New York State Rifle & Pistol Assn., Inc. v. City of New York

I agree with the per curiam opinion's resolution of the procedural issues before us-namely, that petitioners' claim for injunctive relief against New York City's old rule is moot and that petitioners' new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.

I also agree with Justice ALITO's general analysis of Heller and McDonald. Post, at 1540 - 1541; see District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; McDonald v. Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ; Heller v. District of Columbia , 670 F.3d 1244 (C.A.D.C. 2011) (KAVANAUGH, J., dissenting). And 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.

Justice ALITO, with whom Justice GORSUCH joins, and with whom Justice THOMAS joins except for Part IV-B, dissenting.

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 , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), 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 , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), established that this right is fully applicable to the States. 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.

On January 22, 2019, we granted review to consider the constitutionality of a New York City ordinance that burdened the right recognized in Heller . Among other things, the ordinance prohibited law-abiding New Yorkers with a license to keep a handgun in the home (a "premises license") from taking that weapon to a firing range outside the City. Instead, premises licensees wishing to gain or maintain the ability to use their weapons safely were limited to the seven firing ranges in the City, all but one of which were largely restricted to members and their guests.

In the District Court and the Court of Appeals, the City vigorously and successfully defended the constitutionality of its ordinance, and the law was upheld based on what we are told is the framework for reviewing Second Amendment claims that has been uniformly adopted by the Courts of Appeals.1 One might have thought that the City, having convinced the lower courts that its law was consistent with Heller , would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public *1528safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.

Thereafter, the City and amici supporting its position strove to have this case thrown out without briefing or argument. The City moved for dismissal "as soon as is reasonably practicable" on the ground that it had "no legal reason to file a brief." Suggestion of Mootness 1. When we refused to jettison the case at that early stage, the City submitted a brief but "stress[ed] that [its] true position [was] that it ha[d] no view at all regarding the constitutional questions presented" and that it was "offer[ing] a defense of the ... former rul[e] in the spirit of something a Court-appointed amicus curiae might do." Brief for Respondents 2.

A prominent brief supporting the City went further. Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is "motivated mainly by politics, rather than by adherence to the law," and the Court would face the possibility of legislative reprisal. Brief for Sen. Sheldon Whitehouse et al. as Amici Curiae 2-3, 18 (internal quotation marks omitted).

Regrettably, the Court now dismisses the case as moot. If the Court were right on the law, I would of course approve that disposition. Under the Constitution, our authority is limited to deciding actual cases or controversies, and if this were no longer a live controversy-that is, if it were now moot-we would be compelled to dismiss. But if a case is on our docket and we have jurisdiction, we have an obligation to decide it. As Chief Justice Marshall wrote for the Court in Cohens v. Virginia , 6 Wheat. 264, 404, 5 L.Ed. 257 (1821), "[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given."

Thus, in this case, we must apply the well-established standards for determining whether a case is moot, and under those standards, we still have a live case before us. It is certainly true that the new City ordinance and the new State law give petitioners most of what they sought, but that is not the test for mootness. Instead, "a case 'becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.' " Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (emphasis added). " 'As long as the parties have a concrete interest, however small , in the outcome of the litigation, the case is not moot.' " Ibid. (emphasis added).

Respondents have failed to meet this "heavy burden." Adarand Constructors, Inc. v. Slater , 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (per curiam ) (internal quotation marks omitted). This is so for two reasons. First, the changes in City and State law do not provide petitioners with all the injunctive relief they sought. Second, if we reversed on the merits, the District Court on remand could award damages to remedy the constitutional violation that petitioners suffered.

I

A

1

New York State has strict laws governing the possession of firearms. With only a few exceptions, possession without a license is punishable by imprisonment and a fine. N.Y. Penal Law Ann. §§ 60.01(3), 70.15, 265.01-265.04, 265.20(a)(3) (West *1529Cum. Supp. 2020). Local authorities administer the licensing program, § 400.00(3)(a), and in New York City, this is done by the New York City Police Department's (NYPD's) License Division. See 38 N.Y.C.R.R. § 5-01 et seq. (2020); N.Y. Penal Law Ann. § 265.00(10); N.Y.C. Admin. Code § 10-131 (2020).

New York State law contemplates two primary forms of handgun license-a premises license, which allows the licensee to keep the registered handgun at a home or business, and a carry license, which permits the licensee to carry a concealed handgun outside the home. N.Y. Penal Law Ann. §§ 400.00(2)(a), (b), (f). In this case, only premises licenses are at issue.

State law imposes an exacting standard for obtaining a premises license, and the NYPD License Division subjects applicants to rigorous vetting. Licenses may be issued only if, among other things, an applicant is "of good moral character" and "no good cause exists for the denial of the license." §§ 400.00(1)(b), (n); see also App. 95-109 ("Instructions to Handgun License Applicants") (capitalization omitted).

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; must provide proof of age, citizenship, and residence; and must produce an original Social Security card. Id. , at 95-96, 98. A completed application must specify the particular handgun that the applicant wishes to possess and the address for which the license is sought. It must list all the applicant's residences and places of employment for the past five years. Id. , at 99-100, 104-105. An applicant must answer questions about past arrests, summonses, indictments, convictions, and civil orders, and must respond to probing questions about past drug use, subpoenas and testimony, unsuccessful applications for civil service positions, military service, mental illness, and physical conditions (such as "Epilepsy," "Diabetes," or "any Nervous Disorder") that could, in the judgment of the License Division, interfere with the use of a handgun. Id. , at 96-97, 101-102. The applicant must explain where and how he or she will safeguard the handgun when not in use, and furnish the name and address of a New York State resident who will take custody of the handgun in the event of the applicant's death or disability. Id. , at 104.

And these application requirements are only the beginning. The submission of an application triggers a " 'rigorous' " police investigation "into the applicant's mental health history, criminal history, [and] moral character." Kachalsky v. County of Westchester , 701 F.3d 81, 87 (CA2 2012). A licensing officer is required by law to review mental health records, investigate the truthfulness of the statements in the application, and forward the applicant's fingerprints to the New York State Division of Criminal Justice Services and the Federal Bureau of Investigation to determine if the applicant has a criminal record. N.Y. Penal Law Ann. §§ 400.00(1), (4). Under City law, grounds for denial include, among other things, any arrest, indictment, or conviction for a crime or violation (with the exception of minor traffic violations) in any federal, state, or local jurisdiction; a dishonorable discharge from the military; alcoholism, drug use, or mental illness; "a poor driving history"; failure to pay debts, including child support and taxes; and untruthfulness in the application. 38 N.Y.C.R.R. § 5-10. The process also includes an in-person interview, during which the License Division may request additional paperwork. App. 100.

It takes the License Division approximately six months to process applications, § 5-07(a), and during this time, the applicant cannot lawfully possess a handgun in *1530the home, § 5-09. When the license issues and the applicant wishes to obtain it, he or she must appear in person at police headquarters for at least the third time. § 5-07(b). At present, we are told, approximately 40,000 City residents (representing about 1.29% of the households in the City)2 have been issued handgun licenses.

The NYPD may revoke a premises license at any time, § 5-07(d), including for such things as laminating the license, § 5-22(a)(4). 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. § 5-28(a).

2

The ordinance that petitioners challenged in this case was adopted in 2001. Before then, the NYPD issued both premises licenses and so-called "target licenses," which allowed licensees to transport their handguns to specified, preapproved ranges outside of the City. See App. to Pet. for Cert. 90-92. Target licenses were eliminated in 2001, and from that time until the City's post-certiorari change of heart, premises licensees could practice with their guns only if: they traveled "directly to and from an authorized small arms range/shooting club"; their guns were unloaded and secured in a locked container; and any ammunition was "carried separately." § 5-23(a)(3) (in effect prior to July 21, 2019) (emphasis added); id. , at 88. And-what is most important for present purposes-the only "authorized" ranges or clubs were ones "located in New York City." App. 50, 63. At the relevant time, there were only seven such ranges in the entire City: two in Staten Island, two in Queens, one in Brooklyn, one in Manhattan, and one in the Bronx. See id. , at 92-93. All but one generally admitted only members and their guests, and the only range open to the public was closed for a time during the pendency of the case below.

B

1

In 2013, three individuals and one organization representing New York gun owners brought suit under Rev. Stat. § 1979, 42 U.S.C. § 1983, against the City and the NYPD License Division, contending that the restrictive premises license scheme, 38 N.Y.C.R.R. § 5-23, violated their rights under the Second Amendment and other provisions of the Constitution.

One of the individual petitioners, Romolo Colantone, has held a New York City firearms license since 1979. App. 28-29, 51. Colantone currently has a premises license for his residence and wishes to take his handgun to ranges and competitions outside the City and to his second home in Hancock, New York. He refrained from doing so because of the ordinance prohibiting such travel. Id. , at 32, 53-54. For example, Colantone registered to participate in the 2012 World Class Steel Northeast Regional Championship in Old Bridge, New Jersey-about 20 miles from his home in the City. Plaintiffs' Memorandum in Support of Cross-Motion for Summary Judgt. in No. 13-cv-2115 (SDNY), Doc. No. 44 (Plaintiffs' Memo). But after the hosts of that competition alerted him that his premises license did not allow him to transport his handgun to New Jersey-and after Inspector Andrew Lunetta, the commanding officer of the NYPD License Division, confirmed this-Colantone pulled out of the competition. App. 32, 49-50, 55.

*1531Plaintiff Efrain Alvarez has had a firearms license for approximately 30 years, and plaintiff Jose Anthony Irizarry has been licensed for 15 years. Both men would like to take their handguns to ranges and competitions outside the City, but they have not done so because of the same ordinance. See id. , at 29, 32-33. After the hosts of the previously noted competition in New Jersey advised them that their New York City premises licenses barred them from taking their handguns outside the City, they both decided not to attend. Id. , at 32-33. For the same reason, Alvarez also did not participate in the International Defensive Pistol Association Postal Matches in Simsbury, Connecticut. Ibid. All three individual petitioners aver that they regularly traveled outside the City to ranges and championships before learning of the restriction imposed by § 5-23. Id ., at 32-33.

Petitioners' amended complaint maintained that the Second Amendment requires "unrestricted access to gun ranges and shooting events in order to practice and perfect safe gun handling skills." Id. , at 36 (emphasis added). The complaint asserts that practice is necessary for "the safe and responsible use of firearms for ... self-defense, and the defense of one's home." Id. , at 33. And a New York City ordinance backs this up, providing that a licensee "should endeavor to engage in periodic handgun practice at an authorized small arms range/shooting club." § 5-22(a)(14). According to the complaint, the City, by limiting licensees like petitioners to the seven ranges in the City, imposed a serious burden on the exercise of their Second Amendment right. App. 36.

The amended complaint's prayer for relief sought an injunction against enforcement of the travel restriction, as well as attorney's fees, costs of suit, declaratory relief ... and "[a]ny such further relief as the [c]ourt deems just and proper ." Id. , at 47-48 (emphasis added).

2

The City vigorously defended its law. The ordinance did not impinge on petitioners' Second Amendment right, the City told the lower courts, and even if it did, the law survived heightened scrutiny. That was so, the City maintained, because the travel restrictions were "necessary to protect the public safety insofar as the transport of firearms outside the home potentially endangers the public." City of New York's Memorandum in Support of Cross-Motion for Summary Judgt. & Opposition to Plaintiffs' Motion for Preliminary Injunction in No. 13-cv-2115, Doc. No. 36, p. 10.

To support this assertion, the City relied on the declaration of Inspector Lunetta, which attempted to explain why the restrictions were "necessary to address ... public safety concerns." App. 76. Lunetta justified the law in three ways. First, he maintained that the restriction on out-of-city transport promoted public safety by causing "premises license holders [to] bring their firearms into the public domain less frequently." Id. , at 78; see also id. , at 77.

Second, he claimed that the transport restriction helped to prevent the gun violence that might occur if a licensee became involved in an altercation while on the way to an out-of-city range or competition. Lunetta asserted that licensees are "as susceptible as anyone else" to "stress-inducing circumstances" that can lead to violence. Ibid.

Finally, he claimed that the travel restriction made it simpler for a patrol officer to check whether the holder of a premises license who is found in possession of a gun outside the home is really headed for a range or is simply using that as a pretext *1532for carrying a gun. Id. , at 78-79. He declared that "there were several reported cases where [holders of premises or target licenses] were charged with criminal possession of a weapon when found with their firearms while not en route to a range." Id. , at 89. He cited five cases, id. , at 88-89, but not one of the opinions indicates that the licensee claimed to be headed to a range or competition outside the City.3

The District Court denied petitioners' motions for preliminary injunction and summary judgment and granted the City's cross-motion for summary judgment. 86 F.Supp.3d 249, 261-263 (2015). The District Court deemed any burden on petitioners' Second Amendment right "minimal or, at most, modest." Id. , at 260. And the court credited the City's public safety rationale, citing the Lunetta declaration approvingly and discussing the importance of the travel restrictions in limiting the movement of licensees with their handguns. See id. , at 262.

The Second Circuit affirmed. The panel derided the ordinance's burdens on petitioners' Second Amendment right as "trivial" and expressly credited Lunetta's explanation of the public safety purposes served by the travel restriction. 883 F.3d 45, 63-64 (2018).

When petitioners filed a petition for certiorari, the City opposed review, contending, among other things, that the travel restriction promoted public safety, as demonstrated by Lunetta's declaration (which the City cited six times). Brief in Opposition 9, 21-23. We nevertheless granted review on January 22, 2019, and this, as noted, apparently led the City to reconsider whether the travel restriction was actually needed for public safety purposes.

C

On April 12, the NYPD published a proposed amendment to the travel restriction that was admittedly spurred at least in part by our grant of review. See Motion to Hold Briefing Schedule in Abeyance in No. 18-280, p. 3. Under this amendment, holders of premises licenses would be allowed to take their guns to ranges, competitions, and second homes outside the City provided that the licensees traveled "directly" between their residences and the permitted destinations. After a period of notice and comment, the proposed amendment was adopted on June 21 and took effect on July 21. Suggestion of Mootness 5-6.

Our grant of certiorari also prompted action by New York State. With the support of the City, Tr. of Oral Arg. 46, the Legislature enacted a new law abrogating any local law, rule, or regulation that prevented the holder of a premises license from transporting a licensed handgun "directly to or from" an authorized range, competition, or second home. N.Y. Penal Law Ann. § 400.00(6) (as in effect July 16, 2019).

Shortly after the new State law took effect, the City filed a Suggestion of Mootness, asking us to vacate the decision below and to remand with instructions to dismiss. The City urged us to rule on this matter expeditiously so that it would not be required to file a brief defending its prior law. Suggestion of Mootness 1. When *1533we refused to vacate at that stage, the City protested that briefing the merits "require[d] the City to do what Article III's case-or-controversy requirement is designed to avoid: engage in litigation regarding the constitutionality of a law that no longer exists" and that the City would not reenact. Brief for Respondents 1. When the case was argued, counsel for the City was asked whether the repeal of the travel restriction had made the City any less safe, and his unequivocal answer was no. Tr. of Oral Arg. 52.

II

The Court vacates the judgment of the Court of Appeals, apparently on the ground that this case is now moot. (Other than mootness, no other basis for vacating comes to mind, and therefore I proceed on that assumption.) And if that is the reason for what the Court has done, the Court is wrong. This case is not moot.

Article III, § 2 of the Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies," and as a result, we may not " 'decide questions that cannot affect the rights of litigants in the case before [us].' " Chafin , 568 U.S. at 172, 133 S.Ct. 1017. Nor may we advise " 'what the law would be upon a hypothetical state of facts.' " Ibid . This means that the dispute between the parties in a case must remain alive until its ultimate disposition. If a live controversy ceases to exist-i.e. , if a case becomes moot-then we have no jurisdiction to proceed. But in order for this to happen, a case must really be dead, and as noted, that occurs only " 'when it is impossible for a court to grant any effectual relief whatever to the prevailing party.' " Ibid . (quoting Knox v. Service Employees , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) ). " '[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.' " Chafin , 568 U.S. at 172, 133 S.Ct. 1017 (quoting Knox , 567 U.S. at 307-308, 132 S.Ct. 2277 ). Thus, to establish mootness, a "demanding standard" must be met. Mission Product Holdings , Inc . v. Tempnology , LLC , 587 U.S. ----, ----, 139 S.Ct. 1652, 1660, 203 L.Ed.2d 876 (2019).

We have been particularly wary of attempts by parties to manufacture mootness in order to evade review. See Knox , 567 U.S. at 307, 132 S.Ct. 2277 ; accord, Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U.S. 656, 661, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). And it is black-letter law that we have a "virtually unflagging" obligation to exercise our jurisdiction. Colorado River Water Conservation Dist. v. United States , 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

In this case, the amended City ordinance and the new State law gave petitioners most of what they sought in their complaint, but the new laws did not give them complete relief. It is entirely possible for them to obtain more relief, and therefore this case is not moot. This is so for the following reasons.

A

First, this case is not moot because the amended City ordinance and new State law do not give petitioners all the prospective relief they seek. Petitioners asserted in their complaint that the Second Amendment guarantees them, as holders of premises licenses, "unrestricted access" to ranges, competitions, and second homes outside of New York City, App. 36, and the new laws do not give them that.4

*1534The new City ordinance has limitations that petitioners claim are unconstitutional, namely, that a trip outside the City must be "direc[t]" and travel within the City must be "continuous and uninterrupted." 38 N.Y.C.R.R. §§ 5-23(a)(3), (a)(7). Exactly what these restrictions mean is not clear from the face of the rule, and the City has done little to clarify their reach. At argument, counsel told us that the new rule allows "bathroom breaks," "coffee stops," and any other "reasonably necessary stops in the course of travel." Tr. of Oral Arg. 36, 64. But the meaning of a "reasonably necessary" stop is hardly clear. What about a stop to buy groceries just before coming home? Or a stop to pick up a friend who also wants to practice at a range outside the City? Or a quick visit to a sick relative or friend who lives near a range? The City does not know the answer to such questions. See, e.g. , id. , at 65-66.

Based on all this, we are left with no clear idea where the City draws the line, and the situation is further complicated by the overlay of State law. The new State law appears to prevent the City from penalizing any "direc[t]" trip to a range or competition outside the City, but the State law does not define that limitation. The petitioners wanted to enter competitions in upstate New York more than a five hour drive from the City. Could they stop along the way? And if so, for how long? The State has not explained its understanding of this limitation, and in any event, prosecutorial decisions in New York are generally made by the State's 67 elected district attorneys. See Haggerty v. Himelein , 221 App.Div.2d 138, 144-145, 644 N.Y.S.2d 934, 940 (1996). The bottom line is that petitioners, who sought "unrestricted access" to out-of-city ranges and competitions, are still subject to restrictions of undetermined meaning.

These restrictions may not seem very important, but that is beside the point for purposes of mootness. Nor does it matter whether, in the end, those restrictions would be found to violate the Second Amendment. All that matters for present purposes is that the City still withholds from petitioners something that they have claimed from the beginning is their constitutional right. It follows that the case is not moot. It is as simple as that.

The situation here resembles that in Knox , 567 U.S. 298, 132 S.Ct. 2277, 183 L.Ed.2d 281. The issue in that case was whether a public sector union had provided nonmembers the sort of notice that our case law required before they could be forced to pay a fee to subsidize certain union activities. We granted certiorari to review the Ninth Circuit's holding that the notice that the union had provided was sufficient, but before we could decide the case, the union sent out a new notice and moved to dismiss the case as moot. The employees objected that the new notice was inadequate, and we refused to dismiss. In so doing, we did not opine on the adequacy of the new notice but simply held that the case was not moot because "there [was] still a live controversy as to the adequacy" of the notice. Id ., at 307, 132 S.Ct. 2277. Although the new notice might have given the nonmembers most of what they sought, they still possessed " 'a concrete interest, however small, in the outcome *1535of the litigation.' " Id. , at 307-308, 132 S.Ct. 22