Following the unexpected passing of staunchly conservative Supreme Court Justice Antonin Scalia over the weekend, 2nd Amendment groups are fretting that they’ve lost a major ally in fighting unconstitutional anti-firearm policies.
Scalia, since writing his opinion in the landmark 2008 District of Columbia v Heller case, has been regarded as the court’s biggest 2nd Amendment supporter.
In that opinion, the conservative justice explained how language found not just in the 2nd Amendment, but throughout the Bill of Rights, leaves little room for uncertainty that the Constitution’s framers intended for Americans to enjoy the individual right to bear arms.
Scalia was also revered among U.S. conservatives for his belief that the Constitution should be interpreted exactly as it is written.
“The Constitution is not a living organism for Pete’s sake,” he told a group of law students last year. “It’s a law. It means what it meant when it was adopted.”
Now, pro-2nd Amendment groups who’ve long counted on Scalia’s literal interpretation of the Constitution to counter growing liberal bias on the court are warning supporters that the balance of justice is growing increasingly fragile.
“We are one justice away from a Supreme Court that would harm our Second Amendment rights,” the NRA said in a recent message to supporters.
One of the most significant things to remember about Scalia’s opinion in Heller is that, while setting a pretty firm precedent for individual gun rights, it by no means shut the door to increasingly draconian gun control measures down the road.
A key paragraph in his decision states:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.
Fair enough. The aforementioned passage outlines little more than the need for “sensible” gun control measures in the U.S., which even the staunchest gun rights advocates usually agree with. But an accompanying footnote leaves plenty of room for the ruling to be bastardized moving forward.
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
And it’s not just Scalia’s passing—or the possibility President Barack Obama will name his successor— that has gun rights activists worried. Many Supreme Court experts are saying the next president will significantly reshape the already changing court.
Georgetown University constitutional law professor David Cole outlined it thusly in the Boston Herald last year: “Every election, people say, ‘This is about the future of the Supreme Court and the Constitution.’ This time it’s true.
“If a Republican gets to replace … the two oldest Democrats, that changes the court to a solidly, solidly 5-4 conservative court. If a Democrat gets elected and gets to replace … the two oldest on the Republican side, that also dramatically changes the court and now you have a solid 5-4 Democratic majority.”
Things have, of course, changed with Scalia’s passing. But Cole’s premise holds true.
It remains to be seen whether Obama can successfully push a SCOTUS nominee through the Republican-controlled Senate. But if Democratic control of the White House—or worse, a Michael Bloomberg administration— is a reality following Obama’s final day in office, the 2nd Amendment could be in for big trouble.