Second Amendment Case May Fizzle Out at the Supreme Court

Arguments in the court’s first case on the scope of the amendment in nearly a decade focused on whether the repeal of a New York law made the case moot.

Comments: 146

  1. "The larger question in the case...whether lower courts have been faithfully applying its key precedent, District of Columbia v. Heller" This statement begs the question. No, the larger question is whether that 5-4 Heller decision deserves to be treated with stare decisis respect. The dissent by Justice Stevens was so much more convincing than Justice Scalia's bare majority victory.

  2. @rtk25748 Well we can be pretty sure that it will not get stare decisis respect as two members have already said it was wrongly (too narrowly) decided and 3 others are clearly desperate for a case that will in fact overturn it. Quality of argument is beside the point in poitics lke this while the exercise of perjury (claim a belief in stare decisis) to obtain a seat on the Supreme Court is very much to the point.

  3. @rtk25748 And so 5-4 decisions aren't really decisions at all? (Unless, of course, you agree with the outcome?) An interesting argument to take, and one that (were anyone so foolish as to accept it) you would undoubtedly live to regret...

  4. @rtk25748 - Actually Heller it elf ignored stare decisis. There had be 6 previous SCOTUS decisions that the 2nd Amendment did not give everyone the right to bear arms. The very conservative Chief Justice Warren Burger wrote that anyone who claimed that the 2nd Amendment gives an unfettered individual the right to own a gun "is perpatrating a fraud on the American people."

  5. What the Constitution actually says about the right to bear arms is this: Article I. Section 8: The Congress has the power to call forth the MILITIA to execute the Laws of the Union, and to organize, arm, discipline, and govern the MILITIA (while the States appoint officers and provide training) Article II. Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the MILITIA of the several States, when called into the actual Service of the United States Amendment II: A well-regulated MILITIA, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Were we to follow the letter of the Constitution, gun owners would be members of MILITIAs organized, armed, governed, disciplined, and trained by the President, Congress, and the States. We should do what’s in the Constitution.

  6. @G Pecos To which Merriam-Webster offers this, "2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service."

  7. @G Pecos You are right, IMO. What that would mean in fact is that some states would establish "militias" and open membership to people who wanted to own guns. Other states would limit gun possession to police, deputies and other specific classes. There would be interstate jurisdictional dispute. Is NYS allowed to prevent a member of the TN militia from carrying his weapon? Antigun advocates like Bloomberg would not have to worry that the armed security guards they have for protection would ever have to confront an armed civilian, like a nurse travelling home from an evening shift. She would always be unarmed.

  8. @G Pecos Even the most left wing legal scholar would note the glaring linguistic and legal failings in your argument. The sentence structure of A2 is clear: "the right of the people to keep and bear arms, shall not be infringed." It is not the Militia's rights being protected, it is the Peoples. Nowhere in that sentence that the people must be a part of a Militia to bear arms- only that it is a pressing argument for maintaining the peoples' right to self defense. This legal argument has been debunked countless times. If you have disagreements with 2A, we have an amendment process. But torturing the English language as well as textualism to support your personal politics is not the answer.

  9. The Second Amendment should be strictly observed, allowing anyone to own and transport any weapon of the type available to individuals in 1792, when the Amendment was enacted. Conservatives like to invoke the original meaning of the Constitution. The Founders were obviously not talking about guns that could fire more than about two rounds a minute, the state of the art if you were a skilled reloader. All guns that are more capable than that should be permitted or not at the discretion of local officials.

  10. @Charlie B If we are going to reflect originalism, isn't it also true that the right to privacy, never explicitly stated in the Constitution, should revert exclusively to what is stated? The US government is prohibited from taking over private property to house soldiers. There were no telephones, so no one has any expectation that the government will have to get a warrant to listen in.

  11. @Charlie B Fine, then your freedom of speech only applies to mediums available in 1792 as well. How's that feel?

  12. @ebmem, James, et al - Yes, I agree with you, and I am not upset by your counter-examples. Everything in the Constitution is open to interpretation, as the framers could not have anticipated many aspects of modern life. Our legislators, and then the courts, and finally SCOTUS, put their own spin on what's Constitutional. Although I personally like that we have privacy for consenting adults, same sex marriage, and protected symbolic speech, I can't actually find those things in the Constitution, though a majority of Justices have said that they do. And while I don't like high capacity weapons and unrestricted "speech" by corporations and super-PACs, a different majority of Justices have said that those things are in the Constitution too. For that matter, even the idea that SCOTUS gets to rule on constitutionality isn't there either. John Marshall just made it up, in Marbury vs. Madison.

  13. Maybe the justices, the second amendment absolutists, were thinking that their ruling may allow disgruntled litigants to carry loaded guns into the Supreme Court during argument.

  14. @BK Never fear: they'll permit gun control wherever and whenever their own lives and their families' lives are at risk. As for us plebs, we're on our own.

  15. @BK People who intend to shoot up federal judges aren't dissuaded by laws. That is why the Justices are protected by people with guns.

  16. @Deedub Just like Ronald Reagan - when the Black Panthers took guns to Sacramento. Laws that prohibited open carry and concealed, loaded firearms.

  17. Seriously, what’s left for the USSC going to rule on anyway? There’s not much more territory left on how expansive can guns and gun rights can become ....short of forcibly arming every United States citizen. In half of the states you can; -buy just about any weapon you want....up to and including weapons for mass human killing, with little to zero restriction, and no registration required. -openly carry your firearm.... holstered to your waist or over the shoulder... and take it just about some sort of adult baby blanket. -have it concealed on your person.... to be taken into just about anyplace you want without a metal detector. -Buy just about any form or amount of ammunition you’d like. -purchase such items as ‘bump stocks’ to Increase the firepower. -take your cache state to state... with little to no oversight. The only thing the USSC has never fully rationalized is how all these guns, weapons and firepower, in the hands of disparate citizens across all walks of life, constitutes a ‘well regulated militia’.

  18. @J Paris "short of forcibly arming every United States citizen. " Don't laugh. It's been proposed.

  19. @J Paris You can also murder someone and then claim self-defense as a justification, and then walk away without even being charged with a crime. If you're a cop, you don't even need to come up with an excuse for the murder.

  20. The problem is that the 2nd Amendment says what it says in no uncertain terms. The “A well regulated Militia, being necessary to the security of a free State” clause simply states the rational for the 2nd Amendment. The amendment’s authors wanted to ensure that Americans possessed firearms so they could form militias and fight against tyranny, just as they did in 1776. The amendment does not say the “right of militiamen to keep and bear arms shall not be infringed,” which is what it would say if the intent had been to limit 2nd Amendment rights to members of militias. The 2nd Amendment says “the right of the people to keep and bear arms shall not be infringed.” The phrase “bear arms” means to “carry arms.” Prohibiting the carrying of arms outside households would be an infringement. The danger in pretending that the 2nd Amendment doesn’t say what it clearly says is that we could pretend the entire Bill of Rights doesn’t say what it says. Any gun control law that would male a significant difference has no chance of surviving 2nd Amendment scrutiny. We need to repel or modify the 2nd Amendment. An amendment that permits states but not the federal government to enact gun bans or gun control legislation might stand a chance of ratification Why should Texans care if New Yorkers or Californians want to disarm themselves.

  21. @William Case Nice try but restricting public carrying of firearms in towns and public places never was challenged over two hundred years until recently. The guns that people could keep and bear were initially meant for military muskets for use by militia in defense of communities, to suppress insurgencies, and to join in national defense.

  22. @William Case The second amendment did indeed permit the states to enact gun control legislation. The second amendment and all of the rest of the Bill of Rights were only limitations on the federal government. It was the 14th amendment that empowered the federal government to begin to protect individual rights from encroachment by states.

  23. @William Case The problem with your analysis is that there Is no universal understanding of what the Bill of Rights says. In the case of the First Amendment, we limit free speech by banning “fighting words”, and we expand free speech by including corporations among the protected “speakers”. In the case of the Second Amendment, we ban fully automatic weapons and, for that matter, nuclear weapons. We don’t allow guns in buildings such as the public gallery of the Supreme Court. So “arms” are what the Court says they are, and the supposedly unrestricted right of the people is constrained by laws. And yes, “bear” does mean carry, but it’s also used metaphorically, as in to bear a grudge.

  24. The case appears to be prima facie moot (at least as described in this article.) It would thus be usurping Constitutional legislative authority for the Court to rule on a no-longer-existing case.

  25. @Steve Fankuchen Right, once moot, no federal question remains to be answered and there is no no conflict in the circuit courts.

  26. @Steve Fankuchen - right - and I'm betting this is what they'll do. The GOP majority is highly activist, seeking step by step to reverse the progress of the 20th Century, legal consistency and integrity be damned.

  27. @Steve Fankuchen Well, if it is something that can be described with a Latin Term it MUST be True? Is that the implication?

  28. All the Court needs to do to turn gun control efforts on its head in this case is to hold that 2nd Amendment claims must be analyzed using strict scrutiny instead of the intermediate scrutiny presently applied. If they do so, almost all gun control will fall.

  29. @Brad P That means that the Court would have to place gun rights/ownership on the same level as "suspect classes"-race, national origin, religion and alienage. Do you see this happening? Not I. "All constitutional rights are not created equal" is, I think, true. The Court would have to fudge a lot of legal reasoning to accomplish that. The right to gun ownership under Heller was not total, it was limited to handguns in the home, and, in fact, although I believe omitted from this article, the Court recognized that dangerous weapons could be controlled/regulated. But I agree with your general statement that if the Court were to decide to apply strict scrutiny, gun control would be decided through the narrowest of legal lenses which would likely result in little gun control.

  30. @Kenneth If it's a right, then strict scrutiny has to apply - the justices do not have a choice in this matter. The only way, legally, to avoid this is to repeal the 2nd Amendment.

  31. @Brad P Apparently "strict scrutiny" has nothing to do with the actual wording and clear original purpose of the second amendment.

  32. They are showing their displeasure with the lower courts ignoring the Heller ruling. They are also trying to ward off the numerous subterfuges the DC city council used to ignore the Heller ruling. I except politicians in NYC would try the same tactics as if both bodies were somehow exempt from Supreme Court rulings.

  33. The picture accompanying the WSJ ed on this case yesterday says it all. It showed a banner outside the Supreme Court which stated: "We need the second amendment rights to defend our first amendment rights." At least it's honest. They demand the right to threaten us with lethal force. That's what the deliberate misinterpretation of the second amendment is all about. And they've won. There are now more guns than people in the US. The country is saturated. You'd think they'd sit back and start looking at the data to see if more guns really does mean more safety. But no.

  34. @Mike Holloway If I want to stand up in the town square and offer social commentary which you decide to shut down by beating me up, then yes I have the right to defend my right to speak with lethal force. If I want to peaceably assemble with other persons and petition the government for redress, and you decide that I am so wrong that you decide to break up my assembly by attacking with clubs and chains, then yes I have the right to defend my assembly with lethal force. If you try to stop my assembly to worship with violent assaults, then I have the right to defend my religious practice with lethal force. All of these attempted violations of rights have been made many times in many places and have been made in America. We have the rights that we have because people have armed themselves to defend their rights.

  35. @Mike Holloway The amendment itself makes this meaning clear, "being necessary to the security of a free State," shows the meaning is to allow the people to meet tyranny with force. It was written by men who met tyranny with force and were skeptical of concentrated government power. If you feel threatened by people arming themselves against tyrants that says more about you than them.

  36. Who exactly is the “us” you refer to?

  37. The law apparent had explicit and implicit purposes. Explicitly is was intended to prevent people from carrying weapons around when they had no permits to do so, giving an excuse that they were just transporting them. Implicitly, it was intended to make gun ownership so inconvenient as to effectively discourage people from having them at all. The modified laws clarified the explicit purpose by allowing transport of legally owned guns but only for transport. New York and all cities have a need to restrict how people use and carry guns within their boundaries. Guns may not be safely used in cities, except in well designed and built firing ranges. The popular carrying of weapons in cities has proved to be a public welfare issue since the early 1800's and has typically been illegal. When city dwellers are exposed to guns, it's usually related to crimes and misuse of them. Gun control is a very serious concern, as a result. The problem arises from this where a majority of citizens live in cities and perceive guns to be potentially serious risks to their own welfare. In rural settings, guns are useful instruments and people own even very dangerous models without posing threats to anyone else. When urban voters demand national laws to control guns, they cannot understand that those measures can be seen as unnecessary impositions upon many who pose no threat to them. Currently, a lot of very intelligent and educated urban dwellers openly assert that gun owners are abnormal.

  38. @Casual Observer The people who use guns to do illegal things are not being stopped by the laws against the illegal things, so why would they obey gun laws? It is quite easy to buy heroin in many cities, despite the strong national drug laws urban voters demanded a century ago. During WWII the Polish resistance were manufacturing submachine guns while under occupation so unless you're planning to use tactics beyond those of the SS these laws too will fail.

  39. @Casual Observer I am a highly intelligent gun owner with 5 college degrees who grew up in the Bronx. I’m also a veteran. I’m abnormal? Stop I am not.

  40. I have more than once written in support expanding the 2nd Amendment to the 28th or 29th(?), by inserting in it three critical words, either overlooked or omitted, by the founding fathers: [the bearing of arms] EVERYWHERE AND ALWAYS [will not be infringed]. Such a modified wording of the Bill of Rights is my "I believe" -- the term borrowed from the abridged title of the work of Moses Maimonjdes, written about the year 1185.

  41. @Tuvw Xyz, so I would have to allow you to carry in my home? I don't think so. "Everywhere and always"...don't be ridiculous. That has about as much chance of happening as meaningful gun control.

  42. @Tuvw Xyz It'd only be a matter of time before someone would be in court trying to argue everywhere and always actually means at home and on weekends.

  43. Two points your readers may wish to know when reading your report of this Supreme Court argument: 1. State Constitutions also should be considered. For example, the Delaware State Constitution, at Art.1, § 20, provides: "Right to keep and bear arms. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use." See also Doe v. Wilmington Housing Authority in 2014, and Bridgeville Rifle & Pistol Club v. Small in 2017. 2. Federal law, at 18 U.S. Code § 926A, provides for the lawful interstate transportation of firearms provided they are unloaded and not readily accessible from the passenger compartment.

  44. The lower courts wrongly decided this case and the Supreme Court should do inform them. The bizarre thing about this law was that it prohibited New York gun owners from exercising rights that I had as a Louisianan to transport an unloaded locked gun through New York City under federal law. The law and the lower court decisions were therefore an absurd violation of the right to the equal protection of law if not their second amendment rights.

  45. @KBronson What's absurd about your "second amendment rights" is that you can't see the word "militia".

  46. All cults hold on to their beliefs, whether they’re correct or not. As gun owners point to the Second Amendment to provide them with the right to own AK-47’s, anti-choice Christians define life as beginning at conception. They ignore the Old Testament, Genesis 2:7, which said that after God made man, he "breathed into his nostrils the breath of life and it was then that the man became a living being". Forget changing minds based on interpretations, you’ll never convince people by using facts.

  47. As a proponent of gun control, I have a hard time seeing how this law could possibly be viewed as anything other than antagonistic. The city has no jurisdiction outside of it's city limits. To require that the gun can't be transported outside of the city is totally nonsensical. I'm glad that NYC wised up repealed the law, but the damage may be done. Republicans talk a good game about limited judicial review, but they have no problem crafting that to mean whatever they want. They could easily rule that the law was invalid because it restricted transport or use at all, or that ammunition must be transported separately.

  48. @Milliband I don't think they voted against guns, they just listed a reason for allowing people to own a gun or guns - well armed militia. However, if we read the Second Amendment with common sense and in context, life was totally different then. Everyone owned a gun unless for religious reasons. I think individual gun ownership is exactly what the founding fathers were writing about. Everyday individuals were what made up the state and local militias. However, I don't think the founders ever envisioned the types of weapons that are currently available at your local Walmarts and hunting stores that are capable of killing 100 of your neighbors per minute.

  49. @Kenneth - there was no US standing army during the time they put together the Bill of Rights, I'm betting a fair number of people in cities and larger towns didn't bother owning a gun, and when you read the Militia Acts of 1792 it laid out that the intention of requiring everyone (who was an adult free man, that is) to own a gun was so that they could train and serve in militias under state-appointed officers, in order to be called up by the President to fight off invasions and also to put down insurrections. And yeah, I agree that a bazooka under every bed wasn't their intention.

  50. @Kenneth "Everyone" certainly did not own a gun in the 1700s. In cities, it's far likelier that nearly no one owned one.

  51. @JQDoe This was the thesis of Michael Bellesiles's 2000 book Arming America, the winner of the prestigious Bancroft prize, given for exceptional works in the field of American history. It was enthusiastically reviewed by the NYT as well. Pretty embarrassing for everyone 2 years later when the prize had to be rescinded and he resigned his post after being revealed as a fraud. The low bound estimates of historic gun ownership rates vary by region, between 41-59% of all free citizens, including women and children, owned guns. Source: Counting Guns in Colonial America, James Lindgren 2002.

  52. This is actually not a question of gun control but a question of how we address issues on a national level. NYC didn’t change its law until it was headed to the Supreme Court, and there was concern that a negative ruling would have national impact. Meanwhile, the plaintiff has spent a small fortune litigating this through the various levels that it takes to get to the Supreme Court. If the Supreme Court declares this moot, there is nothing to say that NYC can’t reinstate the same old law the next day. Regardless of ones political disposition, the approach here is an attack on the supreme court’s ability to render judgment on anything. Imagine if every defendant temporarily made the issue moot once it was Supreme Court eligible, just to reinstate once it was decided as moot or they declined to take the case.

  53. Our country has a lot more serious problems to address-- can a president disregard court decisions?can a president pardon himself? or anyone involved in criminal efforts to aid him in his election? can the Justice Department serve as a political tool of the administration? NY running to pass a new law and thereby weakening the authority of the Supreme Court-- is way down the list. If you care about the integrity and authority of the Court please pay closer attention to what's really going on.

  54. The NY law was problematic but I believe it was intended to prevent those with "premises permits" to convert them to carry permits by claiming that they were just going here or there. The City relented and are allowing transport but I suspect it is a slippery slope towards less restricted carry permits. It seems those who live by the Second Amendment shun any and all attempts to regulate firearms. I'm a gun owner and fully support registration, background checks and would love to see all of this governed by the ATF so that we have one central clearing house for all this information. The simple reason is, I don't want myself or anyone I know to be shot by someone who has no business owning a gun. Those who think owning and carrying a gun makes them safer is fooling themselves and making it less safe for all those around them.

  55. @steve That's not exactly true .Many citizens fully support stop and frisk,especially legal gun owners.

  56. @steve "It seems those who live by the Second Amendment shun any and all attempts to regulate firearms." Well, yeah shall not be infringed isn't exactly subtle. Particularly since the second was written by men who had just finished using firearms against a government which had failed to effectively regulate them. How you can look across the world at governments from Iran and Iraq to Hong Kong murdering people who rise up against them and not see the wisdom of the founders is beyond my understanding.

  57. The amicus brief filed by Neal Goldfarb was a fascinating read that no one has talked about. He says that recent linguistic evidence (computer compiled concordias), based on analysis of large amounts of 17th and 18th century writing and publications, shows that the phrase "bear arms" (in various flavors) 95% of the time meant "participating in the military". It was an idiom that everyone used to talk about the duty and ability to form militias, which explains the Second Amendment's first clause. Kind of puts the kabosh on activist originalists and textualists like Scalia in Heller, who divined the meaning they wanted by looking at individual meanings of individual words, rather than more properly focusing on the meaning of an idiomatic phrase. If Scalia were alive 200 years from now, he'd use is reasoning to claim that the phrase "Let's talk turkey" is about turkeys, and not about having a serious discussion about a deal.

  58. @Doug McKenna And it’s actually there because they were afraid of a slave “rebellion”. Which makes its origins truly horrible.

  59. @Doug McKenna Article 1 Section 8 of the Constitution makes clear the United States was not intended to have a standing army, meaning that the citizenry would be armed in order to form that militia. From John Adams 1787 A Defensive of the Constitution of the Government of the United States: "In order to purge the city of its many popular disorders, they were obliged to forbid a great number of persons, under grievous penalties, to enter the palace: nor was it permitted them to go about the city, nor to bear arms." Pretty clearly individual, not military use. A similar linguistic brief failed in Heller v D.C.

  60. Roberts will have to decide if this is the case the legitimacy dies on or whether he’ll wait for the Trump tax and obstruction cases instead.

  61. Personally, I'd like a tank with all the protection and firepower that implies. If the Second Amendment permits assault weapons, it should allow private citizens to own tanks as well.

  62. @jrsherrard It allows sidearms, sir. Not tanks.

  63. @jrsherrard Second Amendment does not “permit” assault weapons. Assault weapons are banned in many states including New York and were banned at the federal level from 1994-2004. Assault rifles have been banned at the federal level since 1986 by the Firearm Owner’s Protection Act. Tanks however are legal to purchase and own in the United States. However they are not street legal (the weight of the tank will damage the pavement) and can not have functional canons without very special licensing.

  64. @jrsherrard Yes, show me where in the 2nd Amendment it says “except main battle tanks”

  65. State of New York and the Liberals on the Court seem very afraid for some reason. Maybe they know the Law WAS an over reach? What do adults do when they face a set back? They pick themselves up and start all over again don't they? Well, accept the set back the over reach results in, and start from scratch trying to grab all the guns.

  66. @GregP Nobody is going to grab all your guns Greg. The concern is how to keep the public safe (including you and your family) when there is access to guns that can kill so many so fast. I have plenty of guns. Many passed down. Never felt the need for an assault rifle or large capacity automatic pistol. If I could find the time just love to plink away with a 22 with iron sites.

  67. Ell, I learned in Law School that when a regulation or law is repealed there is no longer any legal issue before the Court. Ot lets put in in "Muppets" terminology. In the movie "Muppets Treasure Island" there is a scene where the bad guys fire a shot aat "Dead Tom," a skeleton. One character cries out "Oh my God they killed Dead Tom." Kermit the Frog sensibly reponds: "They can't kill Dead Tom. He is already dead." I guess certain member of the Supreme Court never saw that movie.

  68. @Jeff guess you failed law school then. "Conduct Capable of Repetition, Yet Evading Review", is a recognized exception to the mootness doctrine. Indeed, Roe v. Wade was moot when it was heard as Roe was no longer pregnant at the time of the hearing. However, the court used the "Conduct Capable of Repetition, Yet Evading Review" exception to hear and rule on the case anyway. SCOTUS might decide that since it is clear that the ONLY reason New York city and state changed the laws was to evade SCOTUS review (they defended the law and only changed it AFTER SCOTUS had granted cert) and still insist the law was constitutional that it's likely the law will be reinstated in some form. Obviously SCOTUS should not allow rights to be violated by laws that are rescinded only after the victims have gone through the expense and delay of getting cert granted, only to reinstate the law the day after the court rules the case is moot.

  69. @Jeff Roe was no longer pregnant during Roe v. Wade so I imagine you support overturning that one too, right?

  70. And the shooting continue in what should be the safest, but has become one of the most dangerous countries in the world.

  71. All this waste of time and resources to argue the point of a 240 year old document that has drifted far away from our evolving morals. A document that is now treated as an infallible holy text that may not be changed. Along with talking heads that cherry pick the framers words as if deities and prophets, to argue what they want. Yes, that same document that once allowed for slavery and disallowed women from voting. It is time to tear out what has become irrelevant. We had no issues with amendments in the history of our country, but have not proposed one since 1971. When you cease to learn and evolve, you get old and die quickly.

  72. @Matt Von Ahmad Silverstein Chong The Alabama state Constitution is easy to amend. That's why it has 946 amendments and 310,296 words. Careful what you wish for.

  73. @Matt Von Ahmad Silverstein Chong The constitution is subject to change via a normal legislative processes. The fact that some folks really... really... want to be governed by an unelected SCOTUS always raises the spectre of numerous other banana republics and their descent to fascism.

  74. The question SCOTUS has been assiduously avoiding is whether the 2nd Amendment means what it says?

  75. Conservatives don't want equal treatment under the law. They want complete, unrestricted power.

  76. @Randall No, that would accurately describe the abortionists and their allies.

  77. The NRA notwithstanding, the right to bear arms as set forth in the Second Amendment is directly related to the militia and the type of arms the militia requires. Substitute today’s military for militia and you have the meaning intended by this amendment. The Second Amendment was ratified in 1791, 228 years ago. Times have changed.

  78. @Marvin That is a misconception. U.S. Code Title 10, Section 311 makes it clear that the militia includes citizens who are not part of an organized militia. §311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

  79. @Marvin If enough people agree with you then it should be no problem to get together and repeal it.

  80. @Marvin Go take Government 101 again, it appears that you failed the first time.

  81. The Second Amendment gives Americans the right to bear arms but not necessarily the right always to bear arms. For example, people can't take weapons on commercial flights. So restrictions on where people may bear arms do not necessarily violate The Constitution.

  82. @Ambrose You really see no difference between 'bearing arms' in a commercial airplane versus driving across town in your car?

  83. @Ambrose When I moved to Vermont a few years ago, I had to travel through New York. There is no way of getting from outsie of New England to Vermont without traveling through New York. I had several firearms that I was moving from my old home to my new one. The firearms were legal in both the state I was leaving, and the one I was entering. And yet, technically, I was in violation of New York law by transporting these firearms through New York. Sound like an unreasonable burden on interstate travel, no? The Civil Rights Act of 1964 requiring non discrimination was upheld as removing race based restrictions on interstate travel. But New York can infringe on transportation of private firearms, legal both at the point of origination, and point of destination?

  84. @SteveRR What difference would you have me see?

  85. Expect the Court to kick this one into the next decade. Alito, Gorsuch and probably Thomas will want to dig at this one to affirm the supremacy of the Second Amendment, but I doubt anyone else will. Roberts will want to dodge a bullet and thus join the liberals on the Court - what is moot stays moot.

  86. Unclutch the pearls, it looks like Moot City!

  87. If you read more into the Federalist papers, one of the fears of the founders in putting forth the communal defense provision of the Second Amendment, was not only immediate need to defend properly constituted government against incidents like Shays Rebellion, but the Founders could foresee that there might be a standing army in the relatively near future. Educated in Roman history they were aware how strong men like a Sulla or a Caesar could gain control of such a force and move to take power. They were anticipating Bonapartism even before Bonaparte came to power. They foresaw that the militias who they armed in the Second Amendment could be a counter force to this imagined future threat, a threat that thankfully never came to fruition. Again, nothing to do with individual gun ownership.

  88. @Milliband One can see rationale for both communal defense and individual ownership when reading the writings of our Founding Fathers. Choosing to ignore the individual arguments in favor of the collective is intellectual dishonesty.

  89. @cannoneer2 What is dishonest? The Pennsylvania Anti-Federalist faction brought up proposals to included self defense and hunting as included in the Second Amendment and they were voted down by the Federalist majority that included most of the individuals we would today referred to as "Founding Fathers". The Right to Bear Arms from the phrase to the intent was communal defense. What ever arguments for the individual rights to own firearms at the Convention they were on the losing side. You refer to such arguments from our Founding Fathers without naming them or describing the substance of their arguments, and that might be called intellectual dishonesty.

  90. This topic brings out the constitutional scholars who think they're turning over new rocks in 228 year old debate they've lost everytime.

  91. Yes, I remember well how all those gun toting 2nd amendment ran away from the murderer in El Paso. Those armed people really did a great job, of running away. It is a fact that more than one person who was there when that gunman started killing people was armed. I’m sure the dead and grievously injured appreciated the fact that people that carry guns are in reality cowards.

  92. @Paulie You obviously don't understand why responsible people carry guns. It's not to protect you, or stop a "bad guy" with a gun, UNLESS that person is a direct threat to themselves or their loved ones. Otherwise, if a person has a gun but has the option to safely get away that's the right course of take. Police officers are required to intervene, civilians are not. Please keep in mind gun owners first obligation is survival and if it can be accomplished by avoiding a gun fight we will. Plan B, when avoidance isn't an option, is deadly force.

  93. @Paulie Running from a mass shooter is the most prudent course of action for anyone who can safely do so. Heroism means going above and beyond, like the armed citizen that stopped the Sutherland Springs shooting. And at least they weren't taxpayer funded and trained like the deputies in Florida. When someone claims that taking measures to defend yourself is a sign of cowardice, this shows the world they have the privilege to live in a safe neighborhood where the bubble created by the illusion of safety has not been popped by the reality of violence.

  94. Many of us who conceal carry are not cowards, but are responsible gun owners. We are not law enforcement officers.

  95. The Bill Rights was put into place to protect the people from the government. The 2ndA: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. Given the purpose of the Bill of Rights, it seems clear that the people, if called to serve in the well regulated Militia would be expected to bring their own weapons. Any regulation would take place after joining and not before. What would a well regulated Militia mean while in the Militia? Perhaps type of weapons permitted, proper training, fitness, marksmanship, length of service, vacation, housing, uniforms and so on. Nuclear weapons would not be protected, since it is generally understood that a militia weapon would be something carried by an infantry.

  96. @steve brown I’m sure a portable nuke is possible but why not thermite, c4, dynamite, flamethrowers, sniper rifles, shoulder mounted tank busting missile launchers... Aren’t these necessary to keep the government accountable if it tries to deny representation and respect the consent of the governed through proper representation? You know. The path republicans are taking to deny representation?

  97. @Mathias: Sniper rifles, as long as they are not fully automatic, fall under general long guns, and therefore, can be easily purchased and possessed by civilians. If full automatic, there are additional steps. Some of the other weapons you mentioned fall under the category of destructive devices and may be purchased and possessed under the same legal regime that governs the purchase and possession of fully automatic firearms (machine guns and sub machine guns.) For more information on machine guns and destructive devices., look up the National Firearms Act of 1934.

  98. New York City missed out on a big opportunity here. They could have allowed these gun owners to apply for an additional permit to take their gun to a range outside the city, but within the state - for an additional fee, of course. Now if they want to stop for coffee during the trip, that's a different matter. There's no way that should be allowed, and the cops should arrest them and take them to jail if they do that.

  99. The defendent (NY state) should not be rewarded by trying to clearly avoid a SCOTUS determination on the facts here. The underlying issue merits some clarification now rather then merely kicking the can down the road.

  100. New York has a long history of over the top, draconian laws infringing gun ownership and possession by law abiding people. For every law they repeal, they will think of another to replace it, thereby playing their own version of three card monty with the courts. Imagine that it was not gun rights, but abortion rights. The state passes a crazy restrictive law. The challenge gets up to the SCOTUS, and the state suddenly repeals the law, thereby claiming mootness. The following legislative session, the state then adopts an even crazier law to replace the one they just repealed. The same situation could also occur with regard to civil rights laws. The legislature could pass a law requiring passing a reading test. When the case gets to the SCOTUS, the law is suddenly repealed And the next session, its replaced by a new law that is even worse. The Constitution requires that rights not be infringed. The New York legislature goes out of its way to infringe. Time to clarify for the Governor and Legislature what they can and cannot do.

  101. As discussed in the article, plaintiffs can still ask for damages.

  102. Why does it seem that the same people who argue the absolute constitutional right to bear arms also contend that impeachment of the current bribe-happy president, which the Constitution specifically provides for, is unconstitutional?

  103. So where in the constitution does is say that guns are to be excluded form the white house or congress? Sure, our elected representatives don’t want anyone to have a gun where they live and work but for the rest of us, why not. Well why not have each and every member of the senate protect themselves if guns are so protective? Love to see the day that anyone with a gun is allowed in the Trump House.

  104. @Jim We have this in Texas, there are metal detectors at the Capitol but if you have a license to carry you don't have to go through them. Guess they're not as worried of being held to account for their actions as the folks in Congress.

  105. @HS They simply should be able to walk in. Their right to carry should not be infringed. No need for the detectors.

  106. Courts are supposed to refrain from deciding issues that are or that have become moot. That's the beginning, the middle and the end of this matter. It has nothing to do anymore with the Second Amendment. If the Supreme Court nevertheless decides to accept this case, it will only go to show that the federal courts, like the other two branches of government, have surrendered themselves completely to the politics of the moment and don't give a hoot about the law, or about considerations of right and wrong. Please, please, please don't rule on this case.

  107. Funny how the justices opine about having to buy second guns for second homes and the logistics of ‘stopping to care for an elderly mother while transporting firearms.’ We have a serious gun problem in this country and mass shootings are so common. When will people have had enough of the carnage?

  108. @Scs The Justice opining about second guns for second homes was none other than that notorious right wing absolutist Ruth Bader Ginsberg.

  109. @Curt Car accidents without intent are far different than mass murder with intent. It is far to easy to end the lives and thus the liberty of people. You would think people’s lives taken would matter to you? If those lives and their liberty lost by malicious preventable individuals don’t matter to you why should I care about your gun liberties? Why is their sacrifice okay but not the sacrifice of losing access to weapons?

  110. I have trouble thinking like a lawyer, so let's see if I get this right: Gorsuch et al intend to rule on a law that doesn't exist. Sort of reminds me of the old mental exercise regarding how many angels can dance on the head of a pin. Doesn't the Supreme Court have anything else to do?

  111. @Linda "Conduct Capable of Repetition, Yet Evading Review", is a recognized exception to the mootness doctrine. Indeed, Roe v. Wade was moot when it was heard as Roe was no longer pregnant at the time of the hearing. However, the court used the "Conduct Capable of Repetition, Yet Evading Review" exception to hear and rule on the case anyway. I suspect that SCOTUS will decide this case is moot as there are plenty of other cases in the pipeline that are not moot and that the court can use as a vehicle to inform the inferior courts that, like every other important enumerated constitutional right, restrictions that infringe on an individual's right to keep and bear arms must withstand the highest level of judicial scrutiny - Strict Scrutiny. I believe there is even a circuit split in the pipeline (a situation that almost always results in SCOTUS granting cert and resolving it when an important issue is involved). However, SCOTUS might decide that since it is clear that the ONLY reason New York city and state changed the laws was to evade SCOTUS review (they defended the law and only changed it AFTER SCOTUS had granted cert) and still insist the law was constitutional that it's likely the law will be reinstated in some form. Obviously SCOTUS should not allow rights to be violated by laws that are rescinded only after the victims have gone through the expense and delay of getting cert granted, only to reinstate the law the day after the court rules the case is moot.

  112. Like Not My President says... the courts are corrupt, political, and rigged. Everything that comes out of SCOTUS for the next few decades will be the unthinking decision of a few political hacks trying to please their political masters over at not-so-brightbart.

  113. After years of frustration, I give up. You win Republicans. Let’s have mandatory gun ownership. Every liberal, conservative and race and creed should be issued an AR-15 on their 18th birthday. That means all the people you are afraid of will be armed too. Rest easy, you’ve won.

  114. Repeal the Second Amendment.

  115. @Brian Right after we repeal Roe V Wade, which kills more Americans every year than guns. Oh, and there’s no Amendment that protects it.

  116. @VirginiaDude It amazes me how the courts can argue that abortion is a "fundamental right" deserving strict scrutiny, yet the literal SECOND item in the BILL OF RIGHTS shouldn't. (I am, however, pro-abortion.)

  117. I wonder how many innocent people would have been slaughtered in London if the knife welding terrorist had an AR15

  118. @Linda I wonder if the victims had retained their right to self defense whether they'd be alive today...

  119. I once thought of opening a tanning salon and calling it: The Right to Bare Arms

  120. While the law is no longer on the books (for now), the decisions of the lower courts regarding this law still exist. And will be cited as precedents in future litigation. If the SCOTUS believes those lower court cases were incorrectly decided, that itself is reason to clarify the present state of the Second Amendment.

  121. The right to transport and the right to Bear arms are different. Transportation implies the end of movement or delivery from one place to the next. To Bear is to “carry” the firearm on one’s person. How is it that Americans have simply forgot to read objectively. Placing restrictions on how an item is carried, how long it’s carried, is infringement....and unconstitutional. Times have changed, but arms were not carried in boxes with the ammo separate for transport only when the constitution was created. Nor were the Arms assumed to be non-operational when carried. Please forward this to everyone. Bear arms....not transport. And who has more than 1 home....that’s right, the founding fathers...Not. Read US Code on the Militia. The words “second home” is nowhere found. Every abled body male or female citizen...not just the rich or famous with two homes.

  122. Gun rights people claim "shall not be infringed" means no gun laws are constitutional. That would mean laws against gun possession by felons or the mentally ill are unconstitutional. The 2nd amendment does not allow for that exclusion on ownership The 1934 Firearms Law severely restricted machine guns and sawed off shotguns. Th 2nd amendment does not say certain firearms may be restricted. The amendment does not say the only firearms protected are those that were in common use when the amendment was adopted. The amendment says "shall not be infringed" No exceptions are allowed. Whether the exceptions make sense is a separate discussion. {I agree with these exceptions.} I just want to point out that only extreme gun nuts believe in a literal absolute interpretation of the second amendment.

  123. @david I consider myself a moderate gun nut and support at least some restrictions on nuclear/chemical/biological/radiological weapons.

  124. @david "The 1934 Firearms Law severely restricted machine guns and sawed off shotguns." Not really it just added a tax to their purchase...

  125. The Law also required that owners of machine guns and short barreled long guns register with federal authorities and submit to fingerprinting.

  126. Trust me on this one, fellow commenter (who clearly is not a lawyer): " ... the decisions of the lower courts regarding this law ... will be cited as precedents in future litigation." Not having heard or read the oral arguments or any brief, I can't opine on whether this case is moot (though it strikes me as moot). But if that's what the Court decides -- i.e., that the case is moot -- it's highly unlikely that any self-respecting lawyer will cite the "decisions of the lower courts regarding this law." If that happens, it will take about three nanoseconds for the opposing counsel to point out that the law was changed and the Supreme Court ruled that the change mooted the case. In short, while their may be several loose ends in Second Amendment jurisprudence left loose by the Court's decision in this case, this isn't one of them. Trust me: If the Supreme Court rules this case is moot, nobody is going to cite the lower court decisions.

  127. Not sure where the "case or controversy" is here. The plaintiff challenged a particular law as a violation of the Second Amendment, and the legislature repealed that law. The plaintiff never challenged the replacement law, and it's not appropriate for Gorsuch or Alito, or anyone else, to conjure up situations in which the plaintiff might believe that the replacement law infringes upon his Constitutional rights. I agree that the legislature is presenting a "moving target" here, but the fact remains that the plaintiff has never complained about the replacement law and the original law -- about which he DID complain -- doesn't even exist now! Maybe there's more to this than appears -- and I didn't hear or read the oral arguments or any briefs -- but this case strikes me as moot.

  128. I think this commenter's issue has been decided: "Sort of reminds me of the old mental exercise regarding how many angels can dance on the head of a pin." I'm pretty sure that the Court answered this question long ago. As I recall, the answer is "17."

  129. "That would mean laws against gun possession by felons or the mentally ill are unconstitutional.The 2nd amendment does not allow for that exclusion on ownership," This commenter misinterprets Heller (though I suppose that's OK, since Adam Liptak does too). At great length, Scalia said that the Court's decision in Heller would not prevent a legislature from adopting "reasonable" regulations on the bearing of arms. I happen to think that a legal prohibition on gun ownership by "felons or the mentally ill" would be a perfect example of a "reasonable" restriction. The Heller Court did NOT rule that the Second Amendment prohibits ANY restriction on the right to bear arms. It ruled only that the Second Amendment prohibits UNREASONABLE restrictions on the right to bear arms. I think "reasonable" prohibits restrictions on gun ownership that Adam Liptak asserts are OK (for example, a law that would prevent someone from taking his gun outside of his home, or using his gun for some purpose other than self-defense -- despite Mr. Liptak's wishful thinking, the Heller Court did NOT say either), but a law that prohibits gun ownership by "felons or the mentally ill" strikes me as entirely permissible under Heller. By the way, for what it may be worth, I've read in several places that Anthony Kennedy agreed to vote with the Heller majority if and only if Scalia prefaced the majority opinion with a statement that "reasonable" restriction on the right to bear arms are permissible.

  130. IF the liberals weren't trying to tinker with the constitution and dropping cases when someone stands up for their rights; the Justices would drop it.... but it's time the Justices serve notice for/on gun rights; and hopefully the courts time will not be wasted as much... though someone will always try.

  131. If republicans were responsible gun owners were more concerned with finding solutions to protect citizens lives from mass shootings and extreme gun violence in this country this wouldn’t be an issue. As long as this disrespect for fellow humans lives, active shooter training and fear is constant your battle will continue and eventually your liberty to own a weapon will be lost. Not be side of liberals but because you lose your liberty when you don’t respect other people’s liberty and their lives. Liberty only survives when we show each other respect. Protecting violent gun owners over lives isn’t respect. Best start helping. When I was a youth and trained with firearms I had to earn it. And if I had shown disrespect it would have been taken from me. Best start finding ways as a community we can show respect. Because right now gun owners have completely failed.

  132. An historical note. In the "Wild West" people coming into town were required to leave their guns with the sheriff to be claimed when they left town.

  133. Given his opinions in the ACA case and the census question case, it it really productive to try to predict how the chief justice might vote? And why is the article trying to find a fifth vote for mootness rather than just reporting what occurred?

  134. In 1787 slave owners feared that abolitionists in the new federal reunion could limit guns needed for the control of slaves by militias. Thus the second amendment; which is today an anachronism. This explains why only the second amendment has a preamble saying that to maintain order the militia could not be disarmed by the federal government. The Heller decision is an absurdity. One doesn't extend an absurdity.

  135. @AIR , it does not say that the federal government cannot disarm a militia. It states that, if militia are formed, the use of arms by it's members can be regulated. Not only did slave states want militia but also militia were needed to fight Indians and others in uncontrolled wilderness because there was no standing national army.

  136. @AIR In 1787, the United States of America had no military or police force. If England, Spain, Portugal had decided to invade, the states [all of which were slave states except Massachusetts] would presumably have rallied their state militias to fight off an invasion. The states had no desire to raise a US military force, because the federal government was financed by per capita assessments [based on the census] to the state governments. The governors of the states, since they were going to have to pay for the army and navy, whether they were state militias or federal military, preferred to control their soldiers. There were no abolitionists with any political power except for the small Massachusetts delegation. And the perceived the threat from external forces was what bound the states into forming their coalition. It is entertaining that a current resident of NY, the location of a major slave import harbor, is pretending that the NY delegation was not representing the wealthy slave industry.

  137. @AIR So the Minutemen were formed to control the large slave population of Massachusetts? The British regulars confronted by the militia at Lexington were marching on Concord to start a slave rebellion? Your story about American militias is absurd.

  138. Seeing that the Founders specifically voted against guns for personal use, such as self defense and hunting, to be included in being covered by the Second Amendment it is interesting to see the kind of originalist that Scalia really was in being the architect of the overturning a precedent as old as the nation.

  139. @Milliband Correct, the second amendment is about guaranteed access to the means of resisting tyranny, it was written when the right to defend and feed oneself was beyond dispute.

  140. "The decision revolutionized Second Amendment jurisprudence by identifying an individual right" It did NO such thing All it did was shut down the Lunatic Left Wing's claims that the 2nd Amendment was some sort of collective right Bill of Rights Free Speech - Individual right Speedy Trial - Individual right Jury Trial - Individual right Right against self incrimination - Individual right Right against unreasonable searches - Individual right Right to self defense -- according to the Gun Grabbers you had to belong to commune.. It put a stop to that INSANITY!

  141. The NYC Police Department believes any resident or person who is subject to NYC gun control laws is subject to those laws everywhere in the world at all times. While this is not what the law says, if charged, you would be forced to defend yourself in court. NYC continually abuses its power to regulate firearms of all types. The law before the Supreme Court was clearly made to harass law abiding gun owners. Harass, not regulate.

  142. I don't know if the case is mooted or not, but it is clear that the NY City legislation had no rational purpose other than to make gun ownership harder, thus addressing the "too many guns" refrain. The law itself is the very essence of arbitrary and capricious, and ironically, as Justice Ginsberg pointed out, actually resulted in more guns, not fewer, thus contradicting its own purpose. But the Supreme Court does not take on arbitrary and capricious cases for many reasons. I'd like also to comment on the idea contained in this NYT article -- popularized by Linda Greenhouse -- that Justice Scalia inserted softening language in the Heller majority opinion to get Justice Kennedy onboard. If so, this was done even before oral arguments and must have been unbelievably effective because in the first minute or so of such Kennedy came out swinging, saying in essence that he believed that gun ownership was an individual right and not only for self-defense but for hunting and other legal purposes as well. The transcript does not provide the forcefulness by which he expressed this opinion. Thus, right away, it was pretty sure how Heller was going to be decided.

  143. It's hard for me to understand why people get so upset when gun regulation advocates want to an assault weapons or have background checks. This is not letting the camel stick his nose in the tent, so to speak. Those who fear that this is but a stepping stone to "repealing" the 2nd amendment are missing the point. It takes a constitutional amendment to repeal an amendment. Does everyone understand how difficult that is? The Founding Fathers intentionally made it very hard to do. For myself, I would ban those assault weapons only, leave hunting rifles and handguns alone and be done with all of this divisive controversy

  144. In the 1790s, our Founding Fathers became concerned that the US Army returning to Washington following a long campaign to drive Native Americans out of their tribal lands in the upper mi-west could over throw the federal government. That opened up vast expanses of quality land to entice European immigrants to come over and become Americans. With long, historical records world wide of armies overthrowing governments, our Founding Fathers relied on the foundation of America's democracy to protect our democracy. That was the separation of powers. So, they created the 2nd Amendment to the Constitution. Note the first half: "A well regulated militia being necessary for the security of a free state the right of the people to keep and bare arms shall not be denied." That established our state-run National Guard! It gave no individual the right to have firearms!