Frank Miniter: 2nd Amendment not 'moot' — this is what Supreme Court got wrong on NYC gun law

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Anyone who cherishes their freedom must be shaking their fists at the U.S. Supreme Court right now for ruling Monday that New York State Rifle & Pistol Association v. New York City is “moot.”

This was the first significant Second Amendment case the high court had heard in a decade. Instead of handing down a ruling, a majority of justices took the dodge New York City’s lawyers offered them: They declared that the gun-control laws in question had already been changed by the city and state of New York, and therefore the challenge is made irrelevant.

Justice Samuel Alito’s dissent to this decision is sharp. It begins: “By incorrectly dismissing this case as moot, the court permits our docket to be manipulated in a way that should not be countenanced. Twelve years ago in District of Columbia v. Heller … we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago … established that this right is fully applicable to the states.

ALITO DISSENT BLASTS NYC GUN LAW, AS SUPREME COURT PUNTS ON HIGHLY CHARGED CASE

"Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state and local laws. Most have failed. We have been asked to review many of these decisions, but until this case, we denied all such requests.”

The justices acted despite the “friend-of-the-court” brief last fall in which five U.S. senators, all Democrats, threatened the U.S. Supreme Court by writing: “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.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

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The issue behind this case’s central complaint was that New York City’s police commissioner forbade most licensed gun owners (those with “premises permits”) from taking their guns to ranges and second homes outside city limits.

After the U.S. Supreme Court accepted this case, New York City repealed this rule, though it gave itself a lot of discretion in how to apply it; for example, it’s unclear whether individuals, when traveling out of the city with a licensed gun, can even stop to fill their gas tank.

Now, the high court has punted this case back to lower courts. Incredibly, they are doing this at a time when some lower courts have been all but disregarding the U.S. Supreme Court’s previous landmark Second Amendment decisions — District of Columbia v. Heller (2008) and McDonald v. Chicago (2010).

Alito argues that the central part of this case, New York City’s “premises license,” is still very much a live constitutional issue.

In a concurring opinion to this decision, Justice Brett Kavanaugh, said as much: “I share Justice Alito's concern that some federal and state courts may not be properly applying Heller and McDonald. The court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the court.”

Alito argues that the central part of this case, New York City’s “premises license,” is still very much a live constitutional issue. He shows this by outlining what a New York City resident must endure to hopefully receive a premises license enabling them to shoot at a range, not to carry concealed.

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First of all, the New York City Police Department will only issue a premises license to someone the bureaucracy thinks has a “good moral character.” Then, New York City “residents must submit their applications in-person at One Police Plaza in Manhattan. An applicant must pay a fee of $431.50,” writes Justice Alito.

In this lengthy process, an applicant must undergo a police investigation and provide detailed information on past employment, criminal history, health questions and more. The gauntlet goes on and on in a bureaucratic pummeling that the city can use to deny an applicant for any whim or asserted rationale whatsoever.

“The NYPD may revoke a premises license at any time, including for such things as laminating the license. And a license expires after three years, so a licensee who wants to continue to possess a gun in the home after that time must file a renewal application,” writes Alito.

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Clearly, New York City is not treating the Second Amendment as a right that’s specifically protected by the U.S. Bill of Rights. The city is treating it as a legal privilege they can restrict or outright take away whenever and however it likes.

That, by itself, is an affront to the Supreme Court's Heller and McDonald decisions, yet the justices called it “moot.”

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