Well, it’s come to this.
Tuesday afternoon, Donald Trump appeared to suggest that assassination is the appropriate remedy against a liberal judiciary. If Democratic presidential candidate Hillary Clinton “gets to pick her judges,” Trump said at a political rally “there’s nothing you can do, folks.” Then he corrected himself — “although the Second Amendment people, maybe there is, I don’t know.”
Without skipping a beat, the National Rifle Association weighed in on Trump’s side, ignoring the implicit call to violence in favor of a substantive message about what happens to the Second Amendment in a Clinton administration.
— NRA (@NRA) August 9, 2016
It’s an unusually congenial response to comments by Trump that, as Thomas Friedman argues in the New York Times, bear a stark resemblance to the sort of rhetoric that helped foster the assassination of former Israeli Prime Minister Yitzhak Rabin.
But let’s take the NRA’s concerns at face value. Let’s say that the polls are right, that Clinton is about to crush Trump on Election Day, and that Republicans lose the Senate majority that they need to hold Supreme Court vacancies open for the entirety of Clinton’s presidency. What happens to the Second Amendment after Hillary Clinton replaces the late Justice Antonin Scalia, giving liberals a majority on the Supreme Court for the first time since the early years of the Nixon administration?
It should be noted that this is a different question than the broader “what happens to gun rights in a Clinton administration?” Clinton has expressed no interest in a nationwide gun ban, or even in targeting the single most dangerous weapon in the United States — handguns. Instead, her proposals closely resemble legislation President Obama supported during his second term in office. They include expanded background checks, additional plans to “keep guns out of the hands of domestic abusers, other violent criminals, and the severely mentally ill,” and a proposal to revoke “licenses from dealers who break the law.”
But it is fair to note that Clinton’s Supreme Court appointees would play a significant role in resolving a long list of unanswered questions regarding the scope of the Second Amendment. In 2008, a 5–4 Court handed down District of Columbia v. Heller, the first Supreme Court case in American history to hold that the Second Amendment protects an individual right to possess firearms. Since then, the Court has only considered one other major Second Amendment case, and that case held only that Heller applies equally to state and to federal laws.
Yet, while the Court has only handed down one Second Amendment opinion of real substance, Heller, and that opinion explicitly left open a long list of undecided questions, Heller is by no means a nonentity. As mentioned above, it held that the Second Amendment protects an individual right — not simply a collective right to bear arms in a state militia.
That holding resolved a very real tension at the heart of the Second Amendment’s text, which provides that “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Yet the Court went much further than simply holding that this amendment protects an individual right. It also grounded the right in a far less textually apparent “right of self-defense.” And Heller gave especially strong protection to handguns, which Justice Scalia’s majority opinion labeled “the quintessential self-defense weapon” and “the most popular weapon chosen by Americans for self-defense in the home.”
This last holding is especially significant because it puts the single deadliest weapon in the United States upon a pedestal.
These core holdings, that the Second Amendment protects an individual right, that this right is rooted in a right to self-defense, and that handguns enjoy especially robust protection, are unlikely to be disturbed any time soon by the Supreme Court. The Court is a creature of precedent, and while Supreme Court decisions overruling precedents that are less than a decade old are not entirely unheard of, they are extraordinarily rare.
That does not mean, however, that there is no difference between, say, a Sonia Sotomayor and a Clarence Thomas on Second Amendment matters. Heller spends several paragraphs laying out types of gun laws that are not impacted by the Second Amendment, and the Court will likely spend a considerable amount of time in the coming years figuring out just how much leeway these paragraphs give to lawmakers.
- Guns Outside The Home: Heller held that the Second Amendment “takes certain policy choices off the table,” and that “these include the absolute prohibition of handguns held and used for self-defense in the home.” It has far less to say about what limits lawmakers may impose on guns outside the home, although it drops a few hints. Scalia’s opinion strongly suggests that “prohibitions on carrying concealed weapons” are permissible, and it also permits “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” It offers little guidance, however, on just how much discretion lawmakers have to determine what constitutes a “sensitive place.”
- Guns Owned By Persons With Criminal Records: Heller states that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Earlier this year, however, Justice Clarence Thomas suggested that people convicted of misdemeanors may still retain some of their gun rights, even if they were convicted of domestic violence. At the very least, if Clinton fills the vacancy on the Supreme Court she will likely prevent Thomas from extending such gun rights to perpetrators of domestic violence any time soon.
- Guns Owned By People With Mental Illnesses: Heller also endorses “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” Yet this also leaves open a number of uncertain questions, such as how much legal process must be afforded to a person with a mental illness before they can be prohibited from possessing a gun, and which particular illnesses justify such a restriction. Few people would doubt that a person with paranoid delusions and a history of violence should be prevented from owning a gun, but what of a person with a history of depression and suicidal thoughts? Or a person with a serious mental illness that is largely controlled by medication?
- Assault Rifles: Heller also permits bans on “dangerous and unusual weapons,” though it does not define those terms. Honing in on the word “unusual,” Justice Thomas has argued that bans on assault rifles should not be permitted because they are popular with gun owners and the “overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting.” If Thomas’ reasoning were accepted by the Court, it could create a kind of arms race where gun owners race to obtain new weapons (or newly legalized weapons) before lawmakers can ban them — on the theory that those weapons gain constitutional protection once they are sufficiently common. It is unlikely that this reasoning would be embraced by Clinton’s nominees to the Court, however.
So, contrary to the most overblown rhetoric from groups like the NRA, Clinton’s justices are unlikely to be able to gut the Second Amendment, even if they want to. The force of precedent is likely to protect Heller’s core holdings for at least the near to medium future.
A Supreme Court dominated by liberals, however, is likely to be more open to regulation of gun use outside of the home, more open to bans on gun ownership by violent criminals and similarly dangerous individuals, and more open to bans on specific types of firearms. Efforts to expand the Second Amendment to protect domestic abusers or assault rifles will likely die in a more liberal court.
That is a loss of sorts, if you hold the absolutist views of a group like the NRA. But the fact remains that the Second Amendment is likely to remain quite robust even if Clinton fills Scalia’s seat with a particularly liberal justice. The single most dangerous weapon in the nation, among other things, will continue to enjoy special constitutional protection.