Ruling on gun case would be unnecessary

By GREG WEINER | Special to The Washington Post | Published: December 12, 2019

The Supreme Court’s newly reinforced conservative majority is facing a test. It could use a case before the court as an opportunity to expand the scope of Second Amendment protections. Or it could pursue the correct conservative approach: decline the temptation to intervene.

This is a tension as old as the republic. In 1793, the Washington administration asked the Supreme Court to advise it about the interpretation of treaties. The court, under Chief Justice John Jay, demurred. That set a precedent against the court issuing hypothetical opinions, rather than limiting itself to the actual “cases and controversies” over which the Constitution gives it jurisdiction.

Last week, the court heard arguments in a case involving a New York City rule that restricted the ability of law-abiding gun owners to transport their weapons. Many constitutional conservatives are eager for the court, which has not elaborated on the scope of Second Amendment rights since its landmark ruling more than a decade ago, to assert its authority and define the Second Amendment broadly. Jay might reply that they should be more concerned about the Supreme Court defining its own power broadly.

The problem is that the case is moot. New York City repealed the rule at issue after the Supreme Court agreed to hear the challenge, and New York state further closed the door by passing a statute that protects the ability of gun owners to transport weapons. This was an effort to prevent the court from issuing an opinion by resolving the controversy in advance.

For the court to rule in the absence of a live controversy — to pronounce on the constitutionality of a law no longer on the books — is not the same as an “advisory opinion” such as the one Jay declined to provide in 1793. But it implicates the same principle. The court’s unwillingness to philosophize about the Constitution in the abstract is one of the most important limits on its power.

What was alarming about the oral arguments was the seeming willingness of two conservative justices, Samuel Alito and Neil Gorsuch, to ignore this fundamental principle. Alito, for example, suggested the case was not moot because the plaintiffs did not get “a declaration that the old law was unconstitutional, period.” But that is exactly why the case is moot: The old rule no longer exists. Gorsuch wondered whether allowing the plaintiffs to seek damages for what they assert was a violation of their Second Amendment rights — something they did not seek in the original case — could render it active again.

Constitutional conservatives should see that eagerness to decide the case less as an opportunity to expand the Second Amendment than as a troubling precedent for expanding the power of the court. That it would occur just as conservatives have solidified a majority on the court would invite cynicism, as well.

Constitutional conservatives have long argued that elected branches of government should more fully consider constitutional questions. Whether the city and state of New York did so with sufficient purity of motive or whether they were simply trying to short-circuit the case before an adverse ruling from the Supreme Court is irrelevant. The fact remains that the rule was repealed in the face of constitutional concerns. Constitutional conservatives should welcome, not ignore, that development.

The framers of the Constitution were a diverse group, but it is fair to characterize them broadly as believing legislatures and executives should deliberate on constitutional questions. The reason was that the people could not simply outsource constitutional questions to the courts. All of us have a responsibility to consider them because the Constitution is the property of citizens. Leaving such issues solely in the hands of the judiciary would risk a moral hazard by which the elected branches of government feel free to ignore constitutional questions on the grounds that the judiciary will resolve them.

The underlying controversy involves a debate between originalists who seek a more limited judiciary on the model of Robert Bork’s and the increasingly ascendant libertarian view of originalism, known as “judicial engagement,” that calls on jurists to lean aggressively into the protection of rights.

Yet the Constitution does not belong to the courts alone. In the noblest sense, it is a political instrument. Requiring citizens to debate constitutional questions calls us to our civic duty. Consigning them to the judiciary lets us off the hook. As such, entities such as the New York City Council and state legislature — where citizens are more immediately represented — are exactly where constitutional questions belong. Conservatives may disagree with those bodies’ conclusions, but the constitutional design assumes legislatures are the primary forum for constitutional disputes.

Originalists should reject the temptation to push for a ruling on the Second Amendment many of them would celebrate and focus instead on a larger constitutional priority: the limitation of the judiciary to “cases and controversies.” The scope of judicial power is a far more fundamental question than the scope of a single constitutional provision.

Greg Weiner is an associate professor of political science at Assumption College and a visiting scholar at the American Enterprise Institute.

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