During the Trump era, an increasingly right-leaning Supreme Court has repeatedly declined opportunities to expand gun rights. Just this year, the justices voted against including 10 different Second Amendment petitions on the docket for their current term. Even as the court had in recent years gutted voter protections, curbed labor unions, and permitted discriminatory immigration orders, its most consequential decision on gun policy remains District of Columbia v Heller, which upended centuries of precedent by finding that the right to bear arms extends to individual Americans. It issued that 5-4 ruling 12 years ago.
The death of Justice Ruth Bader Ginsburg could break the dam. An icon of the court’s liberal wing, Ginsburg joined the dissent in Heller. In her view, the Second Amendment as drafted by the founders did not apply to contemporary gun owners. In a 2013 interview, she said: “I view the Second Amendment as rooted in the time totally allied to the need to support a militia… The Second Amendment is outdated in the sense that its function has become obsolete.” She was among the bloc that voted against having the court hear more recent legal challenges to state and local gun laws.
With Election Day seven weeks away, President Trump and Senate Republicans have vowed to seat Ginsburg’s successor, even though Republicans blocked President Barack Obama’s appointee to fill the seat vacated by the death of Antonin Scalia at a much earlier stage in the 2016 campaign. Should Trump and his allies prevail, the court’s new alignment could well determine that future pro-gun cases clear the hurdle that has prevented other petitions from receiving a ruling.
It takes only four of the nine justices for the Supreme Court to accept a case for consideration, and the court already has five conservatives appointed by Republicans. But again and again, gun cases have failed to clear the threshold for receiving a hearing. “Some court-watchers think that there’s been hesitation to grant a gun case because the views of Chief Justice John Roberts aren’t certain, one way or the other,” Duke Law School scholar Joseph Blocher told us. With Roberts as a possible swing vote against their side, the other conservative justices may think it’s too risky to bring a gun rights case up for arguments.
Another Trump appointee on the bench may change the math. “If Justice Ginsburg is replaced by a conservative originalist,” Blocher said, “then there’s likely a solid five-justice majority that could confidently accept a gun rights case knowing that it will control the result.”
Petitioners can’t re-appeal cases that the justices have already opted not to take up, but there are no shortage of other disputes on questions like carrying guns in public spaces and bans on assault-style weapons swirling around the lower courts. Blocher wonders whether the high court’s right wing, bolstered by a third Trump pick, might be looking for an opportunity to resolve conflicting lower-case decisions. Instead, those jurists may be waiting for a chance to shift the whole framework through which the courts evaluate the constitutionality of gun laws.
Right now, even many Republican-appointed federal judges weigh the burden that a given gun law may place on individual gun owners against the law’s benefits for public safety. Under that doctrine, the policy prescriptions of the Democratic presidential nominee, Joe Biden, which include closing gaps in the gun background check system, pass the constitutionality test. But some justices — specifically Brett Kavanaugh and Samuel Alito — have suggested “that gun laws should be evaluated solely by reference to text, history, and tradition,” Blocher notes. “If the court mandates that kind of test, it would be a huge change.”
Within this new framework, gun restrictions passed in response to technological advancements that have made firearms more lethal could be struck down. The same goes for restrictions meant to avoid the risk of guns in sensitive spaces that the founders had not contemplated.
That is why the high stakes that the fight over Ginsburg’s seat holds for a host of progressive priorities also extends to gun violence prevention.
“If the doctrine changes, as it could with a newly constituted court,” Blocher said, “then so, too, does the range of permissible gun policy.”