The case for expanding the Supreme Court just got a lot stronger

The case for expanding the Supreme Court just got a lot stronger
Official White House Photo by D. Myles Cullen
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Capping off a month that has already featured more than 40 mass shootings across the United States, the U.S. Supreme Court on Monday agreed to hear a National Rifle Association-backed challenge to a New York state gun control law—triggering new calls for Democrats to urgently "expand the court."

Slate staff writer Mark Joseph Stern, who covers courts and the law, pointed out in a series of tweets Monday that "this case is likely to pave the way to the Supreme Court declaring a constitutional right to concealed public carry, overriding many state and local restrictions on the ability to bear concealed arms in public."

"Congress and the White House can prioritize court expansion, adding liberal justices to prevent the current six–three majority from eradicating gun safety laws. Or they can watch as the majority exacerbates the nation's epidemic of gun violence by imposing a vision of the Second Amendment that data has indicated leads to more handgun-related homicides," Stern added in an article Monday. "The choice has never been so clear. And the stakes can be measured in human lives.


The potentially landmark case, according to SCOTUSblog, "will be argued in the fall, with a decision expected sometime next year."

The justices' decision to take up the case comes just weeks after President Joe Biden announced six initial actions to begin tackling the nation's "gun violence public health epidemic" and signed an executive order to establish a 36-member commission that will analyze arguments for and against reforming the high court.

Shortly after Biden's move to create a commission—which controversially includes George Mason University Law School professor and Federalist Society contributor Adam White—Sen. Ed Markey (D-Mass.) joined with Reps. Mondaire Jones (D-N.Y.), Jerry Nadler (D-N.Y.), and Hank Johnson (D-Ga.) to introduce a bill to expand the court by four seats, bringing the total to 13. If passed, the Judiciary Act of 2021 would allow Biden to restore a left-leaning majority, depending on his appointments.

After the court's announcement about the gun case, progressives reiterated support for expanding the nation's top court.


Referencing recent shootings and demands for stricter gun laws at the federal level, Elie Mystal, The Nation's justice correspondent, wrote in late March that "regardless of the outcome in Congress, the conservative-controlled Supreme Court will not allow us to have commonsense gun regulation, let alone any ambitious, progressive legislation to get guns off the streets, like they do in other countries that don't have mass shootings every other day."

Mystal continued:

Democrats (and Americans who don't want to be shot to death) lost the gun battle when [then-Senate Majority Leader Mitch McConnell, a Republican from Kentucky] stole a seat on the court in 2016. They lost the war when [U.S. Supreme Court Justice] Ruth Bader Ginsburg, may her memory be a blessing, didn't live until January 20, 2021. There is no new gun regulation or reform that can survive six bloodthirsty conservatives on the Supreme Court, just like there is no way to "win" a game of Russian roulette when there are six bullets in the revolver.
In fact, far from upholding whatever newly passed law that's ineffectual enough to survive a filibuster (you know, the same filibuster Democrats refuse to kill), the Supreme Court is poised to go in the other direction and dismantle what gun regulations we already have.

Sharing the piece in a pair of tweets Monday, Mystal wrote that "Democrats COULD put 10 more justices on the court to STOP THIS MADNESS... but nooo, Democrats want to pass gun reform *legislation* as if there a chance in hell this Supreme Court would uphold anything coming out of the Biden administration."

Noting the impact of Biden's predecessor appointing three justices in his single term, Demand Justice executive director Brian Fallon issued a warning to policymakers on Monday: "Expand the court or let [former President] Donald Trump's justices make our mass shooting epidemic even worse."

This case, New York State Rifle & Pistol Association Inc. v. Corlett, will address whether the state's denial of two men's applications for concealed-carry licenses for self-defense violated the Second Amendment. New York state law requires anyone who wants a license to carry a handgun outside their home to show a "proper cause."

"California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws," reported the New York Times, citing gun rights groups. "Federal appeals courts have generally rejected challenges to such restrictions," including the 2nd Circuit in this case, prompting the appeal to the Supreme Court.

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