A fifth liberal Justice could kill the individual right to bear arms. What does that mean to you? While the elections are still playing out, the Second Amendment, as we know it, is hanging in the balance. If you don’t believe me or disagree, please read on. This may be the most ominous article you’ll read from now to the election in November.
The Claims and Counterclaims
At the NRA convention, Donald Trump claimed, “the Second Amendment is on the ballot in November,” and Hillary Clinton “wants to abolish the Second Amendment.”
Hillary immediately claimed to be offended and charged that Trump was lying. She claimed that she merely favors background checks and minor regulation. Taking to Twitter she said, “We can uphold Second Amendment rights while preventing senseless gun violence.” However, she did not state how she would do that. Well, at least not in the Tweet, but we can go to previous transcripts and audio to take the temperature of her view of the Second Amendment.
If Hillary “gets to appoint her judges, she will as part of it abolish the Second Amendment.” This claim was made by Trump when he addressed the NRA. Let’s not forget—as Trump correctly pointed out—Hillary admonished the Supreme Court for the District of Columbia v. Heller decision establishing that the Second Amendment included an individual right to bear arms.
It does not seem to have been a ‘slip of the lip’ or to be taken out of context either. About a year ago, while speaking at a private fundraiser where the media’s cameras were not present, Hillary again criticized the Supreme Court for being “wrong on the Second Amendment.” When pressured by the media to explain her comments, Clinton dispatched Maya Harris, (one of Hillary’s spokespeople) to do damage control by muddying the waters when speaking to Bloomberg Politics. Harris claimed Hillary “believes Heller was wrongly decided—in that cities and states should have the power to craft common sense laws to keep their residents safe.”
Wow! What else can you say? The main point of the Heller decision explicitly shows that the “right secured by the Second Amendment is not unlimited.” Therefore, Justice Antonin Scalia’s opinion did not sort through every possible regulation. What Scalia’s opinion did settle was that the individual right covers guns that are “in common use for lawful purposes.” Can you imagine the chaos and cost to relitigate that in every state or city? Not to mention trying to navigate your daily travels or a road trip without running afoul of the law.
Scalia, writing for the majority opinion in Heller, also clearly stated that Heller overturned the District of Columbia’s handgun ban. This is significant because Heller (indirectly) would disallow a reimplementation the Clinton Administration’s ban on semi-automatic rifles used for hunting (Public Safety and Recreational Firearms Use Protection Act—more commonly called the Assault Weapons Ban of 1994). Clinton has on more than one occasion stated her support to reinstate the Assault Weapons Ban though.
The Real Question
Although there are many hints, Hillary has not come out with a definitive policy position as to whether she agrees with Heller‘s ruling that individuals can bear arms. To do so would be a break from the majority of the political left that has long held that the Second Amendment belongs only to a “well regulated Militia” and not to the individual.
Heller was decided by a 5-4 vote. Without Scalia, the current court would be 4-4 at best, but the next President will appoint one, and perhaps as many as three, new justice(s) during their presidency.
The court’s makeup matters because four liberal Justices dissented from Heller on precisely the point of whether the Second Amendment covers an individual right. For instance, Justice Ruth Bader Ginsburg—one of the dissenters—told a luncheon of the Harvard Club in 2009 that their dissent was crafted with an eye to helping a “future, wiser court” overturn Heller. Do you still think the next president does not matter and the Second Amendment will always endure?
A few of the Heller Justices have retired and been replaced since the Heller decision was rendered. For instance, Sonia Sotomayor replaced David Souter, but she joined the “liberal” justices on the Second Amendment and firearm issues. Justice Elena Kagan replaced Justice John Paul Stevens after his retirement. She hasn’t had a chance to rule on the individual’s right to bear arms, but there isn’t any expectation by experts who follow the court that she would be in favor of the current Heller decision.
Heller was Tested
The Supreme Court cannot be proactive and has to wait for a case to be presented. Over the years, since the Heller decision was rendered, other Bill of Rights cases pertaining to the states have been considered by the court. In theory, Heller should have established an unchallenged individual right to bear arms. This should have been the basis for every court’s precedent afterward. However, that was not the case when the Court considered whether it should be applied to the states in McDonald v. Chicago in 2010.
After all, based on Heller, you would think McDonald would have been decided by a 9-0 vote. Right? Sadly, the four liberal judges seemingly failed to properly weigh Heller in their dissent to McDonald—this would seem to harken back and confirm Justice Ginsburg’s early hope that a future court would overturn Heller.
I do not know the dangers that the future may hold for the Second Amendment or the individual right to bear arms. However, in less than 1,000 words, this article is a window into the future of our Second Amendment rights as we know them if Hillary is elected.
This November, when the nation votes for the next President, we will also be voting on the future of the Second Amendment. Get the word out, and strike a win for the Second Amendment.