The U.S. Supreme Court hasn’t heard a major gun-rights case in nine years. But that may — or may not — change during its upcoming term because of a controversy involving amazingly strict New York City regulations.
One of the issues dogging the case is whether it’s a case at all. Lawyers for New York City argue that because the offending regulations were repealed after the lawsuit was filed, there is no controversy for the court to address.
In other words, they argue, the issue is moot.
Given the facts, that’s a serious claim. The high court is scheduled to hold an Oct. 1 conference to discuss the issue.
So it was not just a surprise, but a shock, last week when a group of U.S. senators — including Illinois’ Dick Durbin — went beyond the “mootness” issue in a friend-of-the-court brief.
Led by Sen. Sheldon Whitehouse, D-R.I., Durbin & Co. warned the nine justices that they can expect political retaliation if they accept the case for review.
“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 senators’ brief states.
Without naming them, the Whitehouse/Durbin brief targets the court’s five conservative justices — John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — for what it suggests are political, not legal, decisions opposed by the court’s four liberals — Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg.
The “restructuring” to which Whitehouse and Durbin refer apparently are proposals to expand the size of the nine-member court and fill the new positions with liberal justices who will deliver what Whitehouse and Durbin consider to be acceptable rulings.
Court-packing has a dishonorable history in U.S. politics. Early in his second term, President Franklin Roosevelt, who was unhappy with the Supreme Court, proposed legislation that would have added as many as six new justices to the nine-member court.
Despite enjoying overwhelming Democratic majorities in both the U.S. House and Senate, FDR’s plan failed miserably amid charges that he was trying to usurp the court’s authority. FDR’s court-packing plan is widely considered to be one of the biggest missteps in his long and otherwise successful tenure as president.
Observers ranging from liberals to conservatives expressed surprise that the senators’ brief would largely abandon legal arguments and embrace political threats to dissuade the high court from hearing the case.
“The brief itself is less a legal document than a declaration of war,” wrote Thinkprogress’ Ian Milhiser. “Though parts of it argue that the high court lacks jurisdiction over this case ... the thrust of the brief is that the Supreme Court is dominated by political hacks selected by the Federalist Society, and promoted by the National Rifle Association — and that if those hacks don’t watch out, the American people are going to rebel against them.”
“The message in political translation: Nice little Supreme Court you’ve got here. Shame if it had to be ‘restructured.’ ... We trust the justices understand that if they now drop the gun case, they will appear to be bending under this assault,” editorialized The Wall Street Journal.
In addition to Whitehouse and Durbin, the other three Democratic senators joining the brief are Mazie Hirono of Hawaii, Kirsten Gillibrand of New York and Richard Blumenthal of Connecticut.
The case — New York State Rifle and Gun Association v. City of New York — involves the issue of how far cities and states can go in restricting firearms.
New York City allows gun owners to lawfully only possess a firearm in their own home or at an authorized shooting range. The law said gun owners traveling from home to the shooting range must carry their unloaded guns in a locked container with ammunition separately carried. There was no provision in the legislation for transporting a gun anywhere else.
The gun organization sued in federal court, losing at the trial level and then on appeal. The U.S. Supreme Court agreed to hear the case in January 2019.
It was then, apparently anticipating defeat in the Supreme Court, that the state legislature re-wrote the law to allow gun owners to transport their weapons to locations other than home and a licensed gun range.
Lawyers for the Rifle & Pistol Association dispute the claim that the legislative action makes the case moot.
They argued that the legislative action is “plainly designed to provide the bare minimum of what the city believes will suffice to moot this issue, and not an inch more.”
The Whitehouse/Durbin brief asserts that it is somehow improper for the Rifle & Pistol Association to appeal their case, suggesting they are “openly (promoting) their political agenda.”
It is not unusual for groups or organizations devoted to a particular cause to pursue expanded rights through litigation. The number of cases of that nature is vast, including efforts both to promote and restrict abortion, school desegregation, campaign-contribution limits and LGBTQ rights that include same-sex marriage.
Rarely, however, have litigants, even in amici briefs, been so openly insulting in asserting the court has abandoned its legal duties to pursue narrow political aims.
“... the court is not standing back in dispassionate form, and calling ‘balls and strikes’ when it is laying the groundwork for future policy,” the senators’ brief stated.
Jim Dey, a member of The News-Gazette staff, can be reached by email at firstname.lastname@example.org or by phone at 217-351-5369.
Jim Dey is a staff writer for The News-Gazette. His email is email@example.com.