New York State Rifle & Pistol Assn., Inc. v. City of New York , 206 L. Ed. 2d 798 ( 2020 )

(Slip Opinion) Cite as: 590 U. S. ____ (2020) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–280
_________________
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. CITY OF
NEW YORK, NEW YORK, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 27, 2020]
PER CURIAM.
In the District Court, petitioners challenged a New York
City rule regarding the transport of firearms. Petitioners
claimed that the rule violated the Second Amendment. Pe-
titioners sought declaratory and injunctive relief against
enforcement of the rule insofar as the rule prevented their
transport of firearms to a second home or shooting range
outside of the city. The District Court and the Court of Ap-
peals rejected petitioners’ claim. See 883 F.3d 45 (CA2
2018). We granted certiorari. 586 U. S. ___ (2019). After
we granted certiorari, the State of New York amended its
firearm licensing statute, and the City amended the rule so
that petitioners may now transport firearms to a second
home or shooting range outside of the city, which is the pre-
cise relief that petitioners requested in the prayer for relief
in their complaint. App. 48. Petitioners’ claim for declara-
tory and injunctive relief with respect to the City’s old rule
is therefore moot. Petitioners now argue, however, that the
new rule may still infringe their rights. In particular, peti-
tioners claim that they may not be allowed to stop for coffee,
2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Per Curiam
gas, food, or restroom breaks on the way to their second
homes or shooting ranges outside of the city. The City re-
sponds that those routine stops are entirely permissible un-
der the new rule. We do not here decide that dispute about
the new rule; as we stated in Lewis v. Continental Bank
Corp., 494 U.S. 472, 482–483 (1990):
“Our ordinary practice in disposing of a case that has
become moot on appeal is to vacate the judgment with
directions to dismiss. See, e.g., Deakins v. Monaghan,
484 U.S., at 204; United States v. Munsingwear, Inc.,
340 U.S. 36, 39–40 (1950). However, in instances
where the mootness is attributable to a change in the
legal framework governing the case, and where the
plaintiff may have some residual claim under the new
framework that was understandably not asserted pre-
viously, our practice is to vacate the judgment and re-
mand for further proceedings in which the parties may,
if necessary, amend their pleadings or develop the rec-
ord more fully. See Diffenderfer v. Central Baptist
Church of Miami, Inc., 404 U.S. 412, 415 (1972).”
Petitioners also argue that, even though they have not pre-
viously asked for damages with respect to the City’s old
rule, they still could do so in this lawsuit. Petitioners did
not seek damages in their complaint; indeed, the possibility
of a damages claim was not raised until well into the litiga-
tion in this Court. The City argues that it is too late for
petitioners to now add a claim for damages. On remand,
the Court of Appeals and the District Court may consider
whether petitioners may still add a claim for damages in
this lawsuit with respect to New York City’s old rule. The
judgment of the Court of Appeals is vacated, and the case is
remanded for such proceedings as are appropriate.
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–280
_________________
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. CITY OF
NEW YORK, NEW YORK, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 27, 2020]
JUSTICE KAVANAUGH, concurring.
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 ad-
dressed 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 Hel-
ler and McDonald. Post, at 25; see District of Columbia v.
Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561
U.S. 742 (2010); Heller v. District of Columbia, 670 F.3d
1244 (CADC 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 cer-
tiorari now pending before the Court.
Cite as: 590 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–280
_________________
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. CITY OF
NEW YORK, NEW YORK, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[April 27, 2020]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, and
with whom JUSTICE THOMAS joins except for Part IV–B, dis-
senting.
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 Co-
lumbia v. Heller, 554 U.S. 570 (2008), we held that the Sec-
ond 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 (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 de-
nied all such requests.
On January 22, 2019, we granted review to consider the
constitutionality of a New York City ordinance that bur-
dened 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
2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
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 in-
sisted that its ordinance served important public safety
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 ar-
gument. The City moved for dismissal “as soon as is rea-
sonably practicable” on the ground that it had “no legal rea-
son to file a brief.” Suggestion of Mootness 1. When we
refused to jettison the case at that early stage, the City sub-
mitted 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 dis-
——————
1 See Brief for Second Amendment Law Professors et al. as Amici
Curiae 8–9.
Cite as: 590 U. S. ____ (2020) 3
ALITO, J., dissenting
missed. If the Court did not do so, they intimated, the pub-
lic would realize that the Court is “motivated mainly by pol-
itics, 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 (in-
ternal 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 obliga-
tion to decide it. As Chief Justice Marshall wrote for the
Court in Cohens v. Virginia, 6 Wheat. 264, 404 (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 un-
der 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 ef-
fectual relief whatever to the prevailing party.’ ” Chafin v.
Chafin, 568 U.S. 165, 172 (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
(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
4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
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 Cum. Supp. 2020). Local authorities ad-
minister the licensing program, §400.00(3)(a), and in New
York City, this is done by the New York City Police Depart-
ment’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 li-
censee to keep the registered handgun at a home or busi-
ness, 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 char-
acter” and “no good cause exists for the denial of the li-
cense.” §§400.00(1)(b), (n); see also App. 95–109 (“Instruc-
tions 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, citi-
zenship, 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
Cite as: 590 U. S. ____ (2020) 5
ALITO, J., dissenting
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 ar-
rests, summonses, indictments, convictions, and civil or-
ders, and must respond to probing questions about past
drug use, subpoenas and testimony, unsuccessful applica-
tions for civil service positions, military service, mental ill-
ness, and physical conditions (such as “Epilepsy,” “Diabe-
tes,” 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 begin-
ning. The submission of an application triggers a “ ‘rigor-
ous’ ” 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 men-
tal health records, investigate the truthfulness of the state-
ments in the application, and forward the applicant’s fin-
gerprints 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. Pe-
nal 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 juris-
diction; a dishonorable discharge from the military; alcohol-
ism, 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
6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
which the License Division may request additional paper-
work. 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 the home,
§5–09. When the license issues and the applicant wishes to
obtain it, he or she must appear in person at police head-
quarters for at least the third time. §5–07(b). At present,
we are told, approximately 40,000 City residents (repre-
senting 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 li-
cense, §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 al-
lowed 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 im-
portant for present purposes—the only “authorized” ranges
——————
2 The last census found that there were 3,109,784 households in the
City. D. Gaquin & M. Ryan, County and City Extra: Special Decennial
Census Edition 607 (2012).
Cite as: 590 U. S. ____ (2020) 7
ALITO, J., dissenting
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 repre-
senting 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 af-
ter Inspector Andrew Lunetta, the commanding officer of
the NYPD License Division, confirmed this—Colantone
pulled out of the competition. App. 32, 49–50, 55.
8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
Plaintiff Efrain Alvarez has had a firearms license for ap-
proximately 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 Associa-
tion Postal Matches in Simsbury, Connecticut. Ibid. All
three individual petitioners aver that they regularly trav-
eled 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 Sec-
ond 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 com-
plaint asserts that practice is necessary for “the safe and
responsible use of firearms for . . . self-defense, and the de-
fense of one’s home.” Id., at 33. And a New York City ordi-
nance backs this up, providing that a licensee “should en-
deavor 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).
Cite as: 590 U. S. ____ (2020) 9
ALITO, J., dissenting
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 sur-
vived heightened scrutiny. That was so, the City main-
tained, 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 Pre-
liminary Injunction in No. 13–cv–2115, Doc. No. 36, p. 10.
To support this assertion, the City relied on the declara-
tion 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 li-
cense holders [to] bring their firearms into the public do-
main 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 for 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
10 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
that the licensee claimed to be headed to a range or compe-
tition outside the City.3
The District Court denied petitioners’ motions for prelim-
inary 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 bur-
den 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 re-
strictions in limiting the movement of licensees with their
handguns. See id., at 262.
The Second Circuit affirmed. The panel derided the ordi-
nance’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 re-
view 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
——————
3 In one case, the violation charged was transporting a loaded gun.
People v. Schumann, 133 Misc. 2d 499, 507 N. Y. S. 2d 349 (Crim. Ct.
1986). In another case, the gun was not in a locked container. People v.
Thompson, 92 N.Y. 2d 957, 705 N.E.2d 1200 (1998); see also People v.
Lap, 150 Misc. 2d 724, 570 N. Y. S. 2d 258 (Crim. Ct. 1991) (loaded and
unlocked). In the other two, there is no mention of an out-of-city range.
Lugo v. Safir, 272 A.D. 2d 216, 708 N. Y. S. 2d 618 (2000); People v.
Ocasio, 108 Misc. 2d 211, 441 N. Y. S. 2d 148 (1981).
Cite as: 590 U. S. ____ (2020) 11
ALITO, J., dissenting
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 al-
lowed to take their guns to ranges, competitions, and sec-
ond homes outside the City provided that the licensees trav-
eled “directly” between their residences and the permitted
destinations. After a period of notice and comment, the pro-
posed 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 we refused to vacate at
that stage, the City protested that briefing the merits “re-
quire[d] the City to do what Article III’s case-or-controversy
requirement is designed to avoid: engage in litigation re-
garding 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,
12 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
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. 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 juris-
diction 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 what-
ever to the prevailing party.’ ” Ibid. (quoting Knox v. Service
Employees, 567 U.S. 298, 307 (2012)). “ ‘[A]s long as the
parties have a concrete interest, however small, in the out-
come of the litigation, the case is not moot.’ ” Chafin, 568
U.S., at 172 (quoting Knox, 567 U.S., at 307–308). Thus,
to establish mootness, a “demanding standard” must be
met. Mission Product Holdings, Inc. v. Tempnology, LLC,
587 U. S. ___, ___ (2019) (slip op., at 6).
We have been particularly wary of attempts by parties to
manufacture mootness in order to evade review. See Knox,
567 U.S., at 307; accord, Northeastern Fla. Chapter, Asso-
ciated Gen. Contractors of America v. Jacksonville, 508
U.S. 656, 661 (1993). And it is black-letter law that we
have a “virtually unflagging” obligation to exercise our ju-
risdiction. Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (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 re-
lief. It is entirely possible for them to obtain more relief,
Cite as: 590 U. S. ____ (2020) 13
ALITO, J., dissenting
and therefore this case is not moot. This is so for the fol-
lowing reasons.
A
First, this case is not moot because the amended City or-
dinance 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
The 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.
——————
4 Contrary to the City’s suggestion, see Reply to Suggestion of Moot-
ness 5, petitioners have not softened their stance over the course of this
litigation. At summary judgment, petitioners asked that the District
Court declare 38 N.Y. C. R. R. §5–23 unconstitutional and enjoin its en-
forcement “in any manner that prohibits or precludes [petitioners] from
traveling” with their handguns to a range, competition, or second home
outside the borders of New York City. Notice of Cross-Motion for Sum-
mary Judgt. in 13–cv–2115, Doc. No. 43, p. 1; Plaintiffs’ Memo, at 32; and
Plaintiffs’ Reply Memorandum, Doc. No. 53, p. 9 (emphasis added); see
also Motion for Preliminary Injunction, Doc. No. 9, p. 1.
14 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
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, prosecu-
torial decisions in New York are generally made by the
State’s 67 elected district attorneys. See Haggerty v. Hime-
lein, 221 A.D. 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 be-
ginning 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.
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 de-
cide 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
Cite as: 590 U. S. ____ (2020) 15
ALITO, J., dissenting
[was] still a live controversy as to the adequacy” of the no-
tice. Id., at 307. Although the new notice might have given
the nonmembers most of what they sought, they still pos-
sessed “ ‘a concrete interest, however small, in the outcome
of the litigation.’ ” Id., at 307–308. And that was enough.
The situation here is essentially the same. Petitioners
got most, but not all, of the prospective relief they wanted,
and that means that the case is not dead.
B
The case is not moot for a separate and independent rea-
son: If this Court were to hold, as petitioners request and
as I believe we should, that 38 N.Y. C. R. R. §5–23 violated
petitioners’ Second Amendment right, the District Court on
remand could (and probably should) award damages. See
Mission Product Holdings, 587 U. S., at ___. Petitioners
brought their claims under 42 U.S. C. §1983, which per-
mits the recovery of damages. See Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 695–701 (1978). And
while the amended complaint does not expressly seek dam-
ages, it is enough that it requests “[a]ny other such further
relief as the [c]ourt deems just and proper.” App. 48. Under
modern pleading standards, that suffices.
The Federal Rules of Civil Procedure provide that a “final
judgment should grant the relief to which each party is en-
titled, even if the party has not demanded that relief in its
pleadings.” Rule 54(c) (emphasis added); see also 10 C.
Wright, A. Miller, & M. Kane, Federal Practice & Procedure
§§2662, 2664 (4th ed. 2014) (Wright & Miller).5 Courts have
——————
5 Lower courts have affirmed that Fed. Rule Civ. Proc. 54(c) means
what it says: “[R]elief in damages is not foreclosed by plaintiff ’s failure
to ask for damages in prayer.” Jet Inv., Inc. v. Department of Army, 84
F.3d 1137, 1143 (CA9 1996); Illinois Physicians Union v. Miller, 675
F.2d 151, 158 (CA7 1982) (“It is well-settled that the district court may
grant monetary relief . . . , even without a specific request”); United
States v. Marin, 651 F.2d 24, 30 (CA1 1981) (affirming award of damages
although not expressly requested in complaint); Sapp v. Renfroe, 511
16 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
refused to award relief outside the pleadings only when that
would somehow prejudice the defendant, such as when the
defendant did not have an opportunity to contest the basis
for that relief. See Albemarle Paper Co. v. Moody, 422 U.S.
405, 424 (1975); United States v. Marin, 651 F.2d 24, 30
(CA1 1981); 10 Wright & Miller §2664. Otherwise, “a party
should experience little difficulty in securing a remedy
other than that demanded in the pleadings as long as the
party shows a right to it.” Id., §2662, p. 168. Here, that
could include damages.
1
At a minimum, if petitioners succeeded on their challenge
to the travel restrictions, they would be eligible for nominal
damages. When a plaintiff ’s constitutional rights have
been violated, nominal damages may be awarded without
proof of any additional injury. See Carey v. Piphus, 435
U.S. 247 (1978); Memphis Community School Dist. v. Sta-
chura, 477 U.S. 299 (1986). Nominal damages are “the ap-
propriate means of vindicating rights whose deprivation
has not caused actual, provable injury.” Id., at 308, n. 11
(internal quotation marks omitted); see also Carey, 435
U.S., at 266. And they are particularly important in vindi-
cating constitutional interests. See Riverside v. Rivera, 477
U.S. 561, 574 (1986) (plurality opinion). Consequently,
courts routinely award nominal damages for constitutional
violations. See, e.g., Stoedter v. Gates, 704 Fed. Appx. 748,
762 (CA10 2017) (Fourth Amendment); Klein v. Laguna
Beach, 810 F.3d 693, 697 (CA9 2016) (free speech); Project
Vote/Voting for America, Inc. v. Dickerson, 444 Fed. Appx.
660, 661 (CA4 2011) (per curiam) (free speech); Price v.
Charlotte, 93 F.3d 1241, 1257 (CA4 1996) (equal protec-
tion). And it is widely recognized that a claim for nominal
——————
F. 2d 172, 176, n. 3 (CA5 1975) (allowing claim for damages raised for
first time on appeal in light of Rule 54(c) and the catchall prayer for relief
in plaintiff ’s complaint); accord, 10 Wright & Miller §2664.
Cite as: 590 U. S. ____ (2020) 17
ALITO, J., dissenting
damages precludes mootness. See 13C C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure §3533.3, n. 47
(3d ed. Supp. 2019) (collecting cases); see also, e.g., Central
Radio Co. v. Norfolk, 811 F.3d 625, 631–632 (CA4 2016);
Morgan v. Plano Independent School Dist., 589 F.3d 740,
748, n. 32 (CA5 2009); Bernhardt v. County of Los Angeles,
279 F.3d 862, 872 (CA9 2002); Amato v. Saratoga Springs,
170 F.3d 311, 317 (CA2 1999) (Sand, J., joined by So-
tomayor, J.); Committee for First Amendment v. Campbell,
962 F.2d 1517, 1526–1527 (CA10 1992); Henson v. Honor
Committee of U. Va., 719 F.2d 69, 72, n. 5 (CA4 1983).6
2
It is even possible that one or more of the petitioners may
be eligible for compensatory damages. To get such relief,
they would of course be required to show that they suffered
an “actual injury.” See Carey, 435 U.S., at 266; D. Dobbs
& C. Roberts, Law of Remedies §7.4(1), p. 660 (3d ed. 2018).
But petitioners may be able to make such a showing. As
discussed above, the failure to include in their complaint
specific factual allegations of actual injury would not pre-
clude such recovery.7 See Fed. Rule Civ. Proc. 54(c). Nor
were petitioners obligated to provide information support-
ing actual injury in opposing the City’s motion for summary
judgment.
If we were to reverse the judgment below and hold the
City’s old rule unconstitutional, it would be appropriate to
——————
6 A single Circuit has held that a claim for nominal damages alone does
not maintain a live dispute. See Flanigan’s Enterprises, Inc. of Ga. v.
Sandy Springs, 868 F.3d 1248 (CA11 2017). But that holding is difficult
to reconcile with Carey and Stachura’s endorsement of nominal damages
as an appropriate constitutional remedy.
7 Even if specific allegations in the complaint were necessary, the Dis-
trict Court could allow amendment. See Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 331 (1971); 6 Wright & Miller §1474 (3d ed.
2010).
18 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
remand the case for proceedings on the question of reme-
dies. We have frequently done this when we reverse a judg-
ment that was entered against the plaintiff on liability
grounds. See, e.g., Mission Product Holdings, 587 U. S., at
___, ___ (deeming case live due to claim for damages, re-
versing judgment against petitioner, and remanding for
further proceedings); Parents Involved in Community
Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720, 748
(2007) (holding case live due in part to damages claim in
complaint, reversing judgment against petitioners, and re-
manding for further proceedings); Firefighters v. Stotts, 467
U.S. 561, 583 (1984) (holding case live due to damages
caused by lower court injunction and reversing); Powell v.
McCormack, 395 U.S. 486, 493, 550 (1969) (remanding for
award of unpaid congressional salary); cf., e.g., Richmond
v. J. A. Croson Co., 488 U.S. 469, 478, n. 1 (1989) (holding
that expiration of challenged ordinance did not moot dis-
pute over whether defendant’s action was “unlawful and
thus entitle[d] appellee to damages”).
With this is mind, the possibility of actual damages can-
not be ruled out. One or more of the petitioners could seek
compensation for out-of-pocket expenses, such as member-
ship fees at in-city ranges. The current record shows that
at least one of the petitioners is a member of a range in the
City. App. 93–94. In addition, a petitioner may be entitled
to compensation for expenses incurred in registering for
out-of-city competitions from which he was compelled to
withdraw. The record shows that one petitioner signed up
for such a competition but had to pull out as a result of the
City ordinance. Id., at 32, 55. Petitioners could also seek
compensation for any intangible but nevertheless real and
personal injuries that they suffered due to their inability to
attend shooting competitions, to practice at out-of-city
ranges, or to take their licensed handguns to second homes.
Noneconomic damages such as loss of enjoyment are avail-
able in §1983 litigation. See Stachura, 477 U.S., at 306–
Cite as: 590 U. S. ____ (2020) 19
ALITO, J., dissenting
307; Carey, 435 U.S., at 260–264; Dobbs, Law of Remedies
§7.4(1), at 660, §8.1(4), at 676; cf. 4 F. Harper, F. James, &
O. Gray, Torts §25.10A (3d ed. 2007) (surveying loss of en-
joyment awards). Among other things, depriving a licensee
of the opportunity to obtain the benefits of competing and
perhaps obtaining recognition at a well-known competition
may cause a real loss. Lower courts have affirmed awards
of compensatory damages for similar kinds of injuries re-
sulting from constitutional violations. See Dobbs, Law of
Remedies, at 660.8 Petitioners could introduce evidence on
remand to show such loss.
For purposes of determining whether this case is moot,
the question is not whether petitioners would actually suc-
ceed in obtaining such damages or whether their loss was
substantial. If there is a possibility of obtaining damages
in any amount, the case is not moot.
——————
8 For example, in Brooks v. Andolina, 826 F.2d 1266 (1987), the Third
Circuit held that a prisoner could seek damages for various deprivations
suffered during punitive segregation imposed in retaliation for the exer-
cise of his free speech rights. Id., at 1270. These injuries included loss
of visiting and phone privileges, recreation rights, and access to the law
library.
In Young v. Little Rock, 249 F.3d 730 (2001), the Eighth Circuit af-
firmed a jury award of compensatory damages for wrongful detention
that caused psychological harm. Id., at 736.
In Drake v. Lawrence, 524 N.E.2d 337 (1988), the Indiana Court of
Appeals affirmed a compensatory damages award for, among other
things, the embarrassment of a false arrest in front of an employee and
customer and the anxiety associated with pending charges. Id., at 342.
In Watseka v. Illinois Public Action Council, 796 F.2d 1547 (1986),
aff ’d, 479 U.S. 1048 (1987), the Seventh Circuit affirmed an award of
damages for “specific compensable, non-abstract harm” resulting from an
unconstitutional ordinance restricting door-to-door solicitation. That
harm included the organization’s inability to recruit new members, dis-
seminate its views, and encourage others to support its positions. 796
F.2d, at 1558–1559; see also, e.g., King v. Zamiara, 788 F.3d 207, 213–
214 (CA6 2015) (affirming compensatory damages award for injury
caused by transfer of inmate in retaliation for filing lawsuit, when trans-
fer impeded his ability to participate in litigation).
20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
3
One final point about damages must be addressed. We
have warned in dicta that a claim of damages, “asserted
solely to avoid otherwise certain mootness, [bears] close in-
spection.” Arizonans for Official English v. Arizona, 520
U.S. 43, 71 (1997). But if, after close inspection, we con-
clude that the stringent test for mootness is not met, we
have no authority to dismiss on that ground.
Nothing in Arizonans for Official English suggests other-
wise. In that case, the plaintiff, who was an employee of
the State of Arizona when she filed her complaint, sued the
State under §1983, claiming that a state constitutional
amendment declaring English the official language of the
State unconstitutionally prevented her from using Spanish
to perform her job. Her requests for declaratory and injunc-
tive relief became moot when she left state employment for
the private sector, and we held that her request for nominal
damages from the State did not save her case from moot-
ness since a State may not be sued under §1983. 520 U.S.,
at 67–69, 71. The situation here is different because noth-
ing blocks an award of nominal damages from a city.9
C
Relief would be particularly appropriate here because the
——————
9 The per curiam refuses to decide whether petitioners have a live claim
for damages, claiming that the lower courts should determine in the first
instance whether any effort to recover damages has come “too late.”
Ante, at 2. But as previously discussed, see supra, at 15–16, prejudice is
the critical factor in determining whether to permit a late request for a
form of relief not expressly demanded in a complaint, and the per curiam
does not identify any reason why allowing petitioners’ request for dam-
ages at this juncture would prejudice the City. Under the Court’s deci-
sion, allowing damages will not prolong this litigation, because the case
is being remanded anyway, and there is no suggestion that the City
would have litigated the case any differently if it had been on express
notice that petitioners were seeking the sort of modest damages dis-
cussed in this opinion.
Cite as: 590 U. S. ____ (2020) 21
ALITO, J., dissenting
City’s litigation strategy caused petitioners to incur what
are surely very substantial attorney’s fees in challenging
the constitutionality of a City ordinance that the City went
to great lengths to defend.10 Of course, a claim for attor-
ney’s fees is not alone sufficient to preserve a live contro-
versy. Lewis v. Continental Bank Corp., 494 U.S. 472, 480
(1990). But where a live controversy remains, a defendant
who would otherwise be liable for attorney’s fees should not
be able to wiggle out on the basis of a spurious claim of
mootness.
If a §1983 plaintiff achieves any success on the merits,
even an award of nominal damages, the plaintiff is a pre-
vailing party and is eligible for attorney’s fees under 42
U.S. C. §1988. See Buckhannon Board & Care Home, Inc.
v. West Virginia Dept. of Health and Human Resources, 532
U.S. 598, 603 (2001). For this reason, were the Court to
exercise jurisdiction in this case and rule for petitioners,
they would be eligible for attorney’s fees. See Farrar v.
Hobby, 506 U.S. 103, 109 (1992).
On the other hand, dismissing the case as moot means
that petitioners are stuck with the attorney’s fees they in-
curred in challenging a rule that the City ultimately aban-
doned—and which it now admits was not needed for public
safety. That is so because “[a] defendant’s voluntary change
in conduct, although perhaps accomplishing what the plain-
tiff sought to achieve by the lawsuit, lacks the necessary
judicial imprimatur on the change.” Buckhannon, 532
U.S., at 605.
Section 1988 attorney’s fees are an important component
of civil rights enforcement. See id., at 635–638 (GINSBURG,
J., dissenting). The prospect of an award of attorney’s fees
ensures that “private attorneys general” can enforce the
——————
10 Attorney’s fees are specifically requested in the amended complaint.
App. 48.
22 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
civil rights laws through civil litigation, even if they “ ‘can-
not afford legal counsel.’ ” Id., at 635–636.
Here, the City fought petitioners tooth and nail in the
District Court and the Court of Appeals, insisting that its
old ordinance served important public safety purposes.
When petitioners sought review in this Court, the City op-
posed certiorari on the same ground. But once we granted
review, the City essentially attempted to impose a unilat-
eral settlement that deprived petitioners of attorney’s fees.
And those fees would likely be substantial. They would re-
flect five years of intensive litigation—everything from the
drafting of the complaint, through multiple rounds of Dis-
trict Court motion practice, to appellate review, and pro-
ceedings in this Court.
III
The per curiam provides no sound reason for holding that
this case is moot. The per curiam states that the City’s cur-
rent rule gave petitioners “the precise relief [they] re-
quested” in their prayer for relief, ante, at 1, but that is not
so. Petitioners’ prayer for relief asks the court to enjoin 38
N.Y. C. R. R. §5–23 insofar as it “prohibit[s]” travel outside
the City to ranges, competitions, and second homes. App.
48. The new rule’s conditions unmistakably continue to
prohibit some travel outside the City to those destinations.
For this reason, petitioners have not obtained the “unre-
stricted access” that, they have always maintained, the Sec-
ond Amendment guarantees. Id., at 36. The per curiam
implies that the current rule, as interpreted at oral argu-
ment by counsel for the City, gives petitioners everything
that they now seek, ante, at 1, but that also is not true. Pe-
titioners still claim the right to “unrestricted access” and
counsel’s off-the-cuff concessions do not give them that.11
——————
11 The City’s enforcement position as to “coffee, gas, food, or restroom
breaks” by no means resolves the meaning of §5–23. The City’s counsel
informed the Court that those stops are permissible because they are
Cite as: 590 U. S. ____ (2020) 23
ALITO, J., dissenting
The per curiam’s main argument appears to go as follows:
Petitioners’ original claim was a challenge to New York’s
old rule; this claim is now moot due to the repeal of that
rule; and what the petitioners are now asserting is a new
claim, namely, that New York’s current rule is also uncon-
stitutional.
This argument also misrepresents the nature of the claim
asserted in petitioners’ complaint. What petitioners
claimed in their complaint and still claim is that they are
entitled to “unrestricted access” to out-of-city ranges and
competitions. App. 36. The City’s replacement of one law
denying unrestricted access with another that also denies
that access did not change the nature of petitioners’ claim
or render it moot.
Consider where acceptance of the argument adopted by
the per curiam leads. Suppose that a city council, seeking
to suppress a local paper’s opposition to some of its pro-
grams, adopts an ordinance prohibiting the publication of
any editorial without the approval of a city official. Suppose
that a newspaper challenges the constitutionality of this
rule, arguing that the First Amendment confers the unre-
stricted right to editorialize without prior approval. If the
council then repeals its ordinance and replaces it with a
new one requiring approval only if the editorial concerns
one particular city program, would that render the pending
lawsuit moot and require the paper to commence a new one?
Or take this example. A State enacts a law providing that
any woman wishing to obtain an abortion must submit cer-
tification from five doctors that the procedure is medically
necessary. After a woman sues, claiming that any require-
ment of physician certification is unconstitutional, the
——————
“reasonably necessary” under the new rule. Tr. of Oral Arg. 64–65. But
what that means is far from clear, and, at any rate, coffee breaks and the
like are just illustrative examples of potential ways in which the new
rule affords something less than unfettered access to gun ranges, compe-
titions, and second homes outside the City. See supra, at 13.
24 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
State replaces its old law with a new one requiring certifi-
cation by three physicians. Would the court be required to
dismiss the woman’s suit? Suppose the court, following the
precedent set by today’s decision, holds that the case is
moot, and suppose that the woman brings a second case
challenging the new law on the same ground. If the State
repeals that law and replaces it with one requiring certifi-
cation by two doctors, would the second suit be moot? And
what if the State responds to a third suit by enacting
replacement legislation demanding certification by one
doctor?
Mootness doctrine does not require such results. A chal-
lenge to an allegedly unconstitutional law does not become
moot with the enactment of new legislation that reduces but
does not eliminate the injury originally alleged. And that
is the situation here.
The Court cites one case in support of its holding, Lewis
v. Continental Bank Corp., 494 U.S. 472, 482–483 (1990),
but that decision is wholly inapposite. The situation in
Lewis was complicated, but the critical point for present
purposes is that, by the time the case reached this Court,
the enactment of new legislation meant that the plaintiff no
longer had Article III standing to assert its original claim.
Id., at 478–479. But instead of simply ordering that the
case be dismissed, the Court remanded to give the plaintiff
the opportunity to assert a different claim and, if necessary,
to amend the complaint or “develop the record” to show it
had standing to pursue this new claim. Id., at 482.
The situation here is entirely different. It is not disputed
that petitioners have standing to contest the City’s re-
strictions on trips to out-of-city ranges and competitions,
and as a result of those restrictions, petitioners have suf-
fered and will continue to suffer injury that is concrete,
traceable to actions taken by the City, and remediable by a
court. See Spokeo, Inc. v. Robins, 578 U. S. ___ (2016).
They are not asserting a new claim. Their original claim—
Cite as: 590 U. S. ____ (2020) 25
ALITO, J., dissenting
that they have the right under the Second Amendment to
unrestricted access to out-of-city ranges and competitions—
is unchanged, and this claim does not require an amend-
ment of the complaint or any supplementation of the record
to support their allegations of injury.
For these reasons, there is no justification for holding
that this case is moot.
IV
A
Having shown that this case is not moot, I proceed to the
merits of plaintiffs’ claim that the City ordinance violated
the Second Amendment. This is not a close question. The
answer follows directly from Heller.
In Heller, we held that a District of Columbia rule that
effectively prevented a law-abiding citizen from keeping a
handgun in the home for purposes of self-defense consti-
tuted a core violation of the Second Amendment. 554 U.S.,
at 635. We based this decision on the scope of the right to
keep and bear arms as it was understood at the time of the
adoption of the Second Amendment. Id., at 577–605, 628–
629. We recognized that history supported the constitution-
ality of some laws limiting the right to possess a firearm,
such as laws banning firearms from certain sensitive loca-
tions and prohibiting possession by felons and other dan-
gerous individuals. See id., at 626–627; see also McDonald,
561 U.S., at 787, 904. But history provided no support for
laws like the District’s. See 554 U.S., at 629–634.
For a similar reason, 38 N.Y. C. R. R. §5–23 also violated
the Second Amendment. We deal here with the same core
Second Amendment right, the right to keep a handgun in
the home for self-defense. As the Second Circuit “as-
sume[d],” a necessary concomitant of this right is the right
to take a gun outside the home for certain purposes. 883
F.3d, at 58–59. One of these is to take a gun for mainte-
nance or repair, which City law allows. See §5–22(a)(16).
26 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
Another is to take a gun outside the home in order to trans-
fer ownership lawfully, which the City also allows. §5–26(j).
And still another is to take a gun to a range in order to gain
and maintain the skill necessary to use it responsibly. As
we said in Heller, “ ‘to bear arms implies something more
than the mere keeping [of arms]; it implies the learning to
handle and use them in a way that makes those who keep
them ready for their efficient use.’ ” 554 U.S., at 617–618
(quoting T. Cooley, Constitutional Law 271 (1880)); see also
Luis v. United States, 578 U. S. ___, ___ (2016) (THOMAS, J.,
concurring in judgment) (slip op., at 3) (“The right to keep
and bear arms . . . ‘implies a corresponding right . . . to ac-
quire and maintain proficiency in their use’ ”); Ezell v. Chi-
cago, 651 F.3d 684, 704 (CA7 2011) (“[T]he core right
wouldn’t mean much without the training and practice that
make it effective”).
It is true that a lawful gun owner can sometimes practice
at a range using a gun that is owned by and rented at the
range. But the same model gun that the person owns may
not be available at a range, and in any event each individ-
ual gun may have its own characteristics. See Brief for Pro-
fessors of Second Amendment Law et al. as Amici Curiae
10–12; see also App. 51, 56, 59 (referencing differences
across ranges and shooting competitions). Once it is recog-
nized that the right at issue is a concomitant of the same
right recognized in Heller, it became incumbent on the City
to justify the restrictions its rule imposes, but the City has
not done so. It points to no evidence of laws in force around
the time of the adoption of the Second Amendment that pre-
vented gun owners from practicing outside city limits. The
City argues that municipalities restricted the places within
their jurisdiction where a gun could be fired, Brief for Re-
spondents 18, and it observes that the Second Amendment
surely does not mean that a New York City resident with a
premises license can practice in Central Park or Times
Square, id., at 21. That is certainly true, but that is not the
Cite as: 590 U. S. ____ (2020) 27
ALITO, J., dissenting
question. Petitioners do not claim the right to fire weapons
in public places within the City. Instead, they claim they
have a right to practice at ranges and competitions outside
the City, and neither the City, the courts below, nor any of
the many amici supporting the City have shown that mu-
nicipalities during the founding era prevented gun owners
from taking their guns outside city limits for practice.
B
If history is not sufficient to show that the New York City
ordinance is unconstitutional, any doubt is dispelled by the
weakness of the City’s showing that its travel restriction
significantly promoted public safety. Although the courts
below claimed to apply heightened scrutiny, there was
nothing heightened about what they did.
As noted, the City relied entirely on the declaration of In-
spector Lunetta, but this declaration provides little sup-
port. See supra, at 9–10. Some of what Inspector Lunetta
asserted was simply not relevant to the justification for
drawing a distinction between trips to a range in the City
and trips to a range in a neighboring jurisdiction. For ex-
ample, he stated that persons holding premises licenses “do
not always transport their firearms in a locked box carrying
ammunition separately, as required by NYPD rules,” but
the issue in this case does not concern the storage of a gun
on the way to a range. App. 77–78. Similarly, he declared
that “[p]remises license holders have not demonstrated
proper cause to carry a concealed firearm in public,” id., at
78, but the question before us is not whether petitioners
have the right to do what they could if they had carry li-
censes.
Other statements actually undermine the City’s public
safety rationale. Thus, the fact that prosecutors typically
do not bring even misdemeanor charges against licensees
who carry a weapon in violation of the limitations of their
28 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
licenses, ibid., does not suggest that the City regards viola-
tions as presenting a particularly significant threat to pub-
lic safety.
When all that is irrelevant is brushed aside, what re-
mains are the three arguments noted earlier. First, Inspector
Lunetta asserted that the travel restrictions discouraged li-
censees from taking their guns outside the home, but this
is a strange argument for several reasons. It would make
sense only if it is less convenient or more expensive to prac-
tice at a range in the City, but that contradicts the City’s
argument that the seven ranges in the City provide ample
opportunity for practice. And discouraging trips to a range
contradicts the City’s own rule recommending that licen-
sees practice. Once it is recognized that a reasonable op-
portunity to practice is part of the very right recognized in
Heller, what this justification amounts to is a repudiation
of part of what we held in that decision.
Second, Inspector Lunetta claimed that prohibiting trips
to out-of-city ranges helps prevent a person who is taking a
gun to a range from using it in a fit of rage after an auto
accident or some other altercation that occurs along the
way. And to bolster this argument, Inspector Lunetta as-
serted that persons who have met the City’s demanding re-
quirements for obtaining a premises license are just as
likely as anyone else to use their guns in a fit of rage. App.
77. If that is so, it does not reflect well on the City’s inten-
sive vetting scheme, see supra, at 4–6, and in any event, the
assertion is dubious on its face.
More to the point, this argument does not explain why a
person headed for a range outside the City is any more
likely to engage in such conduct than a person whose desti-
nation is a range in the City. There might be something to
the argument if ranges in the City were closer than those
just outside its borders, but the City never attempted to
show that. The courts below were incurious about the va-
Cite as: 590 U. S. ____ (2020) 29
ALITO, J., dissenting
lidity of Inspector Lunetta’s assertion, and given the loca-
tion of the City’s seven ranges, the assertion is more than
dubious.12
Inspector Lunetta’s final justification for the travel re-
strictions was only marginally stronger. It goes like this.
Suppose that a patrol officer stops a premises licensee and
finds that this individual is carrying a gun, and suppose
that that the licensee says he is taking the gun to a range
to practice or is returning from a range. If the range in
question is one in the City, the officer will be better able to
check the story than if the range is outside the officer’s ju-
risdiction. App. 79–80.
How strong is this argument? The City presumably has
access to records of cases in which licensees were cited for
unauthorized possession of guns outside the home, and it
failed to provide any evidence that holders of target licenses
had used their right to practice at out-of-city ranges as a
pretext. And it is dubious that it would be much harder for
an officer to check whether a licensee was really headed for
an out-of-city range as opposed to one in the City. If a li-
censee claims to be headed for a range in the City, the of-
ficer can check whether the range is open and whether the
individual appears to be on a route that plausibly leads to
that range. But how much more difficult would it be to do
the same thing if the range is in one of the counties that
border New York City or across the Hudson River in New
Jersey? A phone call would be enough to determine the
range’s operating hours, and the route would still be easy
——————
12 Two of the seven City ranges (28%) were located in Staten Island
(home to under 6% of the City’s residents), and the trip there from the
other boroughs is not quick. Another range (the only one open to the
public) was located in the north Bronx. See Brief for Appellants in No.
15–638, p. 32 (CA2) (explaining that, for plaintiff Colantone, “traveling
from his home in Staten Island to the authorized range Olinville Arms
in the Bronx[ involves] a far longer drive” than to a shooting club in New
Jersey).
30 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
ALITO, J., dissenting
to determine: There are only a few bridges and tunnels to
New Jersey and just a few main thoroughfares to the neigh-
boring New York counties. A court conducting any form of
serious scrutiny would have demanded that the City pro-
vide some substantiation for this claim, but nothing like
that was provided or demanded.
Would the situation be much different if the individual
claimed to be headed home from a range? Once again, it
would not be difficult for the officer to check whether the
range was or recently had been open. And it is not at all
apparent that determining whether a licensee was on a
route to his or her residence would be any harder if the
range at which the licensee claimed to have practiced was
outside the City.
Inspector Lunetta’s declaration stated that ranges in the
City are required to keep a record of everyone who practices
there, and therefore if a person claims to be coming from a
city range, the officer could easily check that story. But the
declaration does not state that ranges in nearby jurisdic-
tions do not keep similar records.13 It should have been
easy enough for the City to check, and a court engaged in
——————
13 Inspector Lunetta also expressed concern that officers in other juris-
dictions might detect and report fewer license violations. App. 80. But
Inspector Lunetta did not support this prediction, and his declaration
gives reason to doubt whether a decrease in referrals will actually occur.
Lunetta explains that the NYPD License Division already receives “re-
ports from [the New York State Division of Criminal Justice System] re-
garding all arrests made within the State of New York for which an ar-
restee is fingerprinted.” Id., at 86. But “[n]o formal report is forwarded
to the License Division for summonses and other arrests and incidents
for which a detainee is not fingerprinted.” Ibid. “[T]he License Division
may be, but is not always, notified of an arrest” made by the Federal
Government or authorities in another State. Ibid. By Lunetta’s own
account, the NYPD already appears reliant on the State fingerprinting
database to detect violations in other jurisdictions. There is no reason to
expect that database to be any less effective today in alerting the License
Division to potential violations than it was under the old ordinance.
Cite as: 590 U. S. ____ (2020) 31
ALITO, J., dissenting
any serious form of scrutiny would have questioned the ab-
sence of evidence, but no substantiation was provided or de-
manded below.
In sum, the City’s travel restriction burdened the very
right recognized in Heller. History provides no support for
a restriction of this type. The City’s public safety argu-
ments were weak on their face, were not substantiated in
any way, and were accepted below with no serious probing.
And once we granted review in this case, the City’s public
safety concerns evaporated.
We are told that the mode of review in this case is repre-
sentative of the way Heller has been treated in the lower
courts. If that is true, there is cause for concern.
* * *
This case is not moot. The City violated petitioners’ Sec-
ond Amendment right, and we should so hold. I would re-
verse the judgment of the Court of Appeals and remand the
case to the District Court to provide appropriate relief. I
therefore respectfully dissent.