New York Senator Kirsten Gillibrand, who once signed on to an amicus brief that argued Washington, D.C.’s ban on handguns was unconstitutional, has now teamed up with four other anti-gun Democratic senators in a legal brief urging the Supreme Court to drop an upcoming case that challenges a long-standing New York City gun law restricting the transportation of legally owned firearms.
The amicus brief filed by Gillibrand and her fellow senators Sheldon Whitehouse (D-RI), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), and Dick Durbin (D-IL), makes two arguments. First, it says that the case before the U.S. Supreme Court isn’t a real legal issue, but is instead a “project” dreamt up by the National Rifle Association and the Federalist Society, and should, therefore, be rejected by the Court.
To stem the growing public belief that its decisions are “motivated mainly by politics,” the Court should decline invitations like this to engage in “projects.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”).
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.”
Basically, the argument is, “We who support gun control think we’re going to lose this case, so we’re going to argue that the Court shouldn’t hear the case at all.” It’s a legally unsound argument, but it’s actually somewhat better than the second argument made by the brief, which amounts to “If you hear the case and rule against New York City, it will undermine the legitimacy of the Supreme Court, and we’ll pack it full of lefties,” because NYC recently changed the law in an attempt to avoid Supreme Court scrutiny.
With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.
The pattern of outcomes is striking; and so is the frequency with which these 5-4 majorities disregarded “conservative” judicial principles like judicial restraint, originalism, stare decisis, and even federalism.
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 arrogance by these senators is striking, and I’m not sure that calling the Supreme Court a sick institution is the best way to make your case. Then again, the case that these senators are trying to make is an incredibly weak one.
The law in question was on the books for decades in New York City and prevented legal pistol owners from transporting their firearms from their home to any location other than one of a few pre-approved shooting ranges in the five boroughs. It was literally illegal for you to take your legally owned property from your apartment in Queens to your cousin’s farm outside of Utica, or a shooting competition at Fort Drum in upstate New York. The city defended the law for years and won the initial challenge as well as at the U.S. 2nd Circuit Court of Appeals. Only when gun control advocates became aware that the Supreme Court could use this little known law to elaborate on issues like standard of review or even taking firearms outside of the home (both Heller and McDonald dealt with gun ownership inside the home) did they start to panic.
Back in March of this year a gun control advocate named Ladd Everitt went public with the plea from gun control groups; change the law and take the loss rather than risk an opinion that could put even more gun control laws at risk. It’s not the first time gun control groups have made the argument. Washington, D.C. adopted “shall issue” rules for concealed carry instead of appealing a case dealing with the District’s “good cause” requirement for concealed carry licensees. The state of Illinois also decided to adopt a concealed carry law rather than take a case challenging the state’s outright ban on carrying a firearm after gun control advocates convinced them to take the loss.
Once again, gun control groups won the day, and the city of New York made major changes to the law just a few weeks ago in hopes of making the case moot. There’s no guarantee that will happen, however, and the plaintiffs recently argued that there are plenty of reasons and precedent for continuing to hear the case.
The Supreme Court will discuss in conference whether or not justices should dismiss the case on October 1. Even if justices do decide to drop the case or send it back to lower courts for review, the Court has another Second Amendment case queued up and ready to go. Rogers v. Grewal is a case out of New Jersey challenging that state’s laws regarding the issuance of concealed carry, and SCOTUS could agree to hear that case at any time. As much as gun control advocates desperately want to avoid judicial review of their laws, they’re going to continue to give gun owners plenty of opportunities to challenge them.