Alicia Tatone

Sometimes the worst decision the Supreme Court can make is to decide a case at all. The Court appears poised to make this mistake in its zeal to expansively interpret the Second Amendment, and in the process will make a further error: insisting that only courts, and not legislatures or executive officials, can remedy constitutional violations.

Last spring, the Supreme Court granted certiorari to New York State Rifle & Pistol Association v. City of New York, and the case will be heard this morning. When the Court granted certiorari, the case involved a New York City regulation that prohibited people with a premises license from transporting their handguns to a second home or a shooting range outside the city.

But the case no longer involves that law, because New York City officials rescinded the regulation the plaintiffs had challenged, and New York State prohibited them from reenacting it. Also last spring, New York City announced a proposal to rescind the regulation and adopt a new one permitting premises owners to carry handguns to their other residences and to shooting ranges outside the city. The City then accepted comments on its proposal, and adopted the new regulation. At the same time, New York State also passed a law that allows premises licensees to transport handguns, specifically to other dwellings, shooting ranges, and shooting competitions.

After the City and state repealed the law that the plaintiffs challenged, there was nothing left for the Supreme Court to do; indeed, the Constitution prevents it from doing anything at all. Article III allows the Court to hear “cases and controversies.” Given the changes in state and City law, there is no longer a case or controversy about whether New York residents can take their handguns to shooting ranges or second homes. New York City and State have allowed them to do that, two times over.

The case has become what’s known as “moot”—there is nothing left for the Court to decide, and there is nothing a judicial decision can provide the plaintiffs. In this case, the plaintiffs sought only injunctive and declaratory relief—that is, a prohibition to ensure that New York City would stop enforcing its law. The plaintiffs did not request monetary damages from any previous harm resulting from the law. And because they requested only that a court stop New York City from enforcing its law, the plaintiffs have received everything they asked for.

The plaintiffs, however, would like the Court to hear the case, perhaps because they expect that the newest justices, Neil Gorsuch and Brett Kavanaugh, will aggressively interpret the Second Amendment and invalidate gun-control legislation. Given that the case is transparently moot, the plaintiffs are relying on an exception known as the “voluntary cessation” rule. The rule allows a court to decide a case that has become moot because a defendant voluntarily ceased its conduct.

But the voluntary-cessation exception exists to prevent defendants from temporarily stopping their conduct, only to restart it once a court dismisses a case for being moot. That’s not a risk here, because New York City and New York State would both have to change their laws again to prevent the plaintiffs from transporting their handguns. While that’s theoretically possible, it would require a change in the law—a much more significant obstacle than a defendant’s mere change of heart, which is what the voluntary-cessation exception is meant to protect against. And it is inappropriate for the Court to presume that the City and state, both government actors, are acting in bad faith and will reverse course to reinstate their previous laws.

In making the argument that their case still be heard, the plaintiffs reveal a worrisome, implicit belief: The courts are the only forum for remedying or stopping unconstitutional conduct. This is not—nor should it be—the case. The political branches (including state legislatures and state executives) can remedy unconstitutional conduct as well; they may even be preferable to courts, given that they are democratically elected and accountable to the people—something the Constitution values.

Under the plaintiffs’ theory of the case, however, courts must continue to decide cases about laws that have since been rescinded or repealed; a case would not be moot even if a government rescinded an unconstitutional law or prohibited an unconstitutional policy, because the government itself voluntarily ceased the conduct.

That logic would spectacularly expand the courts’ authority vis-à-vis the political branches by requiring courts to pronounce on the validity of laws that the political branches repealed. It would mean that courts would be issuing opinions about hypothetical, nonexistent laws.

That is a far cry from the claims to judicial modesty that conservative judges often make. In other cases, conservative judges have rejected constitutional claims by exhorting plaintiffs to “become the heroes in their own stories” by winning their constitutional rights in the political branches. (That particular case involved the constitutional right to marriage equality.) In these cases, judges used the idea that our constitutional system prefers laws to change in the political process rather than in the courts as a reason for courts to avoid declaring state laws unconstitutional.

In the marriage-equality cases, however, the political branches had refused to give the plaintiffs what they sought—a right to marriage equality. In this case, the political branches have relented, and allowed the plaintiffs to take their handguns to their second homes and to shooting ranges. The plaintiffs, in other words, have already won their Second Amendment right. The political branches have made them heroes, and it is not the job of the courts to say, “Let’s decide the case anyway and be legends.”

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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