The Covid-19 pandemic is altering the legal landscape. Emergency orders in many states are facing mounting pressure from civil libertarians and interested litigants. One challenge went all the way to the Supreme Court, but was defused before the justices had to weigh in. There’s no doubt that the Supreme Court’s operations are affected by the virus; it’s already extended briefing deadlines and announced plans to hold arguments telephonically. I wonder if the Court’s jurisprudence might be affected too. Will or should the Court take into account what’s been happening across the country as it decides important constitutional questions in the cases already argued this Term? What affect, if any, might Covid play in the Court’s consideration of New York State Rifle & Pistol Association?
Consider the context. The Supreme Court has already weighed in once on the substance of actions taken in response to the public health crisis. In what I have to imagine is Chief Justice Roberts’s nightmare scenario, the Court split along traditional conservative-liberal lines a case called Republican National Committee v. Democratic National Committee concerning modifications to Wisconsin’s election last Tuesday. The five justices appointed by Republican presidents sided with the RNC; the four justices appointed by Democratic presidents sided with the DNC. In the midst of the pandemic, I have to think the justices would be especially concerned with maintaining public trust in the Supreme Court. They know they will likely be asked to wade into debates about the scope of state police powers in an emergency, with questions concerning divisive and acrimonious issues like abortion, religious exercise, and—most relevant to this blog—guns.
There are three potential effects I can see this having on NYSRPA: (1) incentivizing a broader ruling that would directly impact gun store closure and related orders, (2) encouraging a narrower ruling that would avoid controversy, or (3) none at all.
In the first basket, a majority might see what’s happening with closure orders and decide they need to send a message that the Second Amendment is protected outside the home as much as inside and that citizens don’t need government permission to exercise their right. This could have a big effect on pending or prospective challenges. For example, a recently filed lawsuit in Georgia asks for an injunction to keep the state from enforcing its requirement that those who carry firearms in public first obtain a license because the state is not processing new applications. (The original complaint asks for either an order directing the state to process applications or to suspend the carry license requirement; the motion for a temporary restraining order appears to me to seek only an order suspending the license requirement.) A broad NYSRPA ruling would make that claim stronger.
In the second basket, a majority might see the slew of controversial opinions it may have to issue, at a time of worldwide uncertainty and on the eve of a presidential election, and think it best to hold its powder for when it can’t avoid such questions. NYSRPA, as we’ve discussed on this blog repeatedly, provides an easy out: the case appears to no longer present a live case or controversy. A majority could decide the case on that ground, grant cert in another Second Amendment case to show it’s not ducking the question altogether, and leave for June 2021 a ruling on the merits about the scope of the Second Amendment.
Finally, in the third basket, the pandemic might have no formal effect. The justices are human, so I have a hard time believing these background conditions will have no effect, but it’s possible a majority sets aside what’s happening outside and decides the case based on precedent and ordinary legal reasoning. (I’m not quite legal realist enough to believe those traditional legal materials don’t matter at all.) It’s also possible that the virus may have no effect because the opinion could be largely written already. Perhaps the Court is just waiting on a dissenting or concurring opinion before publishing the decision.
If I was a betting person (and, to be clear, I very much am, just not with respect to SCOTUS), I think option (2) is the most likely, followed by (3) and then (1). Of course, I could be wildly wrong. And it’s possible we’ll never know—the Court may not say it was affected by the pandemic, even if the opinion reads like it may be influenced by current events. In any case, I do expect at least one of the opinions (a dissenting one, if my prior guess is right) to mention what’s happening as an indication that some officials are treating the Second Amendment like a second class right.