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73 SMU L. Rev. F. 1 (2020)

handle is hein.journals/smulrf73 and id is 1 raw text is: SMU Law Review Forum Volume 73 January 2020 1-9 THE INCOMPLETE RECORD IN NEW YORK STATE RIFLE & PISTOL ASSOCIATION V. CITY OF NEW YORK Eric J. Mogilnicki Alexander Schultz ABSTRACT A Second Amendment case now pending at the Supreme Court, New York State Rifle & Pistol Ass'n v. City of New York, tests the extent to which New York City may limit the movement of guns along city streets. The briefing in that case is, however, incomplete. Second Amendment jurisprudence calls for an examination of historical analogues to the firearms regulation at issue. Here, the New York State Rifle and Pistol Association asserted that there are none. This Article identifies numerous historical analogues to the City's transportation restrictions, most of which were not identified in the briefing before the Court. INTRODUCTION The Supreme Court heard oral argument in New York State Rifle & Pistol Ass'n v. City of New York on December 2, 2019. The case tests the extent to which New York City may limit the movement of guns along city streets. As the oral argument indicates, if the Supreme Court reaches the merits of the Second Amendment challenge,' the Court will look at whether there are * Partner, Covington & Burling, LLP. ** Associate, Covington & Burling, LLP. The authors are grateful to Beth Brinkmann and Michael Gaffney for critical insights and constructive comments throughout the drafting process, and to MaKade Claypool, Claire O'Rourke, and Jon Ostrowsky for excellent research assistance. 1. New York argued that the case is moot because the City has repealed the relevant provisions of law and the state has enacted a law preventing localities from enacting similar regulations. See Suggestion of Mootness at 1, N.Y. State Rifle & Pistol Ass'n v. City of New York (NYSRPA), No. 18- 280 (U.S. July 22, 2019), 2019 WL 3451573, at *1. Five Democratic Senators filed an amicus brief arguing that the matter is moot and that public confidence in the Court would be eroded if the Court reached the merits. See Brief of Senators Sheldon Whitehouse et al. as Amici Curiae in Support of Respondents at 1-3, NYSRPA, No. 18.280 (U.S. Aug. 12, 2019), 2019 WL 3814388, at *1-3. The New York State Rifle & Pistol Association (NYSRPA) responded that the case is not moot because the City acted to frustrate this Court's review and because a change in the law is not equivalent to an injunction prohibiting enforcement of any future transportation ban. See Response to 1

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