How Not To Win Friends And Influence Justices

Sen. Sheldon Whitehouse (D-RI) considers himself worthy of authoring an amicus brief for a case before the Supreme Court. He should think again. Despite a long legal career before being elected to the Senate which culminated with him serving as both the Attorney General of Rhode Island for one term and before that as the Clinton-appointed US Attorney for Rhode Island, his brief in NY State Rifle and Pistol Association v. City of New York is a polemic and not an argument.

Moreover, as the son and grandson of diplomats, you would have thought somewhere along the line it would have rubbed off on him how to be diplomatic towards those that matter. Daddy served as deputy ambassador to the Republic of Vietnam followed up as the ambassador to Laos and then Thailand. Granddad was ambassador to Guatemala and Colombia and served earlier on the commission that wrote the Treaty of Versailles.

Whitehouse was joined in this polemic, I mean amicus brief, by Senators Dick Durbin (D-IL), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), and Kirsten Gillibrand (D-NY) who are all lawyers by training. They begin the brief arguing that the NYSRPA, the petitioners, are asking the Court to be their allies in ” a “project”
to expand the Second Amendment and thwart gun-safety (sic) regulations.” They continue that it is no wonder polls show the Supreme Court is “motivated mainly by politics.” It goes downhill from here.

They then argue that it was the National Rifle Association, the Federalist Society, and other conservative groups fought to make sure that Justices Gorsuch and Kavanaugh would be on the Court to “break the tie” in favor of the Second Amendment. It goes on to say about the Federalist Society:

The Society counts over eighty-six percent of
Trump administration nominees to the circuit courts
of appeal and to this Court as active members. It is
not yet clear who the powerful funders are behind
Leonard Leo and the Federalist Society judicial
selection effort, nor what took place as the Federalist
Society was “insourced” into the Trump
administration’s judicial selection process.5 But
massive political spending and secrecy are rarely a
salubrious combination.

In other words, these fine senators are pissed off that President Trump has nominated active members of an organization dedicated to an interpretation of the Constitution that preserves the original meaning. They would much prefer those of the Living Constitution stripe.

This brief then goes on to attack the amicus briefs in favor of the NY State Rifle and Pistol Association implying that they are stooges of the NRA. Eight of the amici are affiliated with the NRA. However, most of those are from only one amicus brief – that of the National Sheriffs Association. Then, heaven forbid, a number of amici are 503(c)(4) social welfare organization who are not required to disclose their donors. As the secretary of the Maryland Democratic Party might note, this makes them harder to dox. Of course much of this is ludicrous. Accusing groups like the Pink Pistols and GOA of being stooges of the NRA is laughable.

Whitehouse ends Section I of the brief with this.

Out in the real world, Americans are murdered
each day with firearms in classrooms or movie
theaters or churches or city streets, and a generation
of preschoolers is being trained in active-shooter
survival drills. In the cloistered confines of this
Court, and notwithstanding the public imperatives of
these massacres, the NRA and its allies brashly
presume, in word and deed, that they have a friendly
audience for their “project.”

You might think Whitehouse might now try to curry favor with the justices in Section II and you’d be wrong. After a few paragraphs saying how the Court shouldn’t be answering moot questions and legislating from the bench, he then accuses the Court’s majority of being the tools of big business, the GOP, and fat cats.

Recent patterns raise legitimate questions about
whether these limits remain. From October Term
2005 through October Term 2017, this Court issued
78 5-4 (or 5-3) opinions in which justices appointed by
Republican presidents provided all five votes in the
majority. In 73 of these 5-4 decisions, the cases
concerned interests important to the big funders,
corporate influencers, and political base of the
Republican Party. And in each of these 73 cases,
those partisan interests prevailed.

Then he accuses the petitioners of engaging in strategic “faux litigation”. What he is speaking of is strategic civil rights litigation with carefully chosen plaintiffs and with the purpose of building precedent. The interesting historical aspect of this is that the model for this strategic litigation was none other than the NAACP Legal Defense Fund run at the time by future Justice Thurgood Marshall.

For example, we have seen flocks of
“freedom-based public interest law” organizations
that exist only to change public policy through
litigation, and which often do not disclose their
funders. We have seen behavioral signals, like
litigants who rush to lose cases in lower courts “as
quickly as practicable and without argument, so that
[they] can expeditiously take their claims to the
Supreme Court” (ordinarily, in litigation, litigants
seek to win).
Almost invariably, and as we have seen in this case, such plaintiffs are accompanied by
throngs of professional amici, whose common funding
sources and connections to the organizations behind
the supposed party-in-interest are obscured by
ineffective disclosure rules.

Instead of being flattered, Whitehouse seems to say how dare these dirty, low down conservatives imitate the tactics and strategies of the Left!

He then ends the brief with a threat.

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

Whitehouse is no FDR but he thinks his threat of packing the Court is going to sway it. His demeaning attitude should irritate even the most ardent liberals on the Court. Whether this case is ultimately dismissed as moot or not, there will be more cases that have even more impact for Second Amendment rights that are now or soon will be in the pipeline.

UPDATE: I’m not the only one who found Whitehouse’s brief to be a polemic and not a real argument. Prof. William Jacobson at Legal Insurrection covered it as well. Note the comments. I agree with the person who said ” The Court should strike the brief without a right to refile an amended brief, and impose sanctions.”

Firearms Legislation Introduced This Week In Congress

Three more bills affecting gun rights and shooting opportunities have been introduced since Monday. Two are anti-gun and come from well-known gun prohibitionists and the third is a bill that would protect hunting, shooting, and fishing on public lands. It is interesting to note that on Carolyn McCarthy’s HR 437 that 70% of the co-sponsors come from states that severely restrict gun rights.

HR.437 – Rep. Carolyn McCarthy (D-NY)
Rep Bishop, Timothy H. [DNY-1] – 1/29/2013
Rep Blumenauer, Earl [D-OR-3] – 1/29/2013
Rep Brady, Robert A. [D-PA-1] – 1/29/2013
Rep Carney, John C., Jr. [D-DE] – 1/29/2013
Rep Cartwright, Matt [D-PA-17] – 1/29/2013
Rep Cicilline, David N. [D-RI-1] – 1/29/2013
Rep Cohen, Steve [D-TN-9] – 1/29/2013
Rep Conyers, John, Jr. [D-MI-13] – 1/29/2013
Rep DeGette, Diana [D-CO-1] – 1/29/2013
Rep DeLauro, Rosa L. [D-CT-3] – 1/29/2013
Rep Deutch, Theodore E. [D-FL-21] – 1/29/2013
Rep Eshoo, Anna G. [D-CA-18] – 1/29/2013
Rep Esty, Elizabeth H. [D-CT-5] – 1/29/2013
Rep Frankel, Lois [D-FL-22] – 1/29/2013
Rep Grijalva, Raul M. [D-AZ-3] – 1/29/2013
Rep Hahn, Janice [D-CA-44] – 1/29/2013
Rep Himes, James A. [D-CT-4] – 1/29/2013
Rep Holt, Rush [D-NJ-12] – 1/29/2013
Rep Huffman, Jared [D-CA-2] – 1/29/2013
Rep Jackson Lee, Sheila [D-TX-18] – 1/29/2013
Rep Larson, John B. [D-CT-1] – 1/29/2013
Rep Levin, Sander M. [D-MI-9] – 1/29/2013
Rep Lofgren, Zoe [D-CA-19] – 1/29/2013
Rep Lowenthal, Alan S. [D-CA-47] – 1/29/2013
Rep Lowey, Nita M. [D-NY-17] – 1/29/2013
Rep Maloney, Carolyn B. [D-NY-12] – 1/29/2013
Rep Matsui, Doris O. [D-CA-6] – 1/29/2013
Rep McCollum, Betty [D-MN-4] – 1/29/2013
Rep McGovern, James P. [D-MA-2] – 1/29/2013
Rep Meeks, Gregory W. [D-NY-5] – 1/29/2013
Rep Meng, Grace [D-NY-6] – 1/29/2013
Rep Miller, George [D-CA-11] – 1/29/2013
Rep Moran, James P. [D-VA-8] – 1/29/2013
Rep Nadler, Jerrold [D-NY-10] – 1/29/2013
Rep Pallone, Frank, Jr. [D-NJ-6] – 1/29/2013
Rep Pascrell, Bill, Jr. [D-NJ-9] – 1/29/2013
Rep Perlmutter, Ed [D-CO-7] – 1/29/2013
Rep Quigley, Mike [D-IL-5] – 1/29/2013
Rep Schakowsky, Janice D. [D-IL-9] – 1/29/2013
Rep Schiff, Adam B. [D-CA-28] – 1/29/2013
Rep Scott, Robert C. “Bobby” [D-VA-3] – 1/29/2013
Rep Serrano, Jose E. [D-NY-15] – 1/29/2013
Rep Sherman, Brad [D-CA-30] – 1/29/2013
Rep Sires, Albio [D-NJ-8] – 1/29/2013
Rep Slaughter, Louise McIntosh [D-NY-25] – 1/29/2013
Rep Speier, Jackie [D-CA-14] – 1/29/2013
Rep Swalwell, Eric [D-CA-15] – 1/29/2013
Rep Takano, Mark [D-CA-41] – 1/29/2013
Rep Tierney, John F. [D-MA-6] – 1/29/2013
Rep Tsongas, Niki [D-MA-3] – 1/29/2013
Rep Van Hollen, Chris [D-MD-8] – 1/29/2013
To regulate assault weapons, to ensure that the right to keep and bear arms is not unlimited, and for other purposes.
Referred to the House Judiciary Committee
(Since the text hasn’t been received yet, I am presuming that this bill is the House version of Feinstein’s S.150 – Assault Weapons Ban of 2013)

S.170 – Sen. Lisa Murkowski (R-AK)
Sen. Joe Manchin (D-WV)
– 1/29/2013
A bill to recognize the heritage of recreational fishing, hunting, and
recreational shooting on Federal public land and ensure continued
opportunities for those activities. 

Referred to the Senate Committee on Energy and Natural Resources

S.174 – Sen. Richard Blumenthal (D-CT)
Sen Lautenberg, Frank R. [D-NJ] – 1/29/2013
Sen Murphy, Christopher S. [D-CT] – 1/29/2013
A bill to appropriately restrict sales of ammunition. 
 Referred to Senate Judiciary Committee.

Ammunition Background Check Act

Sen. Richard Blumenthal (D-CT) plans to introduce the Ammunition Background Check Act which would mandate NICS checks for all ammunition purchases. His legislation would reinstate the record keeping requirement for ammo sales, a report to ATF whenever anyone buys more than 1,000 rounds within a 5 day period, bans teflon-coated and incendiary bullets, and require reports of stolen ammunition.

According to CNN, Blumenthal is introducing this legislation “to keep faith with the people of Newtown and elsewhere who want action to combat gun violence.”

In his press release, Blumenthal says:

Reporting large purchases of ammunition can alert law enforcement and enable proactive intervention. Large scale purchases of ammunition are the fuel often driving mass murders.

Or, more likely, it is a sign that a person either got a good deal or is planning to take a training class that requires 1,000 or more rounds of ammo for the weekend.

In addition, the legislation bans Teflon-coated bullets and incendiary ammunition. The current federal ban on armor-piercing ammunition exempts certain kinds of Teflon-coated bullets, as well as incendiary ammunition designed to ignite or explode on contact. Both of these kinds of ammunition can defeat body armor, and pose a grave danger to law enforcement officials.

Where is Blumenthal getting his info? Incendiary is “designed to ignite or explode on contact”? That doesn’t meet any definition of incendiary bullets that I’ve ever heard. Blumenthal is confusing incendiary as in tracers with certain .50 BMG ammunition such as the Raufoss Mk. 211 which is high explosive, armor piercing, and incendiary.  As for defeating body armor, your average .30-30 Winchester deer hunting cartridge can defeat most forms worn by law enforcement officers.

Background checks have worked in many cases to keep firearms from falling into the wrong hands. According to the FBI, over the last decade, more than 100 million background checks have been run on firearm purchases. The vast majority of background checks took about 30 seconds. Approximately 700,000 people were blocked from purchasing guns – including felons, domestic abusers, and the mentally ill.

Two points on this part of his statement. First, if you dump ammo purchases into the NICS system without drastically increasing personnel, the wait times will defeat the whole rationale of “instant checks”. My second point is when have you ever heard of any prohibited purchasers ever being prosecuted for attempting to purchase a firearm.

Blumenthal’s bill has one other fatal flaw if he plans to track all ammo – reloading.

Dick Doesn’t Know Dick

I plain flat out just don’t like Dick Blumenthal of Connecticut.

Reason number one is that Blumenthal lied about serving in South Vietnam so as to burnish his credentials with veterans. He has since said he “misspoke” and has offered a half-hearted apology.

My dad, who would be 91 this year if he was still alive, served two full-year tours of duty in Vietnam. He was old in comparative terms when he went there in 1967 for the first tour and even older the second time. By my estimate, he was 48 when he went over there the first time. While he was not an infantryman humping a ruck in the boonies, he was in a war zone. Moreover, he was there for the Tet Offensive where no place in the whole God forsaken country was safe.

Dad had to take a medical retirement in 1972 because his body was too worn out to effectively serve in the Army. In retrospect, a lot of his ailments like angina were stress related. Not PTSD but just plain old stress which took its toll on his middle-aged body. He died nine years later from congestive heart failure.  He had just turned 62 a few days earlier.

I missed out having a father around during much of my childhood and adolescence. My dad was serving overseas and we didn’t or couldn’t accompany him on those tours of duty. It is what it is. Obviously, I don’t blame Blumenthal for this but his lies about serving in Vietnam just infuriate me.

I didn’t know too much about his opponent Linda McMahon except of her connection with pro wrestling. However, reading her campaign bio I found out that she is a native of New Bern, North Carolina and is a a graduate of East Carolina University.

Being from eastern NC and going to ECU puts Linda McMahon a whole lot closer to the average person and their concerns than being a graduate of Harvard College and Yale Law like Blumenthal. Call that reverse snobbery, if you will, but I think we as a nation have for too long put too much credence in an Ivy League degree. Just look at the state in which the so-called elites have put this country. Enough is enough.

Follow-up on Fake Vietnam Vet Richard Blumenthal

As a follow-up to a blog post I wrote on Connecticut Atty General and Democrat nominee for the U.S. Senate Richard Blumenthal, we now have a member of his staff saying that he lied to the staff member, a former Marine himself, “face to face”.

Richard Hine, State Asst Atty General for Connecticut, has worked for Blumenthal for the last 20 years in the Attorney General’s Office. He says:

Hine said Blumenthal first lied to him about his service record while attorney general as Hine was making preparations for service during Operation Desert Storm, the first Iraq War.

According to Hine, Blumenthal expressed concern about his family should he be sent to Iraq and made sure he would be available to Hine’s family should they need him.

“He then said that ‘you as a major would have it easier than I did as an enlisted man in Vietnam’,” Hine said, recalling that the conversation that happened in Blumenthal’s office on the seventh floor at 55 Elm St., Hartford. “I knew right there that he was lying.”

Although shocked, Hine said he did not say anything at the time because he was indebted to Blumenthal for his kindness toward his family.

Hine served for 13 years as a Judge Advocate in the Marines and was honorably discharged.

He goes on to say:

he felt he had to come forward after Blumenthal’s recent actions.

“This has to do with integrity, has to do with qualifications for office and with a very personal conversation back in January or February, 1991,” he said.

Surrounded by the mementos of his own life as a Marine, Hine said what Blumenthal did went against the code of being a Marine.

“As a Marine, you don’t lie,” he said. “He has forgotten whatever he learned at Parris Island.”