Will the next SCOTUS confirmation hearings change the gun control debate?

AP Photo/Andrew Harnik

I doubt it for several reasons, starting with the fact that virtually every person nominated to the Supreme Court in recent years has offered up boilerplate responses to every question from senators hoping to learn more about their views on various issues: “I can’t discuss a topic that could come before me as a justice.” But Jim Florio, the former governor of New Jersey, argues in a new column that the confirmation hearings themselves provides a chance to reset the gun control debate.

Public officials have traditionally been intimidated by gun manufacturers and dealers mobilizing the NRA and other such lobbying groups that spend millions of dollars on anti-regulatory lobbying and campaign contributions. But a good example that suggests this coercive approach is failing is Gov. Phil Murphy’s willingness to campaign for election favoring measures to reduce gun violence and implementing them — then getting re-elected on the same platform.

Murphy narrowly won re-election last November, winning by roughly 3-points in a state that Joe Biden had carried by double digits just a year earlier. Meanwhile, in Virginia, where Democrats made a gun control a top priority after winning control of the state legislature in 2019, Republicans swept all statewide offices and took control of the House of Delegates (the state Senate elections in Virginia don’t take place until 2023). Florio’s argument doesn’t really stand up to strict (or even intermediate) scrutiny, and it completely falls off the rails when it comes to Biden’s Supreme Court pick.

All of which calls into question the Supreme Court’s recent decision to consider a challenge to a New York State law that requires a gun permit applicant to show a “special need for self-defense” on grounds that the law violates the Second Amendment.

Those who would overturn the law contend that the Second Amendment bestows the right to carry a firearm in public. Anyone would be able to exercise that right to carry a firearm in public if the plaintiff prevails.

Speculation is that the existing majority on the Supreme Court will agree that the law is unconstitutional so, rather than strengthen our laws, the Court will weaken them. It will be pouring oil on the fire.

The appointment of one Supreme Court Justice who would go against the majority might not be enough to turn the tide of irrationality. But the dialogue that will take place during confirmation hearings, with massive media coverage, enables a forum that can put issues in clearer focus and, yes, promote the reflection that we so desperately need.

We need to make sure the confirmation process is used as a national reality check. Senators who truly believe in the rule of law and the need to put the public’s protection over the will of selective constitutionalists need to ask questions aimed at eliciting reflective answers. And the nominee needs to be fully engaged in providing direct, reflective, responses that offer a rational interpretation of the Second Amendment.

Call me crazy, but I think it’s much more rational to believe the Second Amendment protects the right of law-abiding citizens to carry a gun in self-defense than believing it allows for a general prohibition on the practice. The history, text, and tradition of the right to bear arms suggests the same, given that we only have eight states that restrict the bearing of arms to those who can show “good cause” or a “justifiable need” to do so, compared to 42 “shall issue” states (half of which don’t actually require legal gun owners to have a license to carry).

Florio might believe that wanting to carry a gun for self-defense is irrational, but there are more than 20-million Americans who would disagree.

I have no doubt that many of Florio’s fellow Democrats will ask whoever Biden picks as Breyer’s replacement to weigh in on the pending Bruen case, but there’s little chance that the nominee will oblige. Biden’s nominee is going to want to be as vague and noncommittal as possible, especially in a 50-50 Senate, and isn’t likely to stick her neck out and call for a rethinking of our right to keep and bear arms. It’s wishful thinking on Florio’s part to believe that the pending confirmation hearings will reset the gun control debate, but he can always console himself with the fact that Breyer’s replacement is likely to share his dim view of the Second Amendment, even if they’re not willing to explicitly say so before they’re confirmed.