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Mootness to be Considered at Oral Arguments

The NSRPA v. New York case isn’t being dismissed for mootness. It’s moving forward to oral arguments, but both sides have been informed to be prepared to argue the point. Dave Hardy notes that they’ve held a number of cases over until the next term. We very much need a significant victory at the Supreme Court.

17 Responses to “Mootness to be Considered at Oral Arguments”

  1. Alpheus says:

    I hope that the issue of “mootness” is ignored. While New York City repealed the law, it isn’t clear to me that they won’t put it back in place when it’s convenient to them; in which case, the lawsuit would have to start over again.

    It’s not hard to imagine doing this repeatedly to keep opponents of the law from challenging it, and draining their resources to challenge the law. We would be far better served to challenge it once and for all, and head off any possibility of restoring such a law.

    • Pete says:

      I’m not a lawyer, but I’d imagine the court’s approach would be very different in the “city and state change the law to moot the issue, court dismisses case, and life goes on” scenario compared to “city and state change the law to moot the issue, court dismisses case, city and state re-enact offensive law in question” scenario.

      I can see the court reluctantly agreeing to moot the case in the first scenario, and going full “NO. DO NOT.” in the second.

      That said, I hope neither scenario arises, they don’t declare it moot, and they properly slap down the city.

  2. Andy B. says:

    This issue of “mootness” has piqued my interest, because when I filed suit against Bucks County’s Republican Sheriff in 1995 for his violation of state law by imposing an extra-legal requirement (a “doctor’s note” attesting to the applicant’s mental health) to the process of applying for a concealed carry permit, the sheriff mooted my suit by unilaterally dropping the requirement on the Friday before the Monday we were to meet in court. My attorney told me I had “won”, but I had been denied the precedent I had hoped to establish; if not in the Court of Common Pleas, then in Commonwealth Court on appeal. It was never suggested by my attorney that there might be a way to “moot the mootness” and now I’m wondering whether there was?

    The closest I came to continuing the case was, when the sheriff told me I could apply again, without the doctor’s note, I insisted that since my original application had met every legal requirement in every way, I would not apply again, and he needed to issue my permit based solely on the original application. He conceded readily, so “technically” I made my point, but it doesn’t rank as an outstanding precedent, as there was no court decision.

    That sheriff, generally regarded as a pro-gun darling, had told us a year earlier that he didn’t care whether the Brady Law was constitutional or not, because it enabled him to do things he wanted to do; and at the time of my challenge had styled himself in the media as “standing up to the NRA.” Nevertheless he somehow maintained his “pro-gun” image as long as he was in office, based on his command of a few phrases of pro-gun rhetoric around election time; and somehow gun owners avoided hearing about his anti-gun antics.

  3. Brad says:

    This is excellent news!

    I think it reinforces the notion that the SCOTUS majority has had enough of the defiance of the lower courts and intends to clarify the boundaries of the 2nd Amendment.

    If the Court was waffling on this issue or was being cowed by partisan threats, dismissing the case for mootness would have been a perfect excuse.

  4. Patrick Henry, the 2nd says:

    Mootness (like standing) is just a way for courts to avoid doing their job.

    It should be ignored in cases involving civil rights.

    • Alpheus says:

      Indeed. As Andy observed, relying on “mootness” avoids setting precedents, which means there’s no barrier to the harm happening again; I would go so far to say that, in principle, Andy should have been able to continue the suit, by virtue of having been harmed by the doctor’s note requirement added in the first place (even if the requirement had later been removed).

      And the issue of Standing means that I have to break a law I consider unConstitutional to be able to challenge it — somehow, just being prevented from doing what I want to do isn’t sufficient “standing” to challenge the law, and thus I have to risk jail time for challenging such a law — or in some cases, I can’t even sue for the right thing, when no one else is willing to sue either.

      In the case of the former, when the Federal Government first passed a law against polygamy in the Territories, someone who wanted to challenge the law had to get married a second time to do it — and he eventually lost his case, and had to serve time because of it.

      Another example is of a militia member who wants to own a machine gun, but can’t have standing to challenge the Hughes Amendment unless he owns one — but is explicitly forbidden by the judge from bringing up the 2nd Amendment as a justification in his trial. It makes one wonder just how one is supposed to get standing in the first place!

      In the latter, somehow none of us has standing to challenge a law that raises revenue, but originates in the Senate (which is explicitly forbidden in the Constitution) because the Senate took a House bill, deleted *everything* from it, inserted *their* bill, and said it originated in the House.

      Sometimes I get the notion that the Courts have absolutely no desire to uphold the Constitution in any way, shape, or form. It makes me wonder what the point of having such a document as a “foundation” of the Government is.

      (Actually, I see only two points: First, it allows us to see what a government designed to protect liberty ought to look like; Second, it allows us to pine for a Constitutional government, even if it is currently, and possibly forever, out of reach. Such points shouldn’t be dismissed, but it does make it frustrating for people who want a government that actually protects liberty!)

      • Andy B. says:

        “the issue of Standing means that I have to break a law I consider unConstitutional to be able to challenge it”

        To hopefully show that I haven’t really lost all my idealism to cynicism, I have always thought that since every citizen is harmed by unconstitutional law and practices, every citizen should always have standing to challenge things on the grounds of unconstitutionality. I still believe that.

        I realize there need to be practical limits so that every crank (or even, organization) with some half-assed constitutional theory can’t tie up the courts, but I think that could be accomplished.

        Revisiting my case that I described above, the sheriff’s deputy who accepted my application — incomplete, according to the sheriff — screwed up by accepting it, so the sheriff had to deny issuance. That’s what gave me standing to file suit. Had the deputy merely turned me away, I may not have had standing. I took a witness, in case that is what would happen, but I know I would have had a much harder time without a letter of denial. (1995 was before the days of ubiquitous camera phones.)

        I won’t badmouth my attorney in that case, because he gave me an hourly rate that was borderline pro bono, but I also think most attorneys are anxious for small cases to be resolved before they’ve put too much actual work into it. For example, mine didn’t suggest any paths for additional action, and laughed off my question about recovery of his legal fees. Other people have told me the same thing; being discouraged from attempting recovery of legal fees.

        On the other hand, a close friend who was an attorney, and genuinely pro-gun (guns are what had founded our friendship in high school) had been pessimistic about my chances with my case at all, so attorneys aren’t consistent in their judgments, any more than any other profession.

    • BC says:

      Wrong. They’re requirements of Article III of the Constitution.

      Article III courts are empowered to hear only “cases or controversies.” If there’s no bona fide legal dispute between parties, Article III courts have no legitimate authority.

      Justiciability doctrines like standing and mootness exist to ensure that Article III courts aren’t exceeding their mandate by running around issuing advisory opinions, in contexts where there is no bona fide legal dispute.

      • Patrick Henry, the 2nd says:

        Wrong. They aren’t actual requirements. They are court created principles.

        Sure, courts can hear only actual cases & controversies. Which makes sense when Jim tries to sue Jane but nothing actual happened, or it has been resolve by Jane paying Jim.

        But when it involves violations of the Constitution, standing and mootness are just ways for courts to avoid doing their job and increase the power of government.

        • Alpheus says:

          Standing in and of itself isn’t necessarily a bad thing, but it’s been narrowed enough that it’s more harmful than it needs to be.

          To use a previous example I gave — breaking a law you think is unConstitutional to have standing to challenge that law as unConstitutional — is ridiculous. It means that you have to risk punishment for breaking a potentially unConstitutional law. Merely wanting to break a law should be sufficient standing to challenge it.

          • BC says:

            You don’t have to break a law to have standing to challenge its constitutionality. You have to plausibly argue that (a) the law is likely to be enforced, and (b) you wish to engage in protected conduct that the law prohibits.

        • BC says:

          Wrong. They aren’t actual requirements. They are court created principles.

          In this context that’s a distinction without a difference. Article III specifies that courts may only hear cases and controversies. This forces courts to develop a body of law — the law of justiciability — to determine what a case or controversy is and isn’t. You may as well argue that judicial review itself is a “court created principle.”

          But when it involves violations of the Constitution, standing and mootness are just ways for courts to avoid doing their job and increase the power of government.

          Sure, dude. It has nothing whatsoever to do with the separation of powers, and the reality that courts exist to settle actual disputes between parties. It’s all just a big-government conspiracy.

          • Patrick Henry, the 2nd says:

            In this context that’s a distinction without a difference.

            No, its a distinction with a difference.

            Article III specifies that courts may only hear cases and controversies. This forces courts to develop a body of law — the law of justiciability — to determine what a case or controversy is and isn’t.

            Right. But often that body of law is heavily favored to protect the government, instead of properly favoring the people.

            You may as well argue that judicial review itself is a “court created principle.”

            And it likely is. Doesn’t mean its wrong of course.

            Sure, dude. It has nothing whatsoever to do with the separation of powers, and the reality that courts exist to settle actual disputes between parties. It’s all just a big-government conspiracy.

            Ah there it is. The name calling. That’s how I know I’ve won an argument, when the other side resorts to name calling.

            I never said it was a “conspiracy”. I said it was how courts get out of doing their jobs. Their argument is based on the theory that its about determining “actual disputes between parties”, but that’s just a post-hoc justification. Its actually about protecting the power of government.

            Its the same thing when courts argue that AR-15’s are not protected by the Second Amendment because they are weapons of war that have never been used in war, but Garands are protected because they are not weapons of war that have actually be used in war (see KOLBE et al v. HOGAN et al, 4th Circuit decision). Or when the phrase “states” actually mean “states and the federal government (see King v. Burwell, US Supreme Court decision). They have their result, and then find their justification.

            Sorry if you can’t see that.

            • BC says:

              No, its a distinction with a difference.

              Feel free to explain what that difference is, in context. I’ll wait.

              Right. But often that body of law is heavily favored to protect the government, instead of properly favoring the people.

              Feel free to explain how neutral principles of justiciability law favor the government, rather than the people. I’ll wait.

              Ah there it is. The name calling. That’s how I know I’ve won an argument, when the other side resorts to name calling.

              Ah, there it is. The bogus accusations of name calling. That’s how I know I’ve won an argument, when the other side gets huffy about some imagined offense and declares victory.

              Their argument is based on the theory that its about determining “actual disputes between parties”, but that’s just a post-hoc justification.

              You’re arguing that the law of justiciability is entirely pretextual. That’s a ridiculous conspiracy theory. I’m sorry if it upsets you to hear that.

              Its the same thing when courts argue that AR-15’s are not protected by the Second Amendment because they are weapons of war that have never been used in war, but Garands are protected because they are not weapons of war that have actually be used in war (see KOLBE et al v. HOGAN et al, 4th Circuit decision). Or when the phrase “states” actually mean “states and the federal government (see King v. Burwell, US Supreme Court decision). They have their result, and then find their justification.

              It’s nothing at all like those things. You literally do not know what you are talking about.

              • Patrick Henry, the 2nd says:

                Feel free to explain what that difference is, in context. I’ll wait.

                Well the words “standing” and “mootness” don’t appear in the Constitution. But “cases” and “controversies” does… HMMMMM why do you think that is?

                Feel free to explain how neutral principles of justiciability law favor the government, rather than the people. I’ll wait.

                I already explained it- because its used as a post-hoc justification to reach their preferred decision.

                Ah, there it is. The bogus accusations of name calling. That’s how I know I’ve won an argument, when the other side gets huffy about some imagined offense and declares victory.

                LOL. You called me a conspiracy theorist. That’s name calling buddy. I’m not getting “huffy” (hey more name calling! Shocking coming from you), I’m explain your argument is based on insults, not logic.

                You’re arguing that the law of justiciability is entirely pretextual. That’s a ridiculous conspiracy theory. I’m sorry if it upsets you to hear that.

                And look, still more name calling! And ignoring that silly comment, nothing what I said implied a conspiracy, nor that I’m saying that its entirely pretexually. So you need to do some re-reading. But for the TL;DR argument, I’m saying that for government vs people power decisions, it often is pretextual.

                It’s nothing at all like those things. You literally do not know what you are talking about.

                Explain how its nothing at all like those things. I’ll wait, since I literalally know everything about what I’m talking about.

  5. beatbox says:

    So many questions. Is this a good thing? Does it mean that there were a significant number that supported mootness? Does it mean a justice can rule against it because of mootness instead of ruling on the question?

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