All this over a two-bit gun case

The 5-to-4 Republican majority on the U.S. Supreme Court has existed for some time now, and has been accepted as a political fact of life. But a case now before the court has brought into the open a partisan division which threatens to affect the court itself. It's a gun case.

Gun violence and proposals to combat it are red-hot political issues. Recent multiple killings have made the subject impossible for candidates and officeholders to ignore, although it is not clear whether any responsive legislation will in fact emerge.

The issues raised, particularly those involving the Second Amendment, have now spilled over into a war of words that call into question the institutional integrity of and public respect for the United States Supreme Court.

The background is the Second Amendment. The Supreme Court in 2008, in District of Columbia v. Heller, held that the Second Amendment created an individual and personal right of gun ownership. That right was extended to apply to regulation of guns by the states in the McDonald v. Chicago case two years later.

Justice Antonin Scalia's opinion in Heller acknowledged limitations on the right. Felons and others could be denied firearms, but the limits of state and local regulation were not clearly indicated. The case specified no constitutional level of review for state and local laws regulating the possession or use of firearms. Since 2010, there have been a multitude of state and local laws on the subject, but the Supreme Court has not revisited it.

As a result the application of the Second Amendment has been decided in the various circuits by the district courts and the Courts of Appeals in their ruling on these statutes.

Many strong supporters of gun rights believe that these lower court decisions do not faithfully carry out the core ruling of the high court, that the Second Amendment creates an enforceable constitutional right.

Justice Clarence Thomas is one such believer. In dissenting from the Supreme Court's denial of certiorari in a case in which a Court of Appeals upheld a local law, he flat out accused the lower courts of essentially sandbagging the Supreme Court's Second Amendment doctrine. (Since it takes four votes for the Supreme Court to take a case it can be concluded that, in the case mentioned, probably only two justices voted to hear it. Justice Samuel Alito joined Justice Thomas' dissent.) The failure of the Supreme Court to hear these cases has been a major complaint of the gun rights supporters.

Then along comes an easy case, and all hell breaks loose.

A New York City law allowed handgun ownership in limited and highly circumscribed circumstances. It licenses ownership in a home or business. But the statute provides that the gun cannot be removed from the premises other than under very strict limits, one of which is that it cannot be removed from New York City. It can be taken to an "authorized small arms range/shooting club," but only in New York City. Gun licensees complained particularly of that limitation and of their inability to take the weapon to a second home.

The lawsuit attacking these limitations, New York State Rifle & Pistol Association v. City of New York, found no solace in the lower courts. The district court found the New York regulations met constitutional scrutiny, and the 2nd U.S. Circuit Court of Appeals affirmed.

This time the Supreme Court granted certiorari. The gun rights advocates were sure they had a winner, and anticipated that the new court majority would issue a forceful affirmation (and hopefully extension) of Second Amendment rights. The Justice Department filed an amicus brief in support of the plaintiffs for the Trump administration.

And along the way the New York interests looked into a crystal ball and decided that the plaintiffs were, if not right, at least likely to prevail in the Supreme Court's October 2019 term.

New York City then amended its law to eliminate the offending provisions, and New York state followed suit to enforce the city's position at the state level. The city then informed the Supreme Court that the case was moot and should be dismissed.

Mootness is a doctrine of federal justiciability that requires a case to be at issue between the parties for its entire duration. Once the points in dispute have been resolved, there no longer exists the constitutionally required case or controversy, and mootness doctrine requires its dismissal.

"Not so fast" replied the plaintiffs. In a lengthy "Response to Respondents' Suggestion of Mootness," they characterized the city's contention of mootness as legally unsupportable, and marshalled legal arguments to show that the changes made "vindicate[s] this Court's well-grounded skepticism of voluntary cessation of unlawful conduct general and of 'postcertiorari maneuvers designed to insulate a decision from review by this Court' in particular."

The plaintiffs and their supporters were concerned that they would be denied the possibility (likelihood) that the Supreme Court would reverse the Court of Appeals, with an opinion that went far beyond the relatively minor points at issue raised by the initial complaint. In fact, the New York regulations even as amended are highly vulnerable to Second Amendment scrutiny by a true believer.

It is the effort by the plaintiffs (read: "gun lobby") to keep alive a case they already have won that has provoked the ferocious Democratic response. That response, in the form of an amicus signed by five Democratic Senators, is an attack on the National Rifle Association in particular, and the Republican Party in general for its efforts to reshape and redirect the Supreme Court.

To quote one paragraph: "With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed."

In considering this prose, it is important to bear in mind that every Democrat breathing in and out believes that the Republicans stole a Supreme Court seat when the Republican Senate majority (read: Mitch McConnell) refused to give a hearing to President Barack Obama's nomination of Merrick Garland for the seat opened by Antonin Scalia's death.

The Senators' brief quotes poll results indicating that 55% of the American people believe the Supreme Court is motivated by politics, and 59% that it is "too influenced by politics."

The conclusion: "The Court is not well. And the people know it." It suggests that the Supreme Court heal itself lest the public demand it be "restructured in order to reduce the influence of politics."

What is being threatened? There have been suggestions from some Democratic candidates for the presidency that the number of justices be increased by two. That is within the range of constitutionally possible actions, since it is accepted that Congress sets the number of justices, and the Supreme Court's size has been increased in the past. It presupposes Democratic control of the Presidency and both houses of Congress.

Reaction to this suggestion has been ferocious, both (predictably) from Republicans in Congress, and (perhaps less predictably) from the columnists of the Washington Post. One comment finds it completely unacceptable to "threaten the court with political retribution if it does not rule in a certain way."

All this over a two-bit Second Amendment case.

When Franklin D. Roosevelt proposed to add justices to outvote a hostile Supreme Court majority, the effort was characterized as "court packing," found little public support and died.

The poll results cited in the Democrats' brief suggest that the public might not give the Supreme Court the same level of public backing as the New Deal supporters did in 1937. But the Supreme Court as an institution has a long history as a rock of support for the Constitution of the United States, and of deep respect by the public. The present chief justice regards maintaining that position in our government his priority.

It is not surprising that the bitter partisanship that now infects our politics has spilled over into an area previously off limits. Stay tuned.

There will be a lot more to this story. We do not even know yet how New York State Rifle & Pistol Association v. City of New York will in fact be decided, much less the results of the election of 2020. 