Democrats Playing Hardball with Right-Wing Justices on Guns
In January, the Supreme Court accepted its first gun case in nearly a decade, New York State Rifle & Pistol Association v. New York City. The petitioner, NYSRPA, is the state affiliate of the National Rifle Association. NYSRPA is challenging a gun ordinance that prohibits licensees from transporting their handguns outside NYC limits. The NRA is hoping to accomplish more than striking down a minor municipal gun law, however. With perjurer and accused sex offender Brett Kavanaugh installed on the Court, the NRA seeks an expansive reading of the Second Amendment that enshrines public carry (concealed and/or open) as a constitutional right.
To the credit of NYC officials, they recognized the threat the case poses to gun control laws nationwide and acted to preempt a ruling. In June, the city repealed its ordinance, allowing licensed NYC gun owners to take their pistols to a home, business or shooting range outside city limits.* As the stated grievance of the plaintiffs had been remedied, city officials then asked the Supreme Court to declare NYSRPA v. NYC moot.
While the Court deliberates on what to do with the case, five Democratic Senators have taken an extraordinary step. On August 12, Sens. Sheldon Whitehouse, Kirstin Gillibrand, Mazie Hirono, Richard Blumenthal and Dick Durbin filed an amicus brief in support of NYC’s recommendation to moot the case. The 18-page document serves as a warning to the Supreme Court’s five right-wing Justices: refrain from additional rulings that facilitate gun carnage or you will face real political consequences.
The Democrats’ brief opens with a reminder that courts are not legislatures. Mootness is an important “apolitical limitation on judicial power” to prevent courts from undertaking political “projects,” the Democrats explain:
Petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gun safety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law, the Court should resist petitioners’ invitation. Petitioners’ effort did not emerge from a vacuum. The lead petitioner’s parent organization, the National Rifle Association (NRA), promoted the confirmation (and perhaps selection) of nominees to this Court who, it believed, would “break the tie” in Second Amendment cases. During last year’s confirmation proceedings, the NRA spent $1.2 million on television advertisements declaring exactly that: “Four liberal justices oppose your right to self-defense,” the NRA claimed, “four justices support your right to self-defense. President Trump chose Brett Kavanaugh to break the tie. Your right to self-defense depends on this vote.”
The Democrats point out that at least eight of the amici supporting NYSRPA in the case are other NRA affiliate groups. Thirty-two total amici supporting NYSRPA don’t disclose their organizational donors, which precludes a look at whether they have received funding from the NRA. This isn’t a popular movement to eradicate carry laws, Democrats are pointing out. It’s another attempt to amass personal profit for gun lobby executives at the expense of American lives:
Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills. In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project.” Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics” (up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” [Source: 2019 Quinnipiac Poll]
If this threat of a future congress and president restructuring the Supreme Court (to presumably include impeaching and/or adding Justices) wasn’t clear enough, the concluding paragraph of the brief is even more stark:
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
The Democrats’ bold amicus brief prompted an immediate and hysterical reaction from Senate Republicans. Senate Majority Leader Mitch McConnell** and all 52 of his GOP colleagues in the chamber sent a letter to the Supreme Court on August 29 to complain:
Democrats in Congress and on the presidential campaign trail have peddled plans to pack this Court with more justices in order to further their radical legislative agenda. It’s one thing for politicians to peddle these ideas in Tweets or on the stump. But the Democrats’ amicus brief demonstrates that their court-packing plans are more than mere pandering. They are a direct, immediate threat to the independence of the judiciary and the rights of all Americans … Americans cannot trust that their constitutional rights are secure if they know that Democrats will try to browbeat this Court into ruling against those rights.
McConnell seems to have prevailed for now. On October 7, the Supreme Court denied NYC’s request to moot the case and set oral arguments for December 2. The “question of mootness will be subject to further consideration” at that time, the Court stated, “and the parties should be prepared to discuss it.”
The pressure on the Court’s right-wing Justices to drop NYSRPA v. NYC is unlikely to abate. Public opinion continues to swing in favor of stricter gun control laws, and bold voices are reframing the national gun debate to emphasize the fundamental duty of government to protect citizens in public spaces. Simultaneously, the NRA’s political stock could not possibly be lower as it wrestles with a bevy of scandals involving criminality and treason.
Hopefully Democrats continue this bold, fearless approach on the gun issue. With 40,000 Americans now dying annually from gun violence, we need vigorous action from the party of Lincoln and Roosevelt.
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* Full disclosure: I advocated for the city to take this step and repeal the gun law in question in a March 28, 2019 op-ed in the New York Daily News. Others who have advocated for the law’s repeal include Adam Skaggs of Giffords Law Center and Eric Ruben of the Brennan Center for Justice. The gun control movement as a whole, however, has been silent about the city’s strategy/options in the case.
** McConnell makes a curious messenger given his own history of unilaterally dispensing with Senate norms concerning the Supreme Court.
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Update: On April 27, 2020, the Supreme Court dismissed the case of New York State Rifle & Pistol Association v. New York City as moot. The 2-page opinion from the Court was unsigned. Justice Samuel Alito wrote a lengthy dissent claiming “the case is not moot” and was joined by Neil Gorsuch and Clarence Thomas. In the dissent, Alito cast doubt on NYC’s public safety concerns, calling them “weak on their face” and “not substantiated in any way.” Expect more gun cases to be accepted by this Court moving forward.
