Yesterday, the Supreme Court heard oral argument in NYS Rifle and Pistol Association v. City of New York. Certiorari was granted in February 2019. After the grant, New York City repealed the challenged provisions of the premise license law. Subsequently, New York State enacted a law that made it impossible for New York City to reenact the challenged provisions. I discuss the background of this case in a Federalist Society SCOTUSBrief video.
Prior to oral argument, I predicted that the Supreme Court would dismiss the case as moot. My prediction has not changed after reading the transcript.
No "Collateral Consequences"
Chief Justice Roberts will likely cast the deciding vote. He did not ask any questions of Paul Clement, who represented the plaintiffs, or of Deputy Solicitor General Jeff Wall. He asked a few questions of Richard Dearing, who represented New York City.
First, Roberts asked if "there [is] any way in which any violation" of the repealed ordinance in the past "could prejudice a gun owner" in the future? Dearing replied, "Not that I can think of. The city is committed to to closing the book on that old rule and we're not going to take it into effect." Second, Roberts followed up, and asked, "Is there any way in which a finding of mootness would prejudice further options available to the Petitioners in this case, for example, seeking damages?" Dearing didn't think so. He stated that the Plaintiffs "never made any allegations related to damages" prior to the grant of certiorari. Dearing also stated that the Plaintiffs had never asserted that "past violations" could prejudice them in the future.
At that point, Justice Gorsuch interjected. He asked if there would be any "collateral consequences to anyone for violating the city's prior ban, any kind of collateral consequences." Dearing replied that there wouldn't be.
Chief Justice Roberts asked one final question. Would anyone be "prejudiced in any way, for example, with respect to qualifying for a premises license under the new law" based on violating the old law." That is, would violating the old law justify the denial of a new license? Dearing replied that no would be prejudiced. Roberts asked no further questions.
...I think New York persuaded the Chief that there are no possible "collateral consequences" for past violations, and this controversy is no longer live. Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed to agree with New York. There are at least five votes for this position. What about the newest member of the Court? Justice Kavanaugh was silent. He did not say a word.
DIG or Decide?
If a majority of the Court agrees that the case is moot, there are two options going forward. First, the Court could simply dismiss the petition as improvidently granted at the December 6, 2019 conference. (This move is known as a DIG.) We would learn of the dismissal with the next release of orders, probably on December 9, 2019. These sorts of dismissals are unsigned. Justices can register their dissents from the DIG.
The upshot of this approach is that the Court could add another Second Amendment case to its docket, with an argument scheduled for March or April. Indeed, there are many gun cases that are fully briefed, that have been hanging in SCOTUS purgatory for months. There was obviously some appetite to weigh in on the Second Amendment, after nearly a decade of silence following McDonald v. Chicago. A quick DIG would allow the Justices to address another live case now.
Second, the Court could issue a signed opinion to explain why the controversy is moot. That decision would take some time to prepare, and would likely occasion a written dissent...
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