In response to the first question in Wednesday’s third and final presidential debate, Donald Trump declared that “if my opponent should win this race, … we will have a Second Amendment which will be a very, very small replica of what it is right now.”
That might sound like an overly pessimistic prediction, but it is actually the best gun owners can hope for under a Hillary Clinton presidency.
Despite Clinton’s protestations to the contrary Wednesday night, she supports even the most draconian restrictions on gun ownership. And, in all likelihood, the Justices she will appoint to the Supreme Court will profoundly diminish Second Amendment rights or, even worse, entirely eviscerate them by overruling the Court’s precedents.
Discussion of gun rights at the debate focused on the High Court’s 2008 landmark decision in District of Columbia v. Heller, which established that the Second Amendment guarantees individual Americans – not just members of a militia – the right to own a gun. The decision struck down the District of Columbia’s draconian gun laws, which banned handgun possession even in one’s home.
At Wednesday’s debate, Clinton reiterated her long-held position that Heller was wrongly decided. In other words, Clinton believes that even the most draconian gun laws should be upheld by the courts. Yet she continued to claim that “I support the Second Amendment.” Those two positions cannot be reconciled
The D.C. police chief could make exceptions to the rule but even then, the gun had to be rendered inoperable. “Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban,” the Court concluded.
Nonetheless, at Wednesday’s debate, Clinton reiterated her long-held position that Heller was wrongly decided. In other words, Clinton believes that even the most draconian gun laws should be upheld by the courts. Yet she continued to claim that “I support the Second Amendment.” Those two positions cannot be reconciled.
Clinton would have us believe that she supports only “reasonable regulation” of guns. But then why is she so critical of Heller, which allows reasonable firearm restrictions both explicitly and in its applications over the last eight years. Clinton conceded as much on the debate stage when she acknowledged that the Court has let “many” reasonable regulations stand.
Hillary attempted to dig her way out of her contradictions Wednesday night by preposterously claiming that the gun laws ruled unconstitutional in Heller were aimed at protecting “toddlers [who] injure themselves, even kill people, with guns.” Even the four dissenters in Heller, with whom Clinton agrees, made no such claim. They devoted nearly 800 words to explaining the District of Columbia’s reasons for adopting the gun laws but included only a brief reference to “children under the age of 14.”
Even if we give Hillary Clinton the benefit of the doubt and assume that she does not like every draconian gun control law she’s ever met, it does gun owners little good if she appoints Supreme Court Justices who go on to eviscerate the Second Amendment. After all, it is the courts rather than our elected officials who determine the viability and scope of the Second Amendment. And there, the news is very bad for gun owners if Clinton becomes president.
There are already four Justices on the High Court who would overrule Heller and its individual right to keep and bear arms.
Three of the four Democratic appointees on the Court – Justices Ginsburg, Breyer, and Sotomayor – said so explicitly when dissenting in the Court’s 2010 McDonald v. Chicago Second Amendment decision.
The Supreme Court’s fourth Democratic appointee, Elena Kagan, is virtually certain to follow suit. When Kagan was nominated to the Court in 2010, the National Rifle Association, which usually stays out of judicial confirmation battles, felt compelled to oppose her nomination because “throughout her political career, she has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution.”
That leaves the Democratic appointees on the Supreme Court just one vote short of overruling or otherwise eviscerating Second Amendment rights. Were Hillary Clinton to be elected president, the fifth vote would likely be available as soon as Clinton’s replacement for Justice Scalia, whether it is Merrick Garland or otherwise, joined the Court. That likelihood becomes a virtual certainty if Clinton appoints two or more Justices, as is expected.
Either way, there is no plausible reason to believe that Clinton’s Supreme Court appointees will vote any differently on the Second Amendment than the four Democrats already on the High Court, especially in light of Clinton’s support for draconian gun restrictions and the documented tendency of the Court’s liberals to vote in lockstep on hot button issues.
Gun owners have very good reason to be alarmed at the prospect of a Hillary Clinton presidency. Perhaps she has dismissed them as part of the “bucket of deplorables” and does not care about their votes. But if, instead, Clinton hopes to win over some Second Amendment supporters in the remaining days of the campaign, there is something she could do. Clinton could dramatically demonstrate the sincerity of her debate claim that she “believe[s] there’s an individual right to bear arms” by pledging that she will select for the Supreme Court only nominees who make clear that they share her belief and will vote accordingly.
Curt Levey, director of legal affairs at the FreedomWorks Foundation, is a constitutional law attorney and veteran of Supreme Court confirmation battles. He can be reached on Twitter at @Curt_Levey.