Harvard Law Review NYSRPA Case Comment

It’s fair to say that when the Supreme Court granted cert in NYSRPA, I did not expect that the eventual Harvard Law Review Case Comment about the decision would appear under the header “Article III—Justiciability—Mootness.” But, of course, that’s just how the case ended up.

Still, the Comment, which was just published online (and is uncredited, per HLR convention), does more than ably unpack the mootness decision—it provides a nice glimpse at the major methodological debates still looming for the Second Amendment. Here’s the first paragraph:

After the grand but doctrinally vacant pronouncements of District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court rejected nearly every Second Amendment petition for certiorari for a decade and let the lower federal and state courts turn Heller’s theory into doctrine. Last Term, the Court finally agreed to hear another Second Amendment case. But, in New York State Rifle & Pistol Ass’n v. City of New York (NYSRPA), the Court held the Second Amendment dispute moot after the City and State of New York amended the challenged licensing scheme. The concurrence and dissent suggest that at least four Justices are interested in changing the lower courts’ two-step application of Heller when the Court does reach the merits of a Second Amendment case. But it would be a mistake for the Court to disrupt this dominant mode of review in the lower courts. NYSRPA shows why the lower court test is preferable to a purely historical and textual one and that the Court can enforce the Second Amendment without treating it as a privileged right.

I’m fully in agreement—Darrell and I (along with Eric Ruben of SMU) filed an amicus brief in support of neither side in NYSRPA defending the two-part test against an alternative grounded solely in “text, history, and tradition.”

I also think that the Comment is right to point out that there could well be “much to see and criticize in the lower courts’ application of heightened scrutiny” in certain cases. (pg. 448) Especially given the volume of Second Amendment cases, lower courts will make mistakes—and appellate courts, including the Supreme Court, will have a role to play in correcting those errors. (Consider a case like Caetano.)

But the Comment is also right that “the Court’s perception that lower courts are hostile to the Second Amendment should not lead it to adopt a malleable and impractical historical test.” (pg. 449) Nelson Lund has made a similar point: “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.” Debates about how that scrutiny should be applied—what interests count, how they must be shown—are likely to be more fruitful and important than attempts to reason by strained analogy from remote historical sources.