The law no longer exists, but Republicans hope the case will help them fight gun control efforts anyway.
The Supreme Court considered Monday whether to dismiss the first gun rights case it has heard in nearly 10 years, an outcome that would come as a huge relief to gun-control advocates.
The justices heard arguments in a dispute over New York City restrictions on transporting licensed, locked and unloaded guns outside the city limits. New York has dropped its transport ban, but only after the high court decided in January to hear the case.
Gun-rights groups are hoping a conservative majority fortified by two appointees of Donald Trump, Justices Neil Gorsuch and Brett Kavanaugh, would use the case to expand on landmark decisions from a decade ago.
But the court spent most of the hour trying to determine whether anything is left of the case brought by the National Rifle Association’s New York affiliate and three city residents.
Chief Justice John Roberts sought assurances from the city’s lawyer that New York police would not refuse to issue gun licenses to people who have may have violated the old law.
In urging the justices to get rid of the case, Richard Dearing, the city’s lawyer, said repeatedly that the city would not prosecute people for or deny licenses based on past violations.
The four liberal justices made clear they are likely to vote for dismissal. “So what’s left of this case? Petitioners have gotten all the relief they sought,” said Justice Ruth Bader Ginsburg, on the bench for the first time since a recent two-night hospital stay.
Paul Clement, representing the gun owners, said his clients are entitled to an order from a federal court, not just the representations of the city’s lawyer. In one example, Clement said it is unclear whether a gun owner headed to a shooting range could stop for coffee or a bathroom break without breaking the law.
His argument appeared to win favor with at least two conservative justices, Samuel Alito and Gorsuch. When Dearing said coffee and rest stops are permissible, they asked about whether a gun owner would be at risk by stopping at his mother’s house.
Dearing replied he was less sure about other kinds of stops, but that people could challenge such a restriction in a new case.
Justice Clarence Thomas, who has lamented the court’s reluctance to take on gun cases, asked no questions, as is his custom. Kavanaugh also was silent throughout the arguments.
For years, the NRA and its allies had tried to get the court to say more about gun rights, even as mass shootings may have caused the justices to shy away from taking on new disputes over gun limits.
The lawsuit in New York began as a challenge to the city's prohibition on carrying a licensed, locked, and unloaded handgun outside the city limits, either to a shooting range or a second home.
Lower courts upheld the regulation, but the Supreme Court’s decision in January to step into the case signaled a revived interest in gun rights.
Officials at both the city and state level scrambled to find a way to remove the case from the justices’ grasp. Not only did the city change its regulation to allow licensed gun owners to transport their weapons to locations outside New York’s five boroughs, but the state enacted a law barring cities from imposing the challenged restrictions.
“There is no case or controversy because New York City has repealed the ordinance and the New York state Legislature has acted to make sure it remains repealed,” said Jonathan Lowy, chief counsel and vice president of the gun control group Brady’s legal action project.
But those moves failed to get the court to dismiss the case.
The city does contend that what it calls its “former rule” did not violate the Constitution. But that would seem to be a tough sell given the court’s makeup, with Gorsuch and, in particular, Kavanaugh on the court.
Kavanaugh voted in dissent when his federal appeals court upheld the District of Columbia’s ban on semi-automatic rifles.
“Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right," Kavanaugh wrote in 2011.
Gun-control advocates worry that the court could adopt Kavanaugh’s legal rationale, potentially putting at risk regulations about who can carry guns in public, limits on large-capacity ammunition magazines and perhaps even restrictions on gun ownership by convicted criminals, including people convicted of domestic violence.
“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.
Reflecting the possible high stakes, more than three dozen supporting legal briefs have been filed. The Trump administration, 25 mainly Republican states, and 120 members of the House of Representatives are on the side of the gun owners.
A dozen Democratic-led states, 139 House lawmakers, and five Democratic senators are among the city’s backers.
A decision is expected by late June.