Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius)

The U.S. Supreme Court just released its decision, April 27, 2020, in the New York “Gun Transport” case: New York State Rifle & Pistol Association, Inc., vs. Petitioners V. City Of New York, 590 U.S ____ (2020), and it isn’t good. You can read the decision here on the SCOTUS website.

WHAT WAS THE NEW YORK CITY GUN TRANSPORT CASE ABOUT?

“Petitioners [NYSRPA] sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim. See 883 F. 3d 45 (CA2 2018). We granted certiorari.  586 U. S. ___ (2019).  After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.”

New York City changed its law, fearing the Supreme Court would find the law unconstitutional. The last thing anti-Second Amendment forces want is a high Court opinion that strengthens the Second Amendment. The City’s gambit paid off. In a 6 to 3 vote, the Supreme Court held that, since the City changed the old rule, the case is moot, because Petitioners can now lawfully transport their handgun to a second home or shooting range outside the City. But can they really? What will New York City do in the future to restrict the fundamental right of the people to keep and bear arms? This will almost certainly embolden New York City Mayor Bill DeBlasio and New York Governor Andrew Cuomo.

Cuomo has threatened to destroy the Second Amendment to the Nation many times in the past. In a previous AQ article, titled, “Andrew Cuomo Seeks To Impose New York’s Restrictive Gun Laws On The Entire Nation,” published on our site, on March 31, 2019, we pointed out that,

“In January of 2019 . . . Cuomo announced plans . . .  to increase gun control within the first 100 days of the new legislative session,’ and he chortled, ‘New York already has the strongest gun safety laws in the nation, and we are taking additional steps to make our laws even stronger and keep our communities, and our schools, safe. Together, we will pass this common sense legislation and send a clear message to Washington that gun violence has no place in our state or nation. . . .’ ‘[t]he rest of the country should take up legislation similar to the Safe Act gun control. . . . ’”

The high Court’s gun transport case decision gives Cuomo and others who seek to destroy the Second Amendment” confidence that the high Court will be doing nothing to rein them in.

HOW DID INDIVIDUAL JUSTICES VOTE?

As you may have suspected, the liberal wing of the Court, along with Chief Justice Roberts, voted in favor of the City, to dismiss the case. Justices Alito, Thomas, and Gorsuch dissented.

Curiously and disturbingly, Trump’s second nominee to the high Court, Brett Kavanaugh, agreed with Chief Justice Roberts and the liberal wing, but filed a “Concurring Opinion” acknowledging that Justice Alito’s concern over some State and federal Court mishandling of Heller and McDonald warrants high Court review but that the Court can do so in other cases pending before the Court.

The high Court remanded the case to the New York Court of Appeals but only to discuss Petitioner’s argument for damages. But the issue of damages is of no consequence. It is injunctive relief the NYSRPA wanted. Anti-Constitutional forces in government consistently, unconscionably, and contemptuously enact laws designed to infringe the core of the Second Amendment without regard to the Heller and McDonald rulings. The NYSRPA wanted and expected the high Court to stop this. The gun transport case would have operated as a good test case. But the Court’s majority folded. What will New York City do in the future to restrict the fundamental right of the people to keep and bear arms?

JUSTICE ALITO’S DISSENTING OPINION

The Majority decided the case in a two-page decision. Justice Alito, who penned the McDonald decision, wrote a thirty-one page Dissent joined by Justices Thomas and Gorsuch. In his opening remarks Justice Alito began his Dissent with a blanket rebuke of the Majority’s Decision. He says:

“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.  Twelve years ago in District of Columbia v. Heller, 554 U. S. 570 (2008), we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago, 561 U. S. 742 (2010), established that this right is fully applicable to the States. Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed. We have been asked to review many of these decisions, but until this case, we denied all such requests. On January 22, 2019, we granted review to consider the constitutionality of a New York City ordinance that burdened the right recognized in Heller.

WHAT IS REALLY GOING ON HERE?

The Supreme Court Majority did not want to deal with the Second Amendment since that means having to accept Heller and McDonald precedents. The liberal wing of the Court, especially, never wants to do this, and won’t.

Of course, the liberal wing never agreed with or accepted the Heller and McDonald rulings, and has consistently gone along with government actions to infringe the Second Amendment as if Heller and McDonald rulings never existed.

But, Justices Alito, Thomas, and Gorsuch have had enough.

Alito made clear New York City’s rescission of the transport gun case rule simply amounts to City’s acknowledging the unconstitutionality of the rule and that the high Court would overturn it.

Justice Alito said, in closing:

“In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type.  The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City’s public safety concerns evaporated. We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern. This case is not moot. The City violated petitioners’ Second Amendment right, and we should so hold.  I would reverse the judgment of the Court of Appeals and remand the case to the District Court to provide appropriate relief.”

The liberal wing of the Court consistently legislates from the Bench. They abhor the Second Amendment and if they were confident that they could overturn Heller and McDonald, they would do so in a heartbeat. At the moment, they cannot.

Chief Justice Robert’s decision comes as no surprise. Justice Kavanaugh’s vote does, however. His concurring opinion reflects that his heart and mind are with Alito, Thomas, and Gorsuch, but he went along with Roberts and the liberal wing of the Court anyway. Why did he do this? To say that the Court will have other opportunities to deal with unlawful attacks on Heller and McDonald doesn’t explain why he would pass on dealing with an outright attack on those seminal cases with a clear opportunity to do so with the gun transport case before him.  That is a “cop-out” pure and simple and Kavanaugh, a careful, perspicacious legal thinker and writer must be called out for an obvious act of frailty, unbefitting him.

Is Kavanaugh so really afraid the Radical Left will impeach him, as they have threatened? Does he think they will make good their threat if Biden defeats Trump in the upcoming General Election and if the Democrats not only hold onto the House, but win a majority in the Senate, too? Is the New York City gun transport case just an anomaly or does it signal what we may expect from Kavanaugh in the future: currying favor with the Radical Left and betraying intellectual honesty to halt an impeachment proceeding and trial?

On January 24, 2019 AQ wrote an extensive article on the New York gun transport case that, at the time, the high Court agreed to take up. Mayor DeBlasio and The New York Times were fearful and furious. You may read our article, “U.S. Supreme Court To Hear New York Gun Case; Mainstream Media Visibly Worried.”

In a forthcoming article AQ will analyze Alito’s dissenting opinion, along with Kavanaugh’s odd, evasive concurring opinion. We will deal with the issue of mootness which deserves serious attention; and will examine how dangerous this decision is for the entire Nation.