A fifth liberal Justice could kill the individual right to bear arms.
May 24, 2016 7:22 p.m. ET
Donald Trump is famous for his flights of political exaggeration, but every so often he lands on the truth. Witness his claim to the National Rifle Association on Friday that “the Second Amendment is on the ballot in November” and that Hillary Clinton “wants to abolish the Second Amendment.”
This has offended Mrs. Clinton’s media bodyguards who claim she merely favors background checks and minor regulation. Mrs. Clinton took to Twitter to claim that Mr. Trump is “wrong,” and “We can uphold Second Amendment rights while preventing senseless gun violence.”
Let’s go to the audiotape. http://on.wsj.com/1OM0Ozz
If Mrs. Clinton “gets to appoint her judges, she will, as part of it, abolish the Second Amendment,” Mr. Trump told the NRA. He added that Mrs. Clinton had rebuked the Supreme Court for its 2008 decision in District of Columbia v. Heller establishing that the Second Amendment included an individual right to bear arms.
At a private fundraiser last year Mrs. Clinton did criticize the Supreme Court for being “wrong on the Second Amendment.” One of her policy advisers, Maya Harris, tried to muddy that position this weekend by telling Bloomberg Politics that Mrs. Clinton “believes Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe.”
But that is a fudge. Heller explicitly allowed that the “right secured by the Second Amendment is not unlimited.” Justice Antonin Scalia’s opinion did not sort through every possible regulation, but it did say that the individual right covers guns that are “in common use for lawful purposes.” And it overturned the District of Columbia’s handgun ban. By implication Heller would also disallow the Clinton Administration’s ban on semi-automatic rifles used for hunting. That ban has since expired, though Mrs. Clinton supports reinstating it.
The question Mrs. Clinton is ducking is whether she agrees with Heller’s ruling that individuals can bear arms. The political left has long held that such a right under the Second Amendment belongs only to a “well regulated Militia.”
This distinction matters because Mrs. Clinton knows that four liberal Justices dissented from Heller on precisely this point about an individual right. And apparently they still do. Justice Ruth Bader Ginsburg, one of the dissenters, told a luncheon of the Harvard Club in 2009 that their dissent was crafted with an eye to helping a “future, wiser court” overturn Heller.
Sonia Sotomayor replaced David Souter in 2009, but she joined the liberal bloc on guns. The Supreme Court has over the years applied the Bill of Rights to the states as relevant cases presented themselves. Once Heller established an individual right to bear arms, every Court precedent called for applying it to the states in McDonald v. Chicago in 2010. The vote should have been 9-0. Yet the four liberals still dissented in McDonald—confirming Justice Ginsburg’s Harvard boast that they are waiting to overturn Heller.
Justice Elena Kagan (who replaced John Paul Stevens) hasn’t had a chance to rule on the individual right to bear arms, but don’t expect her to be different. If Mrs. Clinton selects Antonin Scalia’s replacement, she knows the Court’s liberals will get their opportunity to overturn Heller. The Second Amendment really is on the ballot this November.
Tags: 2nd Amendment, clinton, trump