PACK THE KOURT!

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Some basics:

In the sixties, the US Army decided to up the infantryman's ability to kill the enemy. The standard WWII grunt's weapon was the M1 rifle. It was heavy, semi-automatic (firing a single bullet with each trigger pull), bore an eight-round clip, and if you weren't careful, you got your thumb caught in the breech when reloading. Lots of black and blue thumbnails in my basic training company.

Even lying on your belly, or sitting cross-legged, with the carry strap aiding stability, hitting a target one or two hundred yards away was difficult. (I was awarded a marksman badge, but they gave those away like candy.)

Now, think about combat conditions: fast-moving troopers, fast moving-targets, calculating windage, distance, lining up front and rear sights, etc. By the time you pulled the trigger, the target was gone. So the army concluded it needed a better weapon, and in the 60's, the Armalite company came up with new concept, a new design. A light weapon, a clip containing 30 rounds instead of 8, and a switch that could make the rifle shoot either semi or fully automatic (i.e., continuous firing by holding the trigger pull). At full auto, the weapon could fire the 30-round clip in about two seconds. In the semi-auto mode, it took 4.5 seconds. (And that's without current civilian modifications like bump stocks and a device that makes the weapon fire one round on trigger pull and a second round on trigger release, making the weapon a virtual machine gun.)

This new rifle, called the M16, became the basic infantryman weapon during the Vietnam War. The U.S. Army's conclusion that "spray not aim" was a more effective killing tool, was also enhanced by the 40% reduction in the size of the bullet. The .223 round had several advantages over the 30.06: i) it was considerably lighter so that each rifle-bearer could carry much more ammunition, ii) while lacking the punch of the heavier 30.06 round, the .223 tumbled when entering the target's body and did a huge amount of damage to adjacent tissue and organs, and iii) the greater speed of the lighter round caused shock injuries to bodily organs far removed from the entry point.

In all, the military M16 proved to be a devastating people killer, and the wounds it inflicted were horrific. The same is true of the civilian version of the assault rifle. The statistics of its use in school, Walmart,  and other crowd shootings, are indeed horrifying. (The Dayton killer, using an assault rifle, managed to kill 9 and injure more than 24 people in less than one minute!).

So what has this to do with the Supreme Court?  Lots.

In 1994, the federal government banned civilian assault rifles. The statute expired in 2004, and the Republicans refused to extend it, and millions of the guns have since been sold.

In 2008, the Supreme Court decided a case called Heller. By a 5-4 vote, it struck down a D.C. ordinance that imposed severe restrictions on ownership of a handgun in the home.  Citing the "fundamental and deeply rooted right to self-defense," the Court held that the reference to the "militia" in the Second Amendment did not limit its reach. The Scalia majority opinion made clear, though, that while the Second Amendment barred this interference with handguns in the home, it did not bar all regulation of firearms. It specifically held that legislatures could bar possession of guns by felons, mentally ill persons, in schools and other places, and could ban modern military weapons such as machine guns. Beyond that, the language left a lot of uncertainty as to what the Amendment barred and didn't bar.

Over the ensuing eleven years, a number of states banned civilian purchase and possession of assault rifles. When those laws were challenged by gun owners, federal District Courts and Circuit Courts upheld the statutes, citing the Scalia language. Gun lobby efforts to get the Supreme Court to agree to review those decisions failed. It takes four Justices to grant a cert petition, and none were granted in those cases. None. That doesn't mean there weren't four Justices who wanted to reverse those Circuit Court decisions.  Not at all. The NRA crowd could count on Thomas, Alito, Gorsuch and Chief Justice Roberts to vote in favor of the gun lobby, but the game is to take up cases you think you can win, and as long as Justice Kennedy was on the Court, the estimation is those four Justices thought they would lose a 5-4 vote on a case involving assault rifle bans.  (It has been reliably reported that Kennedy, as his price for joining the Heller majority, insisted Scalia add the language saying the Second Amendment did not bar all regulation of firearms.) 

But Kennedy is gone. And now, thanks to the partnership of Trump and Moscow Mitch, (Sorry, I can't help myself) we have Kavanaugh.

And that switch has changed the ball game. There is now a blizzard of cases working their way up to the Supreme Court that the petitioners knew they would lose in the District Court and the Circuit Court -- cases involving guns, abortion, religious exemption from civil rights laws, and more.

Which leads to the title of this blog. In a case now scheduled to be argued in the November Term of the Court, we have the following extraordinary situation: New York City passed an ordinance barring licensed residential handgun owners from removing their guns from their homes in order to travel to firing ranges outside the City, or even to take them to their homes outside the City. The ordinance was so restrictive, it even applied to unloaded weapons kept in locked cases. The NRA challenged the law, and lost in the District Court and the Circuit Court, but after the Kavanaugh confirmation, for the first time in nine years, the Supremes granted cert in a Second Amendment gun case.

Someone in the anti-gun group saw the handwriting on the wall, and both New York City and State killed the ordinance. The challenged law was rescinded, and replaced by one saying the gun owners could transport their weapons. Case over, right? No case or controversy. The challengers got all the relief they asked for. They could take their handguns to shooting ranges and homes outside the City. The case was moot.

But the Supremes did not drop the case from their calendar! That is very ominous. Handguns today, assault rifles tomorrow.

Last month, the City filed a brief with the Court, arguing the case was moot and asking the Court to dismiss the appeal. The plaintiff opposed, and insisted the Court decide the constitutionality of a non-existent ordinance!

What is going on here? Issuing decisions in the absence of a case or controversy is called "legislation."

This has led to a remarkably unusual submission to the Court: A "Friend of the Court" brief filed by Rhode Island Senator Sheldon Whitehouse, on behalf of himself and four other United States Senators. The brief was an explicit warning to the Court. Whitehouse said he was writing to preserve the Separation of Powers set out in the Constitution: judges do not legislate, they do not give advisory opinions, they decide only real disputes, and there was no remaining dispute here.

Whitehouse pulled no punches. He said the recent spate of 5-4 decisions all favored "big funders, corporate influencers and the political base of the Republican Party." This Court was not just "calling balls and strikes." He said that after Kavanaugh replaced Kennedy, there was a rush of litigants eager to lose cases in the lower courts as quickly as possible so they can get them to the Supreme Court. ("Most people sue to win their cases.") This was accompanied by a rash of amici's who are engaged in an "industrial effort" to do "an end-run around separation-of-powers guardrails."

Whitehouse was so bold as to cite recent Quinnipiac polls that showed a majority of Americans now believed the Court was "too influenced by politics" and the Court should be “restructured to reduce the influence of politics."

He concluded with a stark warning to the five conservative Justices:

"The Supreme Court is not well and the people know it. Perhaps the Court can heal itself before the public demands it to be restructured. Particularly on the subject on the urgent issue of gun control, the nation needs it to heal.''

My guess is this is an appeal to the Chief Justice, who allegedly has a concern about the Court's reputation. Nobody has yet said that about Thomas, Alito, Gorsuch, or Kavanaugh.

In the thirties, when FDR threatened to pack the Court, the conservative majority saw the light and stopped declaring New Deal legislation to be unconstitutional. But FDR had a weapon Whitehouse lacks: Democratic control of the White House and both Houses of Congress. That likely in 2020? A  reach. But there is no doubt that Whitehouse has belled the cat. Let's see what happens.

Caveat:

I think it only fair to disclose that in weighing the value of my opinion on these and other matters, readers should know that our President has labelled me as "disloyal." This is a serious charge, and historically has been used to do very bad things to millions of people.  At first I was confused when he said any Jew who voted for the Democrats was "disloyal." Disloyal to whom? He has now cleared that up: he says any Jew who votes for the Democrats is disloyal to Israel, making it clear that he agrees with the antisemite congresswoman who says that because all Jews have a loyalty to Israel, their dual loyalty to Israel and the United States ipso facto makes them disloyal to the United States. Think about it.

This is no joke. While I am herewith figuratively volunteering to don a "disloyal" arm band, I cannot shake the picture of a time and place when all Jews were required to wear a badge displaying their "disloyalty" to the homeland.

Paranoia? This is a President who says he can repeal the birthright provisions of the 14th Amendment by Executive Order! Seriously. We are in deep shit.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com