Gun control advocates breathed a sigh of relief on Monday when the Supreme Court issued an unsigned opinion dismissing its most significant Second Amendment case in a decade, New York State Rifle & Pistol Association v. City of New York, because the law in question had been rescinded. If the Court had chosen to decide the case, it would most likely have expanded the “right to bear arms” and called into question gun control laws across the country.
But the result was a reprieve, not a victory.
In a lengthy dissent by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, the court’s conservatives drew a roadmap of how to gut gun regulations in America.
While the bulk of Alito’s dissent is devoted to why this case is not moot—in particular, because the law wasn’t completely rescinded and because the plaintiffs could still pursue damages in their case—the most important part is where Alito considers whether “the City ordinance violated the Second Amendment.” He concludes that “this is not a close question.”
The challenged law, before it was rescinded, prohibited New York City residents with a “premises permit,” which allows gun possession in the home, to take their guns to shooting ranges outside New York City.
Even gun control advocates have admitted that the law was a bit odd. Is it really more dangerous to allow gun owners—who have to pass a variety of tests in order to obtain a premises permit—to drive to a shooting range in suburban Westchester County than one in Staten Island?
That’s why New York rescinded the law as soon as the Supreme Court decided to review it; they knew it was shaky.
But Alito went much, much further than that.
“According to at least three justices, if a gun control law wasn’t around in 1791, it’s unconstitutional. That would mean an end to assault weapon bans, gun magazine limits and much more. ”
The crucial lines are these: “Once it is recognized that the right at issue is a concomitant of the same right recognized in Heller”—the 2008 case which first held that the Second Amendment applies to individual gun owners—“it became incumbent on the City to justify the restrictions its rule imposes, but the City has not done so. It points to no evidence of laws in force around the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits.”
In other words, according to at least three justices of the Supreme Court, if a gun control law in force today wasn’t around in 1791, it’s unconstitutional.
That principle would mean the end of assault weapon bans (since, of course, assault weapons didn’t exist in 1791), gun magazine limits (for the same reason), the attempts to close “gun show loopholes” (same), systems for registration of firearms, and basically any law that was written for the twenty-first century rather than the eighteenth.
Indeed, the only gun control laws that Alito said could be constitutional, following Heller, are “laws banning firearms from certain sensitive locations and prohibiting possession by felons and other dangerous individuals.”
This is exactly the result that gun control advocates feared: a broad precedent that would strike hundreds of laws off the books.
And the only reason it didn’t happen today is that Chief Justice John Roberts and Justice Brett Kavanaugh joined with the Court’s liberals in deciding this particular case was moot.
Now, does that mean that Roberts and Kavanaugh just saved gun control?
First, as we’ve seen many times during his tenure, Roberts is a judicial conservative. Often that overlaps with being a political conservative, as in cases about voting rights, immigration, and abortion. But often it does not, as when he voted to save the Affordable Care Act, to defer to administrative agencies, and to preserve digital privacy rights.
In each of those cases, Chief Justice Roberts voted “conservatively” in terms of his judicial philosophy, refusing to break precedent or to be seen as usurping legislative power. Arguably, that same philosophy has led to some politically conservative results, as when Roberts deferred to Donald Trump’s twisted rationales for his so-called “travel ban.”
Here, however, it led to a substantively liberal result: throwing out a gun case that would likely have expanded the Second Amendment’s reach.
But that wasn’t because of Chief Justice Roberts’ views on guns and the Constitution. It’s because of his views on the kinds of cases the Supreme Court should decide, and whether it should wade into tempestuous political waters without good cause to do so.
In other words, the next time a case like this comes before it, the Court will be just as likely to expand the Second Amendment as it was today.
Indeed, in a short separate opinion, Justice Kavanaugh said that he can’t wait for that to happen. While he agreed with the Court’s majority that this particular case is moot, he hastened to add that “I also agree with Justice Alito’s general analysis” and “share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald [a subsequent gun case from 2010]. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
So, no, Kavanaugh didn’t just save gun control, and neither did Roberts. To the contrary, Kavanaugh went out of his way to deny any such thing.
This case may be moot, but the next one won’t be. Thanks to unwavering conservative support of hard-right judicial nominees at all levels of the federal system, gun control laws still have big red targets painted on their backs.