Lyle Denniston, Constitution Daily’s Supreme Court correspondent, examines the future of a 2008 Supreme Court decision recognizing, for the first time, an individual right under the Second Amendment to have a gun for personal use.
THE STATEMENT AT ISSUE:
“The National Rifle Association released its latest ad in support of Donald Trump on Tuesday, claiming a vote for Hillary Clinton would leave the people defenseless. The NRA’s new commercial, which is part of a $5 million campaign, depicts a woman reacting to a break-in at her house. A narrator claims: ‘Hillary Clinton would take away her right to self-defense, and with Supreme Court Justices, Hillary can.’ ”
– Excerpt from an online story September 20 on AOL News.
WE CHECKED THE CONSTITUTION, AND…
Undoubtedly, it is very hard to gather the support necessary to propose and ratify an amendment to the United States Constitution, using the procedures spelled out in Article V. That has been done only 27 times, and 10 of those amendments (the Bill of Rights) were adopted all at once. The infrequency of that may be due either to the fact that the obstacles are so high, or it could be due to the Founders’ vision in having written an instrument that would be quite adaptable to changing times.
If the document is flexible in that way, one would assume the Supreme Court might be inclined to change its mind fairly often about its interpretation of what the basic document means. But, in 229 years, the court has only overruled one of its constitutional decisions 95 times. (Perhaps the most famous, at least to modern Americans, was the decision in 1954 in Brown v. Board of Education, overruling the 1896 decision in Plessy v. Fergusonand, thereby, ordering an end to racial segregation in the nation’s public schools.)
The Supreme Court has told the nation that it does not lightly overrule one of its decisions. In 1992, when it declined to overrule its abortion rights ruling (the 1973 decision in Roe v. Wade), the court said that it was not enough that the members of a current court believed that a prior ruling was wrong. The decision to overrule, it said, should be guided by prudence and pragmatism. It gave several examples of the influencing factors: whether the prior decision had become unworkable as a legal precedent; whether and how much the public has generally come to rely on the precedent; whether changes in legal principles have undermined the prior ruling; and whether there has been a change in the facts that bear on the constitutional question.
In this presidential election year, there is much debate in the political class about the future of gun rights in America – specifically, whether the Supreme Court will continue to follow its 2008 decision recognizing, for the first time, an individual right under the Second Amendment to have a gun for personal use, especially in defending one’s self in one’s own home.
When the court pronounced the existence of that right, and spelled out some of its dimensions, in the case of District of Columbia v. Heller, it did so by a 5-to-4 vote. Only four of the Justices who were in the majority then remain on the court now; Justice Antonin Scalia, the fifth, died in February.
Today, the court is split 4-to-4 along philosophical or ideological lines, with four more or less conservative Justices and four more or less liberal Justices. If a case were now to reach this court, with a plea to overrule that Second Amendment decision, what would be likely to happen?
Without a ninth Justice, the court might wind up splitting split 4-to-4 (assuming that it even would agree to hear such a plea). And, since no lower court has the authority to overrule a Supreme Court precedent, the lower court ruling at stake in such a case would have left the Second Amendment undisturbed, and the Justices’ 4-to-4 split would uphold that result. Thus, gun rights would remain as protected as they were before.
It is easy to see, then, why the NRA and gun rights advocates in general, would be nervous about who will be elected president with the opportunity to appoint a new ninth Justice, and thus probably hold sway over many major constitutional controversies, perhaps including the scope of the Second Amendment.
But the fact is that there is no certainty, even if a new Justice with strong liberal leanings were to join the court, that there would be an automatic majority to reconsider and overrule the 2008 decision establishing a quite broad right to have a gun.
Assume, for the sake of discussion, that the court would apply the factors that it listed in 1992 on whether to overrule that precedent. There is absolutely no indication that the current court thinks the 2008 precedent is unworkable. The court has left the lower courts entirely alone, in those intervening years, to work out the details of the right; repeatedly, it has refused to second-guess the lower courts’ results. And those results show that lower courts have been quite capable to allowing reasonable limitations on gun rights without destroying or even seriously compromise the basic right to have a gun.
Very likely, the Justices would perceive that a many Americans have come to rely on the 2008 precedent to protect their gun rights, and that would include many law-abiding folks who do not abuse those rights. Also, there has been no change in legal doctrine underlying the Second Amendment in the past eight years; the Second Amendment precedent stands largely on how the modern court interpreted past history, and that record has not changed.
The one factor that might be perceived differently would be the facts of gun violence. Would the court, looking at what has actually happened in America since 2008 in terms of violence traceable to guns, be inclined to perceive that the Second Amendment was the actual cause of the increase? That is too simplistic, it would seem, to be seen as a strongly influencing factor. If members of the court do sense that there is a need for government to do something about the abuse of gun rights, it is very likely that they would feel that change should come from Congress or the state legislatures.
Within the range of reasonable probability, the Second Amendment is probably on a quite solid constitutional foundation – whatever the next president may have in mind for it.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears onlyldenlawnews.com, where this story first appeared