Several U.S. Senators filed an Amicus (friend of the court) Brief in the case NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., v. CITY OF NEW YORK, NEW YORK (NYSRPA v NYC). The senators make some interesting points, some good, some not so good. However, there is a lot we can learn, not only about the constitutional issue, but about the state of our political discourse.
Valid Points
The judiciary was not intended to settle hypothetical disagreements. The Framers designed Article III courts to adjudicate actual controversies brought by plaintiffs who suffer real-world harm.
Summary of Argument – NYSRPA v NYC
It has long been legal practice that a plaintiff must show actual harm before they can sue. This is not based on any reading of the Constitution I have seen, though there is some logic behind the position.
The rationale for this long-settled principle is simple: “this Court is not a legislature.” Obergefell v. Hodges
Summary of Argument – NYSRPA v NYC
While it’s not the role of the courts to create, execute, or establish law, the question remains: Do my rights have to be violated before I can petition my government for a redress of grievances?
The one point these senators raise that I believe valid is: If the respondents have already agreed to the petitioners’ demands, why is the case still going forward? In other words, now the NRSRPA has won, why has the case not been dropped? The first reason the case is going forward is that the respondents have not agreed to the petitioners’ demands. New York City did not rescind the law in question, only “loosened” some of its restrictions, apparently in the hopes of keeping the rest of their draconian gun control laws from court review. The second reason, in my opinion, is based on how we’ve corrupted the government created by the Constitution.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
U.S. Constitution, Article III, Section 1
Somewhere along the line, we have morphed “judicial power” from deciding cases into the power to overturn the legislative process. You see, today’s laws aren’t really laws until the court has “blessed” them. If the court finds against a law, even if it’s entirely constitutional, then effectively the law is of no effect.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Alexander Hamilton – Federalist Papers #78
The role of the judiciary branch is not to be superior to the legislative one, but to place the will of the people, as expressed in the Constitution, above them both. But what is to keep the courts from substituting their will to that of the actual language of the law?
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,
U.S. Constitution, Article III, Section 1
Since the people we have chosen to act in our name have abdicated their responsibility to punish members of the judiciary who do not behave well, there is no check on an unbridled judge or justice. Therefore the law effectively has no meaning except what the courts place upon it. This is the reason the NYSRPA has continued the case, so they can get a final opinion from the high priests and priestesses in black robes we call the supreme Court.
If the senators had stopped with the question of should a case continue when the desired outcome of the plaintiffs has been reached, I would have supported their position. However, that is not the case.
Hypocrisy on Parade
“It can be tempting for judges to confuse [their] own preferences with the requirements of the law,” id. at 2612, and to legislate political outcomes from the bench. But a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” Benjamin N. Cardozo, The Nature of the Judicial Process 141 (Yale Univ. Press 1921).
Summary of Argument – NYSRPA v NYC
Even for a group of senators, this is hypocrisy on another level. Many of these same people are on the record not only of attempting to persuade the court to address perceived issues with current law for them, but establishing political litmus tests for any high court nominee that comes before them for confirmation. Now they’re concerned that the court may attempt to legislate political outcomes? While at the same time requiring nominees to effectively swear allegiance to their political preferences to win their vote?
These senators complain about a “multimillion-dollar advertising campaign to shape the Court’s composition” while they themselves are attempting to influence the court with the power of their offices. Not to mention the millions spent in recent years trying to shape the court by cherry-picking justices not based on their knowledge of the Constitution they will swear to support, but their fealty to a political party’s platform. They ignore the billions spent by governments, private citizens, and organizations to influence the court’s opinions and establish “precedent” to protect their favored opinion with little, if any, regard the the law or the Constitution.
Yet now, when the court is expected to find against ridiculous and tyrannical “gun control” laws in a rabidly anti-gun city, they are concerned the courts may put something before their preference to see guns out of the hands of law-abiding Americans and the effective destruction of our rights protected by the Second Amendment to the Constitution? Worse, they now threaten to abuse their power as U.S. Senators to get what they want?
Constitutional Blackmail
Amici share with the Court a strong interest in the preservation of the separation of powers that sustains our constitutional form of government.
INTEREST OF AMICI CURIAE – NYSRPA v NYC
The reason for filing this brief, as stated by these senators (the amici) is an interest in preserving the separation of powers. Yet this is a bit hard to believe when we read the end of the brief:
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.
NYSRPA v NYC
These senators have listed several issues with how the court is handling this case. As we’ve discussed, these issues come primarily from how we have let the federal government ignore the Constitution and twist what it says to collect power not only to itself, but particularly in the judicial branch. And what is the solution these senators propose? Threaten the court with “restructuring” if they don’t bend to their political will. The plan for “restructuring” that has been proposed is to increase the size of the supreme Court. Would this increase happen immediately? Of course not. The politicians proposing restructuring the court have stated they will wait until someone from their party becomes President. That way they will get nominees of their own political party. Does that sound like making the court less political to you? No, this is “court packing”, which has been the tool of politicians since John Adams in 1801. In every case, this was meant to make sure the court would support the ideas of a particular party, not return to their constitutionally authorized role.
Conclusion
Sadly, this is an all too common situation. We once again see people in government with a real issue to discuss, turn instead to a naked power grab to get their way. While this time the power appears to be targeted at the judiciary, it’s really targeted directly at the Constitution itself.
Is the supreme Court not well? Absolutely. As I’ve documented time and time again here at The Constitution Study, I find it hard to believe that nine of the supposedly best legal minds in the nation cannot read and comprehend the simple English of the Constitution. A Constitution they swore or affirmed to uphold and to treat as the supreme law of the land. However, if the court is sick, the “cure” proposed by these senators is worse than the disease.
Several of the grievances our Founding Fathers listed in the Declaration of Independence includes abuses by British courts and the influence the king had over their decisions. Is the influence of a group of senators any less abhorrent? If we were once willing to fight a war, in part because of an inability to receive justice due to political influence, will we stand for it now?
If you are a citizen of the states of Rhode Island, Hawaii, Connecticut, Illinois, or New York, you should ask yourself if this is the type of representation you want? Is this who you are? You may support gun control and not want to see the court find the New York City law unconstitutional. But are you a bully? If you can threaten the court to get your way, what is to stop someone else from doing so to get theirs? If you want the courts packed to protect gun control laws, would you be willing to have it packed to overturn them? If you set the precedent that your senators can stomp their feet and threaten the courts to get their way, then you, the people of these states, are nothing more than bullies. And the rest of the country should treat you accordingly.
