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Judiciary Committee Democrats Draft Shocking Threat to SCOTUS

The Trump era has, if nothing else, put a massive strain on what seemed to be well-established norms. Seemingly every day, you’ll hear (or especially read) pearl-clutching from one side or the other over some new, democracy-threatening, violation of some universal-but-also-arbitrary norm committed by someone on the other side of the political aisle. If you’ve noticed my tone thus far, it should be clear that I find this sort of back and forth incredibly exasperating.

If that’s the case, why publish this article today? There’s no question that what we’re about to discuss is undoubtedly counter to accepted norms, or at least one would think. However, the letter penned by a collection of Senate Democrats last week which was directed at the Supreme Court goes a good bit further. Here, Senators Blumenthal, Durbin, Gillibrand, Hirono, and Whitehouse are urging the court to revoke cert in New York State Rifle & Pistol Association v. The City of New York – or else.

The Democrats’ argument can be boiled down to three main points:

  1. The case represents an extension of the “project” started in Heller
  2. Conservative interest groups like the NRA have “bought” the court with recent confirmations of Justices Gorsuch and Kavanaugh
  3. Subsequent changes to New York law have made the case moot

The brief closes with the following ominous statement:

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it is “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

In other words, as National Review’s David French appropriately related, “[n]ice nine-person Supreme Court you have there. It would be a shame if anything happened to it.”

To understand the significance of this filing, you need to understand what exactly the New York State Rifle & Pistol Association is seeking with this case, or why the issue exists at all. Before July 21, 2019, the City of New York prohibited even unloaded, and locked transport of a handgun to any destination other than one of seven official shooting ranges within the city. The effect of the law was considerable: handgun owners living in New York City (which is a significant accomplishment itself) could not legally transport their firearms anywhere inside or outside the city unless they are going to or from one of these ranges. That’s right, even taking a legal handgun down to Pennsylvania for a weekend at a relative’s hunting property was a big no-no. If you legally owned a handgun in New York City, it stayed in New York City – permanently.

On July 21, the city, in response to the Supreme Court’s decision to grant cert to this case, decided ever so slightly to loosen the regulations. Thanks to this generosity, New Yorkers could now take their handguns to second homes, ranges, or shooting competitions outside the city. The city’s requirements still dictate that licensed handgun owners must first receive permission from NYPD before transporting a handgun to a licensed dealer.

Also relevant to this case, on July 16, 2019, the state passed a law allowing transport of handguns by licensees to any location where such a weapon may legally be possessed. It is this change in state law – not the city’s changes – that could render the case moot. That is still to be determined by the Supreme Court.

The Democrats’ filing is not a full-throated defense of the state’s mootness argument. As French notes, the senators would be well within their rights to argue that angle. Instead, the filing is a far more direct attack against the impartiality and professionalism of the Supreme Court.

A key component of their two-part argument (items one and two above are together in the filing) is the notion that by supporting the nomination and confirmation of conservative justices like Gorsuch and Kavanaugh, the NRA and Federalist Society have purchased the court. The first half of the document is about pushing this narrative with little substance to be found. The following statements paint a picture of this:

The Federalist Society’s Executive Vice President, Leonard Leo, has been linked to a million-dollar contribution to the NRA’s lobbying arm, and to a $250 million network largely funded by anonymous donors to promote right-wing causes and judicial nominees.

There’s also this:

The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners with an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain. Amicus groups claim status as “social welfare” organizations to keep their donor lists private, and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.  Were there such transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support rallying to a cause.

I mean, come on. The charge that support for gun rights is somehow Astroturf, fake, or even driven top-down is just laughable – particularly considering the intertwined nature of gun control groups. That isn’t even the most absurd implication. The senators accuse Supreme Court justices – holders of lifetime appointments – of being bought and paid for by the NRA. Unsurprisingly, they don’t ever close the loop to explain the economics of the accusation or how someone who will hold a title for the rest of their working life is beholden to anyone at all (even past supporters).

Moreover, the group’s concern over politicization of the courts would land more cleanly if it weren’t for the fact that this very same collection of senators helped to push salacious, anonymous, and fabricated accusations (looking at you, Senator Whitehouse) against Justice Kavanaugh during his confirmation process last year. And where’s the controversy over spending from left-wing organizations like Planned Parenthood, who spent piles of cash trying to convince supporters that now-Justice Kavanaugh would most certainly overturn Roe v. Wade? The rhetoric from both sides of the aisle is and was effectively the same, just with different subject matters, and this outrage is entirely selective.

If the roles were different, and Lindsay Graham and a collection of conservative Republicans threatened the Supreme Court over an immigration law case or voter ID. Mainstream media outlets would spend a week raking the conspirators over the coals – and rightly so. Here, outside of a handful of mostly conservative organizations, little-to-nothing has been said or reported.

The text of the letter tells only a portion of the story. There’s also a side of this that signals future drama over Second Amendment cases and the Legislative Branch’s influence over the Judicial Branch. It’s safe to say that the brief reads more like a scolding letter from a parent to a child than correspondence between coequal branches of government. Some mechanisms exist to alter the makeup of the court. However, the issuance of such an ultimatum goes well beyond the “but Garland” response typically offered by the left in cases such as this.

The core argument of the New York State Rifle & Pistol Association v. The City of New York relates to the legal transport of legal handguns. It’s as mundane as a gun case can get. It’s also where Democrats have chosen to draw the line. As minor as this issue may seem, vocal objection (and ominous threats) over this case sets the tone for other Second Amendment issues in the future. It’s like a coach in any sport blowing a fuse over an officiating discrepancy early in a game. Just as that action is often intended to influence future calls, this brief is designed to affect Supreme Court decisions and case selection down the line. After this, can you imagine Democrats’ reaction to an “assault weapons” case?

Regardless of your leanings on gun rights or gun control, everyone should recoil at the notion of threats from one coequal branch of government toward another. Unfortunately, thanks to the brazenness of a few powerful Democrats in the Senate, this case just got a whole lot more interesting.

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