Supreme Court Dodges the Second Amendment

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The New York Sun

The decision of the Supreme Court to dodge the latest case on gun rights invites the question: Where is Mr. Bumble when we need him? The aptly named antagonist is the Charles Dickens character who, upon being told he was responsible for the actions of his wife, uttered one of the most famous — and profound — formulations in the history of the law. “If the law supposes that,” he declared, “the law is an ass . . . ”

What the Supreme Court just supposed is that it couldn’t rule on a law prohibiting persons in New York City from carrying a legally owned gun to an out-of-town range or residence from a range or residence in town. That these are the inches of freedom for which New Yorkers are forced to go all the way to the Supreme Court to fight is itself a scandal in a country whose Constitution protects the right to keep and bear arms.

Yet no sooner did the Supreme Court agree to hear their case than the legislators at New York changed the law to give what the Supreme Court characterized this morning as “the precise relief that petitioners requested” in their “prayer for relief.” In fact, it wasn’t even a figment of the “precise relief” sought by the plaintiffs, led by the New York State Rifle and Pistol Association.

The precise relief the plaintiffs wanted was a review by the Supreme Court that would restore, to quote their petition for a writ of certiorari, “the rigor of the test that secures numerous individual rights.” And would “underscore” that the Court “meant what it said” in the Heller and McDonald gun rights cases. They wanted the court to vouchsafe their rights. Instead, they got a case of Supreme Court Dodgeball.

It’s not our intention here to dispute the importance of the cases and controversies clauses of the Constitution. The clauses are the principal limit on the power of the judicial branch, confining it to deciding actual disputes (and denying it the power of issuing merely advisory opinions). If New York repealed the law being challenged, the court majority apparently reasoned, what case could be left?

Enough that three of the justices thought the court should go ahead and decide the matter. The majority didn’t issue a signed opinion, but dissenters — Justices Thomas, Alito, and Gorsuch — did. It was a humdinger, written by Justice Alito. “By incorrectly dismissing this case as moot,” he wrote, “the Court permits our docket to be manipulated in a way that should not be countenanced.”

“One might have thought,” wrote Justice Alito, a former federal prosecutor in New Jersey, that New York City, “having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case.”

“Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.” In other words, at least three of the justice were on to the mockery to which the majority of the court has just bowed.

The Wall Street Journal in tomorrow’s paper calls what the majority did an “enormous abdication.” It notes that Senator Whitehouse of Rhode Island and four other Democrats filed a brief “threatening the Justices,” as the Journal put it, if they didn’t drop the case. “Perhaps,” the senators wrote, “the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

The good news is that the conservative dissenters may well understate the sympathy among the justices for the New York plaintiffs. Justice Kavanaugh filed an opinion that concurred with the majority’s mootness dodge but shared the concerns of the dissenters on the more substantive points. He thinks the court should return to the subject soon. That makes four for certiorari. So the Chief Justice might yet have to stand up.

The New York Sun

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