As a new Supreme Court term opens today, one issue on the Court’s docket stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. The issue is gun rights, and in several ways, it’s the new abortion.
Last week, in a case out of Chicago, the Justices agreed to decide whether the Second Amendment gives Americans a constitutional right to keep and bear arms that is enforceable against state and local gun laws. Coming on the heels of the High Court’s landmark gun rights decision last year, and at a time when the retirement of two Supreme Court Justices appears imminent, the Chicago case reminds gun owners that their battlefield has shifted to the courts and hastens the profound change in the politics of judicial confirmations that began this summer.
Spurred on by the courts’ new role in gun rights and by Sonia Sotomayor’s narrow view of the Second Amendment, gun owners – from the grassroots to the National Rifle Association – jumped into a Supreme Court confirmation contest for the first time in history this summer. With an estimated 90 million firearms owners in America and a huge margin of popular support for a right to keep and bear arms, the gun rights community is a potent political force. But until recently, it had little reason to care about judges. Its battles took place almost entirely in the legislative arena, where it built a long record of success.
Then came District of Columbia v. Heller, the Supreme Court’s 2008 decision recognizing the Second Amendment as an individual right. By empowering Americans to protect that right in court, the Justices transferred the theater of war from legislatures to the judiciary.
However, Heller left two huge questions unaddressed – the all-important standard for evaluating the constitutionality of gun regulations, and the Second Amendment’s application to state and local laws. Moreover, the Supreme Court’s 5-4 split means that if President Obama replaces one of the five center-right Justices, Heller itself could be gutted or even overturned.
As with other ideologically charged issues in the hands of the courts, the future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments. That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating against liberal judicial activism and for judges who strictly interpret the Constitution.
Those predictions seemed prescient when President Obama chose a Supreme Court nominee with – in the words of former NRA president Sandy Froman – “an extreme anti-gun philosophy” and record. Word about her record spread quickly among gun owners, generating calls to senators and leading gun rights groups. Despite some initial hesitation about jumping into the unchartered waters of judicial nominations, the groups listened to their members and began to speak out against Sotomayor’s confirmation.
Some criticize the NRA for joining the bandwagon late, but it deserves much of the credit for making gun rights the most prominent issue in the final month of the confirmation fight. Nearly every senator criticized, defended, or tried to counterbalance Sotomayor’s Second Amendment record in explaining their vote on confirmation.
The last time a controversial Democratic Supreme Court nominee came before the Senate, only 3 Republicans voted against Ruth Bader Ginsburg. The conventional wisdom was that Republicans might be able to muster 20 votes against Sotomayor. But in the end, 31 of 40 Republican senators voted nay, and the Second Amendment issue explains much of the increase over history and expectations. Similarly, predictions that several of the four GOP senators in the heavily Hispanic states of Texas and Arizona would vote for the first Hispanic Supreme Court nominee fell flat, largely because those states also have large gun-owning populations.
Across the aisle, Democratic senators from gun-heavy red and purple states waited until almost the last minute to announce their support for Sotomayor. Several of them would likely have voted nay had the NRA gotten involved earlier or “worked” the vote, or had the Democratic leadership failed to squeeze the vote in before those senators went home to gun country for August recess. In any case, if Sotomayor votes against gun rights while on the Supreme Court, the red and purple state Democrats who supported her will likely pay a price at the polls.
The political dynamics of nominating and confirming judges has been forever altered. Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate.
Abortion opponents have been the most influential part of the coalition opposing liberal judges and judicial activism. But the new, gun-owning gorilla in the room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side.
This summer, the Second Amendment community got its feet wet. Next time around, gun owners – from the NRA down to the grassroots – will be more focused on the importance of judicial nominations, more educated about the politics of the confirmation process, more sophisticated about influencing the outcome, quicker to the draw, and more aggressive. Even red and purple state Democratic senators will have to seriously consider voting against judicial nominees who appear less than sympathetic to the Second Amendment. And, should Heller or a victory in the Chicago case be imperiled by the retirement of one of the five center-right Justices, all bets are off.
In the end, the payoff for gun rights advocates may be found as much in the selection of judges as in the confirmation process. By all reports, the White House was unpleasantly surprised by how big an issue Sotomayor’s Second Amendment record turned out to be. Expect Obama and his Democratic successors to borrow a page from Republican presidents, who have shied away from nominating outspoken opponents of abortion for the past two decades.
In the war for the soul of the judiciary, the confirmation of Sonia Sotomayor will be narrowly viewed as a setback for conservatives. But viewed with an eye on future battles and interest group dynamics, her confirmation contest was an important turning point. It’s like 1917, when the teetering Allies gained a powerful new partner in the Great War. In time, it made all the difference in the world.
Curt Levey is Executive Director of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.
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