Opinion: Supreme Court ducks a 2nd Amendment issue — for now

It’s not often that a non-decision is a good decision, but the Supreme Court’s ruling Monday morning that it would not decide a New York City gun case was the right call.

And, in a sense, gun-control advocates dodged a legal bullet — this time. Unfortunately, the conservative members of the court signaled in dissents that they might be looking for a way to recognize a 2nd Amendment right to carry a firearm in public.

The decision arose from a New York City law that barred transport of certain firearms — those licensed for possession in the home — to anyplace other than a handful of shooting ranges in the city. That was an unnecessarily restrictive law, and the gun rights folks sued, eventually pushing the issue to the Supreme Court, which last year accepted the case.

New York, facing the possibility that its law might become a vehicle for the Supreme Court to expand gun rights, changed it to accommodate the complaint in the lawsuit by letting gun owners with so-called “premise permits” transport their weapons — locked and unloaded — out of the city, including to second homes. Then New York told the court that it ought to dismiss the case as moot because the restraint at issue had been removed.

The plaintiffs argued that the case still had legs because the new law meant that if they were transporting a firearm, they couldn’t stop for lunch or a cup of coffee along the way, a notion that New York officials rejected. The plaintiffs also said, in an argument added late in the appeals process, that they might be able to sue the city for damages.

The court, fortunately, disagreed with the stop-for-coffee objection and kicked the damages issue back to the lower courts.

The court’s decision (which agreed with The Times’ editorial board stance) was two pages long. Justice Samuel A. Alito Jr.’s dissent ran for 31 pages. He argued that the case was not moot because the changes in New York’s law did not address all of the plaintiffs’ complaints, and so the court should have ruled on the merits. And he made it clear which way he would have gone.

“If this Court were to hold, as petitioners request and as I believe we should, that” the New York law “violated petitioners’ 2nd Amendment right, the District Court on remand could (and probably should) award damages,” Alito wrote [emphasis added].

The core issue here arises from the court’s 2008 decision in District of Columbia vs. Heller that the 2nd Amendment confers an individual right to possess a firearm in the home for self-protection, a decision that upended decades of precedent that looked at gun rights as collective — militias, for instance — rather than personal.

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“We deal here with the same core Second Amendment right, the right to keep a handgun in the home for self-defense,” Alito wrote in his dissent Monday. If that right exists, then “a necessary concomitant of this right is the right to take a gun outside the home for certain purposes,” including for repairs, to practice at ranges or to sell the firearm.

Which suggests he believes there is a 2nd Amendment right to bear arms outside the home.

This is far from the end of the issue. Justice Brett Kavanaugh, while agreeing with the majority that the New York case was moot, wrote, “I also agree with Justice Alito’s general analysis” and his concern “that some federal and state courts may not be properly applying Heller and McDonald,” a 2010 decision over a Chicago gun control ordinance that said the Heller decision also applied to state and local laws.

“The Court should address that issue soon,” Kavanaugh wrote, “perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

That doesn’t bode well for those who believe that the 2nd Amendment has been misread and misunderstood by members of the Supreme Court who have bought into a revisionist history of what the 2nd Amendment really means.