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Photo: Lorie Shaull, Creative Commons license 2.0

How do we love guns? Let us count the ways.

Gun rights are up at the Supreme Court this term and the Court's decision could gut gun control laws all around the United States.

On Monday, SCOTUS held oral arguments in NY State Rifle v. City of New York, a case that could upend gun control laws nationwide.

As if we didn't already have enough terrible shit to worry about.


Here's the deal.

New York, New York, used to have a law that essentially blocked people from transporting their guns without first getting permission from the NYPD. The New York State Rifle Association and a trio of gun owners challenged the law, but lost at the trial court and appellate levels. Then, last January, the Supreme Court decided it would take up the case. After that, in an attempt to moot the case and avoid a potentially sweeping SCOTUS ruling, the city changed the law and the state passed another law prohibiting its enforcement.

As Amy Howe noted over at SCOTUSblog,

The ban was so restrictive that it seemed unlikely to survive Supreme Court review; the only real question seemed to be whether the justices would issue a narrow ruling that only addressed the constitutionality of the city's ban, or whether they might instead say more about the broader right to have a gun outside the home. But now it's not clear whether the justices will reach the merits of the case at all, because the city has ended the ban.

The NY State Rifle Association is represented by former George W. Bush Solicitor General Paul Clement. The Trump regime also stepped in to attack the law, with Jeffrey Wall from Solicitor General Noel Francisco's office arguing as a friend of the guns.

The Court has decided just two landmark Second Amendment cases in its history -- and both of them happened under the watchful eye of Chief Justice John Roberts.

Prior to 2008, the Supreme Court had never ruled on whether gun ownership was a collective right or an individual right. Then, in 2008, the Court took up DC v. Heller, a challenge to the District of Columbia's handgun ban and firearms storage requirements. In Heller, SCOTUS ruled for the first time ever that the Second Amendment protects an individual's right to bear arms and keep guns in their home. Three years later, the Court took up McDonald v. Chicago, where it extended Heller to apply to state and local governments, as well as the federal government.

Since 2008, gun violence deaths have climbed 17%. But we're totally sure that's just a coincidence.

NY State Rifle Association v. New York is the first gun control case the Court has taken up since McDonald -- and the Supreme Court has veered even further to the right since then. In particular, the replacement of Anthony Kennedy with Kegs Kavanaugh is a scary development indeed for gun control advocates.

Justice Kennedy was always a conservative. People who say otherwise are wrong. But, because he was reasonable on issues like LGBTQ rights, he earned himself a reputation as a swing vote. Brett Kavanaugh, on the other hand, would only be a swing vote in a society where the options range from far right to extreme right.

In particular, it seems Kennedy may have stopped the Court from going even further right in Heller and McDonald. Before he died, retired Supreme Court Justice John Paul Stephens said that Kennedy had asked for "some important changes" to Antonin Scalia's draft opinion before he would sign on to it.

Kegs, however, appears to be an extreme gun rights enthusiast. Back in 2010, when Justice ILIKEBEER was on the DC Circuit, he was on a panel of judges hearing Heller v. DC Part Deux, a Second Amendment challenge to DC's ban on assault weapons and firearms registration. The law was upheld by a 2-1 vote, with Kavanaugh dissenting.

In his dissent, Kavanaugh argued that "both DC's ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller." Kegs opined that semi-automatic assault rifles should receive the same constitutional protection as handguns and hunting rifles. Further, he argued that even firearms registration requirements fell afoul of the Second Amendment.

Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory record keeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual.

Other conservative members of the Court have also indicated their eagerness to strike down more gun control laws. In 2018, Clarence Thomas dissented from a cert denial in Silvester v. Becerra, a case that had upheld California's 10-day waiting period. In his dissent, Thomas decried the judiciary's "general failure to afford the Second Amendment the respect due an enumerated constitutional right" and claimed, all evidence to the contrary, that "the Second Amendment is a disfavored right in this Court." This dissent was released less than a week after the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Florida.

So the situation is ... not great.

But the Court might decide to punt.

The best hope for gun control advocates is that the Supreme Court will decide not to reach the merits of the case at all. One of the main debates at oral argument was whether or not subsequent developments have rendered the case moot.

Remember when we talked about Article III standing and all of Trump's emoluments? Mootness is a similar concept. Article III of the US Constitution gives federal courts jurisdiction over actual "cases or controversies." Judges are supposed to decide real cases, not hypothetical ones. If the circumstances have changed so that a court ruling won't fix the alleged wrong, the Court should rule that the case is moot and decline to get to the merits.

Also, "moot" is a lot of fun to say. Moot, moot, moot.

A lot of things have happened since this suit was originally filed. After the Court decided to hear the case, both New York City and New York State worked to make the law unenforceable.

Much of the oral argument from both sides focused on whether or not the case at hand is moot. NYC argues that, because it changed the law to allow the things the plaintiffs wanted to do in the lawsuit, this is no longer a live case.

At least two of the Court's conservative justices seemed interested in NYC's mootness argument. At oral argument, Justices Roberts and Gorsuch asked several questions of NYC's counsel about whether there could be any potential consequences for people who may have violated the old provisions of the law. This could mean that one or both of them is considering a mootness ruling. Alito seemed clearly on the side of more guns. Kavanaugh, like Clarence Thomas, remained silent.

If the Court doesn't punt, this could be very bad.

With nine Supreme Court justices, the magic number is 5.

The liberal justices can't get to five on their own, which means that at least one justice in the clan of right-wing men has to switch sides for justice to prevail. And in this case, that seems incredibly unlikely. A decision that the case is moot is probably the best possible outcome for gun control advocates, considering the current makeup of the Court.

If SCOTUS gets to the merits of this case and adopts arguments akin to those made by Kegs in Heller II or Thomas in Silvester, all manner of gun control laws could be invalidated. Gun control experts and advocates have warned that an even more extreme view of the Second Amendment could be disastrous for public safety.

"This approach to the Second Amendment would treat gun rights as an absolute right, frozen in history, and not subject to any restrictions as public safety demands," said Hannah Shearer, litigation director at the Giffords Law Center to Prevent Gun Violence.

So, umm, cross your fingers for a mootness finding.

And if, like us, you've been worried about RBG's health, just know that she is back on the bench and in fine form.

She's a -- what's the word? -- pistol! And this is your OPEN THREAD.

[Transcript / Docket / Thomas Dissent / Heller II / AP / SCOTUSblog / Photo: Lorie Shaull, Creative Commons license 2.0]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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