merits of the Case

Because of the near-monopolization of the oral argument by the liberal wing of the Court on the mootness issue, very little time was spent on the merits (absolutely none on the Commerce Clause or Right to Travel issues). However, there were a few interesting moments.

The highlight of the arguments on the merits was a spectacular trap that Justice Alito sprang on the attorney for the City. Questioning him on NYC’s change of its laws, he asked, “Are people in New York less safe now as a result of the new city and state laws than they were before?”

Clearly surprised at this seemingly out-of-the-blue question, counsel responded that they were not less safe. Alito then pressed him to concede that there was thus no actual basis for the City to claim that the transportation ban was essential to public safety.

Counsel attempted to tap dance away from that, claiming the restriction accorded with the history of acceptable regulations under the Second Amendment.

Alito then pressed counsel on whether a total ban on transportation by premises license holders could possibly be constitutional. The City’s position – and Second Circuit law – “cabin” Heller to possession of a weapon in the home.

I expected him to respond “yes” and then just take the heat. Instead, he admitted that such a complete ban would violate the Second Amendment.

Justice Alito then pounced: “If that’s what it means, you’re conceding that the Second Amendment protects the possession of a firearm outside the home under at least some circumstances?” Counsel again tried to tap dance away, but again conceded that was a “fair way to look at it.“

So much for the City’s argument that Heller applies only to possession inside the home.

Counsel for both NYSR&PA and the Solicitor General pushed application of the “Text, History, and Tradition” test as the applicable standard, rather than strict scrutiny. In what I took as a transparent shot at Justice Kavanaugh, Justice Sotomayor remarked that she viewed the “Text, History, and Tradition” test as a “made-up standard.”

Needless to say, the fact that standards for decision – or even new constitutional rights – might have been “made up” by judges has hardly concerned Sotomayor in the past.

At another point, she remarked that questions about whether certain types of weapons were covered by the Second Amendment was not before the Court yet. I might be reading too much into it, but I took her comment and the way she asked it as a recognition that regardless of what happens in this case, she knows that the votes are there to take other 2A cases.

Near the end of the argument, Justice Ginsburg (who looked very frail, but nevertheless was engaged and asked a number of probative questions in both of Monday’s arguments) asked the City’s counsel whether, because the transportation ban forbade taking a licensed gun to a second house (whether in or out of the city), that would require a license holder who wished to be armed at home to acquire two guns — one for each house — and leave one gun at an unoccupied location at all times, which she seemed to intimate would be less safe than transporting one gun between them.

To me, she plainly was teasing an argument that perhaps the NYC transportation ban could be struck based on intermediate scrutiny, perhaps to try and tempt Roberts into reversing on narrower grounds. (Query why she would do this if she thinks Roberts might squish on mootness.)

At one point in the argument, Justice Breyer made a comment that indicated that he still does not accept that Heller was correctly decided…which caused his neighbor, Justice Thomas, to lean over and engage him in a whispered conversation.

My read on the merits: nothing has changed, and things are as they have been. There is a wing of the Court (Ginsburg, Breyer, Kagen, Sotomayor) that is adamantly anti-2A and would gladly reverse Heller if they had the chance. There are four votes (Thomas, Alito, Gorsuch, and Kavanaugh) who go the other way, and would likely expand Heller significantly.

Roberts is also at least nominally in this camp, but the question remains whether he will succumb to the Beltway social, media, and political pressure as he did in the Obamacare decision.

My prediction: if they reach the merits, 5-4 to reverse.  Smart money would be that Roberts will write the opinion, but I’ll go out on a limb and predict that he’ll assign it to Kavanaugh, and will adopt the “Text, History, and Tradition” test for 2A cases. Concurrence by Thomas, Alito, and Gorsuch, pushing for strict scrutiny and an end to lower court gamesmanship on 2A cases.

We’ll see . . . .