On Thursday, five Democratic Senators sent a warning to the Supreme Court saying that the high court could find itself “restructured” if it continued (to paraphrase the Senators) playing politics and bowing to conservative special interests.
Because the warning was sent as part of a brief asking SCOTUS not to hear a 2nd Amendment case — its first in nearly a decade — some now wonder, given the strong reaction of Democrats, if the case in question will be taken as a stepping stone toward enforcement of the 2nd Amendment.
Still others think the warning may serve as an opening salvo in progressive attempts to use momentum behind the anti-gun movement in the wake of recent mass shootings as a campaign device to help elect legislators that seek to change the way justices are appointed so more “activist” judges, ones friendly to Democrat causes, would be appointed.
“It’s a thinly veiled effort to tell the court that Democrats are going to push through legislation — if they can win the Senate or the White House — that would change the make-up of the Supreme Court,” says Bob Bar, former U.S. Attorney and Republican congressman from Georgia, who said he takes the warning seriously.
"It’s very similar to what [Franklin] Roosevelt did in the 1930s. This smacks of [that] ‘court packing’ plan…in order to change the size of the court and thereby obtain a ruling majority more to his political liking," Barr added. "His legislative effort failed, but the damage was done anyway; the clear threat to the integrity of the Supreme Court was sufficient to cause at least one Justice to change his position and make a 180-degree turn from an earlier opinion in order to uphold a New-Deal-oriented decision by the Court."
The Democratic senators, led by Sen. Sheldon Whitehouse of Rhode Island, made their warning as part of an amicus brief filed in the case of New York State Rifle & Pistol Association Inc. v. The State of New York.
Whitehouse was joined by Mazie Hirono (D-HI), Richard Blumenthal (D-CN), Dick Durbin, the Democratic whip from Illinois, and Sen. Kirsten Gillibrand (D-NY). The brief accused the plaintiffs in the case — who contend New York state restrictions on transporting firearms to ranges or homes outside the city is a violation of the 2nd Amendment — of trying to wage “an industrial-strength influence campaign” on behalf of conservative special interest groups such as the Federalist Society and the National Rifle Association (NRA).
Whitehouse said in a statement the "brief lays out what is increasingly clear to many Americans: a majority of the Supreme Court is acting as if it has been captured by special interests. The Court is encircled by anonymously funded organizations seeking partisan political gain, not adherence to law."
It further makes the claim that the Supreme Court is simply "not well" and that if it doesn’t begin to represent the prevailing anti-gun fervor of most Americans, it may find itself grappling with a new nomination protocol.
Mark W. Smith, author of the upcoming book, “First They Came for the Gun Owners,” and author of the book "#Duped: How the Anti-gun Lobby Exploits the Parkland School Shooting," says that among the many problems with Senators warning SCOTUS not to do its job, Whitehouse et al are actually misinformed when they say most Americans support gun control. In fact, he says, the irony is that SCOTUS is out of sync with how most Americans feel about the 2nd Amendment: the court is more restrictive.
"If the Supreme Court is worried about things such as public perception or being in sync with the American public on the gun question, then they are already far behind the curve,” Smith added. "Today, approximately 28 states are ‘shall issue’ states, which means they will grant concealed gun carry permits to any law abiding citizen who requests one. Another 16 states allow their law abiding citizens to carry a firearm without any license or permit at all and this is a list which has been growing and not shrinking over the last several years. Virtually every state allows individuals to buy and own semi-automatic pistols and rifles of one sort or another."
Smith suggests the court, if it decides to take up the case, could use it as the first step toward a more textualist interpretation of the 2nd Amendment. This, he believes, would begin to address the problem of a SCOTUS that is out of step with the American people on the issue of gun control.
"The best way for the Supreme Court to maintain and strengthen its credibility with Americans is to strengthen the Second Amendment, and to accord the right to keep and bear arms; the same protections we give free speech and religion," Smith told Townhall.
Barr speculates the warning itself may not have had as much to do with Democrat positions on gun control as it does with “building on a tremendous animosity they still have” over the appointments of Justices Neil Gorsuch and Brett Kavanaugh. Their warning should also be seen, he says, as directed at President Trump himself.