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 a 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 In June, the city repealed its ordinance, allowing licensed NYC gun owners to take their pistols to a home, business or shooting range outside city limits. City officials then asked the Supreme Court to declare the case moot and drop it altogether — as the stated grievance of the plaintiffs had been remedied.
While the Court deliberated on what to do with NYSRPA v. NYC, five Democratic Senators took 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 conservative Justices: refrain from additional rulings that weaken gun laws and put lives at risk or you will face real consequences.
The 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. NYSRPA v. NYC isn’t some authentic popular movement for loose gun laws, the Democrats are saying. It’s another attempt to amass personal profit for gun lobby executives at the expense of public safety:
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 and to-the-point:
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 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 makes a curious messenger given his own history of unilaterally dispensing with Senate norms concerning the Supreme Court. It’s unlikely the Republicans’ letter will provide the conservative Justices with much in the way of political cover if they decide to make it even easier for violent men to get guns in America.
Nonetheless, on October 7 the 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 conservative wing 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 (think Beto and the March For Our Lives leaders). Simultaneously, the NRA’s political stock could not possibly be lower as it wrestles with a bevy of scandals involving criminality and treason.
The Senate Democrats’ remarkable August 14 brief is the exception that could soon become the rule. With 40,000 Americans now dying annually from gun violence, expect the party to continue its bold approach on guns.