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. Would the nominee vote to uphold Roe v. Wade, the controversial decision recognizing the right to choose, or overturn it? Although a Supreme Court justice votes on thousands of different issues, a spectator could be forgiven for suspecting that abortion was the only item on the Supreme Court’s agenda.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. Questions about how the nominee would handle Second Amendment cases are certain to dominate the hearings—even though the next Supreme Court justice is not likely to radically shift constitutional law on questions of gun control.
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. Before then, guns were primarily a political issue—one for legislatures to sort out without much judicial oversight. Now guns are also unambiguously a constitutional issue, which means the justices, not elected lawmakers, have the final say.
Heller was a 5-4 decision. Without Scalia’s vote, there would not have been a majority of justices in favor of an individual-rights reading of the Second Amendment. The National Rifle Association argues that if Scalia were to be replaced by Garland, or any other liberal to moderate justice, Heller would be overturned and your right to keep and bear arms would be little more than a memory.Of course, the NRA issues ominous warnings about the end of gun rights in America at least every four years. And yet, even with two terms of President Barack Obama and two Obama appointments to the Supreme Court, there are approximately 320 million guns in the United States. Despite what the NRA called Obama’s “10-Point Plan to ‘Change’ the Second Amendment,” gun rights are alive and well in America, and gun sales are at historic highs. In most states, the NRA has won favorable legislation so often that the nation’s leading gun-advocacy group is left to push for guns in the few places left from which they are usually excluded, like kindergarten classrooms and churches.
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. Long before the Supreme Court weighed in with Heller, law-abiding Americans had the ability to have a gun in their home for self-defense (with the exception of residents of Washington, D.C., whose laws were struck down in Heller). In most states, it is easy to obtain a permit to carry a gun in public—and, increasingly, states are passing laws allowing public carry without any permit. Even if Heller were overturned, current state and federal laws giving people easy access to guns will remain on the books. Don’t expect the lawmakers behind Georgia’s “Guns Everywhere” law to suddenly reverse course on guns just because Heller is overturned.
In any event, Heller is unlikely to be overturned. There are several high-profile cases that are likely to be reversed by a liberal Supreme Court, such as Citizens United and Shelby County. Heller, however, is not one of them. While there is no doubt that several of the justices believe Heller was wrongly decided, they have little reason to overturn the decision and every reason to maintain it.
Heller was a narrow decision that did not fundamentally reshape America’s regime of gun laws. The Court held that individuals have a right to have handguns in their homes. But only two cities, Washington and Chicago, and no states, had laws prohibiting handgun possession. (Chicago allowed residents to have long guns for self-defense.) 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.Even the justices who dissented in Heller now understand that the decision has not proved to be a roadblock to effective gun laws. All the laws at the top of the gun-control agenda—universal background checks, assault-weapons bans, and restrictions on high-capacity magazines—have all survived judicial scrutiny since Heller. Why would justices favorable to gun control vote to overturn a case that doesn’t actually stop lawmakers from regulating guns?
Plus, 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. Although most proposals to amend the Constitution are quixotic, gun politics are such that 38 states might well pass a new, stronger Second Amendment in a heartbeat.
The justices know this—as do gun-control advocates. Several of the latter have told me they would not ask the Court to overturn Heller, even if a liberal is appointed to fill Scalia’s seat. In March, the liberal justices explicitly endorsed Heller in a case out of Massachusetts dealing with a ban on stun guns. The Massachusetts courts had upheld the ban, distinguishing Heller. The Supreme Court unanimously held that the Massachusetts courts erred, that Heller was not distinguishable, and that the judges should take a second look at the stun-gun ban in light of a more robust understanding of Heller’s protections. If the liberal justices were eager to overturn Heller, they could have easily voted to uphold the stun-gun ban.
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 that only allow people with a good reason to carry guns in public. Then again, the Court effectively reached the same result when Scalia was still alive, refusing to review lower-court decisions upholding bans on assault rifles and may-issue permitting. The more things change…
Nor would a new conservative justice, say one appointed by Trump, change things all that much. He would replace Scalia, who, along with Justice Clarence Thomas, was already eager to read Heller more broadly. A Justice Ted Cruz, for example, would still face the same problem that Scalia faced, namely the moderate positions of Justice Anthony Kennedy and possibly Chief Justice John Roberts. Presumably, one or both of these justices are the reason the Court has not read the Second Amendment more broadly. They are likely the reason the Court has previously allowed the assault-weapons bans and may-issue permitting laws to stand.
Senators will nonetheless hyper-focus on Heller because the gun issue plays to both sides’ bases. The GOP knows that fighting to preserve Heller, despite its limits, is good politics and helps with campaign fundraising. The Democrats feel the same way, only about preserving the ability of governments to regulate guns.
So while there is sure to be much discussion of the Second Amendment in the coming confirmation hearings—if, indeed, any are forthcoming—the dirty little secret about Heller is that it doesn’t matter very much. Gun rights in America are, and have been for a long time, protected by a forceful political movement led by the NRA, not by the courts applying the Second Amendment.
The personnel on the Supreme Court may change but gun rights, which are part of the nation’s political culture and tradition, are unlikely to be significantly impacted.
This article is part of “Confirmations: The Battle Over the Constitution,” a partnership with The Atlantic.Adam Winkler is a professor at the UCLA School of Law. He is the author of Gunfight: The Battle over the Right to Bear Arms in America.
