IDEASTREAM.ORG September 28, 2020 – 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. [full article]