Now that it looks increasingly unlikely that they’ll be able to use a majority in the U.S. Senate to pack the Supreme Court with anti-gun justices, Democrats like New Jersey Attorney General Gurbir Grewal are starting to make contingency plans for continuing to violate the constitutional rights of Americans. In the page of the New York Times Grewal and New Jersey Solicitor General Jeremy Feigenbaum have outlined their plan to bitterly cling to the state’s anti-gun regime: “progressive federalism.”
This is basically code for “fight any and all attempts to by the Courts to overturn constitutionally questionable laws.” First the pair argue that states need to quickly respond to Supreme Court decisions, and may even need to take pre-emptive action in the case of the Supreme Court overturning Democrat-built entitlement programs like Obamacare.
Secondly, Grewel and Feigenbaum say that their counterparts in other states should enforce their new laws even in the face of hostility towards federal courts. What happens if the state laws that the pair are championing would be struck down by the federal courts as well? On that both the AG and Solicitor General are silent.
The third prong of the plan rests on progressive advocacy groups and lawyers outside government to litigate rights enshrined in state constitutions. This will be particularly important in states where leaders hew to a conservative agenda. In practice, states’ rights often go well beyond those guaranteed by the U.S. Constitution. Long before the Supreme Court recognized marriage equality as the law of the land, a number of state supreme courts found same-sex couples enjoyed this fundamental right. There are many other examples, from the rights to education to clean water to collective bargaining. State constitutions, the Supreme Court has held, can even help prevent the scourge of partisan gerrymandering. It’s local activists who will turn those ideals into reality to help everyday people, regardless of the composition of the Supreme Court.
That’s rich coming from Grewel in particular, who has aggressively defended New Jersey’s draconian gun control laws from repeated attempts to force the state to conform with the protections guaranteed by the Second Amendment. Grewel, after all, hasn’t been too fond of the Second Amendment sanctuaries that have popped up in the Garden State, but now he’s all in on the idea of local control, as long as it leads to more gun control, not less.
Grewel and Feigenbaum also urge their fellow progressives to rethink how they talk about issues like gun control in order to sway the public and the courts to their side.
The final part of this plan applies to all progressives: In a conservative legal environment, we need to rethink the arguments we make and the language we use. The positions that conservatives have been taking for years can sometimes serve progressive aims. For example, a thorough assessment of the history of firearm safety laws — the core of any originalist analysis — demonstrates that states have a range of legal tools to reduce firearm violence without running afoul of the Second Amendment.
Do they really, though? A thorough assessment of the history of gun laws is going to demonstrate that any law that prevents the average citizen from exercising their right to both keep and bear arms runs afoul of the Constitution. In the case of New Jersey, that would include its ban on commonly-owned arms like AR-15s and ammunition magazines that can hold more than ten rounds; carry laws that preclude almost every gun owner in the state from being able to legally carry for self-defense outside of the home, transport laws that prohibit taking firearms anywhere other than to or from a range or gun store, and several other gun control laws that aren’t commonly found in American history or even current statutes in other states.
I think Grewel understands this fact, but he doesn’t want to admit it. If the Supreme Court’s makeup doesn’t shift over the next couple of years, either through court packing or retirements, New Jersey’s gun control laws are likely to face the most significant scrutiny they’ve ever received, and there’s a very good chance that any laws infringing on the Second Amendment rights of residents will be struck down. What’s the progressive federalist to do when SCOTUS says they can’t have their gun ban or carry laws that prevent the average citizen from possessing a firearm for self-defense?
To me, “progressive federalism” doesn’t sound much different than the #Resist movement from the Left over the past four years, other than the fact that it’s designed as a legal maneuver rather than a cultural push back against the Trump administration. Even as a backup plan, Grewel and Feigenbaum’s idea suffers from some fatal flaws, but the biggest is the simple fact that the Supreme Court isn’t likely to be as enthusiastically amenable to the new laws that Democrats will try to impose in deep blue states like New Jersey. The Constitution may not count for much on the Left these days, but (most of the time anway) it’s still the lodestar for the Supreme Court.
