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Supreme Court to hear big 2nd Amendment case despite threats from Sheldon Whitehouse and other Dem Senators

Supreme Court to hear big 2nd Amendment case despite threats from Sheldon Whitehouse and other Dem Senators

Dem Senators: “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.'”

On August 13, 2019, we wrote about an extraordinary Amicus Brief filed by Senator Sheldon Whitehouse (D-RI) on behalf of himself and several other Democrat Senators.

The Brief was extraordinary because it threatened the Justices with a potential restructuring of the Court if the Justices didn’t dismiss as “moot” the first big 2nd Amendment case the Court has taken in a decade. The Brief was panned by right, left, and center as a thinly-veiled and inappropriate threat.

We described the background of the case in Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring:

It had been almost a decade since the U.S. Supreme Court took a major 2nd Amendment case, something Justice Clarence Thomas lamented in a dissent from the Court’s refusal to hear an appeal from a 9th Circuit decision upholding California’s 10-day waiting period even for those who already owned guns legally and had gone through the permitting and background check….

So when the Court, in January 2019, agreed to take a major 2nd Amendment case, it was a big deal, We wrote, Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions:

The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions….

The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York….

After the case was accepted and extensively briefed by the parties and dozens of groups filing Amicus (friend of the court) briefs, N.Y. City tried to avoid a decision on the merits by changing the law, which it claimed in a July 22, 2019 Suggestion of Mootness, required that the Court dismiss the case….

The New York State Rifle & Pistol Association argued that under long-standing principles, a party cannot moot a case and thereby manipulate the judicial system….

Whitehouse filed a Brief in support of dismissal of the case, including this outrageous thinly-veiled threat. From our prior post:

A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record.

I would not be surprised if Whitehouse substantially drafted the Brief himself. As we have documented here for a decade, Whitehouse is extremely pejorative towards his political opponents, who invariably are portrayed as bad people with bad motives….

So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.

It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy:

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. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law,2 the Court should resist petitioners’ invitation….

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.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”)….

The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain. Amicus groups claim status as “socialwelfare” organizations to keep their donor lists private,7 and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.8 Were there such transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support
rallying to a cause.

The closing paragraph was at best a thinly-veiled threat (emphasis added):

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.

This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.

Nice Court you have there, Chief, shame if something happened to it.

On October 7, 2019, the Supreme Court refused to dismiss the case in a short-form Order, ruling that the issue of mootness should be discussed at oral argument (on December 2):

The Respondents’ Suggestion of Mootness is denied. The question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.

Whitehouse’s threat didn’t work procedurally, but it still may have an impact. You can’t unring that bell, and the purpose was to intimidate Chief Justice Roberts much as Obama and Democrats tried to (and arguably did) intimidate Roberts on the first Obamacare case.


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Uh oh, little Shelli is gonna boof them now.

    CKYoung in reply to Paul. | October 11, 2019 at 6:24 am

    600 years from now (and beyond), the word “boof” will be inextricably linked to the name sheldon whitehouse. Nice legacy. senator sheldon ‘boof’ whitehouse. What a joke.

Sheldon is SUCH a sissy.

    “On October 7, 2019, the Supreme Court refused to dismiss the case in a short-form Order, ruling that the issue of mootness should be discussed at ORAL argument (on December 2…”

    Excellent example for why we require live testimony in hearings. Reading Whitehouse’s written arguments filters out the all-important unctuousness of his character.

Sheldon Outhouse should be put in a fight to the death with Spartapuss. Maybe they’ll both kill each other.

Sheldon:M/b> “You can’t hear this case, I won’t allow it.”

SCOTUS: “Who are you again?”


One problem is that the CJ appears to be trying to control his legacy by appeasement rather than by writing good law. He fails to realize that by doing the first you never get the second. His legacy will pale compared to Scalia.

In this particular “project” to rewrite and expand the Second Amendment

How would one “expand” shall not be infringed? That’s already about as expansive as the English language can make it.

The problem isn’t expansion of the 2nd; the problem is in taking it seriously as it stands. And as we know from Heller, not even Scalia—Mr. Originalist himself— took it all that seriously.

    alaskabob in reply to tom swift. | October 11, 2019 at 12:18 am

    Rats…reply and down arrow supidity. Sorry. The problem is that an easy jump to what the 2A means gets harder as time goes by. The chains are still laying softly on shoulders . There is an accommodation of soft tyranny when the option is doing away with it…a comfort in familiar restrictions as if just one more limitation here or there really isn’t that bad. Incrementalism taken for a long time can become insurmountable.

Someone send Sheldon a copy of the constitution and history book. Dems DID RESTRUCTURE the SCOTUS and it took not quite a century for it to completely backfire in their faces.

IMO Trump should make his next replacements young women as statistically women live longer. Seeing his picks shape the country until 2070 would be quite a legacy.

    Milhouse in reply to Andy. | October 11, 2019 at 12:18 am

    Huh? When did the Dems restructure it?

    Milhouse in reply to Andy. | October 11, 2019 at 12:30 am

    PS: As far as I know the last significant restructuring of the Supreme Court was in 1891, which was done by Republicans. As was the previous ones in 1869, 1866, and 1863.

      USN RET in reply to Milhouse. | October 11, 2019 at 3:26 am

      See the judicial reform bill of 1937. Roosevelt’s attempt to pack the supreme court.

        Milhouse in reply to USN RET. | October 11, 2019 at 8:10 am

        That bill failed. The court was not restructured. I repeat my question: When did the Dems restructure the court, as the previous commenter alleged?

          Did it? Any number of competent legal scholars can show you how SCOTUS began accommodating FDR’s obviously unconstitutional New Deal after that threat was issued.

          Milhouse in reply to Milhouse. | October 11, 2019 at 5:31 pm

          a. Changing a judge’s mind is not a restructuring. What you’re doing is outright dishonest. Either defend the original assertion or concede that it was false.

          b. Those “competent” scholars are not as competent as they could be, because Roberts cast his vote in Parrish almost four months before Roosevelt’s speech, so he couldn’t have been influenced by that speech.

          Barry in reply to Milhouse. | October 11, 2019 at 11:22 pm

          “What you’re doing is outright dishonest.”

          Pot, kettle…

          OTOH, SDN makes a perfectly valid point. He didn’t assert the statement made earlier was correct, just that it had an effect.

          But your TDS has you so butthurt you can’t acknowledge the simple truth.

          venril in reply to Milhouse. | October 15, 2019 at 4:24 pm

          The Bill was never voted on because two justices chickened out and voted for the pending New Deal legislation, in spite of it’s obvious unconstitutionality. Congress was about ready to accept it.

          “The switch the saved nine.”

      Petrushka in reply to Milhouse. | October 11, 2019 at 7:23 am

      The number of justices hasn’t changed since the civil war. FDR tried and failed. Apparently the democrats haven’t noticed that nuclear options have a way of returning to haunt.

    ConradCA in reply to Andy. | October 12, 2019 at 2:25 pm

    The words and history of the 2nd amendment are irrelevant. The senator isn’t motivated by respect for the constitution. He only cares about progressive fascist ideology and the tyranny that it seeks to impose ie fundamental change. They know that the 2nd amendment allows their enemies to fight against the establishment of their fascist utopia.

I think Little Shelly is going to discover that threatening SCOTUS isn’t going to have the desired effect he was looking for.

Bake that cake, Christian.

This would be funny if it wasn’t already deadly serious.

FortesFortunaJuvat | October 11, 2019 at 6:08 am

Anyone else threatening the Court would have been jailed and awaiting trial.

    No, they wouldn’t. Whitehouse’s brief was improper, stupid, arrogant, all kinds of things, but not criminal.

      venril in reply to Milhouse. | October 16, 2019 at 7:17 am

      A Legislator threatening the Supreme Court in an “Amicus Brief,” to be “… restructured in order to reduce the influence of politics …,” if it rules the wrong way on a case, is an attack on the ‘co-equal’ branch. We all know he doesn’t want an apolitical court, he wants a progressive court, ruling in accordance with the Progressive Narrative. This warrants censure by the full Senate. And a stern rebuke by the Nazgul.

      If Trump made this threat, all hell would break loose, with screams for impeachment of the dictator, and you damned well know it.

        Gremlin1974 in reply to venril. | October 16, 2019 at 11:33 am

        You are absolutely correct. However, as Milhoue said, none of that makes it criminal. Should it be “criminal”? I don’t know. At the very least it should be reported to the Bar in his state of licensure.

      Gremlin1974 in reply to Milhouse. | October 16, 2019 at 11:34 am

      Could the court itself address it? I mean if they can I think it is a severe mistake not to address it. Can you be held in contempt by SCOTUS? I don’t see why not.

I don’t know who the rest of you are. But I don’t want to sue the s**t out of for not liking what I do on my off time.

JackinSilverSpring | October 11, 2019 at 7:25 am

Agree with Tom Swift here. The only people re-writing the Second Amendment are the DemoncRats. The Amendment plainly states, the right of the people to keep and bear arms shall not be infringed. The 14th Amendment expanded this and the other first seven Amendments to the States. The DemoncRats will defend to the death Roe v. Wade, which is based on nothing in the Constitution except penumbra. Buy they are more than willing to ignore something plainly stated in the Constitution. As Biden said, the DemoncRats have their truths, whatever the facts are.

CaliforniaJimbo | October 11, 2019 at 7:31 am

People at the top of their profession have large egos. Professional sports stars, business leaders, and other alpha types. The largest egos are reserved for those who don the black of the judiciary. Threats to a judges power are taken like the 4 year old telling mom and dad he’s running away because he couldn’t watch tv. It doesn’t work.

CapitalistRoader | October 11, 2019 at 8:17 am

Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce…racism:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
—Sonia Sotomayor

So Democrats are threatening to pack the court in order to “fix it” thereby making it less political????? One can only assume they mean “less political” as being more agreeable to what the Democrats demand. Are there any sane people out there who are actually buying into this arrogant nonsense? (Of course this begs for a definition of “sane” which is likely going to go the same route as “less political”.)

Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
This is a really bad strategy.
At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn’t count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn’t say “file a lawsuit in federal court.” Madison advised a refusal to cooperate with officers of the union. Don’t depend on politically connected lawyers to protect your right to keep and bear arms.

If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

    Tom Servo in reply to ramrodd69. | October 11, 2019 at 11:14 am

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy.”

    Although I sympathize with that view, President Eisenhower settled that question in 1957 when he federalized the Arkansas National Guard and sent them in to Little Rock to enforce a desegregation order. Now, an interesting question is, what happens if a President does *not* agree with the Court’s ruling? But it all comes down to who’s in command of the troops.

    (Eisenhower’s authority for federalizing the Arkansas Nat’l Guard? He Said So, that’s why, and the Supreme Court said Sure, why not.)

      drednicolson in reply to Tom Servo. | October 11, 2019 at 12:21 pm

      “Justice Marshal has made his decision. Now let him enforce it.” – President Andrew Jackson (D)

      Milhouse in reply to Tom Servo. | October 11, 2019 at 5:33 pm

      (Eisenhower’s authority for federalizing the Arkansas Nat’l Guard? He Said So, that’s why, and the Supreme Court said Sure, why not.)

      BS. The National Guard is a federal force, and the the president can take command of any unit whenever he likes. Which is why NG units serve overseas.

If Trump made the same threat, what crime would Mr. Whitehouse be accusing the president of committing?

    txvet2 in reply to MarkS. | October 11, 2019 at 3:46 pm

    I don’t know about Whitehouse, but for certain and for sure Schiff would be writing another impeachment article.

smalltownoklahoman | October 11, 2019 at 9:17 am

Well, looks like the courts effectively flipped Sheldon the bird, good. I hope they continue to stand firm if Sheldon and/or others try to issue such thinly veiled threats during the course of the actual trial itself.

And yet a majority of voters still select Sen. Whitehouse to attend to the Senatorial business of Rhode Island. Such lovely people there, no?

the hollow threats of a piss-ant politician from a piss-ant state

” shall not be infringed ” is about as murky as ” we, the people “

It would be nice if the Supreme Court finally gave us some standards of review (strict scrutiny, etc) for these Second Amendment cases. That would be a valuable tool to point at when lower courts blatantly break the Supreme Court’s guidance.

Maybe this guy should stick to decoding high school yearbooks.

Mykee the Patriot | October 11, 2019 at 3:48 pm

Who does this POS think he is? Maybe the Supreme Court needs to restructure the government and get rid of the demonrat party.

The final arbiter of what is constitutional or not is the militia. Not our creation, the federal government, which the Bill of Rights were adopted to constrain. We will make our decisions and enforce them by force of arms as and when we see fit.

Look at the mug on the guy sitting behind his left shoulder.

Whitehouse is a pitiful douchebag along with his buddies.

SeekingRationalThought | October 13, 2019 at 11:07 am

When is Whitehouse up for rr-election? He is such a horrible, integrity-free individual that I would support the Rhode Island version of AOC to get him out of office. I’ve got money burning a hole in my pocket and looking for a Rhode Island senate candidate to support.