On April 27, the Supreme Court issued its long-awaited decision in its only Second Amendment case of the term. But what some thought would be a blockbuster decision instead landed with a dull thud; six Justices voted to dismiss the case as “moot” (i.e., no longer presenting a live controversy). Why? Well, after the Court agreed to decide the case, the gun law at issue was repealed. Since the Court cannot adjudge the constitutionality of a law that is no longer on the books, the case was dead. Justice Kavanaugh penned a short concurrence, and Justice Alito authored a long, curious, and (at times) odd dissent. Here’s an in-depth analysis of the Court’s decision and the doctrine of “mootness.”
Suppose you’re taking a true-false quiz in school. The first question reads:
1. Is the following statement true or false:
This isn’t a typo; there’s really just a blank there. Your teacher left out the statement whose truthfulness you’re supposed to ascertain. There should be a sentence written in the space between the prompt and the answer choices, but there isn’t. So can you answer the question? Of course not; the crux of the entire question is missing.
Now suppose you’re an Associate Justice on the U.S. Supreme Court. Before you is this case, New York State Rifle & Pistol Ass’n (NYSRPA) v. City of New York, New York. It asks you to decide the following question of law:
1. True or false—the following statute violates the Second Amendment:
Again, there’s nothing but a blank; no statement. There’s no law there whose constitutionality you must determine. So can you decide this case? That is, can you decide whether a nonexistent law violates the Second Amendment? Of course not; the crux of the case is missing. It’s no longer a “case” in that sense; there’s no longer a legal controversy or an open question of law. All you can do is dismiss the case.
This analogy describes the legal doctrine of “mootness.” Sometimes, after an appellate court has agreed to decide a case (but before it decides it), the case loses it’s “caseyness”; it no longer presents a live controversy. For example, one of the parties may die, rendering any further legal proceedings unnecessary. Another example (what happened here in NYSRPA) is when there is a change in the law at issue.
New York City in 2001 passed a local ordinance that, inter alia, banned firearm owners with “premises licenses”—a license to keep a gun in one’s home for self-defense—from transporting their firearms to shooting ranges outside city limits. In 2013, NYSRPA (among others) challenged this ordinance under the Second Amendment, since they wanted to be able to take their firearms to shooting ranges outside the city. At first, they didn’t get very far; New York successfully defended its ordinance in the district and appeals courts. But after the Supreme Court agreed to take up the case, New York did a 180. Perhaps seeing dim prospects for success, the city amended the ordinance exactly how NYSRPA wanted—to allow the transport of firearms to shooting ranges in surrounding counties. And shortly thereafter, the New York State Legislature passed a law that banned any city ordinances like New York City’s original transport prohibition. Thus, the very law at issue was erased during litigation before the Supreme Court.
The dynamic of the entire case shifted. Now the question that was front and center was whether the case was even a live controversy—not whether the ordinance violated the Second Amendment. New York (and several gun-control groups) pounced, filing briefs urging the Court to dismiss the case as moot. Some were respectful, arguing for mootness from a distinctively legal standpoint. Others were not; five Democratic Senators wrote a brief threatening the Court, telling it to dismiss the case as moot or else face “restructur[ing] in order to reduce” the supposed “influence of politics” on the Court. On the other side of the aisle, gun-rights groups who had once seen an opportunity to expand Second Amendment protections suddenly found themselves clinging by a thread. To keep the case alive, NYSRPA argued (1) that the amended city ordinance still violated the Second Amendment and (2) that those charged under the old ordinance should be able to sue for damages.
Per Curiam Decision
In a succinct, two-page order, six Justices agreed that the case no longer presented a live controversy (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh (in concurrence)). They began by recapping the procedural history, including the repeal of the original ordinance. Since that “is the precise relief that [NYSRPA] requested,” no further proceedings are needed and the case is dead, they held.
The per curiam then addressed NYSRPA’s two auxiliary arguments to keep the case alive. First, the Court cannot yet opine on whether the new ordinance violates the Second Amendment; the lower courts must have the first chance. As the Court explained in Lewis v. Continental Bank Corp. (1990):
“[I]n instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.”
And as for the damages argument, again the lower courts must get the first opportunity to decide whether parties injured under the old ordinance can file damages actions. Thus, the Court dismissed the case as moot and left the Second Circuit Court of Appeals to decide the questions about damages and the new ordinance.
Justice Kavanaugh’s Concurrence
In a one-paragraph opinion, Justice Kavanaugh agreed that the case was no longer alive and that the lower courts should have the first opportunity to answer NYSRPA’s auxiliary questions. However, he agreed with a part of the dissent that suggested lower courts have incorrectly applied one of the Supreme Court’s recent Second Amendment cases (discussed later). Kavanaugh encouraged his colleagues “to address that issue soon.” His wish might come true fairly soon; as of this writing, ten or so Second Amendment cases are awaiting action from the Court.
Justice Alito’s Dissent
Justice Alito—joined by Justices Thomas and Gorsuch—dissented. His opinion was 31 pages long, more than ten times the length of the per curiam and concurrence combined.
After canvassing the case’s history, Alito turned to the Court’s decision. “This case is not moot,” he tersely said. For a case to be moot, it must be “impossible for a court to grant any effectual relief whatever to the prevailing party,” he wrote (quoting Knox v. Service Employees (2012)). In other words, if the parties in a case “have a concrete interest, however small, in the outcome of the litigation, the case is not moot” (Chafin v. Chafin (2013)). Alito argued that this high bar has not been met here because NYSRPA did not get all the relief it requested (even if it got “most” of it).
Alito offered a few arguments to support this conclusion. First, NYSRPA claimed that the Second Amendment allows “unrestricted access” to out-of-state gun ranges. Obviously the old city ordinance didn’t grant such “unrestricted access.” But the new ordinance, NYSRPA asserted, doesn’t either. It allows police officers to stop and charge gun-toting residents if their travel between the city and the shooting range isn’t “uninterrupted.” So, Alito argued, NYSRPA hasn’t gotten all the relief it requested (since New York still hasn’t granted “unrestricted access”) and thus the case isn’t moot.
Take that argument as you will. His second argument against mootness, however, is not a good one. It goes like this: “If this Court were to hold, as petitioners request and as I believe we should, that [the old ordinance] violated [NYSRPA’s] Second Amendment right, the District Court on remand could (and probably should) award damages.” And since NYSRPA has raised the damages issue (despite doing so well into litigation), it hasn’t obtained all the relief it seeks. So, the argument goes, the case isn’t moot. In other words, Alito is saying that if the old ordinance violated the Second Amendment, then NYSRPA can seek damages; and if NYSRPA can seek damages, then the case isn’t moot.
This argument is circular. For the old ordinance to violate the Second Amendment, a majority of the Court would have to make that finding—and this necessarily implies that the case isn’t moot. Put differently: Why isn’t the case moot? Because NYSRPA can seek damages. Why can NYSRPA seek damages? Because the case isn’t moot. Why isn’t the case moot? You get the point; on and on it goes ad infinitum. The first premise of Alito’s argument assumes the conclusion, making the two mutually dependent on each other. Moreover, recall what the per curiam did with the damages issue: remand it to the lower court to determine whether a damages action can proceed, leaving the door open for NYSRPA to pursue its damages claims.
Nonetheless, Alito at last turned to the merits of the case (since he would conclude that the case isn’t moot). It is “not a close question” whether the old city ordinance violated the Second Amendment, he argued; it clearly did under District of Columbia v. Heller (2008). Heller held that the Second Amendment includes the right to own a firearm in one’s home for self-defense. Alito argued that this right has a “necessary concomitant”—something that naturally accompanies it: “the right to take a gun outside the home for certain purposes.” After all, the Second Amendment does include the phrase “to keep and bear arms.” And as the Heller Court noted, “to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.” So, Alito continued, bearing arms under Heller includes the ability to transport a firearm to a gun range. Thus, the old New York ordinance violated the Second Amendment because it expressly forbade exactly that.
In addition, Alito took issue with the standard of review used by the lower courts. When New York tried to justify its old ordinance as a public safety measure, the courts below claimed to employ “heightened scrutiny.” But in reality, Alito asserted, they accepted the city’s arguments “with no serious probing”; their assessment was neither “heightened” nor even really “scrutiny.” More concerning, Alito said, is that NYSRPA suggested this review strategy is “representative of the way Heller has been treated in the lower courts” across the board. “If that is true, there is cause for concern,” he concluded. (This is the (only) portion of Alito’s dissent that Kavanaugh agreed with.)
Reasonable people can disagree about which parts of Alito’s dissent are correct. Regardless, it did raise an intriguing question about the Court’s decision and its consequences for the mootness doctrine. Here, New York passed an ordinance in 2001 that likely violated the Second Amendment. Once that ordinance faced the guillotine at the Supreme Court, New York replaced it with a weaker one. This weaker ordinance may still violate the Second Amendment, as reasonable people will debate, but perhaps not as egregiously or blatantly as did the first ordinance. So if this second ordinance again winds up before the Supreme Court, what happens if New York again replaces it with an even weaker ordinance? Is the second ordinance’s case now moot? On the one hand, some Justices—let’s call them “strict mooters”—might answer yes. But if so, what’s to stop New York from engaging in this litigatory scheme over and over again? Must the Court wait until it’s impossible for New York to enact a weaker ordinance and then decide the constitutionality of whatever “weakest” ordinance is left on the books? On the other hand, other Justices—let’s call them “flexible mooters”—might answer no. Alito’s dissent appears to place him squarely within the “flexible mooters” camp. He used as analogies a newspaper ordinance that may violate the First Amendment and an abortion-doctor-certification law that may violate due process or the right to privacy. “Mootness does not require” several rounds of litigation on weaker and weaker versions of a statute, he said. “A challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged.” Ultimately, time will tell whether the strict mooters or the flexible mooters will carry the day.