Another Supreme Court Chief Justice John Roberts Retreat

The Chief Justice Ducks on Gun Rights

The Court majority cowers to Senate Democratic threats.

By Wall Street Journal Editorial Board,  April 27, 2020 

Richmond, Virginia USA / January, 20, 2020 : Pro Second Amendment Gun Rights Rally on the grounds of the Virginia State Capitol

Plus:  Politically incorrect comment by Jerome S. Kaufman
see below

What an enormous abdication! The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.

A large crowd gathers on a Gun Lobby Day in front of the Virginia State Capitol building in Richmond, VA, U.S. January 20, 2020. REUTERS/Stephanie Keith – RC2TJE9F3FGS

In an unsigned per curiam opinion, (In law, a per curiam decision is an opinion is a ruling issued by an appellate court of multiple judges)

The Chief joined the four liberals and a (conflicted) Justice Brett Kavanaugh (following in Roberts frightened footsteps) in declaring moot a challenge to New York City’s onerous gun regulation (New York State Rifle & Pistol Association v. City of New York).

 At issue is a New York City rule that prevents residents with gun licenses from transporting their guns from their city homes to shooting ranges and homes outside the city. Obtaining even a “premises” license requires a $431 fee and police investigation into an applicant’s mental health, criminal history and moral character. It can take six months. (More DiBlasio Left Wing un-American, self-destructive behavior)

After the High Court accepted the case, the city revised its ban to let the plaintiffs tote their guns (locked and unloaded) “directly” between residences and other permitted destinations. The state Legislature passed a similar law. Case moot, New York politicians declared.

Rhode Island Senator Sheldon Whitehouse and four other Democrats also weighed in with an amicus brief threatening the Justices if they didn’t follow their orders to drop the case. “The Supreme Court is not well,” they wrote. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” 

Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”

On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. 

After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.

Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.

Justice Kavanaugh may agree with the Chief that the Court needs to avoid political controversies, especially with Democrats threatening to pack the Court if they win the White House and Senate in November. But the Court’s timidity on gun rights amid Senate threats means that liberal and media intimidation will escalate. 

The Court hasn’t taken a Second Amendment case in a decade, even as cities and states erode its landmark Heller decision bit by bit. The Court is sending a signal that the Second Amendment is the exception in the Bill of Rights, a second-class freedom.

“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced,” Justice Alito warns. He’s right but too polite.

The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.

(The mystery is of what exactly is Justice John Roberts afraid? Are the Democrats going to take away his license, are they going to disbar him, are they going to throw him off the Supreme Court whose justices were, with brilliant prescience, given lifetime appointments by the founding fathers or is the Left, G-d forbid, going to assassinate him?

And, by the way, I have, from the bottom of my heart, believed they did exactly that to the great Justice Antonin Scalia. He was a huge thorn in the side of the power hungry Left and they shamelessly performed a masterful stroke by assassinating him. 

Unfortunately there is a long history of unexplained deaths in the political advancement of some unduly elected prominent Democrats.  And  … that Scalia death occurring while he was virtually all alone and unprotected on a ranch in the wilderness of Texas. For some reason, other than supposed family objections that cannot apply in cases of this sort, it was never investigated — no autopsy, no second medical or legal opinions, no nothing — All magically swept under the rug) 

Maybe we can get Attorney General Wm. Barr to re-open that mysterious case, too? It could be another badly needed epiphany as to real political life in the land of the free and the home of the brave.

Jerome S. Kaufman, Editor/Publisher Israel Commentary

To subscribe to Israel Commentary:

Facebook: 1) Israel Commentary 2) Jerome S. Kaufman

Twitter: 1) @israelcomment  2) @schmice (Jerry Kaufman)