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.”

NSSF On The Feinstein-Schumer-Whitehouse “Report”

Senators Dianne Feinstein (D-CA), Charles Schumer (D-NY), and Sheldon Whitehouse (D-RI) issued a so-called report on Monday blaming American guns for the violence in Mexico. Frankly, I think it was timed to draw media attention from the Gunwalker hearings that started that afternoon.

The National Shooting Sports Foundation has responded to that report and takes apart their numbers. Rather than showing 70% of guns being traced from Mexico to the U.S., it actually shows a decline in the number of American firearms being traced by Mexican authorities.

Anti-Gun Report Shows DECLINE in Number of US Firearms Being Traced to Mexico
June 15, 2011
By Larry Keane

Once again anti-gun legislators are attempting to misrepresent firearm tracing data, though this time, with declining numbers and a public wary of political posturing, it may just backfire on them.

A report (“Halting US Firearms Trafficking to Mexico“) released Monday by a trio of anti-gun senators including Diane Feinstein (D-CA), Chuck Schumer (D-NY) and Sheldon Whitehouse (D-RI) appears to show the number of firearms that have been recovered in Mexico and traced to the United States as actually declining in recent years from an unsubstantiated 90 percent to, now, an unsubstantiated 70 percent.

It is important to note that these percentages do not reflect the total number of firearms recovered. In fact, in a letter to Sen. Feinstein discussing this very report, ATF Acting Director Kenneth Melson admitted, “There are no United States Government sources that maintain any record of the total number of criminal firearms seized in Mexico.”

So to be clear, the 70 percent claim relates only to the very small number of traced firearms – not the total number of firearms recovered. And it’s no surprise that so many come from the United States. We have a very good system for tracing firearms through serial numbers and purchase records (some countries don’t trace them at all). Mexico recognizes this fact and submits for tracing only those firearms that it believes would likely prove trace positive.

Earlier this year a report by the independent research group STRATFOR noted that less than 12 percent of the total number of guns seized in Mexico during 2008 had been verified as coming from the United States. STRATFOR cited a June 2009 U.S. Government Accountability Office (GAO) report noting:

30,000 firearms were seized from criminals by Mexican authorities in 2008.
Of these 30,000 firearms, information pertaining to 7,200 of them (24 percent) was submitted to the ATF for tracing.
Of these 7,200 guns, only about 4,000 could be traced by the ATF.
Of these 4,000, some 3,480 (87 percent) were shown to have come from the United States.

The Feinstein report follows an update to the U.S. Firearms Trafficking to Mexico Report issued by the Woodrow Wilson International Center for Scholars. According to that update, Mexican authorities have submitted trace requests for “tens of thousands of firearms” to the ATF. However, the ATF has stated that many of these requests are duplicative, with some firearms being resubmitted for tracing five times or more. Moreover, the update notes that 75 percent of the firearm traces are not successful and that only eight percent lead to an investigation. Furthermore, as ATF has repeatedly stated, the tracing of a firearm (or the opening of an investigation) in no way indicates criminal wrong-doing by either the retailer or the first purchaser of the firearm.

The Wilson report also notes that most of the traced firearms were originally sold at retail more than five years earlier. The report doesn’t say how much earlier, but ATF has previously said that firearms traced from Mexico were on average 14 years old. This demonstrates that of the small percentage of guns that do come from the United States, these firearms have not been purchased recently.

Despite attempts by anti-gun legislators to utilize these reports as leverage for pushing gun control, no one should be under any illusions; the United States is no more the source of 70 percent of the weapons used by the Mexican cartels than it is 90 percent. These numbers only allege to relate to the small percentage of seized and traceable firearms submitted to the ATF.