Supreme Court Associate Justice Samuel Alito’s address to the Federalist Society on Thursday night is making headlines today largely for his comments about COVID-19 and the threat that the pandemic poses to individual liberties, but I’m surprised that more people aren’t talking about Alito’s reserved smackdown of five Democratic senator who threatened the Court with “restructuring” if it didn’t drop a challenge to a New York City gun law. The case, known as New York State Rifle & Pistol Association v. City of New York, ultimately was mooted by the Court earlier this year after New York City changed the law being challenged after SCOTUS agreed to hear the case.
Reason has a full transcript and video of Justice Alito’s remarks, but I want to focus on what he had to say about our right to keep and bear arms.
Of course, the ultimate second tier constitutional right in the minds of some is the Second Amendment right to keep and bear arms. From 2010, when we decided McDonald v. Chicago, until last term; the supreme court denied every single petition asking us to review a lower court decision that rejected the Second Amendment claim. Last year, we finally took another second amendment case. And what happened after that is interesting.
This isn’t the first time that Alito has complained about the Second Amendment being treated as second-class right. Alito penned the majority opinion in the McDonald case, and a decade ago he warned that the right to keep and bear arms rests on the same footing as the rest of our individual rights.
In rejecting the City’s argument against incorporation, Justice Alito wrote that it would be inappropriate to treat the right “as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees” incorporated under the Due Process Clause. (Although Justice Alito was referring specifically to incorporation, this passage is regularly cited by advocates and scholars to claim that the Second Amendment itself is being treated as a “second-class right.”) Although this right may have “controversial public safety implications” so too do other rights “impose restrictions on law enforcement and on the prosecution of crimes.” States are limited by the Constitution, but they still have room to devise local solutions for local conditions. “[I]ncorporation does not imperil every law regulating firearms.”
In his speech to the Federalist Society, Alito elaborated on the issues at hand in the NYC gun case.
The case involved a New York City ordinance. The city makes it very inconvenient for a law abiding resident to get a license to keep a gun in the home for self defense. But the Second Amendment protects that right. And if a person is going to have a gun in the home, there’s broad agreement that the gun owner should know how to handle it safely, and that the best way to acquire and maintain that skill is to go to a range every now and then.
The New York City ordinance, however, made that hard. It prohibits the lawful gun owner from going to any range outside city limits. And there were only seven ranges in the entire city. And all of these but one were largely restricted to members and their guests. There were other ranges that lay just outside the city. So why couldn’t a city resident go to one of those ranges? The city really had no plausible explanation. But that didn’t stop it from vigorously defending its rule. Nor did it stop the district court or the Second Circuit from upholding it.
The real explanation; the one that New York City officials could never publicly acknowledge, is that this rule was put in place to chill the lawful exercise of Second Amendment rights, along with the city’s restrictive and subjective licensing laws that prevent the average citizen from obtaining a license to carry, and in many cases, a permit to have a firearm in their home. As Alito noted, though, once the Supreme Court decided to accept NYSPRA v. City of New York, city officials decided that the law wasn’t that important after all.
Once we grant a review, however, the city suddenly saw things differently. It quickly repealed the ordinance. And it said that on reconsideration doing that did not make the city any less safe. In the place of the old ordinance, it adopted a new vaguer one that still did not give gun owners what they want it. But the city nevertheless asked us to dismiss the case before it was even briefed or argued. And when we refuse to do that the city was obviously miffed.
Alito noted that city officials weren’t the only ones who were outraged by the Court’s decision to simply hear oral arguments in the case rather than dismiss the lawsuit before any briefings. Alito got a little emotional as he talked about the actions from several anti-gun politicians who tried to bully the Court into backing off the case.
Five United States senators who filed a brief in support of the city went further. They wrote that the Supreme Court is a sick institution, and if the Court did not mend its ways it might have to be, well, “restructured.” After receiving this warning, the Court did exactly what the city and the senators wanted. It held that the case was moot, and it said nothing about the Second Amendment.
Three of us protested, but to no avail.
Now let me be clear, I am not suggesting that Court’s decision was influenced by the senators’ threat. But I am concerned that the outcome might be viewed that way by the senators and others with the thought of bullying the Court.
Alito called the brief “an affront to the Constitution and the rule of law,” saying that Congress has no right to interfere with the business of the Court any more than the Supreme Court has the right to legislate. Calling the intent to intimidate the Court the “sort of thing that happens in countries governed by power, not law,” Alito went on to warn that “this little episode” might be a preview of things to come for the Court in the future, leaving it up to his audience to imagine a future with politicians proclaiming the illegitimacy of the Court every time it comes out with a decision the Left doesn’t like.
I wish Alito would have called out by name the five senators who threatened the Court with “restructuring” in his speech, but since he didn’t, I’ll do so here.
- Sheldon Whitehouse (D-RI)
- Mazie Hirono (D-HI)
- Dick Durbin (D-IL)
- Richard Blumenthal (D-CT)
- Kirsten Gillibrand (D-NY)
If you’ve got an hour or so and you’re a legal geek like me, go watch Alito’s entire speech and read the brief that I linked above. Obviously Alito wasn’t going to say anything unbecoming of a Supreme Court justice, but I was struck by his quiet indignation over the NYC gun case, the second-class status of the Second Amendment, and the threats of “restructuring” the Court by Senator Sheldon Whitehouse and four other Democratic senators. I get the feeling that Justice Alito is itching to take another Second Amendment case soon, and Lord knows there are plenty in the pipeline for him and his colleagues to accept in the months ahead.