How Not To Win Friends And Influence Justices

Sen. Sheldon Whitehouse (D-RI) considers himself worthy of authoring an amicus brief for a case before the Supreme Court. He should think again. Despite a long legal career before being elected to the Senate which culminated with him serving as both the Attorney General of Rhode Island for one term and before that as the Clinton-appointed US Attorney for Rhode Island, his brief in NY State Rifle and Pistol Association v. City of New York is a polemic and not an argument.

Moreover, as the son and grandson of diplomats, you would have thought somewhere along the line it would have rubbed off on him how to be diplomatic towards those that matter. Daddy served as deputy ambassador to the Republic of Vietnam followed up as the ambassador to Laos and then Thailand. Granddad was ambassador to Guatemala and Colombia and served earlier on the commission that wrote the Treaty of Versailles.

Whitehouse was joined in this polemic, I mean amicus brief, by Senators Dick Durbin (D-IL), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), and Kirsten Gillibrand (D-NY) who are all lawyers by training. They begin the brief arguing that the NYSRPA, the petitioners, are asking the Court to be their allies in " a “project” to expand the Second Amendment and thwart gun-safety (sic) regulations." They continue that it is no wonder polls show the Supreme Court is "motivated mainly by politics." It goes downhill from here.

They then argue that it was the National Rifle Association, the Federalist Society, and other conservative groups fought to make sure that Justices Gorsuch and Kavanaugh would be on the Court to "break the tie" in favor of the Second Amendment. It goes on to say about the Federalist Society:

The Society counts over eighty-six percent of Trump administration nominees to the circuit courts of appeal and to this Court as active members. It is not yet clear who the powerful funders are behind Leonard Leo and the Federalist Society judicial selection effort, nor what took place as the Federalist Society was “insourced” into the Trump administration’s judicial selection process.5 But massive political spending and secrecy are rarely a salubrious combination.

In other words, these fine senators are pissed off that President Trump has nominated active members of an organization dedicated to an interpretation of the Constitution that preserves the original meaning. They would much prefer those of the Living Constitution stripe.

This brief then goes on to attack the amicus briefs in favor of the NY State Rifle and Pistol Association implying that they are stooges of the NRA. Eight of the amici are affiliated with the NRA. However, most of those are from only one amicus brief - that of the National Sheriffs Association. Then, heaven forbid, a number of amici are 503(c)(4) social welfare organization who are not required to disclose their donors. As the secretary of the Maryland Democratic Party might note, this makes them harder to dox. Of course much of this is ludicrous. Accusing groups like the Pink Pistols and GOA of being stooges of the NRA is laughable.

Whitehouse ends Section I of the brief with this.

Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills. In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project.”

You might think Whitehouse might now try to curry favor with the justices in Section II and you'd be wrong. After a few paragraphs saying how the Court shouldn't be answering moot questions and legislating from the bench, he then accuses the Court's majority of being the tools of big business, the GOP, and fat cats.

Recent patterns raise legitimate questions about whether these limits remain. From October Term 2005 through October Term 2017, this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed.

Then he accuses the petitioners of engaging in strategic "faux litigation". What he is speaking of is strategic civil rights litigation with carefully chosen plaintiffs and with the purpose of building precedent. The interesting historical aspect of this is that the model for this strategic litigation was none other than the NAACP Legal Defense Fund run at the time by future Justice Thurgood Marshall.

For example, we have seen flocks of “freedom-based public interest law” organizations that exist only to change public policy through litigation, and which often do not disclose their funders. We have seen behavioral signals, like litigants who rush to lose cases in lower courts “as quickly as practicable and without argument, so that [they] can expeditiously take their claims to the Supreme Court” (ordinarily, in litigation, litigants seek to win). Almost invariably, and as we have seen in this case, such plaintiffs are accompanied by throngs of professional amici, whose common funding sources and connections to the organizations behind the supposed party-in-interest are obscured by ineffective disclosure rules.

Instead of being flattered, Whitehouse seems to say how dare these dirty, low down conservatives imitate the tactics and strategies of the Left!

He then ends the brief with a threat.

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.

Whitehouse is no FDR but he thinks his threat of packing the Court is going to sway it. His demeaning attitude should irritate even the most ardent liberals on the Court. Whether this case is ultimately dismissed as moot or not, there will be more cases that have even more impact for Second Amendment rights that are now or soon will be in the pipeline.


UPDATE: I'm not the only one who found Whitehouse's brief to be a polemic and not a real argument. Prof. William Jacobson at Legal Insurrection covered it as well. Note the comments. I agree with the person who said " The Court should strike the brief without a right to refile an amended brief, and impose sanctions."

The Anti's Are Getting Worried About A Supreme Court Case

The Supreme Court agreed to hear NY State Rifle and Pistol Association v. The City of New York in January. The case involves an absurd New York City regulation that forbids those with handgun permits from taking their legally owned handguns outside the city limits of New York. These permits only allow a person to keep the handgun in their residence or to practice at one of only seven firing ranges within the city limits. They cannot take their handguns to vacation homes, to ranges outside the city limits, or to competitions outside the city regardless of how it is stored.

Yesterday, Ladd Everitt, Director of One Pulse for America and formerly the communications director for Coalition to Stop Gun Violence (sic), had an op-ed in the New York Daily News urging the city to repeal its handgun transport ordinance. This is the same Ladd Everitt who delighted in portraying those of us in the gun culture as "insurrectionists" and leading demonstrations outside NRA headquarters that attracted about a dozen protesters.

From his op-ed:

A ruling in NYSRPA vs. NYC could overturn not only the city’s gun transport reg, but also “may-issue” laws governing concealed carry of firearms in public in New York and seven other states. Carry licenses are more difficult to obtain than premises licenses in NYC. Law enforcement officials have discretion to deny carry licenses to applicants with a history of violence. The NRA spent $1 million to get Kavanaugh confirmed to the Supreme Court because they believe he will provide the decisive fifth vote to eliminate such discretion by declaring a new, individual right to carry guns in public.

New York City leaders don’t have to fall into the trap the NRA is baiting for them. It is within the authority of NYPD Commissioner James O’Neill to revise or repeal the regulation at the center of NYSRPA vs. NYC. If he took this step (conceivably with the blessing of Mayor de Blasio) and cleared the way for premises licensees to transport secured firearms to locations outside the city, the plaintiffs’ stated grievance would be remedied. The Supreme Court might decide to drop the case before ruling on it.

Ladd may be an asshole but he isn't dumb. He realizes the danger to the gun control lobby if the Supreme Court rules against New York City which they probably would in all likelihood. In addition to his concerns about may-issue concealed carry permits, the Supreme Court could finally clarify the standard to be used by lower courts in deciding Second Amendment cases. If they said it must be strict scrutiny and they backed this up by taking cases where courts applied intermediate scrutiny, it would open the door to a large round of 2A litigation.

Mayor Adrian Fenty of the District of Columbia was sure of the rightness of DC's ban on handguns. He decided that DC would appeal their loss in the Court of Appeals in the Heller case to the Supreme Court. We know that turned into DC v. Heller and a recognition that the Second Amendment was an individual right.

Ladd concludes by saying:

It’s true that allowing New York City residents to transport guns outside the city would entail certain public safety risks, even if the practice was regulated. But with the gun violence epidemic increasing in the United States, our communities simply cannot withstand newfound constitutional protections for violent “good guys with a gun." Now is the time for the NYPD to step up and protect all Americans by repealing NYC’s gun transport ordinance.

I love Ladd's hyperbole even when he is way off base. The problem isn't with honest citizens who own a firearm, perhaps have a carry permit, and who engage in armed self-defense. The problem is with violent criminal actors (to use Dr. William Aprill's phrase). They view gun laws as something to be ignored just like they ignore the laws dealing with theft, assault, and homicide.

When you see a Michael Bloomberg, a Shannon Watts, or one of the Brady co-presidents calling for New York City to ditch this law and moot the NYSRPA case, then you will know the gun control lobby is really running scared. Coming as this op-ed does from the periphery of the gun control lobby, it is a sign that some are awakening. I just hope the rest continue along with their smug, elitist attitudes thinking that they can't lose.