Why The Next Supreme Court Justice Could End The Second Amendment — And Merrick Garland Would

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Today President Obama nominated Merrick Garland to replace Justice Scalia on the Supreme Court. He will be sold as a moderate, and a “consensus” nominee. But, anyone who cares about the preservation of their Second Amendment rights should not be fooled. Garland has a liberal record on the Second Amendment — and his confirmation to the Court would mean nothing short of an end to the Second Amendment’s guarantee of an individual right to keep and bear arms.

Many gun-rights advocates take for granted that the Second Amendment guarantees all citizens the right to keep and bear arms. Yet, the Supreme Court has addressed the issue of an individual right to keep and bear arms only twice. In its 2008 decision in District of Columbia v. Heller, the Court held by a narrow 5-4 majority that the Second Amendment provides for an individual right to keep and bear arms in a federal enclave (i.e. a territory, such as the District of Columbia, controlled by the federal government). Two years later, in McDonald v. City of Chicago, another 5-4 majority decision extended this individual right to the states under the Fourteenth Amendment. In both cases, the existence of an individual right to keep and bear arms was aggressively challenged by the four dissenting justices, who argued that the Second Amendment protects only a “collective right” to keep and bear arms while serving as part of an organized state militia.

In an affront to the principle of stare decisis (meaning that cases should be decided based on precedent), the dissenting justices are awaiting an opportunity to overturn Heller and McDonald to impose their “collective rights” view of the Second Amendment. Indeed, Justice Breyer’s dissent in McDonald, which was joined by Ginsburg and Sotomayer, expressly argues that the Court should reconsider the Heller decision. With the death of Justice Scalia, they may now have their chance. The 5-4 majority that prevailed in Heller and McDonald is now a 4-4 tie. The next justice confirmed to the Court will be the tie breaker.

Given his record, it is almost certain that Garland would side with the dissenters to overturn Heller and McDonald. Indeed, Garland had an opportunity to weigh in on Heller while on the D.C. Circuit Court of Appeals, where he voted to rehear the Court of Appeals’ decision striking down the District of Columbia gun ban, indicating that he would have upheld the ban. Garland had earlier joined a 2-1 majority in National Rifle Association v. Reno to uphold a Clinton-era regulation that created a de facto federal gun registry.

The gravity of Garland’s confirmation to the Court cannot be overstated. The Supreme Court will soon have another opportunity to weigh in on the Second Amendment in Shew v. Malloy, where the Second Circuit upheld most of a Connecticut gun law passed in the aftermath of the Newtown school shooting. This would be an ideal case for a new liberal-majority Court to impose its interpretation of the Second Amendment.

At stake is the very existence of the Second Amendment. Under the “collective rights” view that would be imposed by a liberal Court, there is no individual right to keep and bear arms. Virtually no gun law — even an outright ban on gun ownership — could be overturned on constitutional grounds. While residents of Texas and Alabama probably have little to worry about, anyone in New York or California would have reason for concern. For all intents and purposes, the Second Amendment would be written out of the Constitution.

It is unlikely that the Senate will consider Garland’s confirmation. But, his nomination should highlight the importance of this election to anyone concerned about the Second Amendment. The election of Hillary Clinton (and her inevitable nomination of a liberal justice) would mean an almost certain end to the Second Amendment. Anyone who cares about gun-owner rights or individual liberty should be very concerned.