Justices to review New York gun rights case

In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to have a handgun at home for self-defense. Two years later, the justices made clear that this right also applies against state and local governments. Since then the Supreme Court has repeatedly declined to say anything more about how far states and cities can go in restricting gun rights, but today it granted a plea to weigh in, this time in a case from New York City.

The request for review came from the New York State Pistol and Rifle Association and a group of gun owners who live in the city. They were challenging the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits – including to a weekend home or shooting range for target practice – restrictions they describe as “draconian.” After the lower courts rejected their challenge and upheld the restrictions, the NYSPRA and gun owners went to the Supreme Court.

Today the justices granted review in the case, New York State Rifle & Pistol Association v. New York. The Supreme Court’s calendar for April was already full before last week’s conference, so the new grant likely won’t be argued until the fall. The justices’ eventual ruling in the case could stick to the relatively narrow question of whether the city’s law is constitutional, or it might shed light on a broader and more consequential question: whether the right to have a gun extends outside the home. Either way, the court’s opinion in the case probably won’t come until the spring of 2020.

The justices declined to tackle another hot-button issue this term: a challenge to the Trump administration’s ban on service in the military by most transgender individuals. Federal trial courts in California and Washington state have ruled that the government cannot enforce the ban and must allow transgender servicemembers to serve openly. Although the Supreme Court did not agree to review those rulings now, it did grant the government’s request to put the rulings on hold – and to allow the government to enforce the ban – while the government litigates in the federal appeals courts.

For decades, transgender individuals were barred from serving openly in the military. But in June 2016, then-Secretary of Defense Ash Carter announced that transgender Americans could serve openly in the military, and he directed the military to adopt new standards for transgender servicemembers by July 2017.

In July 2017, President Donald Trump tweeted that the military would not allow transgender servicemembers “in any capacity.” His tweet followed an announcement by then-Secretary of Defense James Mattis that the military would not implement the new standards that Carter had ordered.

Lawsuits challenging the constitutionality of the ban followed, in federal courts in Washington state and California. Those courts barred the government from enforcing the policy, as well as a 2018 policy – outlined in a memo that included recommendations from senior military officials – that would effectively ban transgender individuals from serving openly in the military.

The Trump administration went to the Supreme Court in late November, asking the justices to rule on the transgender ban before the courts of appeals had issued their decisions. Telling the justices that the lower courts’ orders require the government to continue the Obama-era policy of allowing transgender individuals to serve openly, despite the conclusion by Mattis and other senior military experts and leaders that allowing transgender service members “posed too great a risk to military effectiveness and lethality,” the government urged the justices to grant review immediately, without waiting for the courts of appeals to rule.

The government went back to the Supreme Court in December with a backup plan. If the justices did not step in immediately, the government pleaded, the court should at the very least allow the Trump administration to enforce the ban while the government’s appeals play out. Otherwise, the government argued, the old policy allowing transgender servicemembers would likely remain in place until the spring of 2020, even though the government had concluded that retaining the policy would be “contrary to the national interest.”

Today the Supreme Court denied review of the Trump administration’s petitions for review. However, the justices did grant the government’s request to stay the lower courts’ rulings, and to allow the government to enforce the ban while the appeals are being litigated, which suggests that at least five justices see some merit in the government’s arguments. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all indicated that they would have denied the government’s request.

The justices did not act on a challenge to the Trump administration’s decision to terminate the program known as “Deferred Action for Childhood Arrivals,” or “DACA.” The Obama administration established the program, which allows the young adults often known as “Dreamers” – undocumented immigrants who were brought to the United States as children – to apply for protection from deportation, in 2012. The Trump administration announced its intention to terminate the program in 2017, once again making some of the Dreamers eligible to be sent back to the countries where they were born. The failure to act on the case by now means that even if the justices eventually announce that they will review the case, they are not likely to do so until next fall, almost certainly keeping the program in place at least until 2020.

The justices turned down a request by Joseph Kennedy, a football coach at a public high school who lost his job after he kneeled and prayed on the field following several football games, to weigh in on his case, Kennedy v. Bremerton School District. Kennedy claimed that his termination violated his First Amendment rights, but both a federal district court and the U.S. Court of Appeals for the 9th Circuit rejected that argument. The court of appeals agreed with the school district that Kennedy’s prayers were not protected by the First Amendment because he was speaking as a public employee rather than as a private citizen.

Justice Samuel Alito wrote a statement regarding the denial of review in Kennedy’s case that was joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. Alito complained that the 9th Circuit’s “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.” In particular, he observed, under the 9th Circuit’s interpretation of the Supreme Court’s cases, “public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty,” including “folding their hands or bowing their heads in prayer” “while eating lunch.” But the Supreme Court was right to stay out of Kennedy’s case, Alito continued, because there are “important unresolved factual questions” that “would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”

This post was originally published at Howe on the Court.