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Five Democratic Senators Look to Add Justices to Supreme Court over Gun Rights Case

By: Robert Davis

Five Democratic senators filed a brief in the case New York State Pistol & Rifle Assoc. vs. City of New York in which they argued for stronger gun control legislation and accused the more conservative members of the Supreme Court of the United States (SCOTUS) bench of essentially being politicians.

Sens. Sheldon Whitehouse (D-RI), Maize Hirono (D-HI), Richard Blumenthal (D-OR), Richard Durbin (D-IL), and Kirsten Gillibrand (D-NY) filed the brief in support of the City of New York in a case that questions whether New York City’s ban on transporting a licensed unloaded gun between a home and a shooting range is consistent with the Second Amendment, the commerce clause, and the constitutional right to travel.

“The Framers designed Article III courts to adjudicate actual controversies brought by plaintiffs who suffer real-world harm,” the brief reads. “In short, courts do not undertake political ‘projects.’ Or at least they should not. 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.”

The brief is part of a broader effort by Democrats to play politics with the Supreme Court to push gun control laws through Congress. They have accused the Supreme Court of being “unwell” and unsupported by the majority of Americans, leading the Left to consider reordering the Court for the first time since 1937 when President Franklin D. Roosevelt proposed adding justices to ensure his New Deal legislation became law.
Case Background
New York State Pistol & Rifle Association (NYSRPA) originally filed a lawsuit in 2018 to challenge the New York City law that does not recognize the Firearm Owners Protection Act (FOPA), a federal law that allows firearm owners to travel with their weapon across state lines.

If the conservative-leaning Court does hear the case and sided with NYSRPA, it would be a huge victory for gun rights advocates nationwide.

FOPA, which was passed in 1986, was designed to address many of the issues raised by a Senate Judiciary Committee subgroup that was tasked to study the Second Amendment and its relationship to the Gun Control Act (GCA) of 1968.

GCA gave wide-reaching authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to regulate federal firearms licenses and how firearms manufacturers sold their products. The committee found this latitude was ripe for abuse by ATF and published their findings in a 1982 report.

Among the many abuses, the committee found that 55 percent of ATF’s gun law prosecutions involved persons with no record of a felony conviction, while their rate of arrests of felons in possession of firearms dropped from 14 percent to 10 percent.

FOPA revised many parts of GCA and specifically reauthorized the interstate sale of guns on a limited basis and legalized the transport of ammunition via the U.S. Postal Service. FOPA has since become a staple in firearms cases in both federal and state level courts.

Gun Owners of America (GOA), the Western Sheriff’s Association, and The State of Louisiana have all filed briefs of amicus curiae (“friend of the court”) in support of NYSPRA.

“No reasonable person could possibly conclude that residents of New York City are able to freely and fully exercise the rights protected by the Second Amendment, but that is what federal judges have ruled,” the brief filed by GOA reads.

Fallout
Since the brief was filed, Republican leaders such as Lindsay Graham (SC) have publicly denounced the document as partisanship at its worst.

“When you hear Democrats talking about expanding the Supreme Court….....they are talking about making the Court more liberal,” Graham said in a Tweet. “This has been a Dream of the Left for decades. I will do everything in my power to ensure that dream is NEVER fulfilled!”

Republicans have been leading a two-pronged approach to pack the court with conservatives for decades as well. The first prong is to block the confirmation of justices until the Senate and White House are under Republican control (think Merrick Garland). Step two is to change the nomination process so that conservative justices can be appointed at breakneck speed.

This process worked in 2016 when President Trump nominated justices Neil Gorsuch and Brett Kavanagh to the bench. Sen. Majority Leader Mitch McConnell then pulled the “nuclear” trigger to make their confirmation processes easier by requiring a simple majority, rather than 60 votes in the Senate, to be confirmed.

The key difference between each approach: Republicans have followed the rules of Congress while Democrats have resorted to political bullying to get the judicial decisions they want.

“The American political system is the sick patient,” Graham wrote in a separate Tweet. “The Court is moving center-right and getting out of the left ditch. That's exactly where the country is headed!”

It’s also important to note Graham himself has not been a consistent friend to the gun owner.

The Hill reported earlier this month:

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said on Monday that he will introduce bipartisan legislation encouraging states to create "red flag" laws and that President Trump is "very supportive" of the idea.

Graham, in a statement, said he has reached a deal with Sen. Richard Blumenthal (D-Conn.) on a bill that would start a federal grant program to help and encourage states to create " 'red flag' protection order" laws, which are meant to make it easier for law enforcement to identify mentally ill people who should be banned from purchasing guns.

“These grants will be given to law enforcement so they can hire and consult with mental health professionals to better determine which cases need to be acted upon. This grant program also requires robust due process and judicial review. It does allow for quick action," Graham said in the statement.

He added that he spoke with Trump earlier Monday "about this proposal and he seems very supportive."

Robert Davis is a general assignment reporter for Gunpowder Magazine. You can contact him with tips or comments at RobertDavis0414 (at) gmail.com.

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Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect those of Gunpowder Magazine.