The death of Supreme Court Justice Ruth Bader Ginsburg has set the stage for a historic shift in the court’s makeup and could significantly change how the court views any given gun law in relation to the Second Amendment.
Since District of Columbia v. Heller in 2008, which held that Americans have the right to possess a firearm for self-defense independent of service in a militia, federal appellate courts have mostly adopted a two-part framework to decide whether a law is consistent with the Second Amendment. This interpretation considers the Second Amendment’s text and history — and also takes into account the modern realities of gun violence and technological changes.
This framework treats the right to bear arms as fundamental, while keeping in mind the potential costs and benefits to society of changing gun regulations.
According to Joseph Blocher, professor of law at Duke University, this framework is pretty forgiving to gun regulation: Only around 9% of court challenges have succeeded in overturning a law in appellate courts.
But an alternative to this methodology is gaining popularity among constitutional originalists. And it could provide the Second Amendment with a new set of rules. Combined with President Donald Trump’s nomination of Judge Amy Coney Barrett from the Seventh U.S. Circuit Court of Appeals, it could pave the way for the Supreme Court to take on gun cases it’s shied away from over the last decade.
As a federal appeals court judge in 2011, now-Justice Brett Kavanaugh wrote in a dissent that gun regulations should be rooted strictly in “text, history and tradition” — and not be subject to scrutiny like consideration of public safety, which he argued is a task for the legislature. Barrett’s nomination could tip the scale in favor of this much stricter interpretation and have a huge impact on firearm regulation.
“Almost inevitably, [the Supreme Court is] going to strike down whatever law the case considers, but the question will be on what grounds,” Blocher said. “If they say that from now on, courts are only supposed to evaluate gun laws based on text, history and tradition, that’s a sea change in doctrine.”
Described by the National Review as a “champion of originalism,” Barrett was the lone dissenter in a case last year that upheld a U.S. District Court ruling that barred a Wisconsin man from owning a firearm because he was convicted of felony mail fraud. Barret wrote that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation,” an opinion several legal experts told Guns and America, places her outside the mainstream of judges. In a May 2019 interview, Barrett focused on the importance of founding-era history to her Second Amendment analysis and described herself as an originalist.
There hasn’t been a significant Second Amendment decision out of the Supreme Court on guns since the 2011 ruling in McDonald v. Chicago, which determined that “the right of the people to keep and bear Arms,” applies to state and local governments as well as the federal government. As an originalist, Barrett’s nomination to the bench could give a majority-conservative court the confidence needed to take on new gun cases in the pipeline.
It only takes four votes for the Supreme Court to agree to hear a case. Blocher says the high court has likely had enough votes all along to accept some of the cases it’s recently denied, but may have declined because of Chief Justice John Roberts’ views. Barrett changes that calculation “Once there’s five, then it doesn’t really matter which way the chief justice goes, there’ll be five confident votes in favor of a broad gun rights ruling.”
Other constitutional experts say the issue of gun rights being so hotly debated in society has led to an overstatement of the significance of SCOTUS’ next Second Amendment decision.
“People talk about the Second Amendment as if it is as if it will make or break policy questions,” said Nicholas Johnson, professor of law at Fordham University.
A pro-Second Amendment case won’t necessarily result in a flood of guns on the street any more than a case against it would result in mass confiscation of firearms, he said: “The truth is that the policy issues that we’re all worried about, like the impact on crime and unrest, are driven by more complicated dynamics [than] just some Supreme Court decision.”
Johnson says it’s important to keep in mind that the century’s most important 2A cases — Heller and McDonald — challenged what he calls “really unusual outlier” pieces of legislation. “You could find a couple of pinpoints on a U.S. map where there was really significant ban, but for the rest of the country, you had everything really going the other direction.”
Guns & America is a public media reporting project on the role of guns in American life.
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