President-elect Donald Trump has said he will nominate a replacement for the late Antonin Scalia within two weeks of taking office. That nomination may come none too soon, as two major Second Amendment cases could be argued next fall.
The first case is Peruta v. California. This case centers around California’s “may issue” law – which has become a de facto “no issue” due to the “good cause” requirement. A Ninth Circuit panel tossed out the law, but when it was heard en banc, the three-judge panel was over-ruled. Former Solicitor General Paul Clement is arguing this case – and SCOTUS has a track record of saying yes when he asks them to hear a case.
The stakes on this case couldn’t get any higher. While most of the country is under a shall-issue or constitutional carry, there just is not much hope for advancing shall issue in places like California, New York, New Jersey, or Maryland legislatively. Worse, some shall-issue states, like Washington and Oregon, are being reliably won by gun-grabbers – and it is an open question as to how long they will remain shall-issue.
The second case, Binderup v. Lynch, comes from the Third Circuit. This case could greatly narrow some of the provisions of 18 USC 922(g)(1) – Unlawful Acts. In that case, the appeals court ruled that the law cannot apply to some non-violent crimes committed a long time ago.
This also matters for Second Amendment supporters. By narrowing the scope of 922(g)(1), this will chip away at the notion that an anti-Second Amendment Congress can just add new categories of prohibited persons. This is an important bulwark to set when you consider what is happening in California to gun rights.
Right now, the court is divided 4-4 on Second Amendment issues, albeit Anthony Kennedy is not the most reliable of votes. Worse, the Heller and McDonald decisions never specified what sort of scrutiny to place on restrictions on Second Amendment rights.
The confirmation of Trump’s nominee would grant a presumptive 5-4 margin that upholds the Heller decision. Then consider this: The oldest members of the Supreme Court are Ruth Bader Ginsburg, Kennedy, and Stephen Breyer. If Trump replaces them with strict constructionists over the next eight years, it becomes a 7-2 margin.
You can expect a major confirmation battle as a result. Schumer has already vowed to block President-elect Trump’s appointment, and when Harry Reid invoked the nuclear option, it did NOT kill the filibuster for the Supreme Court. So, we need 60 votes – and the GOP only has 52 Senators.
The good news is that in 2018, a lot of Democratic Senators will be running for re-election in states Donald Trump carried. They will have to choose between backing Chuck Schumer, who will essentially be defending gun control laws that the people of those states do not want to see in theirs, or they can go along, and anger the fundraisers and activists.
It’s going to be a bloody confirmation fight – and a bloody mid-term election.