DOJ's Noel Francisco Wants to Argue in Disputed Gun Case the Justices Might Not Hear
The U.S. Justice Department said it has not taken a position on whether the New York case is now moot after the city adopted new regulations. The justices haven't set an argument date.
August 13, 2019 at 12:27 PM
5 minute read
The Trump administration’s U.S. Justice Department on Monday asked the U.S. Supreme Court for argument time to support a challenge to New York City gun restrictions, even though the government has not yet taken a position on whether the case is now moot, as the city contends.
U.S. Solicitor General Noel Francisco, in his request for argument time, said the government has a “substantial interest in the preservation of the right of the people to keep and bear arms.” The government also has a “substantial interest” in defending federal laws regulating firearms, Francisco said.
“The United States is thus well positioned to address the reconciliation of the constitutional right to keep and bear arms with the governmental interest in regulating firearms,” Francisco told the Supreme Court. He is requesting 10 minutes of the 30 minutes allotted to the challengers in New York State Rifle & Pistol Association v. City of New York.
The gun rights association, represented by Kirkland & Ellis partner Paul Clement, has challenged the constitutionality of city rules barring the transport of firearms to shooting ranges and second homes outside the city’s limits. The U.S. Court of Appeals for the Second Circuit upheld New York’s rules.
The Supreme Court had not taken a firearms case in nearly a decade before agreeing in January to hear the New York dispute. Court observers have suggested that any ruling in favor of the challengers could more broadly expand Second Amendment rights.
In late July, lawyers for New York informed the Supreme Court that a new state law and changes to the city rules “give petitioners everything they sought” in their complaint.
“Both expressly authorize New York City residents who hold city-issued premises licenses to transport their handguns to the ‘only places’ petitioners sought to establish the ability to take them: out-of-city shooting ranges and second home,” Richard Dearing, counsel for the city, told the justices.
Clement, arguing for the gun association, accused the city of “post-certiorari maneuvers” designed to prevent the justices from reviewing the challenge. An argument date has not yet been set for the case.
Francisco told the court that “the United States has not yet taken a position” on whether New York’s action on its gun rules has brought an end to the case.
The Supreme Court on Monday received more than a dozen amicus briefs in support of the city. Nearly two dozen briefs supporting the gun association were filed earlier.
In one of the amicus briefs, Roberto Gonzalez of Paul, Weiss, Rifkind, Wharton & Garrison advocated for former New York Police Commissioner William Bratton.
“Petitioners are not coy in announcing that they desire this court to step far beyond the narrow relief that they sued for—the right to transport their handguns to second homes and cities outside the city, a right which they already freely enjoy—and instead declare a sweeping reinterpretation and unprecedented expansion of the Second Amendment that would afford broad possession and carry rights even in the most crowded and chaotic city in America,” Gonzalez wrote.
Hogan Lovells partner Ira Feinberg in New York submitted a brief on behalf of March for Our Lives that urged the justices to adhere to its promise that the Second Amendment allows local governments to devise solutions to social problems “that suit local needs and values.”
Sidley Austin’s Jeffrey Green, representing public health researchers and social scientists, argued that the challengers’ “text, history and tradition” test for Second Amendment gun regulations ignores public safety evidence.
Avi Weitzman, a New York-based partner at Gibson, Dunn & Crutcher, filed an amicus brief backing New York on behalf of 139 U.S. House members. The brief argued the test the Second Circuit employed in reviewing the firearm rules sufficiently protected individual liberties.
McDermott Will & Emery’s Michael Kimberly, representing federal court scholars from law schools including Columbia and New York University, argued there’e nothing left for the Supreme Court to resolve after New York amended its gun rules in favor of the challengers.
“State law now grants petitioners all that they demanded in federal court. The claims in petitioners’ complaint are therefore moot,” Kimberly wrote. “No federal court has authority to offer an opinion on constitutional law without a live case or controversy under Article III.”
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