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A gun law case before the US Supreme Court has Americans up in arms

By Ephrat Livni

The US Supreme Court will soon consider the right to bear arms, something it hasn’t done for nearly a decade. Whether it should is up for debate, and the arguments are getting heated—fast.

At stake: the extent of limits that localities can place on gun owners. The case in question has pitted New York City against the New York State Pistol and Rifle Association over a law on transporting guns. It’s up for review in the high court and scheduled for arguments in October.

The twist here is that New York City, and its many legal allies, say the case is actually moot. They argue that there’s no live controversy for the court to resolve because the law in question has already been adjusted. So, complaints that the pistol association had about its constitutionality are no longer valid. The petitioners argued in the lower courts that they should be able to transport guns to second homes, shooting ranges, and shooting competitions, among other places. And now they can, based on updated legislation.

However, the rifle association says there is still a live controversy and is eager for the high court to opine on the matter. The new law, they argue, offers no clarity on whether they can also stop for “coffee breaks” while traveling, or take their firearms to other vacation spots and not just their second properties, for example.

Everyone wants in on the fight, it seems, firing off amicus briefs telling the court why it should or should not be taking the case. More than 30 “friend of the court” briefs have been filed already, including from the Department of Justice, states, senators, members of Congress, social scientists, educators, gun-rights groups, gun-control activists, police, constitutional law professors, and even linguists.

Some of the filings have been friendlier than others.

Joining the fray

On Aug. 12, Democratic senators Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, Richard Durbin of Illinois, and Kirsten Gillibrand of New York joined the fray with an amicus filing that the Wall Street Journal editorial board dubbed an “enemy of the court” brief. The lawmakers argue that if the high court decides to opine on gun rights, despite the mootness, it’ll be proving it is just a Republican party tool, controlled by the conservative legal group the Federalist Society, and working on an NRA project to expand gun rights.

The senators’ brief argues that conservatives generally, and the National Rifle Association and Federalist Society specifically, have been waiting for the court to be packed with enough reliably Republican justices to continue the “project” of bringing a case to the high court that will expand gun rights and make it impossible for states and cities to maintain safety. With justice Anthony Kennedy’s retirement last year and the confirmation of Brett Kavanaugh, the timing was right, say the senators, citing NRA and Republican party advertisements ahead of Kavanaugh’s confirmation and after that show the controversial justice would prevent the political left from taking away the public’s guns.

The senators warn that if the high court rules on the constitutional issues even though there is no live controversy, it will only further erode the institution’s authority and the public’s trust in its commitment to justice over politics. Citing a poll about the public’s view of the court’s political neutrality, which showed that 55% of Americans believe justices are political actors, the senators write, “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.'”

The Wall Street Journal’s editorial board appears offended by the senators’ suggestion that the Federalist Society is behind the gun-rights fight. It’s also unhappy about the tone of their brief, which the board says is threatening to the justices and fails to acknowledge that the conservatives have not acted as a monolith, but in the last term often voted with the liberals to form a majority.

That much is true—Quartz examined and charted the 2018 term rulings and found that Donald Trump’s appointees, Kavanaugh and Neil Gorsuch—do not agree on much. Each also joined the traditionally liberal justices in close decisions, helping the outnumbered left form a majority (Gorsuch in particular has proved a surprising ally). The newcomers to the court do not, so far, appear to be ruling based on political ideology alone.

But it’s not clear that the Federalist Society isn’t driving the high court bus at least to some extent. In this regard, then, the editorial board’s outrage seems slightly disingenuous. It reads:

The not-so-amicus brief attacks the Federalist Society by name five times, as if the network of bookish conservative-leaning students and lawyers is responsible for swinging elections…The Federalist Society doesn’t file amicus briefs. Its efforts are devoted to educational events and debates on public policy and law, and they aren’t secret. Liberals are welcome. If Mr. Whitehouse were interested in learning about opposing views, he might be too.

The problem with this argument is that it ignores the Federalist Society’s role in appointing new justices. Leonard Leo, who heads the group, was not shy about talking to the media last summer when Kavanaugh was nominated to replace Kennedy, explaining that he was Donald Trump’s “outside judicial advisor” on appointments and provided the list of potential justices from which the president picked his appointees.

So while the Federalist Society may indeed be made up of bookish conservatives fond of debate, its leader has shown he is intent on influencing politics and the law, and he seems to relish the role. Characterizing the society as a group of innocent intellectuals doesn’t paint an accurate or sufficiently vivid picture of its goals. Or, as the senators’ amicus brief states, “The Federalist Society’s Executive Vice President, Leonard Leo, has been linked to a million-dollar contribution to the NRA’s lobbying arm, and to a $250 million network largely funded by anonymous donors to promote right-wing causes and judicial nominees.” 

Nor does it address the legal points the senators make in their brief, most notably that “the judiciary was not intended to settle hypothetical disagreements.”

For the people

Onlookers may wonder what the fuss is all about. Shouldn’t the nation’s highest court give states and municipalities guidance on just how much they can regulate guns?

But the senators, and New York City, aren’t alone in their contention that the justices should refuse to rule. The Supreme Court is only supposed to settle disputes, and many people agree that there is no dispute here.

Attorneys general from New York, Connecticut, Illinois, Maryland, Massachusetts, Michigan, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia are also concerned that a review of the case will violate longstanding legal principles about the high court’s limits and that—if justices adopt the rifle association’s expansive view of Second Amendment law—states and municipalities will be unable to regulate guns in a way that ensures citizens’ safety. Nearly 140 congressional representatives also agree, as do many constitutional law professors.

While the amicus brief filed by Whitehouse and his fellow senators may offend some with its feisty tone, the impetus for it is one that many Americans, concerned with the proliferation of mass shootings and gun violence, will no doubt understand. Legislators are rightly worried about a potentially expansive opinion on gun rights at this time.

And as congressional representatives put it in their brief to the high court, “the Court’s interpretation of the Second Amendment will affect the work of amici and other legislative bodies around the country.”