The plaintiff in this case is the New York branch of the National Rifle Association, and three of its members who said the restrictions on transport violated their Second Amendment rights. When the Court granted review, bells rang on both sides of the gun wars, because the justices had not agreed to hear a Second Amendment case in almost a decade. In 2008, the Court held, 5–4, that the Second Amendment protects a personal “right to bear arms”; two years later, it held, again 5–4, that this right applied against both federal and state governments. After that, the Court refused all pleas to consider gun cases, leaving the lower courts to test different local gun laws. By and large, local and state gun laws—licensing, background checks, assault-weapon and large-capacity-magazine bans—survived those challenges.
But then Justice Brett Kavanaugh replaced Justice Anthony Kennedy. In an opinion while on the D.C. Circuit, Kavanaugh had proposed a radical approach that might shred most local gun laws. The New York case, it was thought, might be the one in which the new post-Trump Court revealed its Second Amendment cards.
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New York’s state and city governments went into overdrive. The City repealed the offending transportation limits; the state legislature passed a statute banning the City from ever adopting them again. New York then told the Court the changes rendered the case “moot”—that is, in effect over, because the plaintiffs had what they’d asked for. The Court is supposed to dismiss moot cases, because there is no more “case or controversy” for the Court to resolve.
The gun-rights advocates were incensed. This response from the Cato Institute in an amicus brief was typical: “Americans deserve clarity when it comes to abuses of their fundamental rights. This Court should not reward, in any way, Gotham’s bad faith attempt to keep the law unclear at the expense of the people.”
“Moot for real or mootness as gamesmanship?” the legendary Supreme Court correspondent Linda Greenhouse asked in The New York Times. “Moot as in ‘nothing left to argue about ever again’ or moot as an example of ‘voluntary cessation’ that can be renounced at some future date?”
The Court is scheduled to decide whether to go forward with the case on its first conference, on October 1.
Enter five Democratic senators, who on August 12 filed an unusual (shall we say) amicus brief. Written by Senator Sheldon Whitehouse of Rhode Island, the brief pointed out what everyone already knew—that the plaintiffs care less about out-of-state gun ranges in New York and more about “a [Court] majority’s help with their political ‘project.’” (The other senators are Richard Blumenthal of Connecticut, Dick Durbin of Illinois, Kirsten Gillibrand of New York, and Mazie Hirono of Hawaii.)