The Second Amendment has suddenly been placed in jeopardy with the unexpected passing of Justice Antonin Scalia, a stalwart defender of the Constitution. Until just recently, throughout this nation’s history the Second Amendment had been largely overlooked by the Supreme Court.  In 2008, in a 5-4 decision, the Court held that the Second Amendment confers an individual right to keep and bear arms. In 2010, in another 5-4 decision, the Court held that the Second Amendment applies to the States. This means that the Court was twice just one vote away – Justice Scalia’s vote – from allowing government to ban private gun ownership. This is why the importance of Justice Scalia’s successor to the future of the right to keep and bear arms cannot be overstated. 

Arguably the most important majority opinion Justice Scalia authored during his nearly thirty years on the Court was D.C. v. Heller, 554 U.S. 570 (2008). In Heller, referenced above, the Court struck down a handgun ban that applied in the home and explicitly held for the first time that the Second Amendment codified a pre-existing individual right.   

In McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), also referenced above, the Supreme Court held that the Second Amendment is fully applicable to the States through the Fourteenth Amendment, and elucidated that the right to keep and bear arms is a fundamental right. But the Court subsequently lost its appetite for Second Amendment cases and has not revisited the issue since. 

Consequently, the federal circuit courts have largely borne the burden of further defining the scope of the Second Amendment. By now, nearly every circuit has adopted a two-part test for Second Amendment challenges, which first determines whether the challenged law burdens conduct falling within the scope of the right, and if so, then applies the appropriate form of heightened scrutiny to the challenged law. 

While the prospect of Heller’s reversal is a glaring cause for concern for rights advocates, a less conspicuous threat lies in the misapplication of the two-part test.   

The two-part test is generally a fair test for firearms regulations, but it is inappropriate for prohibitions of protected arms—which under Heller are categorically unconstitutional. Further, it is ripe for abuse. Not only have some courts applied the two-part test to prohibitions of Second Amendment arms, but some courts have made it virtually impossible for a law to require strict scrutiny at the second prong of the test, instead applying a toothless intermediate scrutiny that is nearly indistinguishable from rational basis review. In fact, some courts have upheld complete prohibitions of Second Amendment arms in the home under this weak form of intermediate scrutiny. 

It is plausible that an anti-gun, or even simply unmotivated, Supreme Court will sit idly by as lower courts continually chip away at the Second Amendment while improperly upholding challenged laws under this weak intermediate scrutiny. It is also plausible that an anti-gun Supreme Court will affirm one of these improper lower court decisions, approving a Second Amendment analysis that could ultimately limit the right to keep and bear arms as protection for nothing more than a handgun in the home. 

Permitting the gradual deterioration of the Second Amendment may be a more practical approach for an anti-gun Court, because Heller would be difficult (though certainly not impossible) to overturn. First and foremost, Heller was decided correctly. As the carefully drafted opinion demonstrates through its thorough analysis of the Second Amendment’s text and founding-era public meaning, it clearly secures the right to keep and bear arms for the defense of self, family, and home. Second, Heller’s reversal would require a brazen disregard for stare decisis (the legal principal that precedent decisions ought to be followed by future courts) and the fundamental individual right to keep and bear arms treasured by countless millions of Americans. This would not be an example of the Court being influenced by a shift in public opinion or reversing precedent that was decided incorrectly; for Heller to be reversed it would require a Court to act strictly and unabashedly on its own political beliefs.  Third, the reversal of Heller would call into question many hundreds of lower court decisions. Heller, predictably, spurred an onslaught of Second Amendment challenges across the country. Although much uncertainty remains, the Second Amendment is better defined today than at any point in history.  The undoing of that would result in a monumental waste of time, money, and judicial resources.   

The possibility of Heller’s reversal is a realistic concern, but it would be highly controversial, whereas the gradual and methodical erosion of the Second Amendment through the non-correction of lower court cases would go largely unnoticed. Therefore, for rights advocates, a Supreme Court nominee who simply acknowledges that Heller is settled law should not suffice. The only safe guarantee is a nominee with a proven record of respect for the Second Amendment.  

As the loss of Justice Scalia is mourned, it is critical for rights advocates to recognize the importance of carrying on his legacy of staunchly defending freedom and the Constitution, and to that end, how particularly vulnerable the Second Amendment presently is. This makes the impending battle over the selection of Justice Scalia’s successor all the more important for those who cherish their right to keep and bear arms.