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COMMENTARY: Staring Down the Barrel of the Future

The Supreme Court may be stuck between a political rock and a hard place

Bob Rogers

We’ll know in hours, if not minutes, if the United States Supreme Court will advance beyond peripheral questions about whether or not it will get serious enough about the New York City gun control case to stick a knife into the tires of the gun rights dune buggy or allow the gun control advocates to just accept the city’s mea culpa for restricting the rights of the city’s gun owners to the simple carrying off their person of an unloaded gun beyond their front doors.

Yesterday it seemed quite certain that the court would allow a bit more than 60 minutes to clarify, rather than to whitewash, the broader scope of capricious left wing gun control schemes. Had it done so, the worst conclusion might have been a 4-4 tie between the quartets of anti-gun liberals and the conservative gun rights justices, with one vote dissenting, during arguments from both sides’ lawyers. Such deliverance would leave the final decision up to the suspected CINO (Conservative In Name Only) Chief Justice, John Roberts, whose reputation suffered a bruise in 2012 when he announced that the cost to average Americans for Obamacare was only a simple tax and not a penalty-enforced regulation on the condition of not owning health insurance. In so doing, Roberts raised forevermore the suspicion of Republicans that he may be prone to playing favorites in cases with far-reaching negative consequences for law-abiding American gun owners. Once again, the question returns: Can Roberts be trusted to follow his mostly conservative reputation, or does he have to wear a hoodie to arrive at work unscathed?

This morning there was this from the Wall Street Journal:

Can the U.S. Supreme Court trust the politicians of New York City to protect the Second Amendment? Believe it or not, that question consumed the biggest chunk of Monday’s oral argument in the first gun rights case the Justices have heard in 10 years. The answer is no, and the lawyer for the city proved the point during oral argument. The four liberal Justices tried mightily on Monday to support the city’s claim that the case is moot because the NYPD has changed its regulation to allow gun owners to transport licensed firearms outside the city. The liberals want the Court to drop the case without a ruling that might reaffirm the right to bear arms, and toward that end they say there is no longer a live controversy to decide. But there’s the not-so-small problem that the city only changed the rule after the Supreme Court agreed to hear New York State Rifle & Pistol Assn. v. City of New York. New York State then passed a law, ostensibly to help the city prove its mootness claim, that lets gun owners transport their weapons outside the city only as long as such transport is “continuous and uninterrupted.”

This triggered amusing exchanges over whether stopping for “a cup of coffee” or to visit Mom along the way would qualify as continuous. Justice Neil Gorsuch zoomed in: “So we have no representations to us as to what is—is direct and continuous, other than coffee is okay.” Counsel for New York Richard Dearing : “Coffee . . . what I can represent because—because it’s come up before, coffee, restrooms, food, gas, the kinds of things that you ordinarily would stop for in the course of travel, I hadn’t considered the mother or mother-in-law example before. I think that’s going to need to play out in the state courts.” Bingo. As anyone who has tried to register a gun in New York knows, the city has one of the most restrictive ordinances in the U.S. It’s well-nigh impossible for an average Joe to get a handgun license. That’s why the city previously banned merely transporting a licensed firearm to a second home outside the city.

And now Mr. Dearing is conceding that if the police arrest someone transporting a gun at a rest stop in the Bronx on his way to a gun range in Westchester County, the sap will have to go to court to vindicate his Second Amendment rights. That isn’t the remedy the petitioners in this case seek.

Both sides of the debate have known since the plaintiff NY Rifle & Pistol Assn. filed suit and, calling the city’s bluff, forced Mayor Bill DeBlasio and his Albany legislative cohorts to drop the unconventional “law.” DeBlasio, et al, knew that if the law ever got to the SCOTUS it would be turned upside down.  And it would have. So the city simply caved to make their own law go away. The court’s liberal four, particularly Justices Elena Kagan and Ruth Bader Ginsburg, would push back, calling the suit “moot” and therefore unnecessary. Two conservative Justices, Samuel Alito and Neil Gorsuch, wanted to push forward.

The NYC suit – a serious effort to derail a bad law – was primarily the bait gun rights advocates wanted as the kickoff to a tournament of dozens of liberal sweat-soaked ballot initiatives and  laws in several states and cities designed to eliminate 2A gun freedoms by gun bans, hi-cap mag bans, certain gun accessories, new ammunition regulations that would hurt both gun owners and gun retailers, excessive new taxes on both gun and ammo sales, universal background checks, etc., etc., and etc.

Whatever the Supreme Court decides – today, tomorrow, or next June – there will come a time when and if DJT is reelected and another chair on the Supreme Court falls empty – when it may be filled by a sixth conservative justice. When that time comes – and it WILL come – we will look back on the efforts of both sides to study and learn what we all did wrong when we became too dependent on decisions made not by not freedom fighters or freedom takers but by government conscripts at all levels.

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