The Second Amendment Will Soon Be Back at the Supreme Court

The Supreme Court should and will take a Second Amendment case very soon, and Senator Sheldon Whitehouse (D., R.I.) won’t be happy. When Whitehouse basically threatened the Supreme Court over a recent Second Amendment case, perhaps he didn’t realize that he could get what he wanted and still lose the fight. This week, although the Court dismissed as moot the case that had Whitehouse in a tizzy, the Court is reviewing a slew of Second Amendment petitions that he’ll like even less.

The mooted case, New York State Rifle and Pistol Association v. NYC, was a challenge to NYC’s bizarre travel restrictions for permitted gun owners and the first Second Amendment case the Court had taken in a decade. After the justices agreed to hear the case, New York City and New York state, fearing a decision that would strengthen the Second Amendment, moved quickly to change the law to keep the Court from issuing a decision. This is a form of strategic mooting, because courts generally don’t hear controversies that are no longer “live” because there is no relief a court can give if the law has already been changed. And while strategic mooting is fairly common, it’s an unsavory form of gamesmanship with the Court’s docket.

New York City asked that the case be removed from the docket, and Whitehouse, joined by four other senators, wrote an infamous amicus brief urging the Court to dismiss the case. Whitehouse didn’t just confine his arguments to the legal question of mootness. He came within a hair’s breadth of outright accusing the Court’s Republican‐​appointed justices as being shills for the NRA and the Federalist Society. His shocking brief closed with what many interpreted as a threat to restructure the Court if the justices didn’t go along with his request. “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

On Monday, the justices, by a 6–3 vote, dismissed the case as moot. The same day, they added ten held‐​over Second Amendment petitions to the Court’s calendar. These are petitions that were being held pending the Court’s decision in the New York case. The justices will discuss these petitions Friday, with decisions likely to be released on Monday.

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