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Guns and the Court after RBG. Justice Ruth Bader Ginsburg’s vacancy leaves an already right-leaning court with a five-to-three conservative majority. From abortion to voting rights, it’s difficult to overstate the impact of her passing on American jurisprudence. Second Amendment law, too, could change dramatically.
- A thunderbolt, then mostly silence: The Supreme Court upended centuries of precedent when it ruled 12 years ago in District of Columbia v. Heller that the Constitution establishes an individual right to bear arms, subject to some common-sense restrictions. In the decade-plus since, advocates for further expanding gun rights have been frustrated with the court’s unwillingness to hear more challenges to state and local gun laws, and Ginsburg was a part of that resistance. But pro-gun litigators have increasingly pressed the high court to take their cases; in this past term alone, the Supreme Court denied 10 Second Amendment petitions.
- Two questions arise. Will RBG’s successor be more willing to hear gun cases? And if so, how will she or he rule? It’s not clear whether President Trump will succeed in installing a conservative justice. But if he does, that person will undoubtedly be inclined to expand Second Amendment rights. Trump’s rumored top pick, Amy Coney Barrett of the Court of Appeals for the Seventh Circuit, has been critical of universally banning felons from owning firearms, indicating a very expansive view of gun rights. Duke law scholar Joseph Blocher told The Trace, “If Justice Ginsburg is replaced by a conservative originalist, then there’s likely a solid five-Justice majority that could confidently accept a gun rights case knowing that it will control the result.”
- The gun laws on the line. There’s no shortage of cases on issues like carrying guns in public space and assault weapons bans swirling around lower courts. But Blocher added that some justices want to change the way Second Amendment cases get decided by blessing existing firearms restrictions only if history — not current public safety interests — supports them. Such a shift “would be a huge change in doctrine” that could expand gun rights, he said.
- A roadblock for a President Biden? Even if Trump loses the election, the possibility of six conservative justices could check Democratic gun reform ambitions. Blocher says that Biden’s policy plans, which include a ban on online weapon sales and tighter regulation of high-powered weapons, don’t raise Second Amendment concerns as the legal doctrine stands today. But he said that could change along with the composition of the court.
As for RBG’s own interpretation of the 2nd Amendment: She thought it was out of step with the needs of the modern United States. “I view the Second Amendment as rooted in the time totally allied to the need to support a militia,” she said in a 2013 interview. “The Second Amendment is outdated in the sense that its function has become obsolete.” — Olivia Li, Trace contributor
The NRA’s political fundraising enjoys a windfall, but its election spending remains comparatively low. The $1.7 million that the National Rifle Association’ss Political Victory Fund collected in August was nearly $250,000 more than March 2016, its best month during that cycle. The gun group has spent $9.7 million in federal races this election season, according to our tracker. That’s less than the $18.6 million the NRA spent during the same time period in 2016. All told, the NRA spent more than $50 million to power Trump to victory that year.
ICYMI: The NRA and the Trump campaign appear to be flouting election laws. Again. A 30-second anti-Biden ad from the NRA aired thousands of times in five swing states during a two-week period in late August and early September. During the same stretch, ads for Trump’s reelection campaign effectively dropped off the same stations’ airwaves. In Federal Communication Commission filings, the firms placing the ads for the NRA and Trump campaign look like separate entities, but our new investigation with The Daily Beast indicates that they may be one and the same. Ex-officials say the evidence warrants an investigation into potential campaign finance violations. Deja vu: The Trace reported that the NRA and the Trump campaign appeared to have coordinated ad campaigns during the 2016 election.
A mass shooting in Rochester, New York, left two dead, 14 others injured. Police believe several shooters opened fire at a backyard party where more than 100 people gathered early Saturday morning. The two persons killed had both just graduated from high school last year. The injured victims — who all sustained non-life-threatening wounds — were between the ages of 17 and 23. The city is still reeling from the March death of Daniel Prude while in police custody, which led to the suspension of seven officers and the firing of its police chief.
The United States has 40 percent of the world’s civilian-owned guns, while comprising just 4 percent of the global population. [Guns and America]