WASHINGTON (CN) — Trying to knock the teeth out of the first gun-rights case to go before the Supreme Court in nearly a decade, a lawyer for New York City told the justices Monday that the law being challenged is no longer enforced, thus mooting the issue.
New York City Law Department attorney Richard Dearing said in oral arguments this morning that the city was “committed to closing the book” on old rules restricting citizens’ rights to travel with their firearms across state lines.
“We would not undertake any prosecution or action now based on that or any other violation of the repealed law at this point,” Dearing said.
Dearing also emphasized that no one who violated the old law will be prejudiced in their future attempts to license a firearm.
Under the now-abandoned handgun-licensing scheme, residents with premises licenses could not carry their weapons across state lines.
Several handgun owners filed suit, invoking the dormant commerce clause of the U.S. Constitution as well as public-safety concerns, saying the law made for unpracticed shooters and unattended weapons.
Though the Second Circuit upheld dismissal of the case, the city amended the rule after the Supreme Court agreed to hear the case in October. The new rules allow residents to transport their handguns to a second residence or shooting range or competition outside of the city.
Dearing contends that the change renders the litigation, but the handgun owners are still skeptical. They argue the city still has not changed its view on the Second Amendment’s implications for travel, thus entitling them to a proclamation or injunction.
The city was insistent at oral arguments Monday, however, that no one found in violation of the prior ban would face consequences from the city.
“I’m making that representation to this court on the record on behalf of the city of New York,” Dearing said. “If there were other potential acts of loaded guns, violent acts, that’s different. But the repealed provisions of the old law we will not prosecute anyone for.”
Arguing for New York City handgun owners Monday, Kirkland & Ellis Attorney Paul Clement said the text, history and tradition of the Second Amendment make it clear that the city’s rules are still unconstitutional. The Second Amendment protects gun owners’ rights that are not strictly limited to an individual’s premises, he said.
Clement also said history is on his side, noting that the Framers did not contemplate regulations that limit where a firearm can be discharged or where training could take place in establishing the rights of a well-regulated militia.
Justice Ruth Bader Ginsburg, returning to the bench for the first time since being treated at Johns Hopkins Hospital with a fever last week, asked Clement if there was additional relief to be sought from litigation.
Clement said gun owners were still entitled to a declaration from the city that the ban was unconstitutional. These did not constitute traditional damages, which the petitioners were not seeking, he said.
“But we would also be entitled to an injunction that did three things: one, prohibit future enforcement of the transportation ban; second, prevent the city from taking past conduct in violation of the ban into account in licensing decisions; and third, an injunction that safeguards our right to transport meaningfully, such that it wouldn’t be limited to continuous and uninterrupted transport,” Clement said.
Deputy Solicitor General Jeffrey Wall, arguing in support of New York City firearm owners Monday, said litigation was still alive.
“You have a scheme that expressly allows you to consider the conduct. You don’t have any acknowledgement from the city that its former conduct was unconstitutional, and you have a representation that comes, as Mr. Clement said in his letter, at the 11th and a half hour,” Wall said. “On those facts, could you say, ‘We’re not going to take a look at the city’s representation?’ You could. That is not our theory. Our theory is that money could change hands here and they’d be entitled to that money if they prevailed on the merits.”
Wall also said the District Court in New York could still award damages to the city handgun owners.
“Here, there is evidence in the record of economic harm,” Wall said. “If they get a declaration on the merits that they’re right as a matter of the Second Amendment, there is no barrier to their receiving an award of damages from a court.”
But Justice Elena Kagan noted that the gun owners had not asked for relief in their complaint. The government’s late-breaking entry in the case had injected these damages late in the court’s granting of the case, she said, and the government had specifically rejected every other theory of why the case was not moot, she said.
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