Adam Winkler has an interesting piece on the presidential election’s impact on the Supreme Court, “Why the Supreme Court Won’t Impact Gun Rights“:
“… Guns are the new abortion. During the confirmation battles over Supreme Court nominees in the 1980s and 1990s, it sometimes seemed as if the only relevant question was how the prospective justice would vote on reproductive rights … In the next confirmation hearings for a Supreme Court nominee, be it Merrick Garland or someone else nominated by a President Hillary Clinton or Donald Trump, guns will likely play the role that abortion used to play …”
I agree.
“… Guns will be at the forefront of the confirmation hearings because of the Supreme Court’s 2008 decision in District of Columbia v. Heller, the landmark ruling in which the justices, in an opinion written by the now-deceased Antonin Scalia, held for the first time that the Second Amendment guarantees an individual’s right to own guns …”
I believe Heller was the first explicit case on 2A, but it was not the first time SCOTUS referenced 2A as an individual right.
“… The NRA’s remarkable record of legislative success highlights one reason gun rights will not be significantly affected by a Justice Garland. Gun rights in America have been vigorously and successfully protected by the elected branches of government … Even if Heller were overturned, current state and federal laws giving people easy access to guns will remain on the books …”
This is probably true for most of the country. In places like New York it could motivate new antigun laws.
“… Heller was a narrow decision that did not fundamentally reshape America’s regime of gun laws …”
True, it was a first step. Here is where the problem starts:
“… In the eight years since Heller, there have been several hundred lawsuits challenging nearly every type of gun law on the books. Only a few laws, however, have been invalidated … All the laws at the top of the gun-control agenda … “
A lot of these decisions effectively overrule Heller. We need decent judges at all levels to build up legal precedent and originalist justices like Scalia who interpret the Bill of Rights based upon what it actually says and not engage in mental gymnastics to read into it what some people want it to say.
“… there is one really strong reason not to overturn Heller: It would spark a backlash that would make the political movement to reverse Roe seem like a schoolyard kerfuffle. The NRA would push for a constitutional amendment to enshrine gun rights and would likely include language, like it has in a series of recent amendments to state constitutions, making it much harder to restrict guns …”
True.
“… What the liberal justices would likely do is refuse to expand Heller significantly. They would not read the Second Amendment to prohibit bans on assault rifles or to overturn “may-issue” concealed-carry permitting laws …”
And that is what the court fight is all about.
Best case now, realistically, if we loose the POTUS (which we probably will), is everything else stays the same. Even when Scalia was alive, the lower courts openly defied / overturned Heller, and SCOTUS (Roberts and Kennedy) turned so we effectively have / had no recourse. Worst case we loose everything. Then federal would catch up to NY / CA… Well, if they ran around trying to confiscate stuff in real America, that would get very exciting. Krauthammer (on FOX) predicted a second civil war with that. They know that and they wont. As far as the courts, say NY, or CA eventually get to a handgun ban. I believe that would force a real war of litigation up to SCOTUS. They would then have to either uphold or revere Heller. What would happen? Who knows. But you may have a point there Jacob. Hard to think even they want to reach that level of absolute bitterness, and possibly much worse trouble.