26 The Nation. October 28/November 4, 2019
permitted people to carry their guns to shooting ranges through-
out the state, but the city stopped issuing those licenses when it
determined they were being abused.
In 2013, NYS Rifle & Pistol sued New York City over what it
deemed the restrictiveness of the premises license. The Second
Circuit Court of Appeals upheld New York City’s regulation, but
NYS Rifle & Pistol appealed the ruling to the Supreme Court,
citing the kinds of Second Amendment and interstate commerce
concerns the gun lobby does anytime we try to make ourselves a
little bit safer from its products. Apparently, the inability to take
their city gun to their second home is a major constitutional prob-
lem for people who can afford two entire homes but only one gun.
The Supreme Court granted review. Fearing, perhaps what the
conservatives would do with this case, New York City responded
by changing its permitting laws, providing a way for city gun own-
ers to transport their weapons. The city then asked the Supreme
Court to dismiss the case, since the offending regulation was no
longer on the books.
Under normal circumstances, this would be an easy dismissal.
The case is moot, which means there is no longer an active issue
to be decided. All federal courts, including the Supreme Court,
are supposed to deal only with cases and controversies. They don’t
give advisory opinions, and they don’t speculate on what the law
could be in a hypothetical situation. Judges are not philosophers;
they think about how things are, not how things could be.
Instead of dismissing the case, however, the court decided to
hear it. This, again, is where you can see the Kavanaugh effect.
It’s unlikely that Roberts was eager to hear a speculative case on
gun rights. Kennedy wouldn’t have been likely to want this case,
either. In the eight years before he retired, the court didn’t take a
single gun case. The continued existence of this case is an act of
aggression by the hard-right wing of the Supreme Court. It is a
signal that this court is willing to hear any challenge to any gun
regulation whatsoever.
Every person asking politicians to do something about gun
violence in the wake of whatever mass shooting happens between
now and the time I finish this sentence needs to recognize that
the current conservative majority on the Supreme Court has no
intention of letting meaningful gun regulations become law. It’s a
message that Democratic senators heard loud and clear. Senator
Sheldon Whitehouse (D-RI) filed an amicus brief in this case in
support of the New York City regulation. He took the relatively
unprecedented step of threatening the Supreme Court. “The Su-
preme Court is not well. And the people know it,” he wrote in his
brief. “Perhaps the Court can heal itself before the public demands
it be ‘restructured in order to reduce the influence of politics.’ Par-
ticularly on the urgent issue of gun control, a nation desperately
needs it to heal.”
Whitehouse’s brief is likely to do nothing to bring the con-
servative majority to heel. But his solution is the right one. This
Supreme Court term seems to have been designed to show the
country what it’s like when an archconservative majority is in
charge of deciding which cases are heard before the highest court
in the land.
This term is going to be ugly. When it’s over, people are going
to go vote. If people want their votes to matter, if people want
their representatives to have any real ability to fix all that has been
exposed as broken during the Trump era, then restructuring the
Supreme Court should probably be the first agenda item on the
2021 docket. Q
(continued from page 17)
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