Supreme Court to hear big 2nd Amendment case despite threats from Sheldon Whitehouse and other Dem Senators

Legal Insurrection – by  William A. Jacobson

On August 13, 2019, we wrote about an extraordinary Amicus Brief filed by Senator Sheldon Whitehouse (D-RI) on behalf of himself and several other Democrat Senators.

The Brief was extraordinary because it threatened the Justices with a potential restructuring of the Court if the Justices didn’t dismiss as “moot” the first big 2nd Amendment case the Court has taken in a decade. The Brief was panned by right, left, and center as a thinly-veiled and inappropriate threat. 

We described the background of the case in Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

It had been almost a decade since the U.S. Supreme Court took a major 2nd Amendment case, something Justice Clarence Thomas lamented in a dissent from the Court’s refusal to hear an appeal from a 9th Circuit decision upholding California’s 10-day waiting period even for those who already owned guns legally and had gone through the permitting and background check….

So when the Court, in January 2019, agreed to take a major 2nd Amendment case, it was a big deal, We wrote, Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions:

The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions….

The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York….

After the case was accepted and extensively briefed by the parties and dozens of groups filing Amicus (friend of the court) briefs, N.Y. City tried to avoid a decision on the merits by changing the law, which it claimed in a July 22, 2019 Suggestion of Mootness, required that the Court dismiss the case….

The New York State Rifle & Pistol Association argued that under long-standing principles, a party cannot moot a case and thereby manipulate the judicial system….

Whitehouse filed a Brief in support of dismissal of the case, including this outrageous thinly-veiled threat. From our prior post:

A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record.

I would not be surprised if Whitehouse substantially drafted the Brief himself. As we have documented here for a decade, Whitehouse is extremely pejorative towards his political opponents, who invariably are portrayed as bad people with bad motives….

So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy:

Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case, in the wake of a multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law,2 the Court should resist petitioners’ invitation….

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”)….

The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners are flanked by 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 “socialwelfare” organizations to keep their donor lists private,7 and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.8 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.

The closing paragraph was at best a thinly-veiled threat (emphasis added):

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.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Nice Court you have there, Chief, shame if something happened to it.

On October 7, 2019, the Supreme Court refused to dismiss the case in a short-form Order, ruling that the issue of mootness should be discussed at oral argument (on December 2):

The Respondents’ Suggestion of Mootness is denied. The question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.

Whitehouse’s threat didn’t work procedurally, but it still may have an impact. You can’t unring that bell, and the purpose was to intimidate Chief Justice Roberts much as Obama and Democrats tried to (and arguably did) intimidate Roberts on the first Obamacare case.

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