>> next, the supreme court hears oral argument in a gun rights case. several gun owners in the nra new york affiliate challenged rules for having handguns at home. new york city and state regulations limited pistol owners to carry our their weapons to one of the city seven firing ranges but not a second home or shooting ranges for competitions another state. lower courts upheld the regulations as justified to protect safety. but those laws were changed after the supreme court agreed to hear the case. however, the justices opted to hear arguments. this is the first gun rights case the court has heard in 10 years.

venture beyondto the curtilage with the firearm even locked and unloaded a matter of government grace. that view is and can student with text history tradition and this court's cases. the text of the second amendment to protect rights to keep and bear arms. that latter right makes clear that the second amendment protect rights that are not strictly limited to the premises. there is no historical analogue for the city's prohibition on transporting firearms to places where they may be lawfully used. to the contrary, the second

congress required the militia to take their own firearms from their homes to the training ground. the regulations on limiting where firearms may be discharged or training may occur that the city invokes both underscore that the general rule was that firearms can be safely transported between and among places where they could be used and discharged. the court recognizes this much in heller both by recognizing the long history of handgun possession outside the home and by recognizing the government's interest in limiting possession in sensitive places, not every place outside the home. the city of course has struggled mightily ever since the court thised certiorari to make case go away. those efforts are unavailing and only underscore their continuing view not the transport of firearms is a matter of municipal grace rather than constitutional right. >> mr. clemente the city has now , been blocked by a state law and the state has not been party to these proceedings. the state says the city does not enforce

the regulations. so what's left of this case the , petitions have gotten all the relief they thought they could carry guns to second home they can carry to fire, to practice out-of-state. >> justice ginsburg, the petitioners have not gotten all the relief to which they been entitled if they prevailed in this litigation before the state and city changed their law. the best way to illustrate that is if we would've prevailed in the district court before they change the law, we would have been entitled to injunction that did three things, prohibit future enforcement of the transport ban, prevent the city from taking past conduct in violation of the ban and licensingcount in

decisions. and an injunction to transport third, meaningfully such that it would be limited to continuous and uninterrupted transport. justice ginsberg: as far as what you said about enforcing past violations, no plaintiff has alleged that they ever violated the regulations when they were in effect. >> that's actually not correct justice ginsburg. if you look at paragraphs 12, 15, 17 of the complaint pages 28 and 29 of the joint appendix, all three of the individual petitioners alleged they regularly went outside the city of new york for firing ranges outside westchester and new jersey. all three of my clients are on the record as saying that in the past they engaged in conduct that is inconsistent with the transport ban. if you understand the way that the city of new york licenses handguns.

justice sotomayor: i believe that the city has foresworn any future prosecution for past violations. i thought that that's the representation they made to this court. >> in their latest letter they were very careful about what they represented. they represented that they wouldn't try to prosecute somebody from past conduct if the past conduct didn't violate current regulations. so if the past conduct happened to involve a stop for coffee and not continuous uninterrupted justice sotomayor: the business to do with the current law hasn't been decided by the court below. that is a complaint about the limits of the current law and not the limits of the old law. you're asking us to mix apples and oranges now.

>> i don't think so. i think what i'm asking you to do is exactly what this court did in the knox case. justice sotomayor: no, what you are asking us to do is to take a case in which the other side has thrown in the towel and completely given you every single thing you demanded in your complaint for relief and you are asking us to opine on a law that's not on the books anymore. and one that's not on the books not because of something necessarily the city did because the state, a party who is not a party to this litigation has changed the law and prohibited them from doing. this is, i think, something quite different. you are asking us to opine on an old law, not the new law. the new law hasn't been reviewed yet. >> i really think what we are asking to do is exactly annul before what's the court. in knox the thrust of the underlying complaint was that the supplemental fee assessment that the union imposed on the members was unconstitutional. that's what the complaint framed. js: in terms of the contiguous

we don't know whether the city is taking the position that you can't stop for a cup of coffee. presumably if you leave your gun in the car, i'm not sure how they would know you are traveling with a gun. but put that aside. >> before i put it aside, let me just say i do think we know the answer to that because in subsection 7 of the new regulations that are promulgated specifically to try to moot this case they made clear that the kind of transport and they were allowing, at least within the city of new york had to be continuous and uninterrupted. i don't know what continuous and uninterrupted means of doesn't if it means you can make stops for coffee. i assure you i think the right way to think about this for article 3 purposes is if we had been successful in the lower court and proposed an injunction, i guarantee the words continuous and uninterrupted would not be in our proposed injunction. if the city had offered their proposed injunction and included that limitation we would have said we don't accept that with tickets inconsistent with the right we just prevailed on and

that dispute would be a continuing dispute that would render the case not moot just like in knox there was a continuing dispute about the sufficiency of the refund notice that the union offered rat searcher ra post theater post-certiorare, in its effort to moot the case. the dispute that was still alive between the parties about the sufficiency of the refund notice wasn't the exact same dispute that initiated the litigation, but the case was still alive controversy for article 3 purchases and this [--] this court could address the question presented here and leave the question of continuous and uninterrupted for the lower

court if it wanted to but there's no basis for not answering the question presented. js: i'm sorry, that's the oddest decision i've heard. answer an old law that's no longer in effect and reserve consideration of the new law's interpretation for the lower courts. if they have agreed and you agree that everything but the continuous and uninterrupted has been resolved and that you've gotten everything you wanted as demanded in your complaint, you can travel to a second home you can travel to any lawful firing range. that's all your original complaint demanded. if you got all that, that's the issue before us. a new question is, and you've agreed, we should leave that to the courts below with continuous and uninterrupted is. that happens to go to the new lot not the old one. >> with respect, justice sotomayor we don't think we've , gotten every thing we could

have gotten including continuous and uninterrupted but with all due respect we would like given our five years of history in this litigation with my friends on the other side would like something more than their representations to protect us against the use in the future of past conduct licensing. js: i have one question, the sg tried to give you a lifeline by saying you could get damages. but i read he representations to court and you said we could get damages. i don't see a request for relief where the damages are nominal in your complaint. you don't say we want damages in your submissions to us. d did you ask for damages? >> we asked for all other appropriate relief in our complaint. we did not make specific work quest for damage below. i'm happy to confirm that we like damages but i also think >> of course you have to ask for

permission to amend your complaint to seek that. >> yes we would have to do that. with all due respect to solicitor general. we were happy they recognize the case wasn't moot we did it feel like we needed to damage a lifeline because we think we had multiple strong arguments based on this court's press and including the knox case that said wholly apart from damages, this dispute isn't moot. >> just one more of the damages. as far as i know this court has never used a late, meaning in this court and not below, request for damages to save the case from mootness. i don't know of any such case. >> i am not aware of one either, justice ginsberg. we think we have plenty of cases from this court that are now in the situation. with respect, i don't think the practice of getting the recognition after certiorari is granted that a certiorari grant might this not signal anything good for the defendant. it's quite common practice if they then come up with an idea

to moot the case. if you think of a couple of recent cases not just knox, but trinity lutheran and parents involved are all involved latebreaking efforts often by government entities to make the case go away. in each case this court said that's too little too late and if this court starts accepting these kind of post certiorari maneuvers it's going to be hard for the court to continue. >> i don't think it's bad when people who have an argument settle their argument. is thus there are longer one. so i wonder if i can ask this question. you say this case is still alive because the city of new york might prosecute one of your clients because they stopped for coffee on the way to a firing range. i think i'm going to ask matt and i have a suspicion they will say no. we are going to -- we are not going to prosecute

that particular individual. so then what should i do? we have a dispute. you think they well and i think they will not. >> that suggests to me that we have the kind of live controversy and the standard for mootness is whether it's possible to provide a factual relief, i guarantee an injunction back attempt forcing those promises is going to give my clients more factual relief. keep in mind what makes this case quite different from a lot of others is this a discretionary licensing process where the city makes judgments about good moral character. there are 79 officials in the licensing department of the city of new york. where are they going to look for guidance? they could i think look for guidance to a court ordered injunction. i'm not sure they're gonna pull the transcript from this argument let alone a letter from the city to the solicitor general's office for this. so we think we are entitled to that kind of meaningful effectual relief. we think on the merits this case is actually quite straightforward because there is no historical analog for this kind of transportation restriction.

as i suggested, if you look at the second militia act passed by the second congress they not only understood you could transport your firearms from your home to a place where they can be lawfully discharged but they required of the members of the militia. if you look at the history and traditions of this country there are very few laws that tried to do anything like this and the few that tried to do this were invalidated by the courts. justice: as i understand new york b new york has two kinds of licenses, a premises license and a carry license. you are attacking the premises license scam on the ground that it doesn't allow you to carry. so why don't you just attacked the carry license scheme? if you want to carry, why didn't your clients get a carry license? >> i think what my clients wanted in this lawsuit and

plenty of other lawsuits out there challenging carry restrictions. they wanted the right to transport, not the right to carry. >> transporting is a kind of carrying. you take your gun and it goes with you someplace. that's the kind of carrying. i >> i would agree with that and i think it's also a bearing which i think this is such a straightforward case. >> all i'm asking is, there's a premises scam in the carrying scam and your clients want to carry, which suggests you should've brought a challenge to the carrying scam. if you thought that was deficient. respect my clients for , years at least two of the three had with the city for a while called target license. it didn't give them a full right to carry but it did give them the right to transport their firearms to new jersey and other places probably would've allowed a second home though i'm not sure the issue squarely presented. my clients did not insist on getting a carry license either under the before this lawsuit was filed or in this lawsuit. what they want is to rule is to restore right, transport

firearms between and among places where they can be lawfully used. that's different from a license that says i get to have this firearm with me at all times loaded, ready to go. what they wanted was to restore their right to transport firearms, locked and unloaded between places where they could be lawfully used. that's what they asked for, that's what there is no historical analog for. if i could emphasize, i think it would send a very important signal to the lower courts to say that when regulation like this is inconsistent with text and has no analog in history or tradition it is unconstitutional if text history and tradition they will uphold the law but if text history or tradition are to the contrary, courts proceed to a watered-down form of scrutiny that's heightened in name only. i think this court should

reaffirm that text history and tradition essentially is the test and can be administered in a way that provides real protection. >> how do we go back just one second, to the question presented, does new york city's ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside the city limits consistent with the second amendment? you're going to hit -- going to hear in one minute that there is no new york city law for transporting a license locked and unloaded handgun to home or any other place. i think you will hear that. now what will be your very brief response? there is a question presented. they say there is no ban. and you say? briefly. >> mr. chief justice, thank

you. my answer in a nutshell is knox, my slightly longer answer is every time this court confronts a post certiorari maneuver to try to moussa case, it almost by definition will try to take away from you a question presented. that is what happened in knox. the question presented concerned the constitutionality of special assessment it did not concern the adequacy of the refund notice but this court decided both. >> thank you counsel. >> mr. wall? >> mr. chief justice and the court. one point on the merits and one on mootness. merits, text, history, and tradition all condemn new york's transport band. rare and commonly struck down precisely because of the right to keep arms keeping and bear arms must entail and have is always entailed the ability of a law-abiding citizen

to carry a firearm unloaded and unlocked from one lawful place to another. on mootness petitioners pointed below to economic harms from the violation of the constitutional rights. if they prevail here the district court could award them damages just like any other 1983 plan. >> but they never asked for it. >> that is true, justice ginsburg. but there's a specific rule on this federal 50 4c which says the prayer of relief binds on a default judgment, but does not bind when you litigate it on the merits. the question for article 3, and there are questions about potential questions about whether under the rules the court should allow them to inject the hearing and weighed against city's tardiness in changing its theory the case as well but for article 3 purposes the question under, is it impossible for a court to grant relief. it is not. it is possible for court toward them damages they have sustained as a result of the city's conduct. >> has the solicitor general

ever asked this court to allow such a late introjection of a damages question to save a case from mootness. mr. quinn said he was not aware of any such case. are you? >> i don't know of any case in which is directly come up or we weighed in on it. we participated on merits before the city suggested the mootness and we felt compelled to explain the court. didn't it come up in ali john reno and it was decided the other way that the court said no we are not going to allow that to happen? >> first, that is a 1926 which predates the federal rule. i think the facts are somewhat distinguishable from here where they got evidence in the record at the summary judgment stage of their economic harms. to be sure they are focused on gap damages. what they wanted was to engage in conduct. >> not focus on damages is an

understatement. they practically want to take damages. it had every opportunity to say they wanted damages including today and for whatever reason mr. clement has basically said this case is not about damages. that's not why we think it's not moot and it's not what we want. >> i heard mr. clement say i'm happy to affirm my clients want damages but we don't think we need that lifeline from solicitor general. we think our other theories are good. even though we disagree on the other theories. i think the question under knox admission products is is it impossible for court to award damages? there's evidence in the record of economic harm. if they get a declaration on merits that they are right in the matter of the second amendment there is no barrier to their receiving award of damages from a court. >> would you remind me where in the complaint they set fourth damage? >> i think the best examples are pages 32, 33, 35, 36 of the joint appendix and again 52 through 54, 56, 57, 59 to 61 >> those are both pleading and

summary judgment affidavits and rely on two kinds of harm. one is competitions they were not allowed to attend with firearms and the other is the cost of dues and membership fees to the in city ranges which i think implicitly are suggesting higher then the out of city. >> they filed a complaint they filed a motion for summary judgment debriefed the case before the second circuit they filed a certain petition. then in response to the , suggestion of mootness they filed another brief there. in none of those places today ask for damages. damages has been injected into this case because of the solicitor general in a very latebreaking three-page letter. >> justice i will certainly , grant that there's a lot of post-grant maneuvering on both sides. the city has withdrawn its law and the petitioners have come up with theories of why the case is not moot. as matter of article 3 argues that damages

can change hands. could also rest on future you consequences and say the city's representations have come too late. >> i thought that in your brief in your letter brief you specifically rejected every other theory of why this case was live. >> we think the court credits those kind of assertions by government litigants it did in if eunice. the facts here are a little different. a scheme that expressly allows you to consider conduct. you don't have acknowledgment from the city that it's former conduct was caught unconstitutional and you have a representation that comes as mr. corbett said in his letter at the 11th and and a half hour. on those facts could you say we are not going to take a look at the city's representation? you could it's not our theory. our theory is money could change hands here and they be entitled to that money. >> what you think of mr. clements theory about this continuous travel and stopping for coffee. >> i think it's a close call in our view that's a new controversy that arises from the new law not the old controversy to the old law but i think it's

a hard question and i understand his point that they would've been fighting over the terms of the injunction in the district court or at least potentially could have been. i turned to the merits for a minute. >> why isn't that good enough? if under the prior law the plaintiffs would have sought relief that would've allowed them to take their firearms locked safely to a range and stop along the way for a cup of coffee or bathroom break and that is still being denied if that's a proper reading - we'll ask about that i'm sure. if it's still a proper reading of their existing regulations, why isn't there controversy remaining? it would seem to be adults of relief that's been denied. >> i think there is a lot of controversy potentially now but the meaning of this continuous and uncorrupted requirement i

think arises from the new law >> why does it arise why didn't dispute still alive from the old floor effects form of relief that would've sought and still despite the new law being denied them? is not classic definition of relief that was sought but now still despite herculean latebreaking efforts to moot the case still alive? >> if the court wanted to say that, i don't think it would harm the united states' interest. >> you not aware of precedent that would close that and that's pretty much what knox did, isn't it? >> except that knox wasn't a governmental litigant. the resumption of voluntary this station work differently but to go to the question, i think in the district court the fight was about whether they could do the thing at all. now we have what strikes us as a different fight about the manner in which they can go and the legal restriction is different. the legal restriction is tied to the new law. i'm not aware >> sure, they have new relief. they granted new relief but not

total relief. >> i would agree with that. i think there is still controversy about the manner in which they can go. that seems somewhat different to us from the controversy litigated below and that this court agreed to hear but i don't think there's any case that would keep the court from going down that road. if i could turn to the merits for just a minute, i think all the petitioners are asking for and it's a fairly modest ask is for the court to reiterate what it said in heller that the lower courts have been corrected starting with text and history and tradition but they have created as mr. clement said of sort of asymmetry where they find that history and tradition can give a thumbs up to a law but not a thumbs down. >> i'm sorry, can i go back to that question and in what other area constitutional area, the first amendment in particular, have we decided any case based solely on text history and tradition? this seems sort of a made up new standard. i thought heller was very careful to say, we don't do that, we treat it like any other constitutional provision. if i analogize this

to the first amendment, which is what heller suggested we should do, it seems to be a time and place and manner restriction it might not pass any of the standards of scrutiny. but if you're looking at a first amendment right to speak, it's never absolute. there are some words that are not protected. we are going to have a different fight about that at some point. there are some weapons not protected. just like there might be some words not protected. we know under the first amendment that there are time, place, manner restrictions that a government can impose on the basis of safety and other things. on the basis of safety, you can have a demonstration at will. you need a permit and you have to have certain equipment and certain protections and certain things. if i treated in

that way, we might have a fight about whether text, history and tradition prior permits a time, manner, and place restriction of this type. but why that's a freestanding test. >> two points justice, i understand manner restrictions. i understand the requirement you carry the gun unloaded or do it in locked container but a ban is not a tone place or manner restriction. determining which category falls into and was permissible heller said you said will you start with text history and tradition and the court commonly does that. even with respect to categories, seventh amendment for the jury trial right. heller says you start here and starting here i think

it's a straightforward case there is no historical analog and a contrary tradition. >> mr. chief justice, contrary to how they are presenting it now, petitioners claim this case narrowly. they argue that a premises license specifically allow certain limited transport of the licensed handgun to effectuate its possession and use in the premises. they sought only injunctive and declaratory relief to require the city to allow the limited transport. that narrow framing has two applications now. first the case is moot because changes in state and city law have given petitioners everything they asked for and indeed more than that. petitioners suggest these changes should be viewed skeptically but it's a good thing not a cause for concern when the government response to litigation of resolving matters to the democratic process. solicitor general agrees that all the objections actually raised by petitioners to mootness are unfounded but

suggests that the court can proceed to the merits of constitutional questions anyway because petitioners might be in the future be able to add a new claim for damages that they have never asserted and still now only most reluctantly embrace. the court has never adopted that kind of reasoning under article 3 and it should not begin with this case. the second implication of the case it's framing is that if the case worked moot, the only question presented on the merit would be whether a premises license must as an adjunct to include rights -- implied transport rights sought by petitioners. petitioners invoke general right to bear arms outside the home premises license is not addressed to that purpose. the premises license is instead issued for possession in a particular place and petitioners never challenged a separate new york license that is addressed

to caring weapons outside the home which is to carry license. those broad questions are not properly part of this case. turning first to the issue of mootness and i will go straight to the question of coffee stops there are two levels to this response. the first is that there is no dispute on that question. the city's enforcement, the governing standard is provided by state law because the state enactment preempts local law. the continuous and uninterrupted language cited friend is not in the state law. the city acknowledged that. in the city's enforcement position is that coffee stops, bathroom breaks, are entirely permissible. >> it's beyond a coffee stop or bathroom break. suppose they had prevailed under and obtained a judgment that the old law was a violation of the second amendment. suppose after that one of the plaintiffs had made a trip to a firing range and let's say new jersey and while they decided to stop to visit his

mother for a couple hours to take care of a few things for her. would there be any law that would violate? >> i'm not certain it would. i think that would have to be a question now to be litigated under the state law. no,ch is something that >> no. we are back without the new laws city or state, would that have been legal conduct? >> if that had happened prior to the changes. >> after a judgment that the old law was unconstitutional, prior to the enactment of any new law? >> i don't think it's all clear. those kind of questions were never put at issue or litigated in the case. >> you don't know whether there's >> i do know that there is any law that would violate. >> if there was a judgment that

said that our law had been struck down? >> i'm not aware of any city law. >> why is this case moot? they didn't get all they wanted they wanted declaration that the old law was unconstitutional, period. what they've obtained as a result of new city ordinance and the new state law is a rule that says yes you can take the firearm to a firing range outside of new york city but it must be a direct trip. it can't include an hour spent with your mother. >> i think the answer is that article 3 analysis is always focused on what the plaintiffs ask for. not speculation about what might've been injunction. the only thing that was ever put at issue here, you can see this by looking at the actual injunction that plaintiff's frame was the permissible categories of destination. shooting ranges and second homes outside. >> where is the injunction the plaintiff's frame? >> it is in a number of docket entries and i don't remember the numbers off hand but there in the summary judgment in both motions for preliminary injunction, motions for summary judgment across several different docket numbers injunctions were repeatedly proposed by the petitions. they are basically verbatim identical. what they say is,

they want injunction restraining the city from enforcing its old rule in any manner that would prohibit or preclude plaintiffs from traveling to shooting ranges and second-home. outside. >> why wouldn't that include a nondirect trip? >> your honor the issue of , directness was never litigated as part of the case. it was never in the complaint. we have no idea what the answer to that question might be if it had been litigated but it's not - the article 3 analysis focuses on what the plaintiff asked for and what they asked for dealt with permissible categories of destination and that's more than fully addressed by the state and city law. to turn to the question of future consequences. as i said, the issue of copy

stops is entirely sane dispute. we would not undertake prosecution or action now based on that or any other violation of the repealed law. >> is there any way in which any violation could prejudice a gun owner? >> not that i can think of. the city is committed to closing the book on that old rule and we are not going to take it in effect. >> is there any way in which finding of mootness would prejudice further options available to the petitioners in this case? for example, seeking damages? >> i don't think so. it's possible they would have a time bar on damages but it would depend on the allegation they made. they've never made any allegations related to damages i think we have to assess that based on the allegations they make. i think the other key point on future consequences there's really no factual basis in the complaint for that. mr. clement for the first time today suggested that the complaint may allude to possibility of

past violation. it certainly did not allege they have violated the rule in the past. the most important thing to know about the paragraph to the complaint is that the petitioners would have had their licenses renewed at least twice by now. >> counsel let me make sure i understand to suggest there will be no consequence to anyone for violating prior ban. any kind of collateral consequences? you're representing the city. so i'm asking the city's representative here. that the city there will be no , collateral consequences from the city to individuals who violate the prior ban? >> absolutely correct. there will be none. >> and you are making that representation to this court? >> i am making that rep is in tatian to this court on record on behalf of the city of new york. >> i want to be careful for you as a society. you are not representing that if they shot some buddy with a gun, you're not going to prosecute

them for that. just not going to prosecute them for this. , on the repealed position -- repeals present provision -- of the repealed provision of the law. >> that's right. if there were other intentional acts, loaded guns, violent act, that's different. the repealed provisions of the old law we would not prosecute anyone for. >> my question and some of the others went beyond prosecution. the question is whether they would be prejudiced in any way, for example, with respect to qualifying for a premises lysis under the new law with effective violation of prior law be used against them? >> it absolutely would not. i think a deeper point is there is no reason to think there are such violations. if we refer back to the complaint as i noted before. these petitioners have been renewed, the licenses have been renewed twice. at least, since i complete was filed. do you have a way

- i take it the licensing decisions are made by the office and office in the new york police department. do you have a way of communicating to that office what they are not permitted to do, given your representation? >> absolutely. we consulted that office, they are aware of this. if we communicate to them that no such consequences are to be imposed and the event the extremely unlikely and i think it's not can happen event that anyone thought that might've happened they should bring that to the attention of the law department and we will review it to make sure it's addressed. >> i want to put a slightly finer point on the lack of factual basis in any event for the claim of future consequences. the petitioners only now have made this illusion -- allusion to their complaint. they been renewed twice since then. the court ordinarily presumes individuals follow the law. even before this case our practice was not to ask people to disclose past violations unless it resulted in arrests, summons, revocation or something like that. there is no suggestion that any petitioner

has had any of those. >> do think it's really fair for you at this point to look for specific allegations in the complaint to defeat a claim of mootness that the plaintiffs had no reason whatsoever to anticipate until after we granted certiorari? in the city decided to try to move the case. that confirmed the plaintiffs got everything they asked for in this case. >> if you say they didn't ask for a nominal damages completed and as for school, actual damages. they didn't specifically allege they violated old law. really they didn't allege that they wanted to make nondirect trip. how could any plaintiff possibly have anticipated that until you took the quite extraordinary

step of trying to moot the case after we granted review? >> the state legislature passed a new state law. did the city have nothing to do with the enactment of that law? >> the city supported law as we do with money potential bills and most of them go nowhere. the state legislature and governor made their own decision about what to enact. of course responsive to their statewide constituency and that's what that's happened here. that, by the way, is a good thing and not a bad one. the government should respond to litigation, should assess its laws or political subdivision laws when they are challenged. let's say i agree with you, that it's great when local governments respond to the constitutional constraints suggested by others. but it does seem a bit much to fault plaintiffs for not having a specific damages requirement in

their prayer for relief in a complaint that's framed years ago. this litigation i think has taken 5+ years. it's become relevant only at this late stage after the city of the state have have enacted a new law. why isn't the prospect of allowing damages to be added to the complaint enough? in a 1983 action, damages are clearly available. the complaint long ago as it was filed did say they sought all available relief. typical prayer for relief. why isn't there a fair prospect the district court on remand would allow amended complaint to seek actual damages? >> two answers, one is that that's not how the court is approached and fair prospect is not enough to sustain case under article 3. >> fair prospect of relief isn't

enough? about whether the claim is in the cased must precede a decision on the merits. that question is a jurisdictional one. solicitor general is mistaken that it can be deferred until later and the merits reached anyway. the prior point i think is equally important which is that it's not a matter of faulting the plaintiffs but the plaintiffs chose the case they wanted to bring. as plaintiffs do. demand for relief are taken very seriously they are crafted carefully and one of the reasons they are crafted carefully is that litigation demands are met to cause a defendant to consider whether to meet the demand. in this case the demand was crafted not just in the prayer for relief but in numerous paragraphs of the complaint. the case was consistently litigated in accord with that structure of the complaint and even after the mootness question arose the petitioners in their lengthy comprehensive response never suggested >> so you think it's totally irrelevant that the state has at

this late stage has sought to mooch the case when we are assessing the prospect in the interest of the plaintiff in seeking damages. >> i think it is, because the reason demands are made in litigation is to prompt defendant to decide whether to meet them. not to decide later if they do meet them to reinvent the case and make it something else. >> do you agree there would at least be fair prospect and district court to reimagine might disagree with you and find that there is reasonable excuse for the plaintiffs introduction of damages at this stage? >> i don't think so. i'm not aware of any case where anything like that is happened. consistent decisions from the courts of appeals have said >> if we disagreed with you, then what? >> still not enough because the prospect of adding a potential live claim is not enough to sustain an article 3 case or controversy now and to allow the courts to reach the merit that

claim in the case and the clearest example of alvarez versus smith that's the case where the complaint sought declaratory and injunctive relief just like the complaint here. a significant difference in that case the plaintiff had a motion pending in the district court. >> what you do about the fact that that was pre-rule 54? >> alvarez was not pre-rule 54. was about a decade ago. >> i'm sorry. different case. >> rule 54 i think is really a red herring. rule 54 is a question that governs the district court how remedial powers when a live controversy remains continuing before it. he says the district court does not beholden necessarily to what is categorically beholding to what's included in the prayer for relief and can craft appropriate remedies. district court and lower courts do not look to rule 54 in determining questions for article 3. the right place to look is the complaint, consistent litigation history and the courts below that determine whether the plaintiff asked for and has what

they ask for been provided? and that has happened here. >> mr. dearing, are people in new york less safe now as a result of the enactment of the new city and state laws than they were before? >> i don't think so. we made a judgment expressed by our police commissioner that it was consistent with public safety to repeal the prior rule and move >> if they're not less safe what possible justification could there have been for the old rule which you've abandoned ? >> it was a reasonable implementation of the state premises licensed to carry license division. and we've explained that there was a verification benefit to the way the rule was set up. that verification benefit perhaps not played out as much in practice as it had been predicted and we believe the police could work harder. >> do you think the second amendment permits the imposition of instruction that has no public safety benefit? >> i think you have to look

first to consider whether the type of restriction, how the restriction accords with the history under the second amendment before we answer that question. i think the right place to start and for our purposes may be starting with shooting ranges is the best. first key point is this must be viewed as an adjunct to the premises licensed. it's not just a general statute or generally applicable statute, it's an adjunct to the premises license. >> if it's viewed in the wake of the city would be consistent with the second amendment for the city to prohibit any trip by a person holding a premises licensed to a firing range? >> i think that would be doubtful. the reason the city went beyond what state law says about premises licensed and authorized transport to shooting range in the city was because the city recognized that the

training does intersect with and is important to effective use of a handgun in a home. >> so you are conceding, i take it doubtful means it would be unconstitutional? tell me if you don't know the answer to that question but if that's what it means, you are conceding that the second amendment protects the possession of a firearm outside the home under at least some circumstance. >> i think what i'm conceding is that in the case of a premises license, the second amendment has something to say about what effective possession in the home means. sometimes that may mean that you need to be able to license holder needs to be able to undertake certain activities outside the home. >> if a person is taking the firearm, the handgun, from a home to a firing range the person is out on the streets of new york and unless a total ban on taking it to a firing range would be consistent with the

second amendment and follows the second amendment under at least some circumstances, protects the possession of a handgun outside the home. isn't that correct? >> i think that's a fair way to look at it. but from our perspective, the right question regarding premises licensed is, did the rule impermissibly burden effective use of the handgun in the premises. in the same way that to get a gun to a premise you have to get it purchase it outside your premise and bring it there. but certain things that happen outside the home may be integrally related to the effective use of a handgun inside the home. when you look at a premises license not speaking about the second amendment at large but the premises licensed specifically the only proper lens to look at the question through is whether the restriction impinges on effective use of the handgun in the home. with regard to training we have two related reasons why it doesn't. the first is to look to historical restrictions which are not themselves directed at premises

licenses, but are eliminating illuminating. the location where people were permitted to train was fairly extensively restricted provided the opportunity to train remain ed available. that's the principle we distill from history and when you apply it to the premises license here the conclusion is the ability to train locally and circumstance where market forces are allowed to operate to allow how many facilities are present with no indication supplies and and petitions here in their summary judgment affidavits never even said they wish to engage in any form of regular training outside the city. all they said as they wanted to go to shooting competition, regional shooting competition out of the city that on this record the former restriction or the former rule implementing the premises license to allow training locally meets second amendment requirements. >> what methodology should the

courts use in approaching second amendment questions? if they conclude that text and history protect the text and history of the second amendment protects a particular activity, is that the end of the question or then did they go on and apply some level of scrutiny? >> i think first we looked at -- look to history and determine whether history answers the question one way or the other. whether constitutional or unconstitutional. and in a significant number of cases history will not speak with one voice or conclusively on that subject and then the right step is to move on to assessment of justification under means of scrutiny approach. >> but if history says it's protected then that's the end of

the question. there is no resort to some level of scrutiny? >> if history conclusively shows the restriction is impermissible, then, as in heller, heller is an example of that phenomenon. heller determined without consulting needs and scrutiny that the law in question went to the core of and destroyed the second amendment right and therefore the >> and you're correctly stating the views of some judges. and some judges had an opposite view. i am aware of that. [laughter] that's great. [laughter] >> a review is that history can answer some questions pretty directly and other significant number of cases history doesn't speak so clearly. the most reliable method of answering the question is most cases means and scrutiny. >> one problem with the prior regulation, if you wanted to have a gun in your second home you had to buy a second gun.

what public safety or any of the reasonable ends is served by saying you have to have two guns instead of one? and one of those guns has to be maintained in a place that is often unoccupied and therefore more vulnerable to theft? >> i think the question on second homes, their petitioners have identified a difficult application of former rule that wasn't really contemplated when the rule was adopted. but still think if you look historically in the right way to answer a question about whether it was unconstitutional is to ask whether there had been historical tradition of enabling

individuals to using two handguns to protect two different homes. our rules never spoke to the question whether an individual could have a handgun in a residence outside our jurisdiction. that's completely we don't speak to. when you look at the question about what happened historically, there have been incidental burdens that would've burden similarly that kind of conduct in the past. >> this is why these things are difficult for you. i understand that. in massachusetts historically all the guns and ammunition were stored in a central place at night. i believe. at the time of the revolution. not in anybody's home. do we have a different law for massachusetts? i guess not. what history do we look to? you did at some point or somebody said, i am a policeman. i happened to notice that there's a gun next to this person in the cars we stop at this point, i say, sir, what are you doing with this gun? he says i'm going to a firing range. oh, i see. where is it? if he says

it's in brooklyn i can find it. if he says it somewhere 14 miles northwest of utica in the adirondacks, i have a harder time. and i don't know who to believe. so it's tough. so there are more guns in new york. what happened to that argument? >> that argument is the argument that is presented on the record affidavit.ctive we of course took a close look at the question and the police commissioner determined that the rule can be repealed without negative impact on public safety. i think the police will have to work harder to verify what's happening in those situations but we are confident if they can do it they will do it. >> why will they have to work harder? somebody who lives in midtown is stopped with a gun and the officer says, where you going? i'm going to a firing range in jersey city which is right across the river.

that's tougher than i'm going to a firing range in staten island. i think three of your seven regions are in staten island? am i right? >> two are in staten island. i think it's a little tougher but of course the person might not say jersey city either. >> somebody who lives in the north bronx, says, i am going across the border to westchester county. >> that range is subject to the requirement to maintain a roster of individuals to use it. i agree with you that it's enforceable as to jersey city or westchester. and that's part of the reasons the city has determined to change the rule even ignoring the fact that the

state came in and preempted it. but i do think it's more difficult and that the judgment previously was that with respect to premises licenses of course not a carry license which is not an issue in this case never been challenged, the target license that mr. clement referred to was understood to be a kind of carry license and if that was the heart of the complaint the claim should have been that the city needs to reinstate the carry license. that was not the claim in this case. the claim in this case was specifically articulated by the they have premises licenses about the scope of a premises license and the claim made frame d by petitioners most clearly in their summary judgment papers at page 6 that the relief sought here is necessary to allow full exercise of the right of defense of hearth and home in the home. they accepted the premises license framing in the entire

case litigated. >> counsel, i want to circle back to the direct and continuous travel requirement. in justice alito's question about [--] is it the city's position that any reasonable stops are permissible? >> that is our enforcement. reasonable necessary stops. >> reasonably necessary, does that include stopping to visit your mother or use ba cup of coffee? his coffee reasonably necessary? >> probably depends who you ask. the police department. [laughter] the police department has affirmed and we made clear that the enforce position is stopped for a cup of coffee is not a problem. >> so what's going to qualify? i'm just a little unclear. >> the controlling standard here, i'm giving you the enforcement position of police

department on the questions we have considered. the controlling standard here should add that is provided by state law. we do not offer definitive construction of that law and i think the question about what that state law means is one that needs to be litigated probably in state courts. before there is any dispute here for constitutional adjudication the meaning of the law of demand to be determined. >> we have no representations to us as to what is direct and continuous other than coffee is okay. >> what i can represent because it has come up before, coffee, restrooms, food, gas, the kinds of things that you ordinarily would stop for in the course of travel. i had not considered the mother-in-law example before. i think it's going to need to play out in the state court. the more important point is that none of those issues were ever part of this controversy. this

controversy was about two things. as repeatedly emphasized by petitioners throughout >> asking us to say there's no controversy. i'm trying to nail down exactly what is the delta if any remaining in the relief that might've been sought and the relief you provided. >> this is all in short what i'm saying this is not relief that was ever sought. there might be a controversy here but it's a new controversy it would need to be litigated in a new case in the relief the speculation about what an injection theoretically could have included is not the way the court analyzes questions under article 3. >> thank you counsel. three minutes mr. clement? >> thank you mr. chief justice. a few points in rebuttal. first of all, justice kagan, we never got to the point of imposed proposed injunction in this case. we didn't exactly succeed really well under current second circuit law so we never got to the point of proposing injunction. the only

thing my friend is referring to our allusions to the kind of relief we wanted the summary judgment motion. if we got to that point we would have wanted clarity, the kind of clarity the federal court applying second amendment can provide. you don't have to depend on cities representation. >> from enforcing this prohibition from traveling beyond the city of new york to or to use a range, lawfully possessed firearm for the purposes of defending one's home, personal property. and you ask for clara tori relief with those same words. >> that's right. i don't think we would have been tethered to those, but if we go to the complaint, look at paragraph 41, appendix 46, where we ask for "unrestricted access to gun ranges and second-homes."

i don't think we are being offered unrestricted access. >> justice alito said stopping at your mother's. when you say unrestricted, does that mean i can carry my gun for three days? do you think that a court actually would have crafted an injunction at all, with high political -- hypothetical situations? you said you could carry your gun to the range and would have left for further litigation specific applications of that general rule. >> i don't think so, your honor. i think the parties would have their proposed injunctions and we would have disputed the same kind of questions still being disputed here, but we wouldn't have to rely on the city's presentation of state law because we could have an injunction that enforces the second amendment. >> you want us to create the law? >> i would be delighted to, your honor.