So, now that Justice Scalia is no longer with us, what will litigation around the Second Amendment look like? Not so different as you might think; nor will it be precisely the same, nor will it be particularly good for Second Amendment supporters. Like most things, it will be a mixed bag. Excerpt:
Writing for the five-justice majority in District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to armed self-defense, Scalia said that right was violated by a law that banned handguns and required owners of long guns to disable them with trigger locks or keep them unloaded and disassembled. But he strongly implied that nearly every other existing gun control law would pass constitutional muster.
Scalia wrote that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He also said the Second Amendment applies only to weapons “in common use for lawful purposes,” a condition that seems designed to justify any pre-existing national ban, and mentioned “prohibiting the carrying of ‘dangerous and unusual weapons'” as “another important limitation on the right to keep and carry arms.”
Heller thus blessed a policy that permanently disarms people who have never committed a violent crime or shown any propensity to do so; left open the question of whether and where people have a constitutional right to carry guns outside their homes; gave wide latitude to “conditions and qualifications” for selling guns, which might including licensing and registration of buyers as well as background checks and waiting periods; and provided a potential rationale for outlawing guns that politicians deem especially dangerous (such as “assault weapons”). In another 5-to-4 decision two years later, the Supreme Court overturned Chicago’s handgun ban, confirming that the Second Amendment applies to cities and states as well as federal domains but leaving its scope unclear.
The key finding of Heller was nevertheless pro-Second Amendment in that it clearly defined the Second as recognizing an individual right of American citizens to keep and bear arms in defense of home, self and community. But Scalia also wrote that this law is not without limits, and indeed seems to have left the door open for ill-advised (and stupid) “assault weapon” bans. But Heller is old news. What will another possible Obama appointee do on the Court? For that matter, what will a possible future appointment by Her Royal Highness Hilary I or the nutty old Bolshevik Sanders do for any pending Second Amendment case?
Well, no appointee by any of these three is going to be sympathetic to the pro-Second Amendment arguments, that much is clear.
A liberal appointment to replace Scalia is likely to tip the balance of the Court to 5-4, liberal to conservative. The next President is likely to have two Supreme Court seats to fill; Justice John Paul Stevens is 88, while Ruth Bader Ginsburg is 75. Anthony Kennedy, a sometimes swing vote, is no spring chicken at 71. Stevens was a Ford appointee, Ginsburg a Clinton appointee, while Kennedy was appointed by President Reagan. A Republican President, presuming they appoint conservative justices, may tip the balance back to 5-4 conservative – or 6-3, with a little luck.
But that’s far from certain.
Senate Republicans are making noises about blocking any Obama appointments to the Court. It remains to be seen whether they will have the balls to follow through. The President, meanwhile, complains that the Senate has a duty, defined by the Constitution, to bring any appointee of his to a vote, and he is correct – partly. The Senate has a Constitutional duty to advise and consent, but there is no timeline defined; also, the Constitution does not state that they are required to approve an appointee. Just ask Robert Bork, who was refused (42-58) by a Democrat-controlled Senate.
So there is precedent, and the Democrats set it.
Bright spot: If an Obama appointment begins to look possible, buy stock in Sturm, Ruger and Smith & Wesson. Those stocks will take off – again.