The New York Times:
A couple of weeks ago, the New York Police Department held an unusual public hearing. Its purpose was to make a Supreme Court case disappear.
In January, the court agreed to hear a Second Amendment challenge to a New York City gun regulation. The city, fearing a loss that would endanger gun control laws across the nation, responded by moving to change the regulation. The idea was to make the case moot.
The move required seeking comments from the public, in writing and at the hearing. Gun rights advocates were not happy.
“This law should not be changed,” Hallet Bruestle wrote in a comment submitted before the hearing. “Not because it is a good law; it is blatantly unconstitutional. No, it should not be changed since this is a clear tactic to try to moot the Scotus case that is specifically looking into this law.”
David Enlow made a similar point. “This is a very transparent attempt,” he wrote, “to move the goal post in the recent Supreme Court case.”
The regulation allows residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city. But it prohibits them from taking their guns to second homes and shooting ranges outside the city, even when the guns are unloaded and locked in containers separate from ammunition.
The city’s proposed changes, likely to take effect in a month or so, would remove those restrictions. Whether they would also end the case is another matter.
Until the Supreme Court agreed to hear the dispute, the city had defended the regulation vigorously and successfully, winning in two lower courts. In inviting public comments on the proposed changes, the Police Department said it continued to believe the regulation “furthers an important public-safety interest.”
Still, the city seems determined to give the plaintiffs — three city residents and the New York State Rifle and Pistol Association — everything they had sued for. The plaintiffs, in turn, do not seem to want to take yes for an answer.
Move the goal posts, make it moot, and avoid an even bigger loss. At least that’s what the controllers in New York are thinking. Never allowing the free exercise of God-given rights is apparently their duty as they see it, regardless of their oath upon swearing in. But the NYT writer, Adam Liptak, expands the discussion in history to one that is near and dear to our hearts.
There is a precedent for the city’s strategy, from a surprising source. The National Rifle Association tried a similar tactic in connection with the 2008 Supreme Court case that ended up revolutionizing Second Amendment law, District of Columbia v. Heller.
The N.R.A. was initially skittish about the case, which was brought by a scrappy group of libertarian lawyers led by Robert A. Levy.
“The N.R.A.’s interference in this process set us back and almost killed the case,” Mr. Levy said in 2007. “It was a very acrimonious relationship.”
As Mr. Levy and his colleagues were persuading a federal appeals court to strike down part of Washington’s tough gun control law, the N.R.A. tried to short-circuit the case.
“The N.R.A.’s next step was to renew its lobbying effort in Congress to repeal the D.C. gun ban,” Mr. Levy wrote in 2008 in a Federalist Society publication. “Ordinarily that would have been a good thing, but not this time.”
“Repealing D.C.’s ban would have rendered the Heller litigation moot,” he wrote. “After all, no one can challenge a law that no longer exists.”
Only an intensive countereffort kept the case alive, Mr. Levy wrote.
“After expending considerable time and energy in the halls of Congress, we were able, with help, to frustrate congressional consideration of the N.R.A.-sponsored bill,” he wrote.
The N.R.A. came around in the end. In the Supreme Court, it supported the suit, working closely with the lawyers who had brought it.
The NRA only “came around” because they couldn’t stop what was happening despite their best efforts. Now this is interesting, yes? The hand-wringers will claim that losing Heller would have been more harmful than any potential gain from a win. Thus, the best strategy to avoid losing is never to enter the field of battle in the first place.
To some extent this has proven to be correct, only in that Heller hasn’t brought much in terms of recognition of the free exercise of gun rights. There are still “may issue” states, and the notion of getting a carry permit in Hawaii is absurd. Heller was so weak that the Supreme Court needed yet another similar to it (i.e., McDonald) that has also been simply ignored by the city of Chicago.
While every Podunk, no-name judge in America seems to think s/he can boss the federal executive around concerning immigration, and the administration kowtows to their demands, the rest of America seems to ignore the courts when it doesn’t like the outcome (e.g., Heller, McDonald).
On the other hand, losing Heller wouldn’t have been that big of a deal in my estimation, first of all because it has been mostly ignored by the lower and appeals courts, and second because states could still decide to honor our God-given RKBA regardless of whether the FedGov saw it the same way. Open carry was allowed in North Carolina before Heller, and South Carolina was a shall issue state before either Heller or McDonald.
The hand-wringers might also claim that the NYT is only reporting this way to aid and assist the downfall of the NRA. The more controversy that can be generated, it might be claimed, the more financial trouble the NRA will have. Or so goes the thinking.
But when the smoke dissipates and you think about this clearly, the writer is only reporting the facts. They are all out there for everyone to see. The NRA either [a] didn’t actually want Heller to be argued before the Supreme Court, or [b] was so afraid of a loss that they took the strategy to stay off of the field of battle – retreat and give up before the battle even starts.
Is this the kind of organization that deserves your money?
Fortunately, it might not be that easy for New York.
The question of whether the changes to the city’s gun regulation will make the case moot is a hard one. The city lost an initial skirmish at the court last month when the justices turned down its request to suspend the filing of briefs while changes to the regulation were considered.
The plaintiffs opposed that request. “To state the obvious, a proposed amendment is not law,” they wrote.
The changes to the regulations will happen soon enough, though, and the Supreme Court will then have to consider whether there is anything left to decide.
The court has said the “voluntary cessation” of government policies does not make cases moot if the government remains free to reinstate them after the cases are dismissed. But formal changes in laws may be a different matter.
To hear the plaintiffs tell it, the court should not reward cynical gamesmanship.
“The proposed rule making,” they wrote, “appears to be the product not of a change of heart, but rather of a carefully calculated effort to frustrate this court’s review.”
This is actually good reporting. I’ve come to expect far less from the NYT.
