After reading the NYSRPA transcript and hearing the insights from numerous veteran Court watchers, I have some initial reactions to oral argument today.
First, as expected, the overwhelming majority of time during argument was spent on the question of mootness. That could have been a function of the vociferousness with which the left-leaning justices attacked the challengers’ position—with Justice Sotomayor taking an especially active role. At one point she told the challengers’ lawyer that “what you’re asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief, and you’re asking us to opine on a law that’s not on the books anymore.” Justice Gorsuch and Justice Alito, on the other hand, appeared to think the case still presented a live controversy. They suggested there was controversy over the new City regulation, which permits “continuous and uninterrupted” travel to the places the challengers sought to go. Justice Kavanaugh did not ask a single question, and the Chief Justice didn’t necessarily indicate which way he was leaning. He did, however, seek assurances from the City that nothing from the old law would have any adverse consequences on petitioners.
Second, there does seem to be an appetite among some conservative justices for a rethinking of the methodology used for deciding Second Amendment cases. Justice Alito, for example, first broached the question in the second half of the argument: “what methodology should the courts use in approaching Second Amendment questions?” Counsel for the City argued that text, history, and tradition are relevant but because they do not often speak with one voice they will likely not be conclusive. Notably, the text, history, and tradition test is the one Justice Kavanaugh himself advocated when he was on the court of appeals. Under his formulation of that test,
Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.
There’s little reason to think he’s changed his mind in the intervening years since he assumed his high court seat.
We’ll have more coverage of the case this week and next as we further digest the transcript more fully. It’s also worth noting that, whatever happens with NYSRPA, there are at least half a dozen cert petitions squarely presenting Second Amendment questions waiting on action from the Court. A dismissal of NYSRPA on mootness grounds certainly makes it more likely the Supreme Court will take one of those other cases.