{"id":61782,"date":"2020-11-13T18:21:19","date_gmt":"2020-11-14T00:21:19","guid":{"rendered":"https:\/\/milesfortis.com\/?p=61782"},"modified":"2020-11-13T18:21:32","modified_gmt":"2020-11-14T00:21:32","slug":"61782","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=61782","title":{"rendered":""},"content":{"rendered":"

More from the Justice’s speech<\/p>\n

BLUF:
\nIf you\u2019ve got an hour or so and you\u2019re a legal geek like me, go watch Alito\u2019s entire speech and read the brief that I linked above. Obviously Alito wasn\u2019t going to say anything unbecoming of a Supreme Court justice, but I was struck by his quiet indignation over the NYC gun case, the second-class status of the Second Amendment, and the threats of \u201crestructuring\u201d the Court by Senator Sheldon Whitehouse and four other Democratic senators. I get the feeling that Justice Alito is itching to take another Second Amendment case soon, and Lord knows there are\u00a0plenty in the pipeline\u00a0for him and his colleagues to accept in the months ahead.<\/em><\/p>\n

\n

Alito: Senators\u2019 Threats In 2A Case \u201cAffront To The Constitution\u201d<\/a><\/p>\n

Supreme Court Associate Justice Samuel Alito\u2019s address to the Federalist Society on Thursday night is making headlines today largely for his comments about COVID-19 and the threat that the pandemic poses to individual liberties, but I\u2019m surprised that more people aren\u2019t talking about Alito\u2019s reserved smackdown of five Democratic senator who threatened the Court with \u201crestructuring\u201d if it didn\u2019t drop a challenge to a New York City gun law. The case, known as New York State Rifle & Pistol Association v. City of New York<\/em>, ultimately was\u00a0mooted by the Court<\/a>\u00a0earlier this year after New York City changed the law being challenged after SCOTUS agreed to hear the case.<\/p>\n

Reason\u00a0<\/em>has a\u00a0full transcript and video<\/a>\u00a0of Justice Alito\u2019s remarks, but I want to focus on what he had to say about our right to keep and bear arms.<\/p>\n

Of course, the\u00a0ultimate second tier constitutional right<\/strong>\u00a0in the minds of some is the Second Amendment right to keep and bear arms. From 2010, when we decided\u00a0McDonald v. Chicago,<\/em>\u00a0until last term; the supreme court denied every single petition asking us to review a lower court decision that rejected the Second Amendment claim. Last year, we finally took another second amendment case. And what happened after that is interesting.<\/p><\/blockquote>\n

This isn\u2019t the first time that Alito has complained about the Second Amendment being treated as second-class right. Alito penned the majority opinion in the\u00a0McDonald\u00a0<\/em>case, and a decade ago\u00a0he warned<\/a>\u00a0that the right to keep and bear arms rests on the same footing as the rest of our individual rights.<\/p>\n

In rejecting the City\u2019s argument against incorporation, Justice Alito wrote that it would be inappropriate to treat the right \u201cas a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees\u201d incorporated under the Due Process Clause. (Although Justice Alito was referring specifically to incorporation, this passage is regularly cited by advocates and scholars to claim that the Second Amendment itself is being treated as a \u201csecond-class right.\u201d) Although this right may have \u201ccontroversial public safety implications\u201d so too do other rights \u201cimpose restrictions on law enforcement and on the prosecution of crimes.\u201d States are limited by the Constitution, but they still have room to devise local solutions for local conditions. \u201c[I]ncorporation does not imperil every law regulating firearms.\u201d<\/p><\/blockquote>\n

In his speech to the Federalist Society, Alito elaborated on the issues at hand in the NYC gun case.<\/p>\n

The case involved a New York City ordinance. The city makes it very inconvenient for a law abiding resident to get a license to keep a gun in the home for self defense. But the Second Amendment protects that right. And if a person is going to have a gun in the home, there\u2019s broad agreement that the gun owner should know how to handle it safely, and that the best way to acquire and maintain that skill is to go to a range every now and then.<\/p>\n

The New York City ordinance, however, made that hard. It prohibits the lawful gun owner from going to any range outside city limits. And there were only seven ranges in the entire city. And all of these but one were largely restricted to members and their guests. There were other ranges that lay just outside the city. So why couldn\u2019t a city resident go to one of those ranges?\u00a0The city really had no plausible explanation. But that didn\u2019t stop it from vigorously defending its rule.<\/strong>\u00a0Nor did it stop the district court or the Second Circuit from upholding it.<\/p><\/blockquote>\n

The real explanation; the one that New York City officials could never publicly acknowledge, is that this rule was put in place to chill the lawful exercise of Second Amendment rights, along with the city\u2019s restrictive and subjective licensing laws that prevent the average citizen from obtaining a license to carry, and in many cases, a permit to have a firearm in their home. As Alito noted, though, once the Supreme Court decided to accept\u00a0NYSPRA v. City of New York<\/em>, city officials decided that the law wasn\u2019t that important after all.<\/p>\n

Once we grant a review, however, the city suddenly saw things differently. It quickly repealed the ordinance. And it said that on reconsideration doing that did not make the city any less safe. In the place of the old ordinance, it adopted a new vaguer one that still did not give gun owners what they want it.\u00a0But the city nevertheless asked us to dismiss the case before it was even briefed or argued. And when we refuse to do that the city was obviously miffed<\/strong>.<\/p><\/blockquote>\n

Alito noted that city officials weren\u2019t the only ones who were outraged by the Court\u2019s decision to simply hear oral arguments in the case rather than dismiss the lawsuit before any briefings. Alito got a little emotional as he talked about the actions from several anti-gun politicians who tried to bully the Court into backing off the case.<\/p>\n

Five United States senators who filed a brief in support of the city went further. They wrote that the Supreme Court is a sick institution, and if the Court did not mend its ways it might have to be, well, \u201crestructured.\u201d After receiving this warning, the Court did exactly what the city and the senators wanted. It held that the case was moot, and it said nothing about the Second Amendment.<\/p>\n

Three of us protested, but to no avail.<\/p>\n

Now let me be clear, I am not suggesting that Court\u2019s decision was influenced by the senators\u2019 threat. But I am concerned that the outcome might be viewed that way by the senators and others with the thought of bullying the Court.<\/p><\/blockquote>\n

Alito called\u00a0the brief<\/a>\u00a0\u201can affront to the Constitution and the rule of law,\u201d saying that Congress has no right to interfere with the business of the Court any more than the Supreme Court has the right to legislate. Calling the intent to intimidate the Court the \u201csort of thing that happens in countries governed by power, not law,\u201d Alito\u00a0went on to warn that \u201cthis little episode\u201d might be a preview of things to come for the Court in the future, leaving it up to his audience to imagine a future with politicians proclaiming the illegitimacy of the Court every time it comes out with a decision the Left doesn\u2019t like.<\/p>\n

I wish Alito would have called out by name the five senators who threatened the Court with \u201crestructuring\u201d in his speech, but since he didn\u2019t, I\u2019ll do so here.<\/p>\n