The Fight Over SCOTUS Will Determine The Future Of The 2nd Amendment

Will the death of Supreme Court Justice Ruth Bader Ginsburg on Friday upend the 2020 election, or is the fight over the future of SCOTUS already enough of a key election issue for voters that it won’t have much of an impact on the battle between Donald Trump and Joe Biden? That depends on who you ask.

Over at Hot Air, Jazz Shaw notes that Republican and Democratic strategists are already weighing in, with Republican strategist Alex Conant asserting that a confirmation fight before the election will only help the Trump campaign. Democrats, as you might imagine, are taking a decidedly different stance.

Meanwhile, the liberals and never-Trumpers at the Bulwark were busy prognosticating in the opposite direction, as you would expect. They start by saying that if Trump and the Senate GOP move forward and replace Ginsburg it will “destroy the remaining public legitimacy of the Supreme Court. Full stop.” (I’m glad they’re not getting overly dramatic.) They go on to say that if Ginsburg is replaced before the election on November 3rd and the Democrats take power next year, they will almost certainly attempt to pack the court by adding more seats. And if she is replaced after November 3rd (in a scenario where Biden wins the election), then “the powder keg would explode.” The only “safe” course of action they posit is to go for the “Garland solution,” where they simply wait and let the next President and Senate Majority Leader (be that Trump and McConnell or Biden and Schumer) seat Ginsburg’s replacement. Or Trump could just nominate Garland himself as some sort of fantasyland tribute to his political foes.

The chances of Merrick Garland being nominated by Donald Trump is slightly less than the possibility of Joe Biden joining the NRA and touting his recent purchase of an AR-15. It’s simply not going to happen, though it looks like Trump will be nominating someone to fill the seat in the coming days. Trump has already released his short list of SCOTUS nominees for a second term, and it’s likely that Trump’s choice will come from that short list of candidates, which is chock full of judges who’ve backed the Second Amendment, both on the bench and in their previous in public service and the private sector.

Paul Clement, the former Soliciter General who’s represented gun owners in multiple Second Amendment challenges in recent years, is on the list, as is former Solicitor General Noel Francisco, who called for the Supreme Court to declare a New York City gun law unconstitutional back in 2019.

“New York City’s transport ban infringes the right to keep and bear arms guaranteed by the 2nd and 14th Amendments,” Solicitor General Noel Francisco argued in a friend of the court brief Wednesday.
Francisco asked the court to “confirm” that the Second Amendment also protects the right of a “law-abiding, responsible citizen to take his firearms outside his home, and to transport it to other places — such as a second home or a firing range — where he may lawfully possess that firearm.”
Kentucky Attorney General Daniel Cameron is another outspoken supporter of the Second Amendment on Trump’s short list. Cameron has publicly backed Constitutional carry legislation in Kentucky, while expressing his opposition to red-flag laws, which he says “impedes on our Second Amendment rights.”
It’s still an open question as to whether or not any nominee could actually be confirmed, either before the election or in a lame-duck session of Congress after the election results are known (at least if Biden were to win in November). Senate Majority Leader Mitch McConnell has already stated that a vote will be held, but he’ll need the help of at least a few of his GOP colleagues to make that happen, and Senator Susan Collins of Maine was quick to go on the record in opposition to a vote either before the election or in a lame duck session if Trump loses. Alaska Senator Lisa Murkowski has also stated her objections to a vote before the election, though she’s been silent so far on the possibility of a SCOTUS vote in a possible lame-duck session.
The political fight on Capitol Hill is likely to be a bruising one, but for gun owners and Second Amendment supporters, a third SCOTUS pick for Donald Trump could be the most compelling reason to turn out and vote in November, regardless of whether or not the pick is seated before the election. As Jazz pointed out, some Democrats and never-Trumpers are already pushing to expand the number of Supreme Court justices if Trump is able to win the confirmation fight but lose the election, and that raises the stakes for the 2020 election even higher than they already are.
The Supreme Court has passed on virtually every Second Amendment case that’s come before the high court in recent months, with unnamed sources saying that pro-2A justices have become concerned that Chief Justice John Roberts may side with the liberal wing of the Court despite being in the majority in both the Heller and McDonald decisions a decade ago. If Donald Trump is successful in placing another justice on the Court who understands the importance of the right to keep and bear arms, those concerns about how Roberts might land on a Second Amendment-related case become far less important.
If Trump were to lose in November, however, then Chief Justice Roberts won’t be the biggest cause for concern among gun owners. Instead, we could expect an overhaul of the Court itself, with Democrats changing the rules in order to pack the court with anti-gun justices who could render the Second Amendment a dead letter, legally speaking.
The confirmation fight, in other words, is likely less important to gun owners than the election itself. Regardless of what happens with Trump’s nominee to replace Ginsburg, the outcome of the election will be the determining factor in the future of the Second Amendment at the Supreme Court. Gun owners already had plenty of reasons to get off the couch and get involved in this year’s elections at the grassroots level, but now it should be crystal clear just how important this election will be for our right to keep and bear arms. If Trump wins, our Second Amendment rights are far more likely to be secure for a generation or more. If Biden wins, they’re likely to disappear forever.