Kristin Keehan and Stephen Miller, Cozen O'Connor

The Constitution permits judges to adjudicate only actual, ongoing cases or controversies. A case can become "moot," even on appeal, when the issues litigated are no longer in dispute—for example, when a challenged law is repealed. However, there are exceptions to the mootness doctrine. For example, a government entity's voluntary cessation of challenged activity will only result in a dismissal for mootness if there is no reasonable expectation that the challenged violation will resume. That is the issue in New York State Rifle and Pistol Association v. City of New York, a case currently before the U.S. Supreme Court.

Several gun owners in New York City took aim at a city regulation that was voided by state law shortly after the Supreme Court agreed to hear the challenge. Under the old New York City law, a premises licensee was permitted to remove his handgun from his home only for transportation to and from authorized shooting ranges located within the city. Petitioners alleged that New York City's ban on transportation of their handguns to shooting ranges outside the city violated their Second Amendment right to bear arms, as well as the commerce clause and the due process clause. Two lower courts rejected their challenge, but the Supreme Court agreed to hear their case in January 2019.

Shortly after certiorari was granted, the law changed in two major respects. First, the city amended its regulation and expressly permitted licensees to transport their handguns to shooting ranges outside of New York City so long as the transportation was "continuous and uninterrupted." Second, in July 2019, the state of New York amended its laws to permit licensees to transport their handguns "directly" between two locations in which they are permitted to possess their weapons. Thus, by July 2019, the original city regulation in dispute had been significantly amended and superseded by an amended state law.

The city promptly requested that case be dismissed as moot. The Supreme Court denied the request and instructed all parties to address mootness during oral argument on Dec. 2, 2019.

The issue of mootness dominated the oral argument. Petitioners argued that the case was still ripe for review because they did not receive everything they wanted by virtue of the new state law. Petitioners specifically argued that, had they been successful in the lower courts, they would have received a declaration that the law was unconstitutional, as well as an injunction that would: prohibit future enforcement of the transport ban; prevent the city from taking past conduct in violation of the ban into account in licensing decisions; and an injunction that safeguarded petitioners' right to meaningfully transport such that it would not be limited to continuous and uninterrupted transport.

Petitioners emphasized that under the "continuous and uninterrupted transport" restriction, they could still be prosecuted for stopping for a cup of coffee on their way to a shooting range. Justice Sonia Sotomayor disagreed and stated that the "continuous and uninterrupted transport" restriction has to do with the new law, which wasn't reviewed by the lower court. In the same vein, Justice Ruth Bader Ginsburg emphasized that the new law is a state law, and the state of New York is not a party to the proceeding.

Justice Samuel Alito began the questioning of the city's counsel with a hypothetical: If the petitioners had obtained a judgment in the lower court that the old city law violated the Second Amendment, would the petitioners be in violation of any law if they were to travel with their handgun to a firing range and stop along the way to visit their mother? The city conceded that it was unaware of any law that this behavior would violate. Alito then questioned how the case could be moot if the petitioners did not receive all that they wanted—"They wanted a declaration that the old law was unconstitutional, period."

After inquiring about visits to mothers, the justices asked about the ability to stop for coffee breaks. The city represented that its position is that "reasonably necessary stops," such as coffee breaks, are entirely permissible under the new law. Justice Neil Gorsuch focused in on the "reasonably necessary" language and asked what situations would qualify. The city could not offer a definitive construction and argued that any question about the new state law is not properly before the court and would need to be litigated first in New York's courts.

During oral argument, the petitioners advocated for a standard of review based solely on text, history and tradition in evaluating whether gun restrictions violate the Second Amendment. Justice Elena Kagan characterized this proposed standard as a "sort of made-up new standard." The city argued that, in evaluating such restrictions, the court should look to history. If history does not answer the question before the court, then an assessment and justification of fit under a means of scrutiny should be applied

The court is expected to issue a decision in this case before July 2020.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Kristin A. Keehan is a commercial litigation associate at the firm in New York City. She received her J.D., magna cum laude, from Albany Law School, and her B.A. from the University of Texas at Austin.